MVP LAW GROUP – Immigration Q&A Forum, Friday, March 18, 2011

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Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
As an employer, how do I qualify to file an exempt H-1B nonimmigrant petition with the USCIS?

Answer #1
There are three categories that are exempt from the annual cap, those categories are the following:
1. The Petitioner is an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a);
2. The Petitioner is a nonprofit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a);
3. The Petitioner is a nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Question #2 – Employment Based Immigration – Green Card
I am currently in the process of filing my I-140 and I-485 concurrently, I was wondering if I could also apply for an Employment Document (EAD) and Advance Parole at the same time?

Answer #2
Yes, you may apply for an Employment Document (EAD), Form I-765 at the time of filing the I-485, Adjustment of Status Application or at a later date. You may also apply for Advance Parole (AP), Form I-131 at the time of filing the I-485 application or at a later date. If you are unsure and do not wish to apply for the EAD or AP at the time of filing the I-485 Application, as long as you have the I-485 receipt notice, you may apply for EAD and/or AP at any time thereafter.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
What types of questions are asked during the H1-B visa application interview process?

Answer #3
There are several types of questions asked during the H-1B visa interview. During the interview the Immigration Officer is free to ask any questions regarding the applicant’s educational background, experience, the sponsoring employer, and any information contained in the submitted H-1B petition.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can more than one (1) employer file a temporary (part-time) H1B visa application on my behalf at the same time? For a part time H1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #4
Simply put, yes more than one employer can file a temporary part-time H-1B visa application for you during the same time period, as long as a certified LCA covering the jurisdiction of employment is obtained and the I-129 petition and additional supporting documentation reflects this part-time period. 40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I know one of the requirements for the H1-B visa is at least a bachelor’s degree, but what is the foreign equivalency of U.S. bachelor’s degree?

Answer #5
The foreign equivalency of a U.S. Bachelor’s degree is any foreign degree that is equal to at least 120 credit hours from an accredited U.S. academic institution.

Question #6 – Employment Based Immigration – Green Card
My priority date is current. How long do I have to wait, we’ve already waited 5+ years for our green cards. Do you suggest I call USCIS and make a service request to make sure they have everything and to speed up the issuance of my card?

Answer #6
Normally when priority dates become current according to the Visa Bulletin, it takes anywhere from 30-90 days to complete the processing of the I-485 before issuing the Green Card to the primary applicant and his/her derivatives, unless issues arise during the process. You may check on the status of your case by calling the USCIS at 1-800-375-5283 every thirty days, but no sooner than that.

Question #7 – Temporary Work Visa – E-1 Treaty Trader
How long can I stay in the US on an E-1 visa and can I apply for an extension?

Answer #7
E-1 Visa holders are generally admitted for a period of 2 years and extensions can be obtained.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have exhausted my 6 years on H-1B visa and returned to my home country. I have been here for 180 days; can I now apply for a new H-1B visa under the cap opening on April 1, 2011 to return to U.S.? Please let me know so we can move forward immediately.

Answer #8
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year – 365 days, before you can petition again for an H-1B nonimmigrant visa. Therefore, under the facts you have presented, you must wait another 185 days before you are eligible to petition for a new H-1B nonimmigrant visa.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My OPT is expiring soon and my H1B application was denied because a connection couldn’t be made between my major and my work. If, in the future I want to return to the US on H1B, is that possible or will the problem with my major still prevent me? Do I need to get an MBA to solve this?

Answer #9
It is possible, as long as there is a correlation between the degree you earned and the work that you do for the employer. The position must require at least a Bachelor’s degree in a specific field, or may list several fields and you must possess at least a Bachelor’s degree in that specific field or a related field. It is possible; I would not dismiss the opportunity. On another note, if you would like to pursue your MBA, you should.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
My OPT Extension Period ends on July 15, 2011 also my student visa expires on the same day. Do I have to apply for H1 this year or can I apply next year?

Answer #10
If your employer wishes to continue your employment, they should file an H-1B petition on your behalf under the FY2012 Cap which opens on April 1, 2011. Employment does not begin until October 1, 2011; if however, the CAP is reached this year on April 1, 2011 or within a few days thereafter, you will not be able to petition again until next year and will begin to accrue unlawful status unless you transfer to another nonimmigrant visa status or return to your home country once your OPT expires. Therefore, filing for an H-1B visa this year in April would be the best situation for you.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, April 1st, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.