MVP LAW GROUP – Immigration Q&A Forum, Friday, June 24th, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas remain under the CAP?

Answer #1
As of June 17th, 2011, there were approximately 48,700 H-1B Regular CAP subject nonimmigrant visas remaining and 9,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our https://www.h1bvisalawyerblog.com.

Question #2 – Employment Based Immigration – Green Card
My priority date is current as of the July 2011 visa bulletin. I heard we could call and provide details of our case so that based on first come first call they would process and issue the GC.

Answer #2
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
A couple of our employees are nearing their 6th year on H-1B visa status, and they have approved I-140s in the EB2 category filed by different companies. Can we use those approved I-140s to get three year extensions with our company?

Answer #3
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How long can we continue to request three year extensions based on an approved I-140 when the applicant has exhausted his time on H-1B status?

Answer #4
You will be able to continue to request extensions up to a three year period until a visa number becomes available for the applicant pursuant to AC21 law.

Question #5 – Employment Based Immigration – Green Card
Last time I gave fingerprints was when I filed I-485 back in 2007. The fingerprints that the USCIS have on file may have expired. Should I take an appointment to give them a new set of fingerprints?

Answer #5
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.

Question #6 – Employment Based Immigration – Green Card
My daughter received her green card and her birthdate is incorrect on the card. How can I fix this?

Answer #6
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back to my community and was wondering being on H1-B, would I be able to hold a part-time teaching position at a university, if given the opportunity?

Answer #7
You would be able to hold a part-time teaching position at a university; however, the University must be willing to sponsor your H-1B visa. The University would have to go thru the normal process of preparing and filing the necessary forms and paying the necessary USCIS filing fees, if applicable, as well as paying all legal fees involved.

Question #8 – Temporary Work Visas
What is the grace period on an O-1 extension? I reside in New York, my current O1 visa expires on 7/25/2011 and I’ve filed for an extension on 4/17/2011. I have received a receipt notice.

Answer #8
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months. My case has been pending for four months already. Can you tell me why it is taking so long?

Answer #9
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Also, due to the FY2011 H-1B CAP still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, I just want you to be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #10 – Employment Based Immigration – Green Card
Regarding changing jobs, is there a recommended wait time after the green card that I can change employers. On the EAD there was a 6mth after which I could do this, but was wondering after the GC if there is any such thing. Appreciate your answer.

Answer #10
Although the regulations are silent on this issue, we recommend that you wait at least six (6) months before changing your employer to avoid issues if you intend on applying for citizenship when you become eligible.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, July 8th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.