MVP LAW GROUP – Immigration Q&A Forum, Friday, July 8th, 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
My company is considering merging with another company, if we do merge, will we need to file amended petitions for each nonimmigrant worker to remain in compliance? I will still remain head of the organization, and the workers will remain in their respective positions and nothing else will change except for the name of the company. Please advise.

Answer #1
Under the Visa Waiver Permanent Act of October 2000, a person is no longer required to file an H1B amendment after a merger, consolidation or other corporate restructuring in many cases if the new job is identical to the prior job before the merger, etc. We would recommend the applicant carry a letter explaining the merger for travel purposes.

Question #2 – Naturalization/Citizenship
What are the eligibility requirements to apply for naturalization?

Answer #2
The general requirements for administrative naturalization include: a period of continuous residence and physical presence in the United States (if LPR – period of 5 years; if LPR spouse of U.S. Citizen – period of 3 years); an ability to read, write and speak English; a knowledge and understanding of U.S. history and government; Good moral character; attachment to the principles of the U.S. Constitution; and favorable disposition toward the United States.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
If one has an approved I-140 can employer still have the discretion not to renew one’s H1B? Or are they bound by law to petition working visas until one gets the green card?

Answer #3
The employer has the ultimate discretion not to renew/extend an applicant’s H-1B. If the employer no longer wishes to employ the applicant, has decided to terminate the applicant, he may do so; however, if the beneficiary is terminated or otherwise released early, the employer is responsible for paying the associated transportation costs for the beneficiary’s return to his home country.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #4
As of July 1, 2011, there were approximately 46,600 H-1B Regular CAP subject nonimmigrant visas remaining and 8,100 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 #5 – Employment Based Immigration – Green Card
I got my I-140 petition approved. Next step is to apply for AOS. What kind of document I need to have for AOS application?

Answer #5
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you may be able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, specifically, a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.

Question #6 – Employment Based Immigration – Green Card
I have a question about the work. Can I directly work for my own company now because my I-485 is approved and waiting for getting the Green card? (The card already produced and mailed).

Answer #6
Although the regulations are silent on the issue, our office recommends that you remain with the company that sponsored your Green Card for at least 6 months before moving to a new company or beginning to work for your own. We recommend this frame for applicants interested in applying for Citizenship down the line, as to avoid any unnecessary questions concerning your intent and previous employment.

Question #7 – Employment Based Immigration – Green Card
I have a US green card, but I came to India without filling re-entry permit form as due to recession time not getting jobs even in three months, can I fill from it on India?

Answer #7
If you have a US Green Card, you do not have the have a re-entry permit (the green card itself is your authorization to be in the US), you have the status of a Lawful Permanent Resident and may enter and exit the country based on your U.S. Green Card. Re-entry documents are requested by applicants when their Adjustment petitions (I-485) are pending with the USCIS. Therefore, once you obtain a U.S. Green Card, you are allowed to travel inside and outside the U.S. without having a re-entry permit (Advance Parole document).

Question #8 – Employment Based Immigration – Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain for me what “priority date becoming current” means? I filed in EB2 category from China.

Answer #8
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you were filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.

Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next May 2011 as I am currently in my 6th year. Can we apply for H1 extensions based on my pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #9
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 appeal at the Administration Appeals Office (AAO).

Question #10 – General
How and when do I obtain a Social Security Card?

Answer #10
Generally, you may obtain a Social Security Card once you are legally authorized to work in the United States. Such authorization may be evidenced by receipt of an employment authorization card, an Alien Registration Card (Green Card), or receipt of temporary evidence of Green Card status (as established by presentation of an I-551 stamp in your passport). You will need to file an application for a Social Security Number in person at the Social Security Office. When filing this application at the Social Security Office, you should bring the following documents with you: your original birth certificate, passport, and employment authorization document, stamped passport or Green Card. Call 1-800-772-1213 for further information including the address of your local Social Security office, or visit their website at www.ssa.gov.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, July22nd, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.