MVP LAW GROUP – Immigration Q&A Forum, Friday, August 19th, 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 H-1B nonimmigrant visas remain under the CAP for FY2012 beginning October 1, 2011?

Answer #1
As of August 12, 2011, there were approximately 39,700 H-1B Regular CAP subject nonimmigrant visas remaining and 5,300 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 – Family Based Immigration – Green Card
My wife and I, USC, are from El Salvador and we are going for vacation this weekend for a few weeks back to El Salvador. We have an adult child who still lives in El Salvador with his wife and children – we are interested in bringing him over here to the United States. Can you let us know what time period we would be looking at for bringing him over here as a Permanent Resident?

Answer #2
According to the September Visa Bulletin which is effective beginning September 1, 2011, the Family Based third preference category (F3) for all chargeability areas except China, India, Mexico and the Philippines, is backlogged, this means, that you must wait until a visa becomes available, until the priority date becomes current. Individuals in that preference category with priority dates of August 22, 2001 and earlier are being serviced. Accordingly, you would be looking at a time period of approximately 10+ years, if not longer, as it all depends upon 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 #3 – General
I work for a company in San Bernardino, CA, a pharmaceutical company. They have expressed an interest in sponsoring my green card. I have a few friends in Maryland who used your firm for other immigration services and I wanted to know if I could use your firm also to process my green card? With me in California and your firm in Maryland, is it legal, can we do this?

Answer #3
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals.. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #4 – Employment Based Immigration – Green Card
Can a company sponsor my GC as an United Arab Emirates born individual in parallel to H1? (I was born in UAE and I have searched that GC processing depends on your birth country and my GC will be approved in just 6 months).

Answer #4
Based on the general information you have provided, a company is be able to initiate your Employment Based green card filing at the same time as the H-1B filing. Additionally, the priority date for citizens from the UAE in the EB2 preference category is current; however, the priority date for citizens from the UAE in the EB3 preference category is backlogged to November 22, 2005. Accordingly, if you are eligible to file in the EB2 preference category, you should be able to file the I-140 and I-485 petitions concurrently and should receive your GC according to the processing times listed on the USCIS website.

Question #5 – Temporary Work Visa – H2B Nonimmigrant Visa
How many H-2B nonimmigrant visas remain under the 2nd half of FY2011? Under the 1st half of FY2012?

Answer #5
As of 8/12/11, USCIS receipted 30,810 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year (FY) 2011 (April 1 – September 30). This count includes 29,736 approved and 1,074 pending petitions.

As of 08/12/11, USCIS receipted 3,260 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012, (October 1 – March 31). This count includes 2,516 approved petitions and 744 pending petitions.

Question #6 – Dependent H4 Nonimmigrant Visa
Will my spouse automatically be shifted from F2 to H4 once I receive my approved H1B or do I need to process her case separately?

Answer #6
In this situation, your spouse’s status will not automatically be converted to H4 status, she must file a Form I-539 (Application to Extend/Change Nonimmigrant Status), along with your I-129 visa petition requesting a change of status from F2 to H4. Her case will not need to be processed separately; it can be prepared and filed along with your H-1B visa petition. If you have already filed your H-1B petition, you will have to file her I-539 (H4) petition separately.

Question #7 – Employment Based Immigration – Green Card
It seems like it’s taking a lot longer to conduct recruitment prior to filing the Labor application, what’s the issue?

Answer #7
There are two known reasons for the delay:

(1) As of January 1, 2010 the Department of Labor (DOL) federalized the process for obtaining Prevailing wage requests, which is the first step in the Labor process before recruitment can be conducted. We normally could obtain a prevailing wage request directly from the specific state workforce agency within a few days to a week. In addition to federalizing the process, the DOL made the process for obtaining the prevailing wages by electronic means as well as by requesting a prevailing wage through the U.S .mail. After the centralization of this process, it takes approximately 45-60 days to obtain a prevailing wage determination from the DOL. The determinations are issued on a first come, first serve basis.

(2) Currently, the OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.

Question #8 – Family Based Immigration: Marriage – K1 Fiancé Visa
My son is a U.S. Citizen and is engaged to marry his British fiancé. Both have known one another for over nine years and have been engaged for six months. Can my son sponsor his fiancé? What needs to be done?

Answer #8
U.S. Citizens who are engaged to be married to a foreign national may petition the USCIS on behalf of their fiancé by way of the K-1 visa. To be eligible for this visa: (1) you must be legally able to marry; (2) the marriage must be a bona fide marriage with good intent; (3) you must be willing to marry within 90 days of the fiancé entering the United States; and (4) you must have met within two years of filing for the visa. Your son should first file a Petition for Alien Fiancé (Form I-130) with the USCIS. Once the petition is approved, the USCIS will forward the approved petition to the appropriate consulate to interview the applicant. Once the applicant attends the consular interview and is approved for the visa, she may travel to the United States to marry your son. A petition for K-1 status is valid for four months from the date of USCIS action, and may only be revalidated by the consular officer.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
This is my first time filing for H1B; I just graduated from U.S. University few months ago. My approval notice states that the Consulate has been notified and that I need to appear there to obtain H-1B visa. I thought the approval notice I received was the H-1B visa. What to do?

Answer #9
Before you can commence work with your petitioning employer, an I-9 (Employment Eligibility Verification Form) will need to be prepared and an I-9 requires evidence of a valid and current I-94 (Arrival and Departure Record). If an I-94 has NOT been issued with your approval notice, you must obtain a valid and current I-94. Since you are already in the United States you will need to go back to your home country and obtain an H4 visa and I-94. Or as noted in the Approval Notice, you can file a new H4 petition to seek to change or extend your status based on this petition, if a request was not made or was made and you believe it was improperly or incorrectly denied.

Question #10 – Employment Based Immigration – Green Card
I know there are quite a few GC cases pending and USCIS can only work on cases up to available VISA numbers and once the numbers are consumed, then it could go back with the next VISA bulletin. I think we can call the USCIS and provide details of our case so that based on first come first call; they would process and issue the GC faster.

Answer #10
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. However, your attorney may contact the USCIS via email on your behalf if your I-485 application was filed through the Texas Service Center (TSC). The attorney may send an email to a specific email address to inform the Service Center that their client’s priority date is current. The “streamline” process was created to provide a mechanism for American Immigration Lawyer Association (AILA) members to facilitate TSC processes relating to the identification of EB I-485 applications.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 2nd, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.