MVP LAW GROUP – Immigration Q&A Forum, Friday, October 14, 2011

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Question #1 – General
I was able to file I-485 applications for myself and my wife in July and since then we have received the combined EAD/AP card. Can my wife now apply for a SSN? My health insurance coverage is requesting that she obtain a SSN.

Answer #1
Yes, your wife can now apply for a Social Security Number. She will need to take her valid Employment Authorization Document (EAD), her passport, birth certificate and the completed application to the local Social Security Administration office to apply.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under H1B CAP? MASTER’S CAP?

Answer #2
As of October 7, 2011, there were approximately 24,000 H-1B Regular CAP subject nonimmigrant visas remaining and 900 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 #3 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations? Please provide an update.

Answer #3
As of October 14, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in late July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 30, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in early July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 15, 2011 – DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 – Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 – The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: 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.

Question #4 – Employment Based – Green Card
I would like to ask – i have a pending eb3 application with priority date on May 2007 but a new employment visa is offered to me – h1b. Can i be approved with the said visa even if i have pending eb3 application? Thank you.

Answer #4
It depends. You have not provided enough information to provide a solid answer to your question. The temporary H-1B nonimmigrant visa is a different process than the Employment Based Green Card process. I would recommend that you contact an experienced Immigration Attorney to discuss your eligibility. Please feel free to contact our office to schedule a consultation.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
We received approval from USCIS for H-1B for our new employee. Our new employee scheduled consulate interview and was denied visa, how is this possible?

Answer #5
Form I-797 indicates that the approval is not a visa, only the U.S. Consulates have the authority to grant or deny a nonimmigrant visa. If an individual has an H1B petition approved by USCIS that does not mean that the U.S. Consular Officer will automatically issue the H1B visa. The Consular Officer may ask a serious of questions and if they believe that the information obtained during the questioning was not information available at the time of the USCIS’s approval of the petition, they will likely issue a denial and provide a written explanation as to why the visa was denied.

Question #6 – Family Based Immigration – Green Card
My wife arrived in the U.S. about three (3) weeks back. She went through Consular Processing and received temporary LPR stamp valid for one year. When should we be receiving her physical Green Card? Do we need to go to Airport again for issuance or will the USCIS send the Green Card to her?

Answer #6
The USCIS should send/mail the Green Card to the address they have listed. If you have not received the Green Card within 60 days from her arrival, contact the USCIS National Customer Service Center (NCSC) at 1-800-375-5283.

Question #7 – Diversity Lottery (DV)
Can I apply for DV now?

Answer #7
Yes, applications for the DV 2013 random lottery are being accepted electronically until Saturday, November 5, 2011.

Question #8 – Temporary Work Visas – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months to process H1B. So I am not sure why I have not received decision yet, my case was filed in June. Can you tell me why it is taking so long?

Answer #8
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 FY2012 H-1B CAPS 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, you should be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #9 – Family Based Immigration – Green Card
What happens if my wife and I do not file to remove the conditions on her permanent residency?

Answer #9
If you do not apply to remove the conditions near the expiration of her two-year conditional period then the permanent residency automatically expires and she is subject to deportation and removal. To avoid this, within 90 days of the expiration of the conditional period, she must file Form I-751, Petition to Remove Conditions on Residence.

Question #10 – Marriage Based Immigration –Green Card
My spouse and I have been called for Stokes interview. What exactly is a “Stokes” interview?

Answer #10
A “Stokes” interview is the last opportunity the USCIS provides for you and your spouse to prove the bona fides of your marriage. If the USCIS does not think that your marriage is legitimate, they will schedule a “Stokes” interview. The husband and wife are separately questioned by a USCIS Officer regarding their relationship history, daily interactions, relationship in general, and presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 28th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.