MVP LAW GROUP – Immigration Q&A Forum, Friday, January 6, 2012

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 – H-1B Nonimmigrant Work Visa
Any H-1B visas left under quota for this year?

Answer #1
The H-1B FY2012 Quota was reached on November 22, 2011, accordingly, you will have to wait until April 1, 2012 to submit an H-1B CAP petition for employment beginning October 1, 2012.

Question #2 – J-1 Visa
My niece has a J1 visa and some things have occurred and now the sponsor wants to cancel her visa. My question is what is the time period that she has to leave the country without incurring any unlawful presence?

Answer #2
Considering the circumstances, if your niece’s visa was cancelled, she should make arrangements to leave immediately. If your niece’s visa has expired, which is different, she should make arrangements to leave within 30 days of the expiration of her J1 visa, this time period is called a ‘grace period.’

Question #3 – Travel
We just applied for my wife’s green card (she just became my wife here in U.S.). Can she travel back home to visit family while the I-485 is pending?

Answer #3
If you included Form I-131 in your Adjustment of Status petition for your wife, then once Form I-131 is approved, she should be able to travel back home to visit her family while her I-485 remains pending.

Question #4 – Unlawful Presence in USA
I cannot remember the specifics regarding unlawful presence towards the 3yr and 10yr bars, can you provide those time periods?

Answer #4
If an applicant remains in the US unlawfully (without authorization) for more than 180 days, they may be subject to the 3 year bar. If an applicant remains in the US unlawfully (without authorization) for more than 360 days (1 year), they may be subject to the 10 year bar.

Question #5 – 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 a little less than a year; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward immediately.

Answer #5
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 before you can petition again for an H-1B nonimmigrant visa. Additionally, once you are eligible, you will have to wait until April 1, 2012 in order to submit your new H-1B visa petition under the FY2013 CAP with employment beginning October 1, 2012.

Question #6 – Marriage Based Immigration – Conditional Permanent Resident
Please let me know the procedure for removing conditions based on marriage to a U.S. citizen. When can I file? I am married to a U.S. Citizen and my conditional green card is set to expire in May 2012.

Answer #6
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

Question #7 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year. When is the earliest that I can file my renewal petitions?

Answer #7
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2012, the earliest you can file is on or after June 19, 2012.

According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS could issue an RFE requesting your current AP document before issuing a new AP document.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our IT employees is going on vacation from 03/2012 – 04/2012 and we are getting his h1b ext. in June and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #8
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa’s expiration. Therefore, if his current H-1B expires on 6/2012, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.

Question #9 – Employment Based Immigration – Green Card
They accepted our petition to remove the conditions on my conditional residence. I just received my GC and my name is spelled wrong on the card. How do I fix this?

Answer #9
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 #10 – Employment Based Immigration – Green Card: Biometrics
The fingerprints that I gave the USCIS are set to expire soon. Should I make an Info Pass appointment at my local USCIS office to give them a new set of fingerprints?

Answer #10
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.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 20, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.