MVP LAW GROUP – Immigration Q&A Forum, Friday, May 11, 2012

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Question #1 – Green Card
How long can you live outside the United States and still keep your green card valid?

Answer #1
One should be able to use one’s green card to return from trips abroad of up to one year. However, anytime a green card holder leaves the U.S., he or she is subject to being accused by the Customs and Border Patrol (CBP) of having abandoned the intention of living in the U.S., and is subject to having the green card taken away–on the spot. Staying longer than one year may also affect the naturalization process if and when you attempt to apply.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back and was wondering being on H1-B, would I be able to hold a part-time/adjunct teaching position at a university, if given the opportunity?

Answer #2
You would be able to hold a part-time/adjunct 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 #3 – Employment Authorization/Travel Document
How soon can I renew my EAD and Advance Parole (AP)?

Answer #3
You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document

Question #4 – H-1B Nonimmigrant Work Visa
I am on OPT, I am working and I have an offer for a job. Are there any H-1B visas left under the CAP?

Answer #4
As of May 4, 2012, there were approximately 32,500 H-1B Regular CAP subject nonimmigrant visas filed and 13,700 H-1B Masters Exemption nonimmigrant visas filed. 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Question #5 – Employment Authorization/Travel Document
My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?

Answer #5
You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question #6 – General
If my case was issued an RFE, what does that mean? Does it automatically mean that my case will be denied? What chance do I have of getting my visa granted if an RFE was issued?

Answer #6
A Request for Evidence (RFE) is issued when additional evidence is required, as the adjudicator believes that it cannot make a decision based on the initial evidence/documentation provided. A USCIS adjudicating officer could issue an RFE pertaining to the alien applicant’s eligibility, the Petitioner’s financials, the legitimacy of the Petitioner’s company, etc. Many cases do receive RFE’s, and after submission of additional legal arguments, explanations, and evidence, the cases are often approved. Receiving an RFE on a submitted case does not automatically mean that the case will be denied.

Question #7 – Marriage Based Immigration –Green Card
What is a “Stokes” interview? I heard a co-worker talking about it and I have a cousin who is being sponsored by her husband for family based green card and would like to know what it is so I can tell them?

Answer #7
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, presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.

Question #8 – Employment Authorization/Travel Document
My H-1B is expiring, should I extend H-1B or be on EAD?

Answer #8
You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question #9 – Employment Based Immigration – Green Card
I appealed my denied my labor application to BALCA. My employer just got notice that my appeal has been docketed. When can I expect a decision?

Answer #9
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.

Question #10 – H-1B Nonimmigrant Work Visa
If I am on an H-1B visa, do my wife and children automatically receive H-4 status or do they have to apply for it?

Answer #10
No, they would have to apply for the H4 visa status. If the beneficiary’s spouse/children are in the United States on another status other than H status, e.g. student status, an application to change their status to an H status should be filed. If the beneficiary or the beneficiary’s spouse/children are outside the United States and the beneficiary wishes to apply for a derivative visa (referred to as an H4 visa) abroad, and the H4 visa application can be made and is available on walk-in basis at the U.S. Consulate abroad along with or after the grant of the H1B approval, no other processing is required for an H4 visa abroad. Contact the consulate abroad or an Information Officer at the United States Department of State Visa Office at 202.663.1225 for the procedures or documents that may be required.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 25, 2012!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!