MVP LAW GROUP – Immigration Q&A Forum, Friday, June 22, 2012

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Question #1 – H-1B Nonimmigrant Visa
My son is on opt and it is expiring on august. Meanwhile his employer has filed H1B visa on April 9th all his colleagues have received acceptance. My son’s status is still in initial review. Should I panic that there will be a denial. How long should I wait?

Answer #1
The delay in obtaining a decision is most likely based upon whether your son’s H-1B was filed under regular processing or premium processing. It may be that his colleagues’ H-1B cases were filed with premium processing, which provides a decision within 15 calendar days of receipt of the filing. Currently regular processing is taking 3-4 months from the date of receipt.

Question #2 – Employment Based Immigration
When will employment based visas in 2nd preference for India be available again?

Answer #2
According to the Visa Bulletin, numbers will be available for China and India Employment Based Second Preference cases beginning October 1, 2012 under the FY2013 numerical limitations. Every effort will be made to return the China and India EB2 cut-off date to the May 1, 2010 date which had been reached in April 2012. It is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before Spring 2013.

Question #3 – H-1B Nonimmigrant Visa
I need to file my H-1b as soon as possible, but I am scheduled to leave the country early next week. If I file and leave, will there be any complications? Please advise.

Answer #3
Pursuant to regulation 8 C.F.R. 214.2(h)(15)(i), a person must be in the U.S. when an extension is filed, but may travel abroad while an extension is pending. If the beneficiary is required to travel while the extension is pending, the approval can be sent via cable (or through the PIMS system) to the appropriate consular post upon the Petitioner’s request. We recommend that if you have a pending extension with the USCIS, you do not travel outside of the U.S. unless it is an emergency.

Question #4 – Employment Based Immigration
Can I obtain EAD and AP immediately upon filing my I-485 with the INS?

Answer #4
No, these ancillary benefits are not granted immediately upon submission of the I-485 petition. Current processing times indicate a processing period of 2-3 months before issuance of the EAD and AP benefits.

Question #5 – General
Under this new DREAMERS legislation, if a person has an illness and has been in the country seeking treatment for that illness, are they eligible to stay and get the work permit?

Answer #5
It seems that you have received incorrect information concerning the announcement made on Friday regarding deferred action for undocumented youth. The Department of Homeland Security (DHS) will grant deferred action for undocumented youth that meet strict eligibility requirements.

First things first, to be eligible for deferred action the applicant must:
• Have arrived in the U.S. when they were under the age of sixteen
• Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012
•Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces (*Note: Friday’s email mistakenly identified those currently serving in the military as eligible, only those honorably discharged are eligible)
• Not have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety
• Have been under thirty-one years old on June 15, 2012
DREAMers should not apply affirmatively for deferred action at this time.

Question #6 – Employment Based Immigration
My AP expires today and since i just came back from the Phillipines, i don’t see any travel need for quite some time now hence i am not applying for extension of AP. Is that OK? Or do we need to always apply for a new one before the current one expires. I think we can always apply only on needs basis and do it at a later stage. Will that be fine?

Answer #6
You do not need to apply for the AP prior to the expiration of the current AP. You can always apply at a later date.

Question #7 –H-1B Nonimmigrant Visa
My date of birth and country of citizenship was incorrectly listed on the I-797 received by USCIS. My I-129 form had it correct. So my I-797 is not right, what do I need to do now?

Answer #7
Contact the USCIS National Customer Service number (1-800-375-5283) and speak with an Agent to request that the mistakes be corrected, so that your I-129 Approval notice (Form I-797) will provide the correct date of birth and country of citizenship.

Question #8 – Employment Based Immigration
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007 when priority dates were current. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #8
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL.

Question #9 – H-1B Nonimmigrant Work Visa
Are there any H1Bs left under either CAP?

Answer #9
As of June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. As of June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will continue to reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.

Question #10 –H-1B Nonimmigrant Visa
Used first three years of H-1B, filed extension. Will I have to stop working while I wait for my H-1B extension approval? I think I waited too long to apply for the extension. My current H-1B expires at end of July. What is going to happen if I do not receive the approval prior to expiration of my current H-1B?

Answer #10
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, July 6, 2012!

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