MVP LAW GROUP – Immigration Q&A Forum, Friday, September 28, 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. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

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

Answer #1
Yes, your wife can 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 – Green Card
If my I-485 was denied while I was working on EAD, can I still apply for an H-4 since my wife still has a valid H-1?

Answer #2
You may apply for an H4 as a dependent of your wife; however, you are not able to work while maintaining H4 dependent status.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is “Cap-Gap”?

Answer #3
As provided by the USCIS website, Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Question #4 – General
I am reading in the online forums and am reading things mentioned as PIMS? and CLAIMS? Can you tell me what they are?

Answer #4
PIMS stands for Petition Information Management System which is an electronic report generated by the Department of State’s (DOS) Kentucky Consular Center (KCC) that collects nonimmigrant visa petition approval information from the USCIS.

CLAIMS stands for Computer Linked Application Information Management System. CLAIMS provides USCIS employees with automated support for adjudicating cases and processing various notices, among other things. CLAIMS capabilities include case tracking, status update, notice reporting, and document production.

Question #5 –Temporary Work Visa – H1-B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back to my community and was wondering being on H1-B, would I be able to hold a part-time teaching position at a university, if given the opportunity?

Answer #5
You would be able to hold a part-time 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 #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have heard from friends and by reading the forums that the Consulates are very strict and ask for original I-797 approval notice but my employer is not willing to give me the original, they only provide me with bottom portion of original. Can I request USCIS to give me another original to take to Consulate? Is there anything I can do, I do not want rejected based on me not having original I-797 approval?

Answer #6
You do not need the entire original I-797 approval notice to schedule/attend a Consulate interview. Consular Officers are able to verify all approved petitions through the PIMS or CLAIMS system, and therefore the I-797 original notice is not required in order to verify that the petition has been approved. Additionally, the original I-797 notice clearly provides that the bottom portion may be torn off and provided to the applicant to be used for purposes of applying for a visa at a Consulate abroad.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months. My case has been pending for four months already. Can you tell me why it is taking so long?

Answer #7
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. Reports indicate that nearly 17,000 H-1B CAP-subject cases remain un-adjudicated. Additionally, with the recent enactment of DACA, remaining resources of the USCIS are being used to actively process those cases as well. There are many factors that contribute to the processing times for the H-1B nonimmigrant visa.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
We received approval from USCIS for an H-1B for our new employee. Our new employee scheduled a consulate interview and was denied the visa, how is this possible?

Answer #8
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 #9 – Employment Based Immigration – Green Card
Can you premium process or otherwise speed up the Green Card process?

Answer #9
You may only premium process the I-140 Immigrant Petition, which is the petition that is filed with the USCIS after the labor application is certified by the Department of Labor (DOL). You cannot speed up the process of labor certification with the DOL, nor the process of adjudicating the Adjustment of Status petition with the USCIS.

Question #10 – Temporary Work Visas
What is the grace period on an O-1 extension? I reside in New York City, NY, USA, my current O1 visa expires on 10/25/2012 and I’ve filed for an extension on 8/17/2012. I have received a receipt notice.

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, October 12, 2012!

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