MVP LAW GROUP – Immigration Q&A Forum, Friday, October 26, 2012

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Question #1 – Nonimmigrant Visa
Can I travel on my current nonimmigrant visa or do I need to get advance parole?

Answer #1
If you have a valid nonimmigrant visa stamp in your passport and copies of your approval notice and a copy of the petition, you should be able to travel on your nonimmigrant visa. Advance Parole is a separate creature that you may apply for once you are able to file an I-485 petition for either a family based or employment based green card. The Advance Parole document allows you to travel outside the country while your I-485 application is pending.

The nonimmigrant visa and advance parole are two separate and distinct items, you may have both if you are applying for adjustment, but if you only have a valid nonimmigrant visa stamp in your passport, you should be able to travel.

Question #2 – Green Card
How long can you live outside the United States and still keep your green card valid?

Answer #2
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 #3 – 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 #3
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 #4 – Nonimmigrant Visa
What is the TN Visa and how can I qualify for it?

Answer #4
The TN Visa is a product of NAFTA, the North American Free Trade Agreement. Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. under the nonimmigrant TN status. The TN Visa enables Canadian and Mexican citizens to temporarily work in the U.S. in a NAFTA-approved professional occupation.

Question #5 – Employment Based Immigration – Green Card
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #5
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #6 – Employment Based Immigration – Green Card
After my priority date becomes current, when is my spouse able to get a working permit?

Answer #6
You will file the I-485 application along with the I-765 application and I-131, Advance Parole application if requested. Your spouse will be able to get a working permit once the I-765, Employment Authorization application is approved with the USCIS. Once approved, your spouse will receive an EAD card and will be able to begin working.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I found a company willing to sponsor me, but they are strongly considering not sponsoring me due to the costs associated with sponsoring me – lawyer fees, filing fees, etc. Can I pay these fees directly to USCIS and lawyer or can I reimburse my sponsoring company, or arrange some type of payment plan?

Answer #7
NO. Lawyer fees and USCIS filing fees MUST be paid solely by the employer, not by the beneficiary. This action would be in violation of the laws governing the H-1B nonimmigrant visa program.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is nearing his 6th year on H-1B visa status and he has an approved I-140 filed by a different company. Is it possible to use the approved I-140 to get a three year extension with our company?

Answer #8
Yes. Pursuant to AC21 law, an H-1B non-immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B non-immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #9 – Temporary Work Visa
If I work for a company with offices overseas, and I want to work for the company in its United States offices, would I apply for a employment based visa? If not, which visa would I apply for?

Answer #9
It depends. You could apply for an H-1B nonimmigrant visa; an L1, Intra-Company Transferee visa; possibly an E1, Treaty Trader visa or an E2, Treaty Investor visa, an E3 Australian visa, or a TN visa, etc. Please contact our office to further discuss your particular situation and which visa would be a better fit for you.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What document determines how long I can stay legally in the United States: my visa, my I-94 card or the expiration of my current passport?

Answer #10
Short answer: The visa stamp issued by the U.S. State Department displayed in your passport allows you to enter the U.S. at a port of entry. The I-94 card issued by an Immigration Inspector at the port of entry, is your admission ticket and displays the time period you are authorized to stay in the United States. If your I-94 card expires and you did not obtain an extension, and you remain in the U.S. without taking further action, this inaction will result in you accruing unlawful presence in the U.S.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 9, 2012!

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