MVP LAW GROUP – Immigration Q&A Forum, Friday, November 23, 2012

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Question #1 – H-1B Nonimmigrant Work Visa
I am back in my home country, not US. If I did not use all of my six years on my previous H-1B visa, can I use the remaining years now?

Answer #1
Yes, if you have time remaining on your H-1B nonimmigrant visa status and have applied for the visa within the past six years, you are not subject to the H-1B numerical cap and are able to apply to use those remaining years now if you have an employer willing to sponsor you for your employment in the Specialty Occupation.

Question #2 – Employment Based Immigration
Where do I mail Form I-140 petition withdrawal requests and AC21 106(c) portability requests?

Answer #2
Please refer to the USCIS website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfe8745543256210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD for the applicable address.

Question #3 – DACA
If I am now in High School but have two more years before I graduate, does this mean that since I have not yet graduated from High School or earned a GED that I won’t be able to take advantage of this opportunity?

Answer #3
According to the guidance released by the USCIS, you must be either: currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or an honorably discharged veteran of the Coast Guard or U.S. Armed Forces.

Question #4 – Travel
We just applied for my wife’s green card (she just became my wife here in United States). Can she travel back to her birth country to visit her family while her I-485 is pending with the USCIS?

Answer #4
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 to her birth country to visit her family while her I-485 remains pending.

Question #5 – Employment Based Immigration
How can a petitioner request the withdrawal of a Form I-140 petition?

Answer #5
As provided on the USCIS website, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS.
Withdrawal requests should include:
• A statement indicating that the Form I-140 petitioner wishes to withdraw the petition;
• The Form I-140 petition receipt number;
• The name, address and phone number of the petitioner;
• The name of the alien beneficiary;
• The alien registration number of the alien beneficiary, if known;
• The petitioner’s signature or the Form G-28 representative’s signature.

Question #6 – DACA
Will this deferred action process lead to citizenship?

Answer #6
This process does not result in lawful status for persons who have received deferred action because deferring action is only a discretionary determination to defer removal action as an act of prosecutorial discretion and does not provide you with a lawful status. Also, keep in mind that deferred action does not confer lawful permanent resident status or a path to citizenship, only Congress acting through its legislative authority can confer these rights.

Question #7 – Unlawful Presence in USA
I cannot remember the specifics regarding unlawful presence. When would a person trigger the 3yr and 10yr bars, can you provide those time periods?

Answer #7
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 #8 – Employment Based Immigration
When will employment based visas in 2nd preference for India be available again?

Answer #8
According to the Visa Bulletin, there is no movement predicted in the coming months in the Employment Based 2nd Preference category for Foreign Nationals from India. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.

Question #9 – DACA
Why is this program only for two years? What happens after those two initial years? Am I taking a risk by coming out of the shadows and admitting I am here illegally?

Answer #9
Individuals who demonstrate that they meet the guidelines may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

According to the guidance released by the USCIS, if a request for consideration of deferred action for childhood arrivals is denied, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If a case does not involve a criminal offense, fraud, or a threat to national security or public safety, the case will not be referred to ICE for purposes of removal proceedings except if DHS determines there are exceptional circumstances.

Question #10 – Family Based Immigration
Who is responsible for scheduling the visa immigrant Interview? Is it us or the Consulate? My wife’s form I-130 was approved and we are just curious to know what we need to do next.

Answer #10
The National Visa Center (NVC) will be in contact with you to instruct you to pay the immigrant visa fee, prepare necessary forms and gather appropriate documents. Once the NVC has everything they need, they will forward the case to the Consulate. You will receive a notice of the date, time and place of the scheduled interview.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 7, 2012!

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