MVP LAW GROUP – Immigration Q&A Forum, Friday, December 21, 2012

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Question #1 – Naturalization
I have been a Lawful Permanent Resident for the past 3 years, 7 months. I received my Green Card through marriage to a U.S. Citizen. Conditional status has been lifted. When can I apply for Naturalization?

Answer #1
You may apply now for Naturalization. If you received your Green Card based upon marriage to a U.S. Citizen, you are eligible for Naturalization after 3 years if certain conditions are satisfied. If you received your Green Card based upon employment, an applicant is eligible for Naturalization after 5 years.

Question #2 – H-1B Nonimmigrant Visa
Can we file our H-1B CAP cases with the USCIS now in order to ensure we get selected for the CAP?

Answer #2
No, everyone must wait before submitting their H-1B CAP case to the USCIS for consideration. The USCIS will return any H-1B CAP cases that are filed prior to April 1, 2013. Beginning on April 1, 2013, the USCIS will begin to accept H-1B CAP cases.

Question #3 – Adjustment of Status (EAD/AP renewals)
I am receiving conflicting information, please advise. If I filed my I-485 petition after 2007, must I pay the USCIS filing fees of $380.00 and $360.00 each time I request renewal of my EAD and AP?

Answer #3
Taken directly from the USCIS website: Please note that, if you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131. You may file these forms together. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence of the filing of an I-485. If you filed your Form I-485 prior to July 30, 2007, you must pay the fees associated with Forms I-765 and/or I-131 when you file.

Question #4 – Naturalization
As part of my divorce order, I must pay child support and alimony to my wife. I have constantly been paying for past 3 years and nothing is overdue, how do I provide proof of my payments at my Naturalization interview?

Answer #4
As listed in the Documents Checklist for Form N-400, Evidence of your financial support (including evidence that you have complied with any court or government order), can be shown through: a. Cancelled checks; b. Money and receipts; c. A court or agency printout of child support payments; d. Evidence of wage garnishments; e. A letter from the parent or guardian who cares for your child(ren). If you decide to present a letter, we recommend that you present a notarized letter.

Question #5 – Religious Workers
My current R1 temporary visa is expiring in May of 2013. I am ready to apply for I-360 petition approval. Can I file I-360 petition with I-485 application so that I can remain in the U.S. once my temporary visa expires in 2013?

Answer #5
No – Religious Workers may not file Form I-360 with Form I-485 per the recent decision by the Ninth Circuit Court of Appeals, which overturned the permanent injunction issued by the District Court in Ruiz-Diaz v. United States, No. 09-35734.

Question #6 – Naturalization
Can you guide me in the right direction where I can find tools to study for Naturalization test?

Answer #6
Please see the below resources to help you prepare for the Naturalization test:

Naturalization Self-Test

Study Materials

Question #7 – H-1B Nonimmigrant Visa
I received an approval for an H-1B back in 2009 but never used it. I am outside of the U.S. Can I now apply to work for another employer in the U.S. who is willing to sponsor me or must I now wait for the CAP to open?

Answer #7
If you have received an approval for an H-1B in the past six years and have time remaining in H-1B status, then yes, you may be eligible to file an H-1B with the new sponsoring employer.

Question #8 – H-1B Nonimmigrant Visa
I recently got a new project in Northern Virginia. I will be working at a client in Northern Virginia and living in Maryland. I have North Carolina labor filed on my H1B petition. Do I need to file a new labor for Northern Virginia? If so can you guide me and my employer in filing a new labor in a new state?

Answer #8
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA as well as an amended petition must be filed with the USCIS. In summary, since your location change would be considered a “material change” in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.

Question #9 –Naturalization
Our Immigration Officer told everyone during my Naturalization ceremony that any child under the age 18 who lives with their parent who are US Citizens, are eligible for US Citizenship. Is this true?

Answer #9
Please refer to the following link: Citizenship Through Parents

Question #10 –E3 Australian Visa
As an Australian, I am eligible for an E-3 visa, but my potential sponsoring employer has suggested I am eligible and should look into an H1-B visa too. What is the difference, and which is preferable?

Answer #10
The H-1B non-immigrant worker visa is subject to numerical limitations imposed by Congress. Each fiscal year, beginning on April 1, 65,000 visas are available for those who qualify for ‘Specialty Occupations.’ Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.
The E-3 visa is exclusively reserved for Australian nationals. The visa allows Australian Professionals to come to the U.S. to work in a specialty occupation, similar in many aspects to the H-1B nonimmigrant worker visa. The new E-3 visa classification is limited to 10,500 Australian nationals annually. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a “specialty occupation”. This term is used and defined in the Immigration and Nationality Act in the same context as the H1B visa program, and will be interpreted in accordance with the criteria used for H1Bs. The category has requirements with respect to the education of the beneficiary and the job duties to be performed which mirror the H1B requirements. It thus will be helpful in some situations where the H1B CAP has been exhausted. To be eligible, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) AND the specialty occupation must require the theoretical and practical application of a body of specialized knowledge.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 4, 2013!

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