MVP LAW GROUP – Immigration Q&A Forum, Friday, August 30, 2013

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 – Employment Based – Green Card
My PERM application is in BALCA Review. I would like to withdraw my current petition and go for a new petition. Is there any defined period for me to withdraw my PERM petition from BALCA? Kindly clarify
Answer #1
An employer may withdraw the PERM petition at any time to file a new petition.

Question #2 – Employment Based – Green Card
My daughter and Spouse have applied for green cards about five years back under the EB-3 category. Their present status is I-485. How long will it take to get to get their GC’s?

Answer #2
Your answer depends upon providing more details, including – their country of chargeability and their priority date. It could be a matter of weeks, months or years, depending upon the specific case details.

Question #3 – H-1B Nonimmigrant Visa
I don’t have a U.S. bachelor’s degree. Can I still qualify for an H-1B Visa?

Answer #3
Possibly – A 4-year bachelor’s degree from an accredited or recognized foreign university or college will generally be considered equivalent to a U.S. bachelor’s degree. However, if you have less than a 4 year degree you may combine the years of your degree/diploma with years of study completed on a post-baccalaureate diploma, master’s degree or other studies. The regulations also allow you to combine progressive work experience in the field with university study, or in some cases you may use work experience only, to meet the equivalency requirement.

Question #4 – H-1B Nonimmigrant Visa
If my bachelor’s degree is unrelated to the occupation, will I be turned down for an H-1B?

Answer #4
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.
It is recommended that you speak with an experienced Immigration Attorney to review the specific details of your situation.

Question #5 – General
My wife’s I-130 is in “administrative processing” in the U.S. Consular of her home country. What is “administrative processing” and how long does it take?

Answer #5
As taken from the DOS website: Applicants are sometimes refused under section 221(g) because your case requires further procedure or review by our office or another U.S. government agency. At the interview, if your case required further administrative processing, you will be advised of these circumstances. You will receive a “pink sheet” that shows your case number.

The reason for this additional processing is never made clear, and the timetable for completion of the processing is never known in advance. It is inherently a non-transparent process. Consular Officers are advised not to revel to visa applicants the specific reason for administrative processing in a given case. Most administrative processing is resolved within 60 days of the visa interviews; others within months of the visa interview.

Question #6 – Temporary Work 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 #6
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. With the H1B, only the premium processing fee and H4 USCIS filing fee may be paid by the H1B applicant.

Question #7 – Green Card
What does “Age Out” mean in the Green Card process?

Answer #7
As taken from the USCIS website: A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).

Question #8- Temporary Work Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: “Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details.” According to the visa officer, I should get my passport in 10 days. I am worried, is this normal?

Answer #8
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS).
DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.

Question #9 – Student – F1 Visa Status
I want my youngest sister to come to USA to go to school; she has mentioned it many times. What do we need to do to make it happen?

Answer #9
Please visit the following website http://www.ice.gov/sevis/students/index.htm as it will provide the steps for how your sister can obtain an F1 visa to come to the U.S. for school.

The first step for a prospective nonimmigrant student is being accepted for enrollment in an established school which is SEVP certified. There is a list of SEVP certified schools on the website listed above. Therefore, as her first step, your sister must first apply for enrollment at a college of her choice which is listed on the SEVP certified list. Once she has been accepted by that SEVP certified school, she will then need to apply for her F1 student visa. All of the steps for obtaining such status are available on the website listed above, and additional information can be found on this website http://travel.state.gov/visa/temp/types/types_1268.html.

Question #10 –Employment Based Immigration – Green Card
My I-140 Immigrant petition has been approved. My next step is to apply to adjust status to permanent resident. What kind of documents do I need to have for AOS application?

Answer #10
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you will able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, including: a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 13, 2013!

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