MVP LAW GROUP – Immigration Q&A Forum, Friday, November 22, 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 – H-1B Nonimmigrant Visa
I have been offered a full time position as a charge nurse for the Emergency Department in an underserved area in Kansas. I’m currently a graduate student with F1 visa and a bachelor’s degree in nursing. My employer is willing to sponsor H-1B in April 2014. Please let me know if it is possible to file for an H-1B.

Answer #1
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. 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.

Please contact our office or have your employer contact our office to speak with an Attorney concerning your specific circumstances.

Question #2 – Employment Based Immigration – GREEN CARD
I just read the latest Visa Bulletin numbers for EB2. Why did the numbers change so drastically? My Priority date is in July of 2009. Will the numbers go back up soon? I am very frustrated!

Answer #2
The numbers changed drastically because the demand for visa numbers clearly exceeds the available supply. The Department of State does not predict any further movement in the EB2 preference category for Indian Nationals until May 2014.

Question #3 – Lawful Permanent Resident
Are Green Card holders allowed to vote in elections? I have heard that I could participate in state but not national elections.

Answer #3
You must be a United States Citizen in order to vote in any Federal election. As far as local and state elections are concerned, it depends upon the laws of the locality and state. For example, seven municipalities in Maryland and Massachusetts have extended the right to vote for local offices to noncitizens.

Question #4 – H-1B Nonimmigrant Visa
My H-1B visa was approved and now I need to get my H-1B visa stamp. What do I need to take with me for visa stamping? What about my dependents?

Answer #4
If you are applying for an H-1B visa:
I-797 — the original notice of approval; Two (2) copies of the complete I-129 petition submitted by your prospective employer including the Labor Condition Application (LCA); The originals, plus one copy, of your university diplomas, mark sheets and any certificates you may have (Secondary school information is not required); Letter from petitioning employer confirming employment; Original, plus one copy, of your work experience letters from your previous employers.

First time applicants may consider submitting the following documents:
Pay slips from current or most recent place of employment; Names and current phone numbers of the personnel managers at the applicant’s present and past jobs; Photographs of the inside and outside of current or most recent employer’s place of business; Names and contact information of two co-workers from your current or most recent place of employment; Names and contact information of two co-workers from past jobs; A complete resume/bio-data and cover letter describing current job duties in detail; Personal bank records for the last six months; US company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report.

For dependents:
Documentation establishing proof of the relationship to the H-1B applicant – passport, birth certificate, marriage certificate, and pay slips of the H-1B applicant.

*It is important to note that you will only have a short period of time with the Consular Officer, so you should be thoroughly familiar with your position and your sponsoring employer. The Consular interview is more about a conversation with the Officer than just a presentation of documents. It is recommended that you speak with an Immigration Attorney about your case in preparation for your Consular Interview.

**Additionally, H-1B applicants appearing at Consulates for visa stamping who work for IT Consulting companies should speak with an Immigration Attorney prior to the Consular Interview to prepare for the types of questions asked and documentation that may be requested.

Question #5 – Employment Based Immigration – GREEN CARD
My previous employer applied for an I-140 in EB-3 for me, now, can I transfer my priority date to my I-140 application in EB-2 filed by my current employer?

Answer #5
According to the regulations, a petition approved on behalf of an alien under §§203 (b)(1), (2) and (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under §§203 (b)(1), (2) or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under §§203 (b)(1), (2) or (3) of the Act, the alien shall be entitled to the earliest priority date.

Question #6- H-1B Nonimmigrant Visa
How can I extend my H-1B status beyond the six-year maximum period?

Answer #6
An applicant may extend H-1B status beyond the six-year maximum period in a number of ways. If the applicant spent any time outside of the U.S. since receiving the initial grant of H-1B visa status, s/he may be eligible to apply to recapture the time spent outside of the U.S. in an H-1B extension petition.

Additionally, under AC21 law, an applicant may extend status in one year increments if a Labor Application or I-140 Immigrant Petition were filed on behalf of the applicant and 365 days or more have elapsed since the filing of the Labor or I-140 and it has not been revoked or denied. An applicant may be eligible to extend H1B status in three year increments until a visa number becomes available, if they are the recipient of an approved I-140 Immigrant petition.

Question #7- Employment Based Immigration – GREEN CARD
In a month, my company will be merged in to another company. Will this affect my pending I-140 application and pending I-485 application?

Answer #7
For Successor-in-interest purposes, the transfer of ownership may occur at any point after the filing of the original labor certification. The USCIS will evaluate the following factors: If the position described on the immigrant visa petition is the ‘same job’ as the one described on the labor certification application, and the ‘same job’ that the applicant will be performing for the Successor; whether the Successor has established eligibility for the requested visa classification in all respects; and whether the Successor has adequately detailed the nature of the transfer of rights, obligations, and ownership of the prior entity.

Question #8 – Lawful Permanent Resident
My spouse just received her I-485 Welcome Notice. What is the next step?

Answer #8
As a result of the issuance of the I-485 Welcome Notice, your spouse’s green card should be in production. Once the card is produced, it will be mailed to the address provided in your spouse’s I-485 application. You are not required to do anything further, as the green card will be mailed to your spouse.

Question #9 – Employment Based Immigration – GREEN CARD
If my employer is a start-up company, does it weaken my case for an EB-2?

Answer #9
As long as the company sponsoring your green card can meet the ‘ability to pay’ requirement, the fact that they are a startup should not weaken the case. The requirement to prove that a company has the ‘ability to pay’ attaches when the Labor application is filed on behalf of the foreign national and continues until the foreign national receives the green card. Contact our office to speak with an Immigration Attorney.

Question #10 – Employment Based Immigration – GREEN CARD
How does the USCIS determine your Priority Date?

Answer #10
The priority date is determined in an employment based immigration case once the Labor application is accepted for processing by the Department of Labor. In order to move forward with the priority date and file an I-140, Immigrant Petition, the Labor Application must be certified by the DOL.

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 6, 2013!

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