MVP LAW GROUP – Immigration Q&A Forum, Friday, December 6, 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
One year ago I employed someone on HIB 3yr visa. I just found out today that he has applied for a similar job in Australia. What recourse do I have?

Answer #1
Generally, employers are rather limited in what they can do to H-1B employees who transfer employment, unless your employment agreement/contract provided for liquidated damages or other alternatives in case the employee would decide to terminate the employment prior to the end of the validity period of the visa or some other specified date. If you are terminating the H-1B employee, you are responsible for paying for the nonimmigrant’s travel back to his/her home country. H-1B employees are free to transfer their H-1B employment to a new employer at any time.

Question #2 – General
Both my husband and I are in H-1B status. If I am being laid off from my job, can I apply for some other status? What are my other options?

Answer #2
Based upon the brief information you have provided, you are likely eligible to apply for an H4 dependent visa based upon your husband’s status in H1B. You would need to submit a Change of Status Petition (I-539) with the USCIS. To speak about any additional options available, please contact our office to discuss.

Question #3 – H-1B Nonimmigrant Visa
Right now I am on my second year of an H1B. Recently I was relocated to a new client’s site. Do I need to let the USCIS know my new working location? If not, is there any problem for my status? Do I need to file a new labor condition application?

Answer #3
It depends. If the move to a new client site is outside of the MSA (Metropolitan Statistical Area) as listed on the certified LCA, then yes, it would require the filing of an amended petition with the USCIS, which includes an amended certified LCA covering the new location. As stated above, it depends upon the specific circumstances of the case, and you should contact our office to speak with an Immigration Attorney about your situation.

Question #4 – H4 Dependent Visa
When my employer extended my H-1B Visa, they forgot to renew my wife’s H-4 status. What should I do now? Does this means that she has failed to maintain her H-4 status in the U.S.?

Answer #4
Contact our office to discuss.

Question #5 – H-1B Nonimmigrant Visa
I am H-1B Candidate in US. My H-1B was filed (new) this year in April and is under “initial review” process and no decision has been made yet. Now, I have new offer from a new employer. Can I interfile my current H-1B application with USCIS with this new employer? Can we use Premium Processing?

Answer #5
Unfortunately, until a decision is made on your H1B CAP case, you cannot transfer H-1B status to another employer. In essence, in order to be eligible to transfer your H-1B to a new company, you would first need to be granted H-1B nonimmigrant visa status. The fact that your case is still pending means that H-1B status has not been granted for you, as of yet. Hang in there and explain the present situation to the current job offer and see if they will wait, as there is nothing you can do at this point unless you decide to premium process the pending H1B application.

Question #6 – Family Based Immigration
I am preparing an AOS package with my wife. I am a USC and my wife is on OPT but wants to adjust. We live together in California and are going to file an I-485 and I-131. Which status does my wife belongs to, Advanced Parole or Reentry permit?

Answer #6
An ancillary benefit of being eligible to file for adjustment of status is the beneficiary also being eligible to receive a travel document and employment authorization while the adjustment case is processing. The travel document is referred to as Advance Parole in the AOS context, as you would only be eligible for a re-entry permit if you were already a Permanent Resident or Conditional Resident of the United States. If you have any further questions, please contact our office.

Question #7 – H-1B Nonimmigrant Visa
How soon can I get an AP card? I am on a H1B but need to travel out of the country urgently on business.

Answer #7
Have you filed a I-485 petition? How are you eligible for an Advance Parole document? Normal AP requests are processed in a 2-3 month period. If you are eligible to receive an AP document, please note that Advance Parole documents are only expedited in certain cases: Severe financial loss to company or individual; Extreme emergent situation; Humanitarian situation; Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States; Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government.); USCIS error; or a Compelling interest of USCIS. You may make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283 or by submitting a written request and supporting documentation with your application.
If you are experiencing an extremely urgent situation, you may visit your local USCIS office to request an emergency advance parole document. When visiting a local office to request emergency advance parole, you should bring the following items: A completed and signed Form I-131, Application for Travel Document; The correct I-131 filing fee; Evidence to support the emergency request (e.g. medical documentation, death certificate); and Two passport-style photos. The agency reviews these requests on a case-by-case basis, and the USCIS field office director has discretion to grant or deny them.

Question #8 – DACA (Deferred Action for Childhood Arrivals)
When I was 15 years old, I entered the USA in May of 2007. I have a GED. Will I qualify to apply for DACA? I have not left the USA since 2007.

Answer #8
You may request consideration of Deferred Action for Childhood Arrivals if you: Were under the age of 31 as of June 15, 2012; Came to the United States before reaching your 16th birthday; Have continuously resided in the United States since June 15, 2007, up to the present time; Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. In order to request consideration of deferred action for child hood arrivals – qualified youth must mail their forms and supporting documentation to the United States Citizenship and Immigration Services (USCIS). To discuss your eligibility, please contact our office.

Question #9 – Lawful Permanent Resident (LPR)
My sister applied for her citizenship but she just realized her green card expired. Does she still need to renew her green card? Or can she just wait for the citizenship application to respond for the next step?

Answer #9
Although her physical green card may have expired, her actual status as a Lawful Permanent Resident does not expire.

Question #10 – Employment Authorization
I sent my Form I-765 application, received a receipt notice but then last week, I received a denial decision letter. I didn’t attach my photographs with my original application. Do I need to re-apply?

Answer #10
It depends upon what the denial decision letter provides. Is it a denial decision or a request for evidence (RFE)? If it is a denial, then yes you will need to re-apply. Before re-applying, make sure there are no other grounds for denying the initial application. If it is an RFE, you may submit the photographs with your response to the RFE. If you have any further questions, please contact our office.

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 20, 2013!

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