MVP LAW GROUP – Immigration Q&A Forum, Friday, December 20, 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 Immigration – Green Card
How long before my H-1B visa ends should I apply for EB-2 Green Card category? Can I apply in the 5th or the 6th year of my H1B?

Answer #1
Only an employer can initiate an employment based green card filing. It is recommended that an employer initiate this process within the 4th or 5th year of H-1B status, or sooner depending upon the circumstances.

Question #2 – H1B Nonimmigrant Work Visa
My resignation date with my old company and joining date with my new company is on the same day. I am on H1B visa. Will this cause any issue in future since I was on the payroll for the both companies on the same day?

Answer #2
It should not; however, it is always recommended that you give a prior employer a two week notice period before leaving the company.

Question #3 – Family Based Immigration – Green Card
Can a Conditional Permanent Resident submit a permanent resident petition for my 20 year old unmarried son?

Answer #3
A Lawful Permanent Resident (LPR) may petition on behalf of a child or unmarried son or daughter. A conditional permanent resident may not until their conditional LPR status is removed. A child must be unmarried and under 21 for the F2A preference classification. An unmarried son or daughter must be 21 years of age or older to qualify for the F2B preference classification.

Question #4 – Citizenship
This January, I can apply for citizenship because I have had my green card for 5 years. Next year, my university offered me a chance to study abroad. Will this affect my citizenship application?

Answer #4
There are several eligibility requirements for seeking U.S. citizenship; one of those requirements is a period of continuous presence in the United States. The answer to your question depends upon the timing of your application for citizenship. Please contact our office to discuss the specifics of your case.

Question #5 – Employment Based Immigration – Green Card
Can my employer charge me the fees for a Green Card application if I terminate employment? I believe they can charge me for the I-140, but am I liable for all legal costs as well as costs of the PERM process?

Answer #5
An employer MAY NOT charge you for the costs of the PERM process.

Question #6 – Family Based Immigration – Green Card
If I marry someone who lives outside the country, will they be able to return home with me?

Answer #6
No, unless they have a valid visa to present for admission into the United States. You will have to go through the Family Based Immigration process by sponsoring your spouse through an I-130, Immigrant Petition for Alien Relative.

Question #7 – General
How do I know if I can apply for an Employment Authorization Document (EAD)?

Answer #7
If you are eligible to file Form I-485, Adjustment of Status petition; if you are eligible for DACA – Deferred Action for Childhood Arrivals; if you are eligible for OPT – Optical Practical Training; if you are eligible for TPS – Temporary Protected Status; etc., then more than likely, you are eligible to apply for an Employment Authorization Document. Please contact our office to further discuss your eligibility for an EAD, Employment Authorization Document.

Question #8 – General
What can I do if I can’t locate my I-94 online?

Answer #8
According to the CBP website, if you tried to retrieve your I-94 from the cbp.gov online system and you receive a response that your I-94 is “Not Found”, please read the following questions to help you check for mistakes and try to enter the information again:
1. Did you enter your first and last name the same way it appears on your passport? Please do not use dashes or titles.
2. Did you enter the passport number that appears on the upper right hand side of your passport?
3. Did you enter your country of citizenship (country that issued the passport, not where you currently live)?
4. Under Class of Admission, did you enter the visa classification that appears on your U.S. visa OR, if you are traveling under the visa waiver program (VWP) enter WT/WB?
5. If you entered your first and middle name and it is not found, try one name or the other. Also try entering your first and middle name in the first name box.
6. Try entering either your most recent date of entry or your original date of entry into the U.S.
If you still cannot find your I-94, please contact your nearest* Customs and Border Protection Deferred Inspection Site and a CBP Officer will be able to assist you.

Question #9 – General
I am currently on an L-1 visa, but I am thinking of resigning from my job. I have an Australian passport. If I do resign, could I just change my status to the Visa Waiver Program or would I need to physically exit and re-enter the country?

Answer #9
Contact an Immigration Attorney.

Question #10 – Employment Authorization
When should I file for an extension of my employment authorization?

Answer #10
You should not file more than 120 days before the expiration date shown on your current employment authorization document; however, you should file 90 days before the expiration date.

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 3, 2014!

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