MVP LAW GROUP – Immigration Q&A Forum, Friday, January 31, 2014

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 – Deferred Action for Childhood Arrivals (DACA)
I think I am eligible under DACA. Do you think given the potential risks, I should file my application with USCIS?

Answer #1
Only YOU can make the decision of whether or not to file your application. I would recommend that you speak with a qualified Immigration Attorney first to discuss your eligibility and the risks involved in submitting a DACA Application to the USCIS. Please feel free to contact our office.

Question #2 – Family Based Immigration
I’ve read conflicting information on the internet, can you please clarify for me who is responsible for scheduling the Green Card Interview, my spouse or the Consulate itself?

Answer #2
The Consulate is responsible for scheduling the Interview and will send you notice of the date and time of the scheduled interview.

Question #3 – General
What is the Visa Waiver Program? Is Portugal included in the VWP?

Answer#3
As provided on the Department of State website, The Visa Waiver Program (VWP) enables nationals of 36 participating countries to travel to the United States for tourism or business (visitor [B] visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

Yes, Portugal is a participating country in the Visa Waiver Program.

Question #4 – H-1B Nonimmigrant Work Visa
If I have not use all six years on my previous H-1B visa and still have time remaining, can I apply to USCIS to use the remaining years now as I have found new employment in the U.S.? I am currently abroad.

Answer#4
Yes, if you have time remaining on your H-1B nonimmigrant visa status and have applied for the visa within the past six years, you are not subject to the H-1B numerical cap and are able to apply to use those remaining years now if you have an employer willing to sponsor you for your employment in the Specialty Occupation. Please contact our office to speak with an Immigration Attorney.

Question #5 –Immigration – Green Card
The fingerprints that I gave the USCIS a while ago are set to expire soon. Should I make an Info Pass appointment at my local USCIS office to give them a new set of fingerprints?

Answer #5
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.

Question #6 – Non-Immigrant Visas
Are a B-1 and an H-1B visa interchangeable as far as my ability to work in the United States?

Answer #6
NO. A B-1 visa is reserved for Business visitors who are not allowed to be gainfully employed in the United States. B1 visa holders are limited in the actions that they may partake in while in the U.S. as a business visitor. In order for them to be able to work (gainful employment) while in the U.S. a work visa is required. An H-1B nonimmigrant visa is a work visa reserved for specialty occupation foreign workers.

Question #7 – Employment Based Immigration
I filed for my EAD renewal back in October 2013 and it is still pending. My current EAD expires next week. What are my options moving forward – can I expedite the EAD since my card is expiring? What can I do I can’t risk losing my current job?

Answer#7
When an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work. You MUST wait for your EAD card to arrive in the mail before you can begin to work again.

You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.

Question #8 – H-1B Nonimmigrant Work Visa
I am looking forward to obtaining an H-1B visa under the CAP for this year. When does time begin to accrue in H-1B status? The day that the visa is approved or when I first enter the U.S. using it?

Answer #8
The six year period begins to accrue when you first enter the U.S. on a valid H-1B nonimmigrant visa. Your I-94 will be recorded in the CBP database to reflect the date you arrived along with other details governing your authorized stay in the U.S.

Question #9 – H-1B Nonimmigrant Work Visa
I am an international student with F1- status and Associate degree that I obtained here in US. Am I qualified to change my status to h1B VISA?

Answer #9
Unfortunately, you are not, unless you possess qualifying work experience (3 to 1 rule). To be eligible to obtain an H-1B visa, you must have a Bachelor’s degree in a Specialty Occupation field, and the position for which you are being sponsored must require at a minimum the attainment of a Bachelor’s degree in a specific specialty occupation field. Please contact our office to speak with an Immigration Attorney.

Question #10 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
I need clarification; does the public law apply to transfer and extension petitions for nonimmigrant workers, or only to transfer petitions and new CAP filings?

Answer#10
Under Public law 111-230, Petitioners subject to the new fees must submit the fee with an H-1B or L-1 petition filed (1) initially to grant an alien nonimmigrant status (initial cases); or (2) to obtain authorization for an alien having such status to change employers (transfer cases). Therefore, the fee must be submitted with any initial H-1B filings and any transfers, but extensions with the same employer do not require the new fee.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, February 14, 2014!

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