MVP LAW GROUP – Immigration Q&A Forum, Friday, May 9, 2014

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Question #1 – H-1B Nonimmigrant Visa
Now that the H-1B Cap for FY 2015 been reached and USCIS said they issued all receipts as of May 2, when we will expect to hear which cases have been accepted?

Answer #1 The sponsoring Employer and the Attorney of Record should receive the receipt notice from the USCIS. If your employer/Attorney has not received a receipt notice for an H1B CAP filed case, the employer is advised to check its bank account to determine if any of the checks submitted with the petitions were deposited. If so, then the receipts should be coming, if the checks were not deposited, it is safe to assume the case was not accepted in the random H1B CAP lottery.

Our office has received receipt notices for the premium processing filed cases, the Masters CAP filed cases, and just this week, the regular H-1B CAP filed cases.

Question #2 – H-1B Nonimmigrant Visa I am an international student on an F-1 visa. I got my Bachelor’s Degree in pharmacy from India, came to USA in 2010 on Master’s program in industrial pharmaceutics. After coming here, I transferred to UNVA, a college closed by USCIS in 2013. I completed a Master’s degree in UNVA before closure and was working on OPT when the college closed out. I worked on OPT for 6 months and had to dis-continue my job as my college closed. I joined another school in Chicago to maintain status and also got CPT for 20 hours to work. Can I apply for an H-1B?

Answer #2 Unfortunately, the H1B CAP for FY2015, with employment beginning as of October 1, 2014 was reached within days of opening, and is now closed. You will have to wait until April 1, 2015 in order to submit an H-1B CAP case for FY2016, with employment beginning as of October 1, 2015.

Question #3 – H-1B Nonimmigrant Visa
What is an AC-21 for H1B Extension?

Answer #3
Pursuant to AC21 law, an H1B nonimmigrant may extend his or her status beyond the 6 year limitation if: (1) a labor certification, or I-140 application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, (2) the H1B nonimmigrant has an I-140 petition which has been approved. Under the first scenario, an applicant may be eligible for one year extensions to H-1B status until a final decision is made. Under the second scenario, an applicant may be eligible for three year extensions to H-1B status until a visa number becomes available.

Question #4 – H4 Dependents
Are H-4 dependents eligible for an H extension beyond the six year limit?

Answer #4
Yes, if the primary H1B applicant is eligible for an extension beyond the sixth year (see #3 above), then the H4 dependent is entitled to extend status as well.

Question #5 – Family Based Immigration
Is my U.S. Citizen spouse required to attend the interview for my marriage based Green Card?

Answer #5 It depends upon where the visa interview takes place. If in the United States through Adjustment of Status (AOS), then YES the U.S. Citizen Spouse is required to attend the interview. If abroad through Consular Processing, then NO the U.S. Citizen Spouse is not required to attend the interview.

Question #6 – Green Card Who is eligible to apply for Removal of Conditions on permanent residence?

Answer #6
According to the USCIS.GOV website: generally, you may apply to remove your conditions on permanent residence if you:
• Are still married to the same U.S. citizen or permanent resident after 2 years. You may include your children in your application if they received their conditional-resident status either at the same time or within 90 days as you did;
• Are a child and, for a valid reason, cannot be included in your parents’ application;
• Are a widow or widower who entered into your marriage in good faith;
• Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or • Entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.
Note: Refer to Form I-751 for more specific eligibility requirements

Question #7 – H-1B Nonimmigrant Visa
While in the US, we applied & changed my wife’s visa (not yet stamped), from H4 to H1, so that she could work. This was not stamped and it was extended for another year a few months ago. When I look at my daughter’s H4 petition (valid till 2015 & not yet stamped), it still refers to my wife’s old H4 petition. Since my H1 was the basis in the 1st place for both their H4’s, is my daughter’s H4 petition still valid, or should I file a fresh H4 against my wife’s H1?

Answer #7 If the beneficiary’s spouse/children are in the United States on H4 status, they do not need a H4 every time the H1B individual changes H1B’s. As long as the H1B individual remains in status, the H4 individual(s) need only to file a request for extension of the H4, no less than 90 days before the H4 individual’s I-94 expires. Remember that if the H1B individual is out of status so are all individuals on H4 irrespective of their I-94 and our recommendation is that an “out of status” individual not remain “out of status” in the United States for over 180 days because they may be subject to being excluded from the United States for a period of three to ten years respectively.

Question #8 – General Everyone is telling me that I should apply for DACA because I’m currently eligible. Is it better to pursue another form of immigration status first?

Answer #8 Please contact our office to discuss any options that you may have.

Question #9 – Adjustment of Status & Travel
My I-485 application has been pending for more than 2 years. Now I want to travel to my home country to visit my relatives. Can I travel abroad with my current working visa? Or do I have to apply for an Advance Parole (AP) before travel?

Answer #9 If you have a valid visa stamp or will be applying for a visa stamp prior to your return to the U.S., then you may travel abroad on your current working visa. If you prefer not to obtain visa stamping based upon your current work visa, you may apply for an Advance Parole document prior to traveling abroad…please note that after applying and before traveling abroad, you will need to wait for and attend your biometrics (fingerprinting) appointment.

Question #10 – Green Card
After I get my Green Card in the EB1 category, do I still have to stay in the same or similar field?

Answer #10 Please contact our office to further discuss.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 23, 2014!

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