MVP LAW GROUP – Immigration Q&A Forum, Friday, June 6, 2014

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Question #1 – Employment Based Green Card
I am currently working on EAD since 2007 and had filed my 485 in 2007 under EB3 category. I have being renewing my EAD every 2 years since 2007. My PD is May 2004. I got married to a US Citizen in 2012 and filed my I130 (along with copies of my EAD, pending 485, ETC) in June 2013. I got an email in Dec 2013 that the case was transferred to Nebraska Service Center and then in Feb 2014 the Nebraska office informed me that the case was transferred to NVC along with a receipt# starting with ANK. I then got an email earlier this month April 2014 about filing CHOICE OF ADDRESS AND AGENT (DS-261), Affidavit of Support (AOS) Fees, IV Application Processing Fees and IV AND ALIEN REGISTRATION (DS-260). My question is why are they asking for all this information when I already have a pending 485 for the last 7 years or so? Plus what is the time frame for NVC to approve all this paperwork?

Answer #1
Contact the USCIS at 1-800-375-5283 or the National Visa Center and explain the situation. Or, contact our office for assistance.

Question #2 – H1B Nonimmigrant Visa
I got my petition approved in Nov 2013 and received a copy of my I-797C. For some reason not known to me, my employer revoked the petition. My I797 says my petition is approved until 2016. Am I cap exempt?

Answer #2
You have not provided enough information for us to properly answer your question. More information is needed in order to provide a response. What type of employer sponsored your H1B…a non-profit, a university, a for-profit business, etc.? Who revoked your petition – your employer or the USCIS? Please contact our office to discuss your situation.

Question #3 – Conditional Permanent Resident
How do I remove conditions on my 2-year conditional Permanent Resident Card?

Answer #3
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.
Then you may apply to remove the conditions on your 2-year conditional permanent resident card by filing Form I-751, along with the USCIS filing fee with the USCIS.

Question #4 – Re-Entry Permit
I am a LPR and need to travel abroad. Can I file my Form I-131 to get a reentry permit while I am outside the United States?

Answer #4
No, you must be physically present in the United States when you file Form I-131 requesting a Re-Entry permit.

Question #5 – Family Based Green Card
What if I filed an I-130 petition for a relative when I was a permanent resident, but I am now a U.S. Citizen? Is this petition no longer valid and do I have to refile?

Answer #5
According to the USCIS, if you become a U.S. citizen while your relative is waiting for a visa, you can upgrade your relative’s visa classification and advance the processing of that petition by notifying the appropriate agency of your naturalization. When you are a U.S. citizen, your husband or wife and any unmarried children under age 21 will have visas immediately available to them.

Question #6 – Naturalization
Do I have to be in the United States when I file an N-400 application? I am currently out of the country helping my parents sell their home and move into an apartment. It will take a few months. Should I just wait until I return to the US?

Answer #6
Yes, you have to be in the United States when you file an N400 Application with the USCIS. You should wait until you return to the United States. All of your arrivals to and departures from the United States for the last five years must be listed in your N400 application.

Question #7 – Deferred Action for Childhood Arrivals (DACA)
Do brief departures from the US for travel interrupt the DACA requirements of having continuous residence in the United States since June 15, 2007?

Answer #7
According to the USCIS, a brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and 4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

Question #8 – General
I just looked at my I-94 and it has incorrect information on it. What can I do? Will this affect my status?

Answer #8
If there is an error or mistake on the paper or electronic form I-94, the traveler can contact the Deferred Inspection office closest to their location.

If a traveler was admitted incorrectly to the United States, the traveler should visit a local CBP Deferred Inspection Site or Port of Entry (POE) to have his or her admission corrected. A list of Deferred Inspection Sites and POEs can be found on CBP’s website, www.cbp.gov, under the “Ports” link at the bottom of the page. If a traveler was issued an incorrect I-94 by USCIS, the traveler should refer to the Form I-102, which can be found at www.uscis.gov/forms.

Question #9 – L1 Intra-Company Transferee
My L-1 visa extension was approved Jan 2014. In addition, my EB3 – I140 was approved in Apr 2014. I am going to India for the visa stamping next month. I am wondering if this I140 approval will be a hindrance during the visa interview.

Answer #9
When scheduling your visa interview appointment, you will be asked if an Immigrant Petition has ever been filed on your behalf. You will have to be truthful in your response.

Question #10 – H1B Nonimmigrant Visa
How many times can I transfer my H-1B visa status to a new employer?

Answer #10
There is no set cap on the amount of times that an applicant may transfer his H-1B visa status from employer to employer.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 20, 2014!

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