MVP LAW GROUP – Immigration Q&A Forum, Friday, August 1, 2014

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Question # 1 – H1B Nonimmigrant Work Visa
Currently, I am working with an H-1B but it will expire soon. I already have 6 years as H1B, I have labor certificate and my company filed I-140. Can I get an extension?

Answer #1
From the information you have provided, it appears you may be eligible for a one (1) year or three (3) year extension of your H1B nonimmigrant visa status. However, more information is needed in order to determine your eligibility. When was the Labor Certificate filed? When was the I-140 filed? Is the I-140 approved? Contact our office to schedule a consultation to discuss.

Question #2 – H1B Nonimmigrant Work Visa
I have a valid H4 VISA and it’s valid till Aug 2016. I am looking for a COS from H4 to H1B. Can you please suggest me with a suitable process to do the conversion?

Answer #2
How are your eligible to change status from H4 to H1B? More information is needed in order to answer your question. Are you the recipient of an H1B approval within the past six years? Do you have time remaining in H-1B status? Contact our office to further discuss your situation.

Question #3 – Naturalization
My mother is in the US on a Green card for the last 6 years. Now, I wanted to apply for her citizenship. However, she cannot read, write or speak English. She is going to be of 70 years age in Oct 2014. Can I still apply for Naturalization?

Answer #3
You can; however, it would not be a good idea as it is unlikely your Mother will pass the civics test & English language test of the Naturalization examination without learning the English language. USCIS has some extremely useful tools on its website: http://www.uscis.gov/us-citizenship/naturalization-test. If she waits for several years, she may be eligible for an exception due to her age and time period as a lawful permanent resident.

Please see below:
Exemptions from the English Language Test A. 50 Years of Age or older and have lived in the US as an LPR for periods totaling at least 20 years at the time of filing the N400 B. 55 Years of Age or older and have lived in the US as an LPR for periods totaling at least 15 years at the time of filing the N400 C. 65 Years of Age or older and have lived in the US as an LPR for periods totaling at least 20 years at the time of filing the N400 (under this exemption, an applicant will also be given a simplified version of the civics test).

Question #4 – AC21 Portability
I filed my I-140 application several months ago and got it approved. Since it is an employer sponsored application, I have not changed my job during the I-485 pending period. Now, I have an opportunity to change my job to another larger company as a manager for a group. I want to know if I can take this job without affecting the pending green card process?

Answer #4
You have not included enough facts for us to provide a solid answer….how long ago did you file the I-140, the I-485…is this new position, the same or similar to the one used in your initial I-140 filing? Etc… If you are eligible for AC21 Portability, you may be able to take this job without affecting the pending green card process. Please contact our office to further discuss your specific situation.

Question #5 – H1B Nonimmigrant Work Visa
Currently, I am on H-1B status, and I have filed my I-140 and I-485 applications. If I use the EAD and then my I-140 is denied, but the EAD is not expired, can I still work until the EAD expired, or I must leave US immediately?

Answer #5
We recommend that when clients are able to file the I-140/I-485 concurrently, or when their priority date is finally current and are able to submit the I-485 petition, that they continue to maintain their underlying H-1B nonimmigrant visa status as a safety net in case anything happens with the I-140 and/or I-485 petition. Otherwise, you are left in a limbo area which may only lead to further complicated problems. Contact our office to schedule a consultation to discuss.

Question #6 – H1B Nonimmigrant Work Visa
How does the USCIS determine a job is a specialty occupation?

Answer #6
Section 214(i)(1) of the Act defines the term “specialty occupation” as an occupation that requires:
(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

A specialty occupation is defined as:
an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. (Emphasis added.) 8 C.F.R. § 214.2(h)(4)(ii).

Section 101 (a)(32) of the Act, as amended, states:
‘The term ‘profession’ shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.”

The H-1B regulations set forth a four-part test for determining what constitutes a specialty occupation. To qualify as a specialty occupation, the position must meet only one (1) of the following four (4) criteria:

1. A Bachelor or higher degree must normally be the minimum requirement for entry into the particular position; OR
2. The degree requirement must be common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; OR
3. The employer must normally require a degree or its equivalent for the position; OR
4. The job’s duties must be so “specialized and complex” that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. See 8 C.F.R. § 214.2(h)(3)(iii)(A).

Question #7 – H1B Nonimmigrant Work Visa
Does my employer have to file a new H-1B for me if I got promoted into another job?

Answer #7
It depends upon the job title/job duties and how different they may be from your previous position. If the job duties are significantly different, more complex and/or have supervisory requirements, you may need to prepare/submit an Amended H1B petition based upon a material change in employment. Contact an experienced Immigration Attorney to discuss your specific situation.

Question #8 – Green Card
What is the A#/Alien number used for and when do I receive it?

Answer #8
An A number is an alien registration number that the Department of Homeland Security assigns to each foreign national who submits an Immigrant Petition. In family based cases, the A number attaches upon approval of the I-130 petition. In employment based cases, the A number attaches upon approval of the I-140 petition.

Question #9 – Family Based Immigration
Can an approved I-130 be revoked if it not used right away?

Answer #9
Yes, if the USCIS finds that there was fraud and/or willful misrepresentation in the relationship presented to the USCIS, they may revoke the I-130 petition.

Question #10 – Naturalization
Two months ago, I filed my application for naturalization (N-400) to USCIS. I am planning to get married with my boyfriend next month (we have been in relationship for the last 4 years). Does the change in my marital status affect approval of my application?

Answer #10
No, because AT THE TIME of filing, you were not married; however, this information will need to be disclosed to the USCIS. When you are called in for your Naturalization Interview, you will need to inform the Interviewing Officer of your recent marriage, and provide proof of the marriage (example – marriage certificate).

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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 15, 2014!

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