MVP LAW GROUP – Immigration Q&A Forum, Friday, September 26, 2014

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Question #1- H1B Nonimmigrant Visa
I need to extend my H-1B visa. Last year, I worked for another company in my home country for 5 months. Because of the H-1B six-year limit, can I ask the USCIS to recapture my 5 month time spent outside of the U.S. from my H-1B visa time?

Answer #1
Yes, you may file an H1B petition with the USCIS requesting that they recapture any period of time that you spent outside of the United States. Be sure to have sufficient evidence to document your time spent outside of the U.S. (i.e. passport stamps, previous I-94 stamps, travel history, etc.)

Question #2 – Employment Based Immigration
My employment-based I-140 application has been approved. Now, I need to file an I-1485 for myself, my wife and my son to get their Green Cards. Do I need to file Form I-864 as an Affidavit of Support?

Answer #2
First, you must determine whether or not your priority date is current, and only if it is current are you able to file the Adjustment of Status petitions with the USCIS. As far as the Affidavit of Support form is concerned, I do not believe in your case it is a requirement. If you would like to speak to a qualified Immigration Attorney concerning the specifics of your case, please contact our office to schedule a Consultation.

Question #3 – H-1B Nonimmigrant Visa Petition
As a H-1B visa holder, I used all my 6 years of H-1B status in United States, and I will go back to my home country for one year to apply for H-1B visa again. During this one year, does a brief business trip to United States will make me ineligible for another six years of H-1B status?

Answer #3
Please note that you must remain outside of the U.S. for a period of one year once you have exhausted your initial 6 years in H-1B visa status before you are eligible to file a new H-1B petition under the H-1B CAP.

As far as brief trips are concerned, it depends… you should speak with an Immigration Attorney before proceeding with any plans. As long as you remain OUTSIDE of the United States for a period of one year or longer, you are eligible to file for a new H1B under the CAP.

Question # 4 – L1 Intracompany Transferee Visa
As a manager in a multi-national company, I need to apply for a L1A visa to open a new office in United States. What kind of evidence or documents do I need to apply for the visa?

Answer #4
You need a multitude of documents from both the foreign entity and the U.S. entity. You may check the USCIS website at http://www.uscis.gov/ to review specific requirements for the L1 visa. It is also highly recommended that you speak with an experienced Immigration Attorney concerning the specifics of your case.

Question #5 – Employment Based Immigration
Can I file an I-140 in both the E-B2 and E-B3 categories at the same time?

Answer #5
It would be beneficial for you to speak with an Immigration Attorney concerning your reasoning for wanting to file an I-140 in both the EB2 and EB3 categories at the same time. There is a requirement that an original Labor accompany the I-140 petition; however, it is not a necessary roadblock to adjudication if you do not have the original, as there is a box on the I-140 petition that allows you to request that the USCIS obtain a duplicate labor certification from the Department of Labor; however, significant delays may occur in the processing of your I-140 because of this selection. Again, it is highly recommended that you speak with an Attorney to discuss your case and strategy.

Question #6 – Employment Based Immigration
I received my PhD degree last year and I am now working as a research scientist for a large company. Can I apply for my Green Card in the category of EB1 Outstanding Professor or Researcher? If so, how can I prove my “at least three years of experience in teaching and/or research”?

Answer #6
Please contact our office to schedule a consultation with an Immigration Attorney to discuss the specific of your case.

Question #7 – DACA
I’m 30 now and eligible for DACA, but I’m afraid I will get deported once I turn 31. Will this happen to me if I apply?

Answer #7
Do you meet all of the eligibility requirements for DACA? Are you a threat to national security? Do you have a pending removal action against you? There is always a possibility of deportation in the future as an undocumented immigrant in the United States. It is recommended that you speak with an Immigration Attorney to discuss the specifics of your case, as you have not provided sufficient information to provide a solid answer to your question.

Question #8 – Green Card
My adjustment of status case is still pending. I must travel to my country in a few months. How do I apply for Advance Parole and how long does it take?

Answer #8
You must complete Form I-131 and file it with the requisite filing fee with the USCIS. Current processing times are roughly 2-3 months. If you have a serious need to expedite your case, you should speak with a qualified Immigration Attorney or contact the USCIS at 1-800-375-5283.

Question #9 – Green Card
Who is eligible to apply for an Employment Authorization Document?

Answer #9
It depends. Certain aliens who are temporarily in the United States may file this form to request an Employment Authorization Document (EAD). Other aliens who are authorized to work in the United States without restrictions must also use this form to apply for a document that shows such authorization. Please review the USCIS website at http://www.uscis.gov/i-765 for a better understanding of who is eligible for apply for an Employment Authorization Document.

Question #10 – Family Based Immigration
I am a U.S. citizen and recently married a foreign student with F-1 visa. Since my current income is not high, will I need to have a co-sponsor for my wife’s Green Card application? What is the income requirement for sponsorship?

Answer #10
Form I-864P is used to determine the minimum income requirement needed to complete Form I-864, Affidavit of Support under Section 213A of the Immigration and Nationality Act. You will need to review the Form I-864P, the Poverty Guidelines at http://www.uscis.gov/sites/default/files/files/form/i-864p.pdf to determine if you need a co-sponsor. You must determine as Sponsor, the size of your household and you will need to be able to support your wife at 125% of the Poverty Guidelines for the size of your household. As an example, if you live alone and are intending to sponsor your wife, which would be counted as 2 for the household size, you must make over $19,662.00 annually, in order to sponsor your spouse’s GC petition.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 10, 2014!

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

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