MVP LAW GROUP – Immigration Q&A Forum, Friday, October 10, 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 – H-1B Nonimmigrant Visa
I have an I-129 petition (Approved from Oct 1, 2010) which was never used and I never traveled to USA. Can an employer file my H1B under cap exemption category?

Answer #1
Yes, as you have been subjected to the H-1B CAP within the last 6 years. Accordingly, you should be eligible to file your H-1B petition without being subject to the H1B CAP.

Question #2 – Family Based Immigration
Can I adjust status or apply for a visa if I am in a same-sex marriage?

Answer #2
In order to adjust status to Permanent Resident, you will first have to have your partner sponsor you for an immigrant visa. Your case will be considered family based immigration, dependent upon a familial relationship between the petitioning sponsor and the beneficiary. Depending upon the Immigration Status of your partner, you may be able to file the immigrant visa petition and adjustment petition concurrently. Please contact our office to further discuss the process.

Question #3 – Anticipated Immigration Legislation
I am on an H-1B visa and my wife is on H-4. I was told the Employment Authorization Document (EAD) could allow my wife to work in U.S. How do I apply for it?

Answer #3
You cannot apply for it at this time, as it is not an offered benefit from the USCIS yet. The Department of Homeland Security first proposed authorizing employment for spouses of certain H-1B visa holders in May of 2014! Please view our blog entry about the topic, “DHS Proposes Reforms to Attract and Retain Highly Skilled Immigrants“.

Stay tuned to our H1B Visa Lawyer Blog for updated information. https://www.h1bvisalawyerblog.com/

Question# 4 – L1B Nonimmigrant Work Visa
I have an L1B visa and I’m working for a small company. Can I apply for U.S. Green Card or is the L1B visa not a “dual intent” visa?

Answer #4
The L1B nonimmigrant work visa is a temporary visa and is not a ‘dual intent’ visa like the H-1B nonimmigrant visa.

Question #5 – AC21 Portability/Green Card
After my I-140 is approved, could I change my job and not affect my Green Card application?

Answer #5
When did your employer submit the I-140 petition? Were you eligible to file the I-485 petition? If so, when did you file the I-485 petition? Please contact our office so that we can obtain more information from you in order to adequately address your situation.

Question #6 – AC21 Portability/Green Card
I sent my I-140 application to the USCIS based on EB1 about 6 months ago. My H-1B will expire next year in August, after six years in H-1B status. Can I get additional H1B extensions in one-year increments, before the final decision for my I-140 application from USCIS?

Answer #6
USCIS is required to grant the extension of stay pursuant to §106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

Question #7 – Employment Authorization Document (EAD)
My I-485 application is still pending, and my EAD will expire soon. Do I have to renew my EAD? If so, when should I renew it?

Answer #7
If you are authorized to work pursuant to your EAD card, then YES, you must renew your EAD in order to continue working for the same employer or another employer. You are NOT ALLOWED to continue working past the expiration date unless you have a new EAD card in your possession. You are allowed to renew your EAD up to 120 days prior to its expiration.

Question #8 – H1B Nonimmigrant Visa
Right now, I am on H-1B, but it will expire in January. I am also starting to look for another job within the same industry. If my H-1B expires after I-140 approval, but before I-485 approval, is it legal for me stay unemployed? What is the best situation for me?

Answer #8
When did your employer submit the I-140 petition? When did you file the I-485 petition? When applying for the I-485 petition, did you submit a completed Form I-765, Application for Employment Authorization? If so, once the Employment Authorization application is approved, the EAD will be mailed to you and will provide you with employment authorization to work anywhere. You should not remain unemployed for any period of time. Please contact our office so that we can evaluate your options and determine the best situation for you.

Question #9 – Diversity Visa Lottery
What is the Diversity Visa Lottery and how/when can you apply for it?

Answer #9
Annually, the United States government issues a maximum of 50,000 green cards through a computer-generated random lottery drawing. Applications for the DV-2016 random lottery will be accepted from noon (EDT) Wednesday, October 1, 2014 through noon (EST) Monday, November 3, 2014.
For more information and to apply, please read our Blog, “Diversity Visa (DV-2016) Lottery Announced“.

Question #10 – Advance Parole (AP)
I filed my I-485 and got the Advance Parole. When I travel to my home country on Advance Parole, what kinds of other documents are needed for me to come back to the US?

Answer #10
You should carry the Advance Parole card with you, along with a copy of your I-485 receipt notice, your valid passport and government issued ID. In most situations, the Officer will only request to see your Advance Parole card.

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 24, 2014!

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