Immigration Q&A Forum – Originally posted 4/25/14

This blog entry was originally posted on 4/25/14. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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Question #1 – H4 Dependent Visa
Right now, I am H-4 Status under my husband’s H-1b. I was wondering if any employer could apply for an H-1B for me. Do I keep my H-4 if I am not approved?

Answer #1
In order to qualify for H-1B classification, you must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. As this visa category is not a self-petitioning category, you must have a sponsoring employer in the United States.
Unfortunately, you just missed the H-1B CAP for FY2015, running from October 1, 2014 until September 29, 2015. Therefore, the only way in which you could receive an H-1B at this time would be through employment with a CAP EXEMPT employer. For more information, please contact our office to schedule a consultation with an Immigration Attorney.

Question #2 – H1B Nonimmigrant Work Visa
If my employer does not have a project for me, are they allowed to “bench” me without pay?

Answer #2
NO, it is against the law to “bench” an employee without pay.

Question #3 – H1B Nonimmigrant Work Visa
I got approval for my H-1B visa but I have not gone to the Consulate for Visa Stamping. With the Cap deadline passed, am I out of luck?

Answer #3
It appears that you are confused about the process. If you have already filed an H-1B CAP case, were counted under the CAP and received an approval (I-797 form), then you may apply at any time for visa stamping, to allow you to come to the United States to begin working for your sponsoring employer.

Question #4 – H1B Nonimmigrant Work Visa
Can I start my own company while on H-1B Status?

Answer #4
Yes; however, you MAY NOT WORK for that company. It is highly recommended that you contact our office before moving forward.

Question #5 – Family Based Immigration
I got married to an American citizen and I am filing an I-131. I am still applying for Adjust of Status (I-485). When I got married I was an Au Pair (J-1) and I still have this visa, which will expire only in September 2014. In this case, do I qualify for reentry permit or advance parole?

Answer #5
It appears that you may be confused with the process, or just made a typographical error. Considering that you currently hold a J1 visa, it is advisable that you contact our office to further discuss the specifics of your case.

Question #6 – Visa Waiver Program
What is the Visa Waiver Program and who is eligible to apply for it?

Answer #6
As taken from the Department of State website, the Visa Waiver Program (VWP) allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less, when they meet all requirements explained below. Travelers must be eligible to use the VWP and have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. Please refer to the following website for more information: http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html

Question #7 – Employment Based Green Card
Will processing of an I-485 application continue when a Request for Evidence (RFE) is sought on an I-140?

Answer #7
If an I-140 RFE is issued on a concurrently filed I-140/I-485 petition, then the process will be on hold until a response is received by the Service for the I-140 petition. In order to qualify for Adjustment of Status, you must have an approved Immigrant Petition, I-140.

Question #8 – Employment Based Immigration
Can I travel out of country for VISA Stamping after I filed my I-140?

Answer #8
If you have a valid nonimmigrant visa approval (i.e., H1)

Question #9 – Green Card
My Green Card is about to expire in November this year. Should I apply for a renewal now?

Answer #9
You should file to renew your green card six months prior to its expiration date.

Question #10 – Employment Based Immigration
Can I apply for consular processing of green card from my home country with an approved I-140 and with a current priority date, but no longer employed with the company that sponsored the I-140?

Answer #10
Has the company revoked your approved I-140 petition? Will you re-join the company once you become a Lawful Permanent Resident? The Green Card is ultimately for future employment. These questions will need to be considered and answered. It is recommended that you contact our office to speak with an Immigration Attorney.

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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 4/25/14

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