Immigration Q&A Forum – Originally posted 2/14/14

This blog entry was originally posted on 2/14/14. 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 – Employment Based Immigration – Green Card
After working for my employer for more than 2 years with my H1B visa, I recently get promoted as a group manager with more job duties. Can I use my experience with current employer to apply for the PERM Labor Certification?

Answer #1
It depends. It should not be ruled out immediately, as this would require an in-depth review and discussion of the previous position and promoted position. However, using experience gained through the sponsoring employer will likely increase the chances of receiving an Audit from the Department of Labor. It is recommended that you consult an Immigration Attorney to further discuss this issue.

Question #2 –Employment Based Immigration – Green Card
What Are the Major Differences between the EB2 and EB3 Categories?

Answer #2
As provided on our website – www.mvplawgroup.com – The EB-2 classification is open to 3 types of foreign nationals: (1) Exceptional Ability in the Sciences, Arts or Business; (2) Advanced Degree Professionals; and (3) Qualified Alien Physicians who will practice medicine in an area of the U.S., which is underserved. *Labor certification is required for this category The EB-3 classification includes foreign nationals with at least two years of experience as skilled workers; professionals with a baccalaureate degree; and other workers with less skill who can contribute abilities unavailable in the U.S. Skilled workers should have at least two years experience, either through hands-on experience or through post-secondary education. Professionals should have either a U.S. bachelor’s degree or a foreign equivalent degree.

Question #3 – Employment Based Immigration – Green Card
After recruitment has been completed, but before submitting ETA Form 9089, our company’s name was changed after we merged with another company. Does the company name used in the recruitment efforts have to match the company name used on ETA Form 9089?

Answer #3
In its Frequently Asked Questions, the Department of Labor has provided the following concerning this issue: The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer’s legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer’s name shown on the advertising used to recruit for a job opportunity and the employer’s name on the submitted ETA Form 9089, the employer must be prepared to provide documentation — in the event of an audit — proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity.

Question #4 – Employment Based Immigration – Green Card
Can an employer withdraw a PERM application if it has already been certified?

Answer #4
Yes, an employer may withdraw a certified PERM application from the Department of Labor.

Question #5 – H-1B Nonimmigrant Work Visa
Since I did not wanted to accrue any out of status, I am currently in India as my recent H-1B transfer from Company A to Company B got denied. A new company is filing my new H-1B petition in the US. I wanted to know if I need to go to US Consulate Processing in India after my H-1B approval?

Answer #5
Once the H-1B petition is approved, it is recommended that you schedule an interview at your nearest Consulate in order to obtain H1B visa stamping. Please contact an Immigration Attorney to discuss the specifics of your case.

Question #6 – H-1B Nonimmigrant Work Visa
If I have an H-1B visa and my I-140 is completed but my visa is going to expire soon, how long can I stay in the USA if my employer does not file a H1B visa extension?

Answer #6
Under the regulations, there is no set grace period…once you are no longer employed by your sponsoring employer; you should immediately make plans to depart the United States. If you remain in the United States once your H-1B visa expires, you will begin to accrue unlawful status. Please note that you do have the option to transfer your H-1B to another U.S. employer willing to sponsor you.

Question #7 – H-1B Nonimmigrant Work Visa
Once I receive my H-1B transfer to my new employer, is there any time limit as to when I need to begin working there?

Answer #7
Under the regulations, there is no set time period. When you begin to work for your new employer is entirely up to the agreement made between you and your employer. Consult an Immigration Attorney to further discuss possible risks involved in waiting too long to begin employment with your new employer.

Question #8 – H-1B Nonimmigrant Work Visa
My H1B is expiring in September 2014. Do I need to file under the H-1b Cap? What documents do I need to file an extension?

Answer #8
If you are already in H-1B status, you would not need to file under the H-1B CAP, unless your current employment is with a CAP EXEMPT U.S. employer, and you wish to seek employment with a CAP SUBJECT U.S. employer. If this is purely an H-1B extension with the same employer and you have time remaining in H-1B status, extensions are not subject to the CAP. Please contact our office to further discuss your situation.

Question #9- H-1B Nonimmigrant Work Visa
When should I start preparing cases to submit for the upcoming H-1B Cap Case filing?

Answer #9
NOW!

The Fiscal Year 2015 H-1B season is quickly approaching and has been projected to be yet another short season.
Each Fiscal Year (FY), which starts on October 1, 65,000 H-1B visas become available for what is referred to as the “General Cap,” and 20,000 H-1B visas become available for what is referred to as the “Master’s Cap.” Those individuals holding a U.S. Master’s degree or higher may fall within the Master’s Cap; all others fall within the General Cap. The FY H-1B filing season opens six months before each FY, i.e., during the first week in April.
The FY 2015 H-1B Cap season will open on April 1, 2014 with employment beginning October 1, 2014.
In the past few seasons, as H-1B visa numbers dwindled, the rate of filings of Cap-subject H-1B visa petitions increased. For this reason, we predict the H-1B quota will be reached within the first week, just like last year.
This will be yet another short H1B season. In FY 2009, 165,000 H-1B petitions were filed within the five-day filing period at the beginning of April 2008 and a lottery was needed to select the petitions that would be awarded a place within the Cap. After the start of the Great Recession, however, the demand for H-1B visas decreased dramatically, resulting in significantly longer H-1B seasons: the FY 2010 H-1B Cap was reached December 21, 2009; the FY 2011 H-1B Cap was reached January 27, 2011; the FY 2012 H-1B Cap was reached November 22, 2012; and the FY 2013 H-1B Cap was reached June 11, 2012. The FY 2014 H-1B Cap was reached April 5, 2013 and all petitions were subjected to the random lottery process. Many see the markedly higher demand for H-1B visa petitions as indicative of an improving job market and economy in the U.S.
Employers wishing to file H-1B Cap-subject petitions with the earliest possible start date in FY 2015, i.e., with a start date on or after October 1, 2014 need to start their cases immediately. Employers cannot file H-1B visa petitions for new employees until they first obtain a labor condition application (LCA) from the U.S. Department of Labor (DOL), which takes at least six business days to process. Start now or wait about 18 months before the next H-1B visas are available in October 2015.
If you have questions, we have answers. Give us a call today to discuss or to get started on preparing your FY2015 H1B CAP cases.

Question #10 – Family Based Immigration – Green Card
I am a US citizen based in CA. My Japanese parents are currently visiting my sister in Kansas. I would like to apply for a Green Card for my parents through AOS. Does it matter that they are currently not living in the same state as me?

Answer #10
It does not matter that your parents do not live in the same state as you; however, for other reasons, please contact our office to further discuss your situation.

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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 2/14/14

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