MVP LAW GROUP – Immigration Q&A Forum, Friday, January 9, 2015

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 – Employment Based
When should your employer file your I-140 with Premium Processing? Does it significantly speed up the processing times?

Answer #1
If another immigration application or benefit is connected to/relying up the I-140 petition, it is recommended that the I-140 be filed with premium processing. For instance in the most common scenario, if an applicant is nearing his/her 6th year in H-1B status and the Attorney’s Office is preparing the I-140 petition, it should be filed with premium processing. Premium processing will render a decision within 15 calendar days of filing, unless an RFE is issued, in which the 15 day clock will stop until a response is sent to USCIS and once received, the 15 day clock will start back up again. With the I-140 approval, the Attorney’s office can prepare the H-1B extension petition and extend the beneficiary’s H1B status beyond the 6th year indefinitely until a visa number becomes available for the beneficiary.

Question #2 – Deferred Action for Childhood Arrivals (DACA)
If you apply for DACA and get denied, do you risk deportation?

Answer #2
As indicated on the USCIS website, if you apply for DACA and are denied, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations.

The USCIS will apply their policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of notices to appear. If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, they WILL NOT refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.
*You will not be considered for DACA if you have been convicted of: A felony offense; A significant misdemeanor offense; or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct. Or, you are otherwise deemed to pose a threat to national security or public safety.

Question #3 – Adjustment of Status Petition
Can transferring your H-1B visa from one employer to another jeopardize an I-485 application?

Answer #3
It depends upon the specific circumstances of your case. An employment based green card is ultimately for a future position with a company, and there is no requirement that you have previously worked for the Company in order to obtain a Green Card from that sponsoring Company. You may contact our office to schedule a consultation to speak with an Immigration Attorney concerning your case.

Question # 4 – K1, Fiancé Visa
If my fiancé’ was denied a tourist visa, can I still apply for a fiancé’ visa for her?

Answer #4
It depends upon the specific circumstances of your case, i.e., the reason the tourist visa was denied. However, you should be able to apply for a fiancé visa for her. Please contact our office to schedule a consultation to further discuss.

Question #5 – NAFTA TN Visa
What is the typical processing time for the approval of a TN Visa?

Answer #5
It depends upon whether you are a Canadian Citizen or a Mexican Citizen. Canadian citizens may apply for a TN visa directly at the Canadian border; whereas, a Mexican citizen must apply for and receive a TN visa stamp in their passport at a Mexican Consulate.

Question #6 – H1B Nonimmigrant Work Visa
Is it necessary to file an amended H-1B petition if the employee’s job location has changed?

Answer #6
It depends upon whether the location change is a ‘material change’ in the terms and conditions of employment. Has the employee’s job been moved to a location outside the area of employment indicated on the Labor Condition Application (LCA) filed in connection with the H-1B petition? If yes, then an amended H1B petition should be filed. Has the employee’s job location been moved out of the State? If yes, then an amended H1B petition should be filed. We encourage you to contact our office to further discuss whether the job location change is a ‘material change.

Question #7 – H1B Nonimmigrant Work Visa
How do I know if I am eligible for an H-1B Extension once my initial work period is over?

Answer #7
With an H-1B nonimmigrant work visa, an applicant is eligible for a total of 6 years in H-1B status – the max is three years at a time to be extended once for a total of 6 years. In order to be eligible for an H-1B extension beyond the 6th year in H-1B visa status, an applicant must be the recipient of a Labor Application or I-140 petition that was filed 365 days prior to their 6th year in H1B status, OR be the recipient of an approved I-140 petition. In other words, in order to extend beyond 6 years, an applicant must have initiated the GC process prior to their 6th year in H-1B visa status. Please contact our office to further discuss your case.

Question #8 – President Obama’s Executive Actions on Immigration
Will the President’s Executive Actions on Immigration Reform change the waiting time for Green Card approvals?

Answer #8
As listed on the USCIS website, USCIS has been instructed to work with the Department of State (DOS) to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas; and to work with the DOS to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

Question #9 – H1B Nonimmigrant Work Visa
As an employer, when should I start preparing my H-1B cases for this year’s H-1B Cap?

Answer #9
NOW! Please contact our office to schedule a consultation.

Question #10 – Green Card
Do I have to wait for my Priority Date to become current before I apply for an Employment Authorization Document?

Answer #10
Generally, yes, you may not apply for adjustment of status (I-485), or any of its ancillary benefits (I-765; I-131) until your Priority Date becomes current. Please contact our office to further discuss.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 23, 2015!

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