MVP LAW GROUP – Immigration Q&A Forum, Friday, February 20, 2015

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Question 1: Employment Based Immigration
Can I change my I-140 from one category to the other without being penalized? I am on EB-3 but want to change to E-B2.

Answer 1:
If you are already the recipient of an approved I-140 for the EB3 preference category, if eligible you may be able to upgrade to EB2; however, the process requires starting from the beginning of the GC process – with the test of the US Labor market, followed by the filing of the Labor Certification. At the I-140 stage, you would file under EB2, and make a request for the USCIS to recapture your earlier priority date in EB3 and apply that towards your I-140 EB2.

Question 2: Green Card
I am in the process of applying for my Green Card. Is it OK for me to switch jobs?

Answer 2:
More information is required in order to provide an accurate response. Please contact our office to schedule a consultation with an Immigration Attorney.

Question 3: H-1B CAP FY2016
If my wife has an H-1B Visa, can I apply for one under this year’s H-1B cap?

Answer 3:

Yes, if you are presently on H4 and have an offer of employment to begin 10/01/2015 and you qualify for the Specialty Occupation, then you may apply under this year’s H1B cap. Contact our office to further discuss your eligibility.

Question 4: National Visa Center
What is the National Visa Center and how are they involved in the immigration process?

Answer 4:
The National Visa Center (NVC) processes all approved immigrant visa petitions after they are received from United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS) and retains them until the cases are ready for adjudication by a consular officer abroad.

Question 5: Paperless Electronic I-9 Records
If I lost my I-94, is there any way I can obtain a new one?

Answer 5:
CBP no longer issues paper I-94 records. You may access your I-94 record and travel history yourself on the Customs and Border Protection Website.

Question 6: President Obama’s Executive Actions
Will Obama’s Executive Action on Immigration impact the wait times for Priority Dates? It seems like I have been waiting forever for my date to become current.

Answer 6:
As part of President Obama’s Executive Actions, he wants to streamline legal immigration to boost our economy and promote naturalization by:

Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.

Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement.

Question 7: Family Based Immigration and Student Visas
I am planning to sponsor my brother and have sent in my I-130. Can he apply for student visa during this process?

Answer 7:
The answer focuses on his intent. When applying for a student visa, you are interviewed by a Consular Officer who asks you questions regarding your purpose for the visa and your intent, whether or not you have substantial ties to your home country – essentially, whether you will come back once you complete school. In order to obtain the visa, you must schedule an interview and attend that interview…in order to schedule the interview, you must complete an electronic form and submit it to the Consular Post, one of the questions listed concerns whether or not an Immigrant Petition has been filed on your behalf and whether you have any family members living in the US…to which you must answer truthfully. It would be advisable for you to contact an Immigration Attorney to further discuss your situation.

Question 8: H-1B Nonimmigrant Work Visa
Once my H-1B application is approved, do I have to return to my home country for Visa Stamping or can go to an embassy?

Answer 8:
It depends upon where you are AND whether or not an I-94 appears at the bottom of your Approval Notice, Form I-797A. If you are in the USA and applied for an H1B transfer or extension of status and an I-94 appears on your approval notice, Form I-797A, you do not need to go anywhere or do anything; however, if you plan to take a trip outside of the USA, in order to be admitted back into the USA, you will have to obtain visa stamping, it is recommended that you obtain that visa stamping in your home country. If you were in the USA in another valid status and applied for a change of status to H-1B based upon the annual CAP, then again, you do not need to go anywhere or do anything if your Approval notice displays an I-94 in the bottom right hand corner. If you applied for the visa from abroad, you will need to obtain visa stamping. To further discuss, please contact our office to schedule a consultation.

Question 9: Employment Based Immigration
A few months ago, my company began the PERM process for me. Now, they are being merged with another company. How will this affect my PERM processing?

Answer 9:
It depends. This is quite a complex issue that could affect both the PERM and I-140 processes and must be evaluated on a case-by-case basis. If the merged company took all the assets and liabilities in the merger, the new merged company is the Successor in Interest and the new merged company may continue the PERM process. It would be advisable to speak with an Immigration Attorney concerning the details of the merger.

Question 10: GC – Re-Entry Permit
If my Green Card expires while I am outside of the US, can I still re-enter the US if I have a re-entry permit?

Answer 10:
Yes, if your re-entry permit remains valid.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, March 6, 2015!

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