MVP LAW GROUP – Immigration Q&A Forum, Friday, April 17, 2015

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Question #1 – H1B Nonimmigrant Work Visa
Now that the H-1B Cap for FY 2016 been reached, when we will expect to hear which cases have been accepted?

Answer #1
The USCIS announced that the H1B CAP for FY2016 was reached as of April 7, 2015, with nearly 233,000 petitions filed. On April 13, 2015, a week later, the random lottery selection process took place. USCIS has announced that CAP cases filed under Premium Processing will begin to be processed as of April 27, 2015. As in years past, we do not expect to receive receipt notices on regular CAP cases until middle/end of May, early June. If a CAP case was not selected under the CAP, we do not expect to receive the rejection petition until late May/early June.

Question #2 – Employment Based Green Card
How long is the processing of an I-140? Will there still be chances of getting I-140 denied even if the worker is labor certified? If yes, what are the grounds?

Answer #2
The current processing times for the I-140 Immigrant Petition for Alien Worker are roughly 6-8 months depending upon the Service Center and preference category the petition is filed under. If the petition is eligible for premium processing, premium processing severely reduces the processing time to 15 calendar days.

Yes, the I-140 can still be denied even though the Labor has been certified. The I-140 immigrant petition for alien worker centers around the Petitioner’s ability to pay the prevailing wage; and the candidate’s academic and work experience qualifications. The I-140 stage serves as the ‘show me’ stage, as in – prove through the submission of substantiating evidence that the candidate has the minimum educational/experience requirements for the position and that the Petitioner has the present ability to pay the proffered wage to the beneficiary and will pay the proffered wage once the candidate becomes a Lawful Permanent Resident. If the Petitioner cannot satisfy its burden to prove the items listed above, then the I-140 will be denied.

Question #3 – DACA Renewal
How will the USCIS evaluate my request for the renewal of my DACA?

Answer #3
You may request a renewal if you met the initial DACA guidelines and you:
• Did not depart the United States on or after Aug. 15, 2012, without advance parole;
• Have continuously resided in the United States since you submitted your most recent DACA request that was approved; and • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Take a look at our recent blog post – “Reminder to Renew – Deferred Action for Childhood Arrivals (DACA)

Question #4 – Consular Processing
Who is responsible for scheduling a visa immigrant Interview, the Consulate or do I have to call? My wife’s I-130 was just approved and just curious to know what we need to do next.

Answer #4
The National Visa Center (NVC) will contact your wife regarding the next steps – payment of the Immigrant Visa Fee and Affidavit of Support Fee, the submission of civil documents to the NVC, etc.

Then, once the NVC has all of the documentation it needs from your wife, they will coordinate with the Consular Office in order to schedule the Immigrant Visa interview, and will notify you.

Question #5 – Employment Based Green Card
I am currently in the process of filing my I-140 and I-485 concurrently. Can I also apply for an Employment Document (EAD) and Advance Parole at the same time?

Answer #5
Yes, applying for Employment Authorization (EAD) and Advance Parole (AP) are ancillary benefits of applying for Adjustment of Status (AOS, I-485).

Question #6 – H1B Nonimmigrant Work Visa
I just got my H-1B extension approved. Do I need to go home to obtain visa stamp in order to work?

Answer #6
If an I-94 for the petitioning employer has been provided with the approval, this is authorization for the beneficiary to commence work with the petitioning employer as of the start date noted in the I-94. The left portion of the I-94 is for the beneficiary’s records. In summary – If an I-94 is present on the approval, there is no need to go home to obtain visa stamping in order to work.

If an I-94 has NOT been issued with the approval notice, the beneficiary does NOT have authorization to work for the petitioning employer until they have obtained a valid and current I-94, meaning, you will need to depart the U.S., go and obtain H1B visa stamping, and then return to the U.S. to be admitted in H1B visa status under the new visa.

Question #7 – Naturalization
If I was convicted of a petty crime and my record was expunged, can I apply to be a naturalized US Citizen?

Answer #7
It depends upon the type of crime and the punishment received. You should consult with an Immigration Attorney to discuss your conviction, the punishment received, etc. in order to determine your eligibility for Naturalization.

Question #8 – Family Based Green Card
My daughter is a U.S. citizen. At what age can she petition me for permanent residency?

Answer #8
Your daughter will not be able to sponsor you until she reaches the age of 21.

Question #9 – H1B Nonimmigrant Work Visa
If my case is rejected during the H-1B FY 2016 Cap, what are my other options to work in the US?

Answer #9
Please review our recent blog entry “Alternatives to the H-1B Visa for Individuals who did not make the FY2016 H-1B Quota“.

Question #10 – Marriage Based Green Card
What is a “Stokes” interview?

Answer #10
A Stokes Interview is an interview that the USCIS Officer will conduct when s/he questions the legitimacy of your marriage. At the Stokes Interview, you and your spouse will be sworn in and questioned separately. The examiner will compare your answers to the answers of your spouse and look for any discrepancies. If you give the same answers, you will pass. If you don’t, you will be given an opportunity to explain any discrepancies.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 1, 2015!

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