MVP LAW GROUP – Immigration Q&A Forum, Friday, Nov. 13, 2015

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Question #1 – Family Based Immigration
I am a US Citizen and I applied for an Immediate Relative Petition for my husband. How long does the process take to adjust his status?

Answer #1 Processing of the I-130 generally takes 6 months to adjudicate; however, in practice the I-130 processing can take between 6 to 11 months.

Please note that once the I-130 is approved, there is still another process to be completed, depending upon where the applicant resides – if the applicant already lives in the U.S. – Adjustment of Status by filing Form I-485 with the USCIS; if the applicant lives abroad, by Consular Processing through a U.S. embassy and the National Visa Center…another estimated 6 month processing period.

Question #2 – AC 21 Portability/Employment Based Immigration I filed my I-140 and I-485 concurrently in the EB2 category. Since the I-485 has been pending for more than 180 days, can I use the AC-21 rule to change employer since my I-140 has been approved?

Answer #2 AC21 provides that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification. Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

Question #3 – H1B 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 #3 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. You should speak with an Immigration Attorney to further discussion your situation.

Question #4 – Green Card
I am a Green Card holder and I am getting married in the fall. Do I need to report my name change and get another Green Card?

Answer #4 As long as you carry with you evidence of your legal name change in addition to your Green Card, you should be fine until the time comes for you to file to renew your Green Card. Otherwise, if your name changes and you want to get a new Green Card with the new name change, then you will have to complete Form I-90, and pay the USCIS filing fee of $450.00, $365.00 plus $85.00 biometrics.

Question #5 – General How does “Aging Out” affect the Immigration process? My daughter will be turning 21 in two years. Can I get her Green Card expedited so she can receive it sooner?

Answer #5 The Child Status Protection Act (CSPA) was enacted on August 6, 2002. The CSPA allows a beneficiary to retain classification as a child after reaching the age of 21, if certain requirements are met. Contact our office to speak with an Immigration Attorney concerning the specifics of your case.

Question #6 – Deportation
Can a person who was deported from the U.S.A ever return to the US legally?

Answer #6 It depends. If a noncitizen was deported from the U.S., they are not supposed to attempt to reenter for a specified period of time, if ever. It depends upon factors such as the reason for removal, and whether the person was convicted of a crime, etc. You should contact an Immigration Attorney to further discuss.

Question #7 – 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 #7 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 #8 – H1B Nonimmigrant Visa I have some questions about my current H1-B case extension. My employer has applied for my H1-B extension through the Vermont center. The case was sent to USCIS via Federal Express on 06/21/2015. We haven’t yet received the receipt notice and now want to now upgrade to premium processing. How long does it normally take them to send a receipt notice? Is there any way to get the receipt notice by contacting the USCIS?

Answer #8 Receipts normally take anywhere from one-two weeks to arrive in the mail after the case is accepted for processing by the USCIS. The USCIS sends receipt/approval notices through the United States Postal Service (USPS) and does not provide tracking information for receipt/approval notices. Speak with your employer to determine if the USCIS filing fee checks have been cashed, if so, normally the receipt number is listed on the back of the deposited checks. I have heard that the USCIS has changed the process of depositing checks and now utilize an electronic method that does not provide the receipt number on the back of the check. If this is the case, your employer and/or authorized representative (i.e., Attorney) should contact the USCIS via the customer service 800 number or by mail with documentation to show that the package was in fact delivered and the checks that were cashed for a receipt notice to be issued.

Question #9 – Employment Based Immigration Can I file multiple I-140 petitions in different immigration categories?

Answer #9 Yes, but those cases must not be frivolous (they must be based upon bona-fide employment offers.)

Question #10 – Re-Entry Permit What does a legal resident have to do to stay outside the U.S. for more than 6 months?

Answer #10 If a Legal Permanent Resident of the U.S. wants to make trips outside of the U.S. for periods of 6 months or more, they should prepare and file a Re-Entry permit with the USCIS, Form I-131. Still, you should contact an Immigration Attorney to discuss your specific situation.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 11, 2015!

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