Immigration Q&A Forum – Originally posted 2/15/13

This blog entry was originally posted on 2/15/13. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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 – H-1B Non-Immigrant Visa
Who is included in the H-1B CAP?

Answer #1
The H-1B CAP that opens every year on April 1, only applies to new H-1B recipients – individuals graduating from a U.S. university; those who live abroad and have found work in the U.S.; those changing status from H4 to H1B, L1 to H-1B, TN to H-1B, etc.

Recipients of H1B Extensions, Transfers and Amendments are not subject to the Annual H1B Cap.

Question #2 – Employment Based Immigration
How can I qualify for an H-1B with a company, but not a Green Card with that company?

Answer #2
The H-1B program is entirely different from the Green Card process. With the H-1B program, one is able to combine both education and experience to satisfy the requirement of having the equivalent of a U.S. Bachelor’s degree in a specific field. However, with the Green Card process, education and experience cannot be combined for education equivalency to satisfy the employer’s minimum requirements for the position.

Question #3 – H-1B Non-Immigrant Visa
What is your projection of the H-1B CAP Season?

Answer #3
The Fiscal Year 2014 H-1B season is quickly approaching and has been projected to be the shortest season since the start of the Great Recession. 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 in the first two to three weeks.

This will be the shortest H-1B Season since FY 2009, when 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. Many see the markedly higher demand for H-1B visa petitions this season as indicative of an improving job market and economy in the U.S.

Question #4 – Marriage Based Immigration
I married a U.S. Citizen after 4 years of dating and an autistic child, received my conditional green card and am now eligible to remove my conditions. My situation is a bit complicated and I may be facing a divorce. Can I, and Can you advise me on what to do?

Answer #4
You may be able to remove the conditions by filing a waiver. The questions and answers in this forum are limited to those of a general nature. We recommend that you contact one of our experienced Immigration Attorneys to further discuss the specifics of your situation.

Question #5 – H-1B Non-Immigrant Visa
Is there any limit to how many times I can apply for an H1B transfer?

Answer #5
No, you can apply as many times as you want.

Question #6 – DACA
Will I be able to get a driver’s license with DACA? What about in-state tuition?

Answer #6
The answer is dependent on the state.

Question #7 – H-1B Non-Immigrant Visa
I applied for an H-1B visa back in 2008, it was approved and I worked for two years and then returned to my home country to deliver my first child. I have found another work opportunity with a new employer in the US and would like to return. Am I subject to the Annual CAP?

Answer #7
If you have a I-797 approval notice indicating that your H-1B was approved within the past six years, and there is time remaining on your 6 year H-1B limit, then YES, you may return to the US upon receipt of a new I-797 approval notice with a new sponsoring employer.

Question #8 – Comprehensive Immigration Reform (CIR)
Will a new legalization program simply lead to more illegal immigration?

Answer #8
No: not if the new program contains all the appropriate elements and is implemented properly. Please stay tuned to our h1bvisalawyer blog, Facebook and Twitter for the latest updates concerning Comprehensive Immigration Reform.

Question #9 – H-1B Non-Immigrant Visa
My H-1B was approved in September 2011. Went for visa stamping in January 2012 and was denied. Consulate returned my petition to the USCIS in March 2012, still no response. What is going on? What’s going to happen next? I’m stuck in my home country until I receive some news.

Answer #9
Normally, when the Consulate/Department of State (DOS) returns a case to the USCIS, the USCIS has the authority to review the response from the Consulate/DOS and either re-affirm their previous decision or issue a Notice of Intent to Deny. The burden is then on the Petitioner to overcome any allegations presented in the Notice of Intent to Deny. Cases returned to the USCIS from the DOS are not given top priority and are worked on/reviewed as time and resources allow.

Question #10 – DACA
Will DACA let me travel internationally?

Answer #10
You would need to apply for an Advance Parole document in order to travel internationally. Please be advised that the Department of Homeland Security has stated that it will only grant Advance Parole for “humanitarian, education or work purposes.”

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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 2/15/13

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