MVP “Immigration Q & A Forum” – 6/21/24

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  1. I went for H-1B visa stamping and after my interview, I was given a 221g letter and eventually after a few months, denied. What happens next? Can I go for another interview? Your H-1B petition will likely be returned by the Consulate to the USCIS. The USCIS will then review the Consulate’s report of your interview, along with the petition that was filed. The USCIS will either reaffirm the approval, or issue a Notice of Intent to Revoke. If reaffirmed, you will be able to go for another interview. If a Notice of Intent to Revoke is issued, your employer will need to respond and based on the response, the USCIS will either reaffirm the original approval or revoke the case. If reaffirmed after responding to the Notice of Intent to Revoke, you will be able to go for another interview. If the case is revoked, the case is withdrawn/closed.
  2. Can I file the I-129 (H-1B) and I-539 (H4) concurrently online? What are the fees for the H4? You cannot file the I-129 and I-539 concurrently online. You can file the I-129 online and once you receive the receipt, file the I-539 online but you cannot file them simultaneously like you can a paper-based filing. Form I-539 includes a USCIS filing fee of $420.00 if filed online, or $470.00 if paper based.
  3. I saw the announcement about the medical examination form being valid indefinitely. My medical examination was filed with my I-485 back in 2020. Based on this announcement, I won’t need to get a new medical examination, right? You will need a new medical examination once your priority date becomes current and a visa number is available for you. The announcement that was made indicates that medical examinations that were properly completed and signed by a civil surgeon on or after November 1, 2023 will not expire and can be used indefinitely to show that you are not inadmissible on health-related grounds.
  4. What is STEM? STEM is the acronym for the fields of Science, Technology, Engineering and Mathematics.
  5. What is the minimum investment amount for the EB5 programGenerally, the minimum investment amount is $1,050,000.00. For a targeted employment area, the minimum investment amount is $800,000.00.
  6. How does the USCIS know it is a concurrent filing? Form I-129 allows you to check the proper box to classify the filing. The Labor Condition Application (LCA) filed with the Department of Labor also allows you to check the proper box to classify the filing.
  7. If I file Form I-485 from the United States and leave the country as a visitor, can I come back? If you filed Form I-131, Application for Travel Document, requesting an Advance Parole document with your AOS (Form I-485), then you will need to wait for the Advance Parole document to be issued before you can leave the United States. Otherwise, leaving without an Advance Parole or a valid dual intent nonimmigrant visa will result in your I-485 being denied for abandonment, among other issues.
  8. What is administrative processing? Administrative processing means the case requires additional review outside of the normal visa processing times. The reason for a case being placed in administrative processing is not always clear, nor is a estimated time frame provided for resolution. Typical administrative processing takes 60 days or less to resolve. If a case has been in administrative processing for longer than 60 days, a follow up to the Consulate or a request for Congressional assistance may be in your best interest to reach a resolution in your case.
  9. What is required for a position to be a Specialty Occupation, to qualify for an H-1B? The position must require: (i) the theoretical and practical application of a body of highly specialized knowledge; and (ii) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. In addition to establishing the requirements above, the position must ALSO meet at least 1 of the 4 below criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; and (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
  10. Can my wife work once we enter the United States? I’ve received my H-1B visa stamping and plan to arrive next month to work for my non-profit employer. If your wife’s status is dependent on yours (i.e., H4 dependent visa), she is likely not able to work if this is your first time in H-1B status and an employer has not initiated the Employment Based GC sponsorship process on your behalf. Unless your wife has applied for and received an H4 EAD, she may not work in H4 status. Your wife is only eligible to receive an H4 EAD if: (i) she is the spouse of an H-1B nonimmigrant who is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; and (ii) she is in valid H4 nonimmigrant visa status.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, July 5, 2024!

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


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