MVP “Immigration Q & A Forum” – March 27, 2020

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 – Family Based Immigration
Do I need to change my I-130 petition if I filed for my relative as a LPR, but now I have become a US Citizen?
Answer #1 – Yes, you should contact the USCIS Office that is reviewing your application and inform them that you have become a U.S. Citizen by submitting a copy of your Naturalization Certificate.


Question #2 – U.S. Visa
How long can you lawfully stay in the United States before returning home after a visa expires?
Answer #2 – There is no safeguard/grace period written in the regulations; however, everyone should be aware of the 3 year/10 year bars. Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years.


Question #3 – NAFTA (TN) Visas
I am on a TD visa in the US. Can I get a work permit?
Answer #3 – No. The spouse and/or child of a TN visa worker “shall not accept employment in the United States unless otherwise authorized.”


Question #4 – Visa Bulletin
Where can I find the visa bulletin numbers?
Answer #4 – On the U.S. Department of State website: Visa Bulletin


Question #5 – Employment Based Immigration
If my Labor Application is denied, can we appeal the decision?
Answer #5 – Yes; however, your employer and Immigration Attorney should review the reasons for denial and determine whether or not the DOL wrongfully denied the ETA 9089. If there is a basis supported by case law and/or documentation for a reversal of the DOL’s decision, the employer may file a Request for Reconsideration with the DOL within the specified time period.


Question #6 – Employment Based Immigration
My I-140 was just approved. The next step is to apply for Adjustment of Status (AOS). What kind of documents do I need to have for the AOS application?
Answer #6 – Yes, the next step would be to file for Adjustment of Status; however, is your priority date current? If not, then you will need to begin collecting supporting documentation now, and once your priority date becomes current, submit the documentation with the completed I-485 form to the USCIS. Some of the documents required: birth certificates, educational transcripts/degrees, passports, federal income tax returns, employment letter, etc. Speak with an Immigration Attorney for a complete list of documents required for the I-485 filing.


Question #7 – 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 #7 – If you are eligible to file under EB2, have a willing sponsor, and if you are already the recipient of an approved I-140 for the EB3 preference category, 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 #8 – Prevailing Wage
How do you determine a Prevailing Wage for a position?
Answer #8 – The Department of Labor determines the prevailing wage for a particular position depending upon the job description, education level and experience required.
The Foreign Labor Certification Data Center Online Wage Library is accessible to the public on the Internet at: Online Wage Library – FLC Wage Search Wizard


Question #9 – H1B Nonimmigrant Work Visa
My H1B was approved through Consular Processing. I am planning to go in November to get my Visa stamp but I want to do it from a different city in India then I used for my approval. Can I change the city without complicating matters?
Answer #9 – You may experience significant delays if you schedule an interview at a Consulate that was not identified in your I-129 petition. It is our recommendation that you schedule your interview for the Consulate that was listed in your I-129 petition as to avoid any unnecessary delays.


Question #10 – 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 #10 – 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.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 10, 2020!

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

Contact Information