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Question #1 – 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 #1 – 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 #2 – 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 #2 – 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 #3 – 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 #3 – 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 #4 – Employment Based Green Card
When should your employer file your I-140 with Premium Processing? Does it significantly speed up the processing times?
Answer #4 – If another immigration application or benefit is connected to/relying up the I-140 petition, it is recommended that the I-140 be filed with premium processing. For instance in the most common scenario, if an applicant is nearing his/her 6th year in H-1B status and the Attorney’s Office is preparing the I-140 petition, it should be filed with premium processing. Premium processing will render a decision within 15 calendar days of filing, unless an RFE is issued, in which the 15 day clock will stop until a response is sent to USCIS and once received, the 15 day clock will start back up again. With the I-140 approval, the Attorney’s office can prepare the H-1B extension petition and extend the beneficiary’s H1B status beyond the 6th year indefinitely until a visa number becomes available for the beneficiary.
Question #5 – NAFTA (TN) Visas
I am on a TD visa in the US. Can I get a work permit?
Answer #5 – No. The spouse and/or child of a TN visa worker “shall not accept employment in the United States unless otherwise authorized.”
Question #6 – 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 #6 – 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 #7 – Employment Authorization for Certain H4 Spouses
What forms do I need to file an H4/EAD visa for my wife? What are the USCIS filing fees for this visa?
Answer #7 – Form G-28, if you have an Attorney representing you for the filing, and Form I-765 are required to file the request for H4/EAD, along with supporting documentation to establish the H4 spouse’s eligibility. The USCIS filing fee is $410.00, the check should be made payable to the “US Department of Homeland Security.”
Question #8 – General
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 – Employment Based Immigration
Right now, I have an approved I-140 filed by my previous employer and they also submitted my I-485 back in 2016. Since then, I have started employment with another company on my EAD. Can I file an AC-21 Portability letter?
Answer #9 – Has your employment based, Adjustment of Status petition (I-485) been pending for 180 days or more; and is the new job the same or substantially similar to the job for which the labor certification/I-140 approval support? Contact our office to speak with an Immigration Attorney concerning your case.
Question #10 – 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 #10 – 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.
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 31, 2019!
Please remember to submit your questions/comments on our H1B Visa Lawyer blog!