MVP “Immigration Q & A Forum” – This Friday, May 31, 2019

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 – H1B Nonimmigrant Work Visa

My H1B was approved through Consular Processing. I am planning to go in August 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 #1 – 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 #2 – NAFTA (TN) Visas

I am on a TD visa in the US. Can I get a work permit?

Answer #2 – No. The spouse and/or child of a TN visa worker “shall not accept employment in the United States unless otherwise authorized.”


Question #3 – Unlawful Presence in USA

I cannot remember the specifics regarding unlawful presence towards the 3 yr and 10 yr bars, can you provide those time periods?

Answer #3 – If an applicant remains in the US unlawfully (without authorization) for more than 180 days, they may be subject to the 3 year bar. If an applicant remains in the US unlawfully (without authorization) for more than 365 days (1 year), they may be subject to the 10 year bar.


Question #4 – H-1B Nonimmigrant Work Visa

Does the time on my H-1B visa start the day that is approved or when I first enter the U.S. using it?

Answer #4 – The six year period begins to accrue when you first enter the U.S. on a valid H-1B nonimmigrant visa. Time is only counted towards the 6 year limit when you are physically present in the U.S., each time you go outside the U.S., the clock stops and you are no longer in H-1B nonimmigrant visa status until you return to the U.S.


Question #5 – Employment Based Green Card

When should your employer file your I-140 with Premium Processing? Does it significantly speed up the processing times?

Answer #5 – 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 #6 – 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 #6 – 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 #7 – 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 #7 – 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 #8 – 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 #8 – 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 #9 – 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 #9 – 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 #10 – General

How do you determine a Prevailing Wage for a position?

Answer #10 – 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


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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 14, 2019!

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

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