MVP LAW GROUP – Immigration Q&A Forum, Friday, May 23, 2014

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Question #1 – H1B Nonimmigrant Visa
I have applied for H1B Visa for the year 2015 H1B CAP. After applying, I was notified by university people that there is a small clerical mistake in my MCA main certificate and the correction has been done. But the certificate I have send for H1B application is my old certificate which will be differing from my corrected certificate which is in my hand. Do you think it will create any issues?

Answer #1
If this discrepancy would cause an adjudicator to question your eligibility for the H-1B nonimmigrant visa, then the USCIS Adjudicator will most likely issue a Request for Additional Evidence (RFE) and request that you explain the discrepancy/issue at hand and provide the newly corrected certificate.

Question #2 – L1 Intra-Company Transferee
I am in China, and hope to move to US. My uncle has an internal trade business in China and plan to start a branch or participate or buy an existing business with me in US to get the L1-A visa both and change to EB1C a year later. Is there are an exact number of how many full time employees, investments, etc., turnover as the EB5?

Answer #2
There is no hard set figure for the number of full time employees, or the amount of capital investment for the L1/EB1(c). For more information, please contact our office to speak with an Immigration Attorney.

Question #3 – Employment Based Green Card
Can an employer file an I-140 for a beneficiary in multiple visa categories?

Answer #3
Yes, as long as there is a bona fide job offer behind each I-140 petition, and effective recruitment efforts were carried out to test the U.S. labor market for each case.

Question #4 – H1B Nonimmigrant Visa
I am working on an H-1B full time for my employer. My employer is planning to transfer me from the West Coast to the East Coast with same job title. Do I have to apply for H1B amendment for this change?

Answer #4
Yes, your employer would need to submit a Labor Condition Application (LCA) with the Department of Labor (DOL) prior to moving you from the West Coast to the East Coast, and once the LCA is certified, the Employer must file an amended H1B petition with the USCIS informing them of this material change in employment.

Question #5 – H1B Nonimmigrant Visa
Can I still work if my H1B extension has been filed, but the USCIS still has not processed my application yet. My initial H1B visa has just expired.

Answer #5
Under regulation 8 C.F.R.§274a.12(b)(20), a person lawfully employed under A-3,E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2,P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R.§214.1, is automatically given 240 days from the date of expiration.

Question #6 – Employment Based Green Card
I never worked for my “Green Card” sponsoring employer, who filed Labor Certification for me. It was a future job offer. Can I use AC-21 portability to change jobs?

Answer #6
Yes, if you are otherwise eligible to port pursuant to AC21 law.

Question #7 – General
My parents have already applied for their Green Cards. Before I apply for mine, I want to study in the US first. Can I get a student’s visa?

Answer #7
Yes, however, you could possibly run into intent issues.
Please contact our office to speak with an Immigration Attorney to discuss your plans.

Question # 8 – Employment Based Green Card
I am a Ph.D student with an F-1 visa. Do I have to wait to apply for the Green Card in EB1-Extraordinary Ability after my graduation and changing the visa to H-1B?

Answer #8
Please contact our office to speak with an Immigration Attorney to discuss your case.

Question #9 – Employment Based Green Card
After working for my employer for more than 2 years with H1B visa, I recently got promoted as a group manager with more job duties. Can I use my experience with current employer to apply for a PERM Labor Certification?

Answer #9
It depends and generally it is not advisable; however, you should speak with an Immigration Attorney at our firm to discuss your specific case. Please contact our office to schedule a consultation.

Question #10 – Employment Based Green Card
This month, I obtained my Green Card based on my employer’s sponsorship in EB2 category. If I change job within a few months after I-485 approval, is there any problem for my permanent resident later or in the U.S. citizen naturalization proceedings?

Answer #10
It depends. There is no hard set period of time that you must remain with your sponsoring employer; however, we recommend to our clients that they remain with their sponsoring employer 6 months-1 year after receiving their Green Card, unless there are serious issues that warrant you leaving before that recommended time period, or a better job is offered that cannot be passed up.

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 6, 2014!

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