MVP LAW GROUP – Immigration Q&A Forum, Friday, December 5, 2014

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 – National Interest Waiver (NIW)
I filed concurrent I-140 and I-485 petitions under the National Interest Waiver (NIW) immigration category several months ago, as a self-petitioner without employer sponsorship. I have received a Request for more Evidence from the USCIS. What will happen to my 485 application if my NIW Form I-140 is rejected after the RFE response? Does the President’s Actions taken in November help my case in any way?

Answer #1
If your I-140 petition is denied, you will have the opportunity to file a Motion to Reopen/Reconsider if you believe you have sufficient evidence to overcome the reasons for denial. While your I-140 remains in a pending status, if you decide to file a MTR, your I-485 will remain in a pending status as well until a final decision is rendered on the I-140, Immigrant Petition.

The President’s Executive Actions implement two administrative improvements to the existing system:
1. Issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy
2. Permit DHS to grant parole status, on a case-by-case basis, to investors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research *Parole status would allow these individuals to temporarily pursue research and development of promising new ideas and businesses in the United States, rather than abroad

Question #2 – H1B Nonimmigrant Work Visa
I have done my Masters in Management and working as SAP CRM functional consultant in Riyadh- KSA. I want to apply for an H1B visa. Is there any problem with my qualifications?

Answer #2
More information would be required from you and your employer in order to ascertain whether or not you would qualify for the proffered H1B Specialty Occupation. Please note that in order to qualify for an H1B visa the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.

Question #3 – Deferred Action for Childhood Arrivals (DACA)
What happens if my DACA and EAD expire before my DACA renewal application has been processed?

Answer #3
If your current DACA/EAD expire before your DACA/EAD renewal applications have been processed, if you are working, you will need to stop working until you receive the new EAD card in your hand; and for the time period that you await the processing of the DACA renewal application, you will accrue a period of unlawful presence until your DACA renewal is granted, UNLESS, you Were under 18 years of age at the time you submitted your renewal request. You may qualify for an exception if you submitted your renewal applications at least 120 days in advance of the expiration of your current DACA/EAD. If you would like to further discuss this issue, please contact our office to schedule a consultation.

Question # 4 – H1B Nonimmigrant Work Visa
My H-1B Visa expired on September 30, but I never got H1B visa stamped on my passport. Now, if my employer has to apply for H1B would he have to file a new petition? Would I still have to undergo the entire process again and be counted in next year’s cap?

Answer #4
More information is needed from you. What nonimmigrant visa status are you currently in? How many years were you in H1B visa status? Are you eligible for an H1B visa extension? Do you have an offer of employment? Sufficient information has not been provided to sufficiently answer your question. If you have been counted against the CAP in the past 6 years, and are eligible for an H1B extension, then yes you will need to undergo the process of applying for an extension, but you would not be subject to the CAP. Just because you do not have an H1B visa stamp in your passport does not mean that you cannot work for your H1B sponsoring employer, it just means that if you travel outside of the U.S., in order to return to the U.S., you will need to obtain H1B Visa stamping at a Consulate in your home country.

Question #5 – Nonimmigrant Visa
I am a research associate with an H-1B visa. My I-140 application in EB1 has been submitted and still waiting for USCIS approval. My H-1B visa will reach 6 year limit soon, so I want to know if I am eligible to apply for O-1 visa?

Answer #5
How long ago was your I-140 petition submitted to the USCIS?

To qualify for an O-1 in the Sciences, Education, Business or Athletics, a person must demonstrate either of the following:
1. Receipt of a major, internationally-recognized award (e.g. the Nobel Prize), or 2. At least three (3) of the following apply to him/her:
– Receipt of nationally or internationally recognized prizes or awards for excellence in his/her field.
– Membership in an association in the field which requires outstanding achievements of its members, as judged by national or international experts in the field.
– Published material in professional or major trade publications or major media about the person, concerning the person’s work in the field.
– Participation on a panel, or individually, as a judge of the work of others in the field.
– Scientific, scholarly, or business-related contributions of major significance in the field.
– Authorship of scholarly articles in the field in professional journals or other major media.
– Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
– High salary or other remuneration commanded by the person for services
If you are interested in petitioning for an O-1 visa, contact us online or call us at (240) 390-0600.

Question #6 – Deferred Action for Childhood Arrivals (DACA)
Am I eligible for the new extended deferred action, if I left the country for 8 months in 2008? I meet the other criteria; however I wasn’t sure if my absence from the US would affect applying to DACA.

Answer #6
As no guidance has been provided by the USCIS concerning the new extended version of DACA, I have listed below the view of the USCIS in terms of brief absences and whether or not they affect the continuous presence requirement under the existing DACA:
A brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and 4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

It is recommended that you wait for further information as it appears the bolded dates above may change under the extended DACA program.

Question #7 – Employment Based Green Card Sponsorship
I am Canadian citizen working in the U.S. with a TN visa. Can my employer sponsor me for a Green Card?

Answer #7
Yes; however, the TN visa is not a dual intent visa, meaning it is recommended that you apply for an H1B nonimmigrant visa before initiating the Green Card process. A TN visa holder cannot have dual intent and must maintain at all times a permanent residence in Canada and be able to prove that you have the intent to return permanently to Canada. Upon the filing of an Immigrant Petition on behalf of the Canadian national, that intent to return permanently to Canada is gone because you have made an affirmative step to pursue permanent residence in the United States.

Question #8 – Family Based Immigration (Marriage to USC)
Right now, I am a foreign national who is on an H1B work visa. My USC wife is going to submit an application to sponsor me as her immediate relative. Do we have to apply for I-130 as well as the I-485 form?

Answer #8
Yes, the I-130, Immigrant Petition for Alien Relative serves as the first step in the Family Based Immigration process. As your wife is a USC, she will be able to submit the I-130 and I-485 concurrently on your behalf.

Question #9 – Employment Based Immigration (Labor Certification)
After completing our recruitment, but before filing the ETA Form 9089, our company’s name was changed after it was acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

Answer #9
No; however, you will need to gather extensive documentation establishing that the new company is the successor in interest; this documentation will need to show that the new company acquired all of the assets and liabilities of the previous entity with respect to the job opportunity. You should contact our office to further discuss your situation.

Question #10 – H1B Nonimmigrant Work Visa
I am here in the US on an H-1b Visa and my wife has an H-4. Can she apply for work under Obama’s new executive order?

Answer #10
At this time, we are still awaiting further details on when qualifying H4 dependents will be able to apply for employment authorization. President Obama has directed the USCIS/DHS to publish the final rule extending work authorization to the spouses (H4) of H1B Visa holders who have been approved to receive lawful permanent resident status based on employer-sponsorship. Once further details are released, we will promptly inform our readers.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 19, 2014!

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