Immigration Q&A Forum – Originally posted 1/17/14

This blog entry was originally posted on 1/17/14. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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Question #1 – H1B Nonimmigrant Visa
My employer applied for my H1-B. It was approved in Jan 2013. I went to the US in April 2013 and worked there until October 2013. I had to come back to India for a family emergency and had to rejoin our office in India. My employer told me that he had to revoke my H1-B. I am interested to going back to the USA to work for a different employer. Can I just request another employer to file a new H1-B for me?

Answer #1
If you are: (1) the recipient of an approved I-129 (H-1B) filed in the last six years; (2) did not receive that I-129 from a CAP exempt organization; and (3) have time remaining under the 6 year limit, then yes…you may find a new employer who is willing to sponsor your H-1B work visa in order to come back to the U.S. and work for that sponsoring H1B employer.

Question #2 – Employment Based Immigration
My I-140 has been approved and I am on H1B extension. My priority date is March 2010. Will it be valid if I leave the country and come back after few years?

Answer #2
The employer, who sponsored your I-140 petition, may in fact withdrawal your approved I-140 petition at any time; however, you will forever be entitled to the priority date, unless the USCIS revokes the I-140 for fraud or willful misrepresentation. You should speak with an Immigration Attorney to discuss the implications of your suggested plans of leaving the country and coming back in a few years.

Question #3 – General
Currently, I am in an 8-year wait for my green card to be issued. Can I file an I-765 Employment Authorization Document in the mean time to start working in the US? If not, with the exception of H1B or student visas, is there something I could do to start working in the USA within 1-2 years?

Answer #3
In order to receive an employment authorization document (EAD), you must be eligible to apply and receive an EAD. Based upon the information you have provided, you do not appear otherwise eligible to apply for and receive an EAD. Contact our office to speak with an Immigration Attorney about your present situation.

Question #4 – Family Based Immigration
Can an approved I-130 be revoked if it is not used in 12 months?

Answer #4
As long as you remain in contact with the National Visa Center on an annual basis, the I-130 will remain valid until a visa number is available for the intended recipient or the I-130 is withdrawn by the Petitioner.

Question #5 – Naturalization
If my application for naturalization is denied by the USCIS, can I re-apply and how soon?

Answer #5
Yes; however, how soon you re-apply depends upon several factors. You should discuss the reasons for denial with an Immigration Attorney and make an informed decision based upon the advice received from the Attorney.

Question #6 – AC 21 Portability/Employment Based Immigration
I filed my I-140 and I-485 concurrently in the EB2 category. Since the I-485 has been pending for more than 180 days, can I use the AC-21 rule to change employer before my I-140 is approved?

Answer #6
AC21 provides that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification. Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

Question #7 – Employment Based Immigration
I have recently filed an I-140 in the category of extraordinary ability. Currently I am waiting for an H1B approval from the USCIS. I would also like to concurrently file my I-485 also. If I file I-485 now, may I change my current job after 180 days?

Answer #7
It appears from your question that you may be confused. Please contact our office to discuss with an Immigration Attorney, the particulars of your case and what has actually been already filed on your behalf, or if you have an attorney, contact your Attorney.

Question #8 – Employment Based Immigration
Can I file multiple I-140 petitions in different immigration categories?

Answer #8
Yes, but those cases must not be frivolous (they must be based upon bona-fide employment offers.)

Question #9
How does the USCIS determine Priority Dates?

Answer #9
As taken directly from the USCIS website:
The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year. Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available. Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen. Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available. The U.S. Department of State is the agency that distributes visa numbers. Family sponsored preference categories are limited to 226,000 per year and employment based preference visa are limited to 140,000 per year. In addition, there are limits to the percentage of visas that can be allotted to each country. Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date. The priority date is used to determine an individual’s place in line in the visa queue. When the priority date becomes current, the individual will be eligible to apply for an immigrant visa. Your priority date can be found on Form I-797, Notice of Action, for the petition filed for you. The length of time you must wait in line before receiving an immigrant visa or adjusting status depends on: The demand for and supply of immigrant visa numbers; the per country visa limitations; the number of visas allocated for your particular preference category.

For family sponsored immigration, the priority date is the date that the petition is properly filed with U.S. Citizenship and Immigration Services (USCIS).

The priority date for an immigrant petition that is based on employment is either: The date the petition was properly filed with USCIS; or The date the labor certification application was accepted for processing by the Department of Labor.

Question #10
My I-485 application has been pending for more than 2 years. Now I want to travel to my home country to visit my relatives. Can I travel abroad with my current working visa or I have to apply for an Advance Parole (AP) before travel?

Answer #10
You may travel to your home country to visit your relatives, if you have a valid work visa. If you do not have a valid visa stamp in your passport, you will need to obtain visa stamping in your home country while you are there in order to come back to the U.S. to continue working. An AP is not required, if you have a valid work visa. If you have further questions, please contact our office.

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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 1/17/14

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