MVP LAW GROUP – Immigration Q&A Forum, Friday, April 3, 2015

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Question #1 – H1B Nonimmigrant Work Visa
When will the USCIS let us know the status of H-1B FY 2016 Cap Cases?

Answer #1
You may monitor the status of how many cases are being filed with the USCIS at the following USCIS website: H-1B Fiscal Year (FY) 2016 Cap Season

Question #2 – H1B Nonimmigrant Work Visa
I’m on an H1B due to be renewed by Oct 1st this year. I’ll be putting in the I-129 for the renewal the start of April. Let’s assume it gets approved and I get my renewed I-797 and Visa for 2015-2018. If I change employers between April and October, does the new I-797 survive this transition or do I have to renew again?

Answer #2
In order to change employers you will first have to file an H-1B transfer petition with the USCIS, as you cannot transfer employment without being approved first by the USCIS. Your H1B transfer petition should include a request to extend the visa for the remaining time period available under the 6 year maximum in H1B visa status.

Question #3 – 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 #3
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 #4 – Diversity Lottery
What is the Diversity Lottery and when does it take place?

Answer #4
As provided on the Department of State (DOS) website, Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” from countries with historically low rates of immigration to the United States. A limited number of visas are available each fiscal year. The DVs are distributed among six geographic regions and no single country may receive more than seven percent of the available DVs in any one year.
Online registration for the 2016 Diversity Lottery Program began in October 2014 and concluded in November 2014. Check out the link below for more information: Diversity Visa Program Entry Instructions
If you do not have either the required education or qualifying work experience, you are not qualified to be issued a diversity visa. (Only you, as the principal applicant, must meet this requirement. Your spouse and children do not have to meet this requirement.) You should not continue with your DV application if you do not meet the qualifying education or work experience requirements, you will not be issued a visa, and any fees you pay will not be refunded.

Question #5 – H1B Nonimmigrant Work Visa
My wife is on H-4 visa and would like to apply for an H-1B. I have an I-140 and have approved my H-1 status beyond 6 years. When and how can she apply?

Answer #5
I believe you may be confusing the actual H1B nonimmigrant work visa with the ability for spouses of certain H1B holders to obtain employment authorization (EAD).

H1B nonimmigrant work visa – You wife may only apply for an H1B under the CAP, which opens April 1, 2015 for FY2016, with employment to begin October 1, 2015. In order to apply under the CAP, your wife must have an offer of qualifying employment.

Employment Authorization for spouses of certain H1B holders – As of May 26, 2015, spouses of certain H1B holders who have extended their H1B status beyond the 6th year or are holders of approved I-140 petitions, are eligible to apply for employment authorization.

Question #6 – H1B Nonimmigrant Work Visa
How do I recapture time that I didn’t use on my H-1B Visa? I was approved back in 2013 but I only worked for the company for 6 months.

Answer #6
You file a petition requesting to recapture time you spent outside of the US, and/or unused time on your H-1B visa. You would need a valid offer of employment in the U.S. in order to file the petition. Speak with an Immigration Attorney for further information concerning your options.

Question #7 – NAFTA, TN Nonimmigrant Work Visa
I am a Canadian Citizen and would like to work in the US. How long does a TN Visa Status last?

Answer #7
A TN visa may be approved for the requested length of employment, not to exceed three years, or passport validity.

Question #8 – Deferred Action for Childhood Arrivals (DACA)
If you apply for DACA and get denied, do you risk deportation?

Answer #8
As indicated on the USCIS website, if you apply for DACA and are denied, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations.
The USCIS will apply their policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of notices to appear. If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, they WILL NOT refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.
*You will not be considered for DACA if you have been convicted of: A felony offense; A significant misdemeanor offense; or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct. Or, you are otherwise deemed to pose a threat to national security or public safety.

Question #9 – Naturalization
Both my husband and I have been LPRs for 9 years and would like to become US Citizens. We are afraid my husband might not be eligible because he was convicted of a DWI last year. He did not serve jail time. Would he still be eligible?

Answer #9
It would be advisable for you to speak with an Immigration Attorney to further discuss your situation.

Question #10 – L1 Intra-Company Transferee Nonimmigrant Work Visa
If my company wants to bring over workers from our location in India to our US office, do we need to apply for an H-1 or L-1 Visas?

Answer #10
The L-1 visa allows companies operating both in the U.S. and abroad to transfer certain types of employees from its overseas office to the U.S. office for up to seven years. This visa comes in the following categories: L-1A – for executives and managers; and L-1B – for personnel with specialized knowledge. Businesses that function both in the United States and in their home country gain the benefits of the best of both areas. The L-1 visa is open to international organizations with offices in the U.S. who transfer employees to the U.S. office for temporary periods of time. To obtain an L-1 visa, you must be able to prove that you have worked for the non-U.S. company for at least one full year within the last three years as an executive, manager or employee with specialized knowledge. The L-1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 17, 2015!

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