MVP LAW GROUP – Immigration Q&A Forum, Friday, April 15, 2011

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Question #1 – Employment Based Immigration – Green Card
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #1
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #2 – Employment Based Immigration – Green Card
My priority date (I am an Indian under EB-3) is September 2010, when do you think I will become current?

Answer #2
The State Department is currently processing applications that were filed back in 2002. Therefore, I believe you have quite a long wait ahead of you.

Question #3 – Employment Based Immigration – Green Card
After my priority date becomes current, when is my spouse able to get a working permit?

Answer #3
Your spouse will be able to get a working permit once the I-765, Employment Authorization application is approved with the USCIS. Once approved, your spouse will receive an EAD card and will be able to begin working. You will file the I-485 application along with the I-765 application and I-131, Advance Parole application if requested.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 is pending for approval and might come out this August 2011. The end of 6th is on June 20, 2012. If I am going to renew my visa beyond the 6th year and my I-140 gets approved, will I be counted towards the 65,000 cap or am I already guaranteed a slot because my perm has been filed?

Answer #4
You will be eligible for an extension beyond the 6th year due to the unavailability of visa numbers. Under AC21 law, where an H1B immigrant has an I-140 petition which has been approved under an employment based preference category and the AOS/485 is pending due to the unavailability of visa numbers, they are eligible for a three year extension to extend H-1B nonimmigrant visa status.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas are left?

Answer #5
As of April 7, 2011, there were approximately 59,100 H-1B Regular CAP subject nonimmigrant visas remaining and 15,500 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our h1bvisalawyer blog.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada in a few weeks for personal travel. I heard that when I attempt to come back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #6
Although you may have a valid visa that was approved by the USCIS, the Customs and Border Patrol (CBP) Officers operate under their own set of rules. If you have legitimate/bona fide paperwork evidencing your employment and a valid work visa or other proof of your eligibility to be in the US when you attempt to cross the border from Canada to the United States, the CBP Officer should stamp the new I-94 with the expiration date of your current valid visa.

Question #7 –Employment Based Immigration, Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain to me what “priority date being current” means? I filed in EB2 from China.

Answer #7
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you were filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa

I am not sure what is going on. I have an H-1B application pending since June 2010, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is it true?

Answer #8
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, the applicant’s full name, your complete company mailing address, the applicant’s complete mailing address, the applicant’s date of birth, the applicant’s receipt number for the pending application/petition, and the filing date of the applicant’s pending application/petition. If your case is outside of the normal processing time, the Officer/Agent should initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.

Question #9 – Employment Based Immigration, Green Card
We filed a labor application and it was approved for an industrial engineer. We have yet to receive the certified labor in the mail and wish to move to the next step, filing the I-140 because the applicant can file I-485 concurrently. What can we do?

Answer #9
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.

Question #10 – Temporary Work Visa – H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #10
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer’s need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S. For more specific information on the H2B nonimmigrant visa, please contact our office to schedule a telephone or in-person consultation.

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 29th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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