MVP LAW GROUP – Immigration Q&A Forum, Friday, June 10th, 2011

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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Potential employers keep telling me USCIS is no longer accepting H1B Visa petitions. I had the same answer from more than one employer. How can it be possible if the 2012 cap has not been reached? They told me I have to apply for an O1 visa…

Answer #1
I am not sure where these employers are obtaining their information from, as the H1B Regular Cap and Masters Cap for FY2012 remain open and petitions are readily accepted and processed by the USCIS for employment beginning October 1, 2011.

Question #2 – Employment Based Immigration – Green Card
Hi, I have a pending 485 application in EB3 category with a priority date of Oct 2006. I am interested in porting my EB3 application to EB2. Can I do this?

Answer #2
If you have the necessary education and experience you may qualify to port your earlier EB3 I-140 priority date to the new EB2 I-140 petition.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas remain under the CAP?

Answer #3
As of June 1st, 2011, there were approximately 51,400 H-1B Regular CAP subject nonimmigrant visas remaining and 10,700 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 #4 – General
I work for a company in San Diego, California, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in California and your firm in Maryland, can we do this, is it legal?

Answer #4
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #5 – Employment Based Immigration – Green Card
Is it true that once I got the I-140 I can find another company to sponsor me beyond my 6 years in case my current company will no longer continue my employment?

Answer #5
The American Competitiveness in the 21″ Century Act of 2000 (AC21), which amends §204(j) of the Immigration and Nationality Act (INA) provides:

Job flexibility for long delayed applicants for adjustment of status to permanent residence. -A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained un-adjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed.

This provision allows employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more to change jobs or employers without invalidating the underlying Petition for Alien Worker (Form I-140) or certified Application for Alien Employment Certification (ETA Form 9089), as long as the new job is in the same or similar occupational classification as the one for which the Petition was filed.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since February 2011, no RFE issued yet. Can I contact USCIS for them to look further into the case and why it is taking so long. Is it true?

Answer #6
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 #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next January 2012 as I am currently in my 6th year. Can we apply for H1 extension based on pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #7
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have to go for visa stamp in India. What documents should I have?

Answer #8
We recommend that you take the following with you to your visa appointment (by having all of this documentation you should be fully prepared and able to answer any questions that may arise concerning your petition) – all the required documents for any non-immigrant visa Plus; I-797 — the original notice of approval; two (2) copies of the complete I-129 petition submitted by your prospective employer including the Labor Condition Application (LCA); the originals, plus one copy, of your university diplomas, mark sheets and any certificates you may have. (Secondary school information is not required); Letter from petitioning employer confirming employment; Original, plus one copy, of your work experience letters from your previous employers; Pay slips from current or most recent place of employment; Names and current phone numbers of the personnel managers at the applicant’s present and past jobs; Photographs of the inside and outside of current or most recent employer’s place of business; Names and contact information of two co-workers from your current or most recent place of employment; Names and contact information of two co-workers from past jobs; A complete resume/bio-data and cover letter describing current job duties in detail; Personal bank records for the last six months; and US company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report.

Question #9 – Family Based Immigration
My Grandfather (Dad’s Dad) was a US citizen and he had filed an I-130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad’s sisters are U.S. citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #9
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:
USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

Only a spouse, parent, mother in law, father in law, sibling, child, son, daughter, son in law, daughter in law, brother in law, sister in law, grandparent, grandchild or legal guardian of the principal beneficiary is eligible to be a substitute sponsor. A substitute sponsor must also be a U.S. Citizen/national or Lawful Permanent Resident (LPR), be at least 18 years of age, be domiciled (live) in the U.S. and meet all of the financial requirements of a sponsor.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I just got my H-1B extension approved and they gave me valid I-94. Do I need to go home to obtain visa stamp in order to work?

Answer #10
If the beneficiary has been issued a valid I-94 but the beneficiary does not have a valid H1B visa in the passport, they can commence work with the petitioning employer. The beneficiary does not need current visa in their passport unless the beneficiary desires to travel. The beneficiary will probably be required to go to the beneficiary’s home country to obtain the H1B visa.

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 24th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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