MVP LAW GROUP – Immigration Q&A Forum, Friday, November 11, 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 – Employment Based Immigration – Green Card
I have applied to become a lawful permanent resident of the United States, but I have a family emergency outside of the country. Will I have trouble re-entering the United States upon my return?

Answer #1
If you applied for and have a valid Advance Parole (AP) document then you should not experience any issues when re-entering the United States. Carry your advance parole document and your I-485 receipt notice as evidence of your Adjustment of Status filing. If you did not apply for Advance Parole (AP) and you have a valid H-1B nonimmigrant visa, then you should be able to re-enter as an H-1B nonimmigrant. Valid meaning an unexpired visa status and you are currently employed by the H-1B sponsoring employer.

Question #2 – Nonimmigrant Visas
What is the difference between an H-1B and an H-2B visa?

Answer #2
An H-1B is a nonimmigrant Specialty Occupation visa. Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, 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. The period of employment is generally for a period up to three years, and may be extended for up to six years. Extensions may be available beyond the sixth year if green card processing has been initiated on behalf of the individual.

H-2B nonimmigrant visas are available for individuals to perform nonagricultural work of a temporary or seasonal nature, if U.S. workers capable of performing such service or labor cannot be found in the U.S. This classification requires the Sponsoring Employer to conduct active recruitment to determine if U.S. workers are available to fulfill the temporary need. Nonagricultural work includes Amusement Park workers; Bellhops; Bricklayers; Cannery workers; Commercial, Industrial and Residential Cleaners;Construction workers; Cooks; Crab Meat Processors; Fishing Vessel Deckhands;Dining Room Attendants; Electricians; Fast Food Workers; Forest Workers; Game Attendants; Industrial Groundskeepers; Landscapers; Kitchen Helpers; Sales Clerks; Tree Planters and the list goes on. In order to be eligible for H-2B classification, the Employer (Petitioner) should confirm that the job is temporary, that the Department of Labor (DOL) has certified that no U.S. workers are available to perform the job, that the beneficiary’s employment in the U.S. will not harm U.S. workers, and that all requirements have been met. The employer’s need for the services or labor shall be either: (1) a one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. The period of employment is generally for a period of 1 year or less, but could be for a specific one-time need of up to 3 years. The foreign national must also be able to demonstrate that they have strong ties to their home country and will return at the end of the season. Nationals from the following countries are eligible to participate in the H-2B visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Child; Costa Rica; Croatia; Dominican Republic; Ecuador; El Salvador; Ethiopia; Guatemala; Honduras; Indonesia; Ireland; Israel; Jamaica; Japan; Lithuania; Mexico; Moldova; the Netherlands; New Zealand; Nicaragua; Norway; Peru; Philippines; Poland; Romania; Serbia; Slovakia; South Africa; South Korea; Turkey; Ukraine; United Kingdom and Uruguay. Nationals from other countries not listed above may be eligible; however, additional evidence will be required. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.

Question #3 – General
I’ve been told that I can find my case status online. Where would I go to find out my approximate processing time?

Answer #3
The USCIS website provides case status information. You will find the case status online mechanism at on the left hand side of the screen. Use your receipt number found on Form I-797 in the upper left hand corner and enter it into the box. If you wish to determine the applicable processing time for your case, you will find a link on the USCIS website on the left hand side of the screen which reads: Processing Times, click on the link and scroll down to the bottom and find the Service Center where your case is undergoing processing. You will find the Service Center where your case was filed on Form I-797. Your Form I-797 will also display the Form type/number that was filed on your behalf in the upper right hand corner.

EAC – Vermont Service Center SRC – Texas Service Center WAC – California Service Center LIN – Nebraska Service Center

Question #4 – Family Based Immigration – Green Card
Can a relative currently living in the United States legally write my affidavit of support?

Answer #4
Yes, if the relative currently living in the United States is willing and able to be a sponsor/joint sponsor and is aware of and understands the responsibilities associated with being a sponsor/joint sponsor.

Question #5 – Employment Based Immigration – Green Card
My wife and I have been working on H-1B for different employers. My employer applied for my green card in 2007 and my I-140 has been approved. My wife’s H-1B term ends on Jan 2012. If she wishes to continue her employment with the same employer after Jan 2012, is she required to use her Employment Authorization Documents?

Answer #5
If she is no longer eligible to extend her H-1B nonimmigrant visa status beyond January 2012 , then yes, she will be required to utilize her Employment Authorization Document (EAD) to legally remain working.

Question #6 – Green Card
I am an Indian born citizen, but I have also attained Canadian citizenship. When I am applying for an I-485, which priority dates do I need to regard: Canada or India?

Answer #6
Country of Chargeability is determined by your country of birth. Accordingly, when applying for I-485 you would need to monitor the priority dates for India in the preference category under which your case was filed.

Question #7 – H1B Nonimmigrant Visa
Any H1B visas left under cap?

Answer #7
As of November 2, 2011, there were approximately 14,200 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept cap-subject 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. Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #8 – Employment Based Immigration – Green Card
What is AC21 Portability?

Answer #8
AC21 portability allows an individual to change employers while undergoing the Green Card process without having to start the process over from the beginning with a new employer. To qualify for AC21 portability, a foreign national must be the beneficiary of a certified labor application (first step of the green card process), an approved I-140 petition (second step of the green card process) and have an I-485 application (third step of the green card process) pending over 180 days. A new position which is within the “same or similar” occupational classification as listed on the certified labor application would make the applicant eligible for AC21 portability.

Question #9 – Family Based Immigration – Green Card
As a U.S. citizen, for whom can I file Form I-130, Petition for Alien Relative?

Answer #9
As a U.S. citizen, you may file Form I-130, Petition for Alien Relative on behalf of the following relatives:
Immediate relatives (no annual limit/quota) – spouse; unmarried children under age 21; parents

Preference relatives (subject to priority dates/preference categories) – unmarried and married children of any age; siblings.

Question #10 – General
What is the difference between and immigrant and non-immigrant visa?

Answer #10
An immigrant visa is for individuals who intend to permanently live in the United States.

A nonimmigrant visa is for people who enter the United States on a temporary basis – whether for tourism, business, temporary work or study. Once a person has entered the United States in a nonimmigrant visa status, they are restricted to the activity or reason for which they were granted entry.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 25, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

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