MVP LAW GROUP – Immigration Q&A Forum, Friday, August 3, 2012

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

Question #1 – Employment Based Immigration – Green Card
My Employer filed for my Labor in January of this year, it is on appeal, and my H1 is expiring this December, 2012. Am I eligible for either a one year or three year extension under the AC21?

Answer #1
Based on the facts as you have described them, it appears you are not eligible for either a one year extension or a three year extension. Under AC21 Section 104(c), you are eligible for a three year extension of H-1B status if you have an approved I-140, Immigrant Petition for Alien Worker. Under AC21 Section 106(a), you are eligible for a one year extension of H-1B status if a Labor certification or an I-140 was filed on your behalf AND 365 days or more have elapsed since the filing of the labor certification or I-140 Immigrant Petition.

Question #2 – Family Based Immigration – Green Card
Are there any restrictions on a ‘conditional green card”? Once my wife gets her green card, can she travel (internationally)?

Answer #2
She can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, they want to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after she applies to remove them, she will receive a GC valid for 10 years.

Within 90 days of the two-year anniversary of obtaining conditional residence, you and your wife will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your wife will officially have Lawful Permanent Residence with no restrictions in the US.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I exhausted my six years in H-1B status and have since returned to my home country. I have been at home for almost six months; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward.

Answer #3
According to the regulations, once you have exhausted the six year limit on H-1B, you must return to your home country for one (1) year (365 days) before you can petition again for an H-1B nonimmigrant visa. The FY2013 H1B Cap closed in June for employment beginning October 1, 2012. You will have to wait until the FY2014 H1B CAP opens on April 1, 2013, for employment beginning October 1, 2013.

Question #4 – Employment Based Immigration – Green Card
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #4
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application as certified by the DOL.

Question #5 –Temporary Work Visa – H-2B Nonimmigrant Visa
I’ve been approached by an employer and I think I may be interested in applying for an H-2B temporary visa. What is it?

Answer #5
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 an 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.

Question #6 –Temporary Work Visa – H-1B Nonimmigrant Visa
USCIS received my H1B/H4 petitions on 07/14/2012, we filed for premium processing. What is the timeframe for normal processing? My driving license expires on 9/19/2012. If they process under normal process do they return $1225 which is extra we paid to process under premium processing?

Answer #6
The normal processing time for a case filed under Premium Processing is 15 calendar days from the date of submission. You should contact the USCIS National Customer Service Center or the appropriate Service Center to ensure that the case is processed according to the timeframes provided for premium processing. Regular processing is currently taking 2-3 months according to the most recent processing times posted for the California and Vermont Service Centers.

Question #7 – Employment Based Immigration – Green Card
One of our employees is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

Answer #7
Pursuant to AC21, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, or I-140, has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #8 – Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another who may have legal fees associated with divorce, child custody, or other legal matters which would also affect their ability to work.

Answer #8
The H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker’s legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program.

The other employees you are referring to in regards to divorce, child custody issues, those are personal in nature. Although they may affect an individual’s ability to work, an employer has no legal obligation to pay those fees as those personal related issues and fees should not play into your employment reviews/raise evaluations. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.

Question #9 – Employment Based Immigration – Green Card
We recently bought a new house and we are expected to move on August 25th, 2012. How do I notify and update the USICS with our new address for our I-485s and EADs that are currently processing?

Answer #9
The link provided at the bottom of this response will direct you to the online portal for submission of your address change request (however, you will still need to submit Form AR-11 to USCIS within 10 days after your move). According to the USCIS website:

Non-U.S. Citizens
If you have moved, you need to follow two different steps:
Step 1: File a Form AR-11 (This changes your address in our master database.);
Step 2: If you have a pending case, you must also file a Change of Address online or call our National Customer Service Center at (800) 375-5283. (This changes your address for the specific application you have submitted.)
**Please note that if you are a non-U.S. citizen and you have a pending case, you must complete both steps to make sure that you comply with the regulations and so we can reach you at your correct address.

The Process
If you want to change your address online and/or file a Form AR-11 using our Online Change of Address Notification tool, you will need to have certain information available. Please have the following information available before you begin:
• Your receipt notice or other notice we sent you showing your receipt number (if you have a pending case with USCIS);
• Your new address;
• Your old address;
• If you have filed a petition for a family member, the names and biographical information for that person.

If you are a non-U.S. citizen, please also have:
• The date when you last entered the United States (If you cannot remember, please fill in an approximate date.);
• The location where you last entered the United States (the port of entry where you entered – whether by land, sea, or air).

Question #10 – Employment Based Immigration – Green Card
My EAD and AP are expiring at years’ end. When is the earliest that I can file my renewal petitions?

Answer #10
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2012, the earliest you could file is on or after June 19, 2012. You can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS will issue an RFE requesting your current AP document before issuing a new AP document.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 17th, 2012!

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

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