MVP LAW GROUP – Immigration Q&A Forum, Friday, February 18, 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 – Nonimmigrant Visa
Can I travel on my current nonimmigrant visa or do I need to get advance parole?

Answer #1
If you have a valid nonimmigrant visa stamp in your passport and copies of your approval notice and a copy of the petition, you should be able to travel on your nonimmigrant visa. Advance Parole is a separate creature that you may apply for once you are able to file an I-485 petition for either a family based or employment based green card. The Advance Parole document allows you to travel outside the country while your I-485 application is pending.

The nonimmigrant visa and advance parole are two separate and distinct items, you may have both if you are applying for adjustment, but if you only have a valid nonimmigrant visa stamp in your passport, you should be able to travel.

Question #2 –Green Card
How long can you live outside the United States and still keep your green card valid?

Answer #2
One should be able to use one’s green card to return from trips abroad of up to one year. However, anytime a green card holder leaves the U.S., he or she is subject to being accused by the Customs and Border Patrol (CBP) of having abandoned the intention of living in the U.S., and is subject to having the green card taken away–on the spot. Staying longer than one year may also affect the naturalization process if and when you attempt to apply.

Question #3 – Temporary Work Visa
I am interested in coming to the United States and being sponsored by a religious organization. I know that the H-1B cap is closed, so you can tell me about the R-1 visa and what requirements it has?

Answer #3
According to the Department of State, Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation. To qualify: The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.; the religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status; and the applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that individuals applying for “R” visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary.

Question #4 – Nonimmigrant Visa
What is the TN Visa and how can I qualify for it?

Answer #4
The TN Visa is a product of NAFTA, the North American Free Trade Agreement. Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. under the nonimmigrant TN status. The TN Visa enables Canadian and Mexican citizens to temporarily work in the U.S. in a NAFTA-approved professional occupation.

Question #5 – General
How long can you lawfully stay in the United States before returning home after a visa expires?

Answer #5
Generally, it depends on the visa issued. We recommend a period of two weeks after the expiration of your visa to get your affairs in order for your departure. However, if you remain in the U.S. longer than 180 days after the expiration of your visa, you most likely will be subject to the 3 year or 10 year bar from returning to the U.S., unless certain circumstances prevented your departure.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am interested in filing for an H-1B visa but I know the cap just closed so when can I file my case for the next year’s cap?

Answer #6
The H-1B FY2012 CAP will open on April 1, 2011 with employment beginning October 1, 2011. For more information contact MVP Law Group, P.A.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
If I am on an H-1B visa, do my wife and children automatically receive H-4 status or do they have to apply for it?

Answer #7
No, they would have to apply for the H4 visa status. If the beneficiary’s spouse/children are in the United States on another status other than H status, e.g. student status, an application to change their status to an H status should be filed. If the beneficiary or the beneficiary’s spouse/children are outside the United States and the beneficiary wishes to apply for a derivative visa (referred to as an H4 visa) abroad, and the H4 visa application can be made and is available on walk-in basis at the U.S. Consulate abroad along with or after the grant of the H1B approval, no other processing is required for an H4 visa abroad. Contact the consulate abroad or an Information Officer at the United States Department of State Visa Office at 202.663.1225 for the procedures or documents that may be required.

Question #8 – General
If my case was issued an RFE, what does that mean? Does it automatically mean that my case will be denied? What chance do I have of getting my visa granted if an RFE was issued?

Answer #8
A Request for Evidence (RFE) is issued when additional evidence is required, as the adjudicator believes that it cannot make a decision based on the initial evidence/documentation provided. A USCIS adjudicating officer could issue an RFE pertaining to the alien applicant’s eligibility, the Petitioner’s financials, the legitimacy of the Petitioner’s company, etc. Many cases do receive RFE’s, and after submission of additional legal arguments, explanations, and evidence, the cases are often approved. Receiving an RFE on a submitted case does not automatically mean that the case will be denied.

Question #9 – Family Based Immigration – Green Card
As a US citizen, who can I file a Form I-130, Petition for Alien relative on behalf of? Do the people I can petition on behalf of change if I am only a legal permanent resident?

Answer #9
As a U.S. Citizen (USC), you may petition on behalf of the following individuals: Immediate relatives of U.S. citizens may immigrate to the United States in unlimited numbers – Spouses of U.S. citizens (including widows and widowers of U.S. citizens who were married to U.S. citizens for at least two years and are applying for a green card within two years of the U.S. citizens’ death); Unmarried children of U.S. citizens that are under the age of 21; Parents of U.S. citizens. The U.S. citizen petitioner must be 21 years of age.

These individuals will most likely have to wait in line, possibly for many years, prior to being able to obtain a green card – Unmarried children, any age, of U.S. citizens; Married children of U.S. citizens; Sisters and brothers of U.S. citizens. The U.S. citizen must be at least 21 years of age.

As a Lawful Permanent Resident (LPR), you may petition on behalf of the following individuals: Spouses and unmarried children (under the age of 21) of green card holders; and Unmarried sons and daughters of green card holders, who are at least 21 years old.

Question #10 – Employment Based Immigration – Green Card – EAD Renewal
I filed for my EAD renewal back in November of 2010 and it is still pending. My current EAD expires next week. What are my options moving forward – can I expedite the EAD since my card is expiring? What can I do I can’t risk losing my current job?

Answer #10
When an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work. You MUST wait for your EAD card to arrive in the mail before you can begin to work again.

You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, March 4th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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