MVP LAW GROUP – Immigration Q&A Forum, Friday, March 14, 2014

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Question #1 – H-1B Nonimmigrant Visa
I’ve heard that this year’s cap could be reached very quickly, even on the first day; does this mean that my petition has to be received on April 1st for it to be included in this year’s Cap?

Your petition should be shipped to arrive at the USCIS on April 1st; however, just because it arrives at USCIS on April 1, 2014 does not guarantee that the case will be included in this year’s CAP.

Please see the information below as provided by the USCIS concerning last year’s H1B CAP and the random lottery selection process:
U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.
USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Question #2 – H-1B Nonimmigrant Visa
How can an H-1B petition qualify for a “Cap-Gap” extension?

Answer #2
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap.” The regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status.

– H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.
– Timely filed = H-1B petition (indicating COS rather than CP) was filed on or after April 1 while the student’s authorized F-1 duration of status (D/S) admission was still in effect.
– Once a timely filing has been made, the automatic cap-gap extension will begin and continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected/approved, the student’s extension will continue through September 30. If denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the US.
– Travel is not advisable during the CAP GAP period
Please note: F-1 students who have entered the 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is filed on behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Question #3 – H-1B Nonimmigrant Visa
My H-1B is valid until Dec 15, 2014, but my current project will run until Jan 31, 2015. Will my H-1b get extended just for one month, or will it be extended for the next 2-3 years automatically?

H-1B nonimmigrant petitions are not extended automatically, as you must petition the USCIS to receive an extension of H-1B nonimmigrant visa status. Accordingly, if you are eligible to extend your H-1B status beyond 12/15/2014 (you have time remaining in H-1B visa status), then your employer will prepare or hire an attorney to prepare an H-1B visa extension petition on your behalf requesting a period of time that can be substantiated by relevant documentation showing that your services are in fact needed for the entire period of time requested. You will then file the request for an H-1B visa extension with the USCIS at the designated Service Center, either California or Vermont.

Question#4 – H-1B Nonimmigrant Visa
My H-1B Visa was approved. What do I need to take with me for Visa Stamping?

Check the Consulate website for specific information; however, in general:
• A printed copy of your appointment confirmation letter,
• Your DS-160 confirmation page stamped at the Visa Application Centre • Your current and all old passports,
• Supporting Documents as per your visa type a.I-797 – the original or a certified copy of the original notice of approval;
b.Two (2) copies of the complete I-129 petition submitted by your prospective employer including the Labor Condition Application (LCA);
c.The originals, plus one copy, of your university diplomas, mark sheets and any certificates you may have. (Secondary school information is not required);
d.Current Letter from petitioning employer confirming employment on company letterhead;
e.Original, plus one copy, of your work experience letters from your previous employers
f.If third party placement – end client letter/work orders/agreement; vendor letter/work orders/agreement;

Depending upon your case, you may want to consider taking the following additional documents:
1. Pay slips from current or most recent place of employment
2. Names and current phone numbers of the personnel managers at the applicant’s present and past jobs
3. Photographs of the inside and outside of current or most recent employer’s place of business
4. Names and contact information of two co-workers from your current or most recent place of employment
5. Names and contact information of two co-workers from past jobs
6. A complete resume/bio-data and cover letter describing current job duties in detail
7. Personal bank records for the last six months
8. US company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report

Question #5 – H-1B Nonimmigrant Visa
I am an H-1B holder, and my I-485 is pending. I wish to travel abroad, but I am not sure whether I can get an H-1B visa to re-enter the U.S. Do I need to apply for an Advance Parole?

If you do not have a valid H-1B visa stamp in your passport, you will not be allowed to re-enter the U.S. after a trip abroad. You may only be admitted if you have a valid H-1B visa stamp in your passport or a valid Advance Parole travel document.

As an Adjustment Applicant with a pending I-485 petition, you may apply for an Advance Parole document (Form I-131).

Contact our office to further discuss the specifics of your situation.

Question #6 – Family Based Immigration
Can a son or daughter over the age of 21 qualify as an immediate relative?

Answer #6
USCIS website: To promote family unity, immigration law allows U.S. citizens to petition for certain qualified relatives to come and live permanently in the United States. Eligible immediate relatives include the U.S. citizen’s:
• Spouse • Unmarried child under the age of 21 • Parent (if the U.S. citizen is over the age of 21)
Immediate relatives have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate because there are an unlimited number of visas for their particular categories.

**Unmarried sons or daughters of U.S. Citizens fall into the first preference category (F1) and must wait in line for a visa number to become available for them to immigrate.

Question #7 – Family Based Immigration
If my relative is abroad and going through Consular Processing, do I need to be present with them for the interview?


Question #8 – Employment Based Immigration
I filed my I-140 two months ago and it is still pending with the USCIS. May I file my adjustment of status at this time?

Answer #8
Processing of the I-140 petition generally takes anywhere from 6-8 months unless you elect to utilize the premium processing option. What preference category did you file the I-140 petition under? What is your country of chargeability? Is your priority date current? Please contact our office to further discuss the specifics of your case as we do not have enough information.

Question #9 – Employment Based Green Card
Does an approved labor certification allow me the legal right to work within the U.S.?

Answer #9
No. An approved labor certification only allows your employer to file an EB-2 or EB-3 category immigration petition on your behalf.

Question #10 – Green CardOnce my Priority Date becomes current, how long do I have to wait for my Green Card?

It depends upon a number of factors. Contact our office to further discuss.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, March 28, 2014!

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