Attorney_25

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  1. Manish, neither receiving an RFE on the H-1B or having the F-1 visa expire affects F-1 status. It will continue as described above, for the duration of the OPT plus 60 days and one can transfer F-1 programs as described above. If the H-1B is approved with change of status, then status will automatically change to H-1B and, unless the H-1B is withdrawn before October 1, at that point you will need a change of status back to F-1 if you want to be in F-1 status. Anjali, normally three petitions filed by three different employers can all be processed. The only possible exception I've seen is where they are for the same end client assignment, and even then it's not clear that USCIS could properly refuse to process the petitions.
  2. Anjali, USCIS does not limit processing to only 1 petition filed for the same beneficiary if more than 1 petition is filed, each by a different employer. Manish, there is a 60-day grace period following your OPT expiration, in which you are considered to be continuing in F-1 status (although you cannot work during that time). During those 60 days you should quickly start the process of transferring to a new program if your H-1B is not picked. Your new program should start no more than 5 months from the end of your current F-1 period.
  3. This week, we will be discussing issues related to maintaining your status after a petition for you has been sent to USCIS, including working/not working/leaving the U.S./attending school etc. Post your specific situation and see how the rules apply. Please post your relevant questions here. --------------------------------------------------------------------------------------------------------------------------- RULES FOR TOPIC OF THE WEEK THREADS: Attorney’s postings contain general information only and are not a substitute for case-specific legal advice. The attorney will answer only those questions that relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate section of the forum. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions. Please do not include information that would identify any specific company, university, or individual (including yourself).
  4. The law at INA 214(g)(1) states, "The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)- (A) 2 under section 101(a)(15)(H)(i)(b), may not exceed-- ....(vii) 2/ 65,000 in each succeeding fiscal year..." That means visa numbers are counted per person, assuming USCIS is doing this right. So if a person has two petitions selected in the lottery, that is still only 1 visa number used. However, that does not mean that additional petitions do not give additional chances to be selected in the lottery. One issue is how many entries into the lottery there are, the other is how many visa numbers are used for one person > two separate issues. I have not seen any information as to how many separate entries into the lottery a person has where more than one petition is filed for him.
  5. It appears that the consulate made an error believing that she is applying for an J-1 visa. Check the DS-160 to make sure the right classification was selected. She may need to correct this. The attorneys at Murthy India (MurthyIndia.com) are experienced in assisting with correcting visa applications and communicating with the consulates. You and your wife may want to talk with them.
  6. Final note: You do not have to be working for an employer in order for that employer to start your green card process. At least the first two stages, labor certification and I-140, can be done while you are in any status, no status, or outside the US. However, the intent to form the employment relationship must be there, and USCIS may ask you to prove that relationship before issuing your green card. Also, as noted above, if you are in certain statuses that don't allow "dual intent," you need to consider how the process will affect your status.
  7. Pamy, Please read at least a couple of these links to understand priority dates: http://www.murthy.com/2011/10/17/how-long-will-it-take-to-get-a-green-card/ http://www.murthy.com/2012/05/23/priority-dates-how-do-they-work/ http://www.murthy.com/2010/09/03/immigration-basics-the-priority-date-and-its-importance/ http://www.murthy.com/visa-bulletin/ http://www.murthy.com/2012/07/06/cutoff-date-expectations-and-explanations-eb2-retrogression/ http://www.murthy.com/2013/03/01/aila-insights-into-visa-bulletin-cutoff-dates/ The point of filing EB-3 is to establish a priority date in the situation where your EB-2 case might not be strong. If you are from a visa number "backlogged" country like India, you may have several years in which you can then "upgrade" to EB-2 once you have a stronger EB-2 case. (An EB-2 India case started now will likely take at least 5 years to become current, and possibly much longer. So you could start as EB-3 and after 2 or 3 years have another labor certification and I-140 filed in the EB-2 category, using the priority date established by the prior EB-3 case.) Also may be helpful: http://www.murthy.com/2011/07/01/considerations-for-eb3-to-eb2-upgrade/ http://www.murthy.com/2012/05/11/eb2-upgrades-priority-date-retention-and-online-degrees/
  8. Since people are viewing but not posting, I will add more information before having this thread locked: Most people will need to go through the PERM labor certification process. Process timing varies, but DOL has taken up to 8 months at times for initial processing. (At other times, they may process as quickly as a few weeks, but don't count on it.) In addition, a large percentage of PERM cases are audited. Some are random audits, and some are targeted audits. DOL changes their target issues from time to time. In short, plan on your labor certification process possibly taking a year. If you receive a denial, it could be double that, to be conservative. It's important to hire a qualified attorney who is experienced in the process, as even minor mistakes can lead to denial. Once you receive the PERM approval, the I-140 usually can be filed in premium processing if you need quick approval. Generally this will result in approval within 2 weeks of filing. Occasionally an RFE will be issued, which will take additional time. Once you have an I-140 approval, you can use that for 3-year H-1B extensions beyond the initial 6 years of H-1B, which may relieve some of your timing anxiety. Even if you can't get to I-140 approval because your PERM has been audited or denied, you can get one-year extensions starting from the 365th day after the PERM filing. The green-card process will need to be continuing to get that one year extension, so either the PERM must still be pending, or denied and appealed, or approved and I-140 in process. The I-140 must be filed within 180 days of PERM approval, as otherwise it is expired, so if you're still within 180 days of PERM approval you still should be able to get that one year extension even if the I-140 is not yet filed, but you may receive some difficulty from USCIS on that. They may delay to see if the I-140 gets filed or not. If you've been in L-1 status, you will need to change status to H-1B before completing six years, because only H-1B status can be continued based on your green card process, and if you complete six years in L-1 status you will not be able to change to H-1B status because time in L-1 status counts against H-1B status time. The conclusion of all this is that the green card process is best to be started no later than 2 years prior to the end of six years in H-1B status, to ensure the ability to remain in the US past the end of the 6th year. PERM processing times are listed at icert.doleta.gov. Please search www.Murthy.com on “PERM processing” for explanation of various timelines involved. USCIS processing times are listed at https://egov.uscis.gov/cris/processTimesDisplayInit.do. Please be aware that processing times do fluctuate. Priority date cut-off dates, and some explanation of same, are posted at http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. Please search www.Murthy.com on “visa bulletin” and/or “priority date” for additional explanation. If you or your spouse are born in a country that does not have a backlog of visa availability for the specific employment or family based category under which you are applying, designated as “C” for “current” in the Visa Bulletin, you may not need to be as concerned about ability to extend your nonimmigrant status, focusing instead on processing times, as you should be able to receive an employment authorization document (EAD) within 3 months of the concurrent filing of an I-130 or I-140 with your I-485, or to receive an immigrant visa at a consulate outside the US, granting you permanent residence as soon as you enter the US. If you are in the US in a nonimmigrant status other than H-1B or L-1, then starting the green card process may effect your ability to extend or travel in your current status. Therefore, extensions and travel should be strategized in relation to your green card process, e.g. traveling or extending before a petition is filed for you. In addition, in such nonimmigrant statuses it may negatively affect your green card process to file an I-485 within a couple months of entering the US or filing an extension application. USCIS may consider you to have entered the US improperly or even to have committed fraud. It is a very wise idea to strategize your particular timing situation with a qualified immigration attorney.
  9. This is an "error" by USCIS. I was able to have a corrected approval notice issued in such a case by emailing the premium processing unit.
  10. There is no grace period. Depending on the situation, a person may be able to stay to have another employer file a petition, but will be out of status from the termination of employment to the approval of the new H-1B. If it is approved without I-94, the person generally needs to leave the US and apply for a visa in home country. The sooner a new petition is filed, the more likely that leaving the US won't be necessary. Please strategize with a qualified attorney.
  11. It is not possible to evaluate either of these situations based on the information given. First obtain an evaluation from a qualified credentials evaluator and then bring that and documentation of education and experience to a qualified attorney to determine likely qualification. The degree doesn't have to be a four-year degree. Education and experience can be evaluated for equivalency to a US degree. The denial also should be evaluated by a qualified attorney. The standards for green card are different, but it is possible to go forward without a four-year degree.
  12. You can find information on the US position on child custody at www.state.gov. Unless you have a court order of sole custody with no rights to the father, or a court order allowing you to bring your children to the US, or a notarized letter from the father, the US government may not allow you to bring your children to the US. You do not need to do anything in relation to your ex-spouses immigration process. If you are divorced, he is not eligible. You could send a copy of the divorce decree to USCIS, but have no obligation to do so. You absolutely should obtain advice from a US attorney specializing in international custody issues, to ensure you do not get into trouble which could cause you to lose custody.
  13. You can start the GC process at any time, but you may not get far enough into the process to have your H-1B extended continuously from the end of your sixth year. You may need to spend some time outside the US or in another (likely non-work) status. EB-2 depends first on the requirements of the position offered, not only your qualifications. ("Exceptional ability" Eb-2 is available in exceptional cases.) Your spouse will not get any benefit from your GC process until the third stage, when you both can file the I-485 based on your I-140. He can go through his own parallel GC process as a backup plan. You do not have to be in the US in order for your GC process to continue, but as mentioned above this is dependent on your sponsoring employer to be willing to continue the process through labor certification and I-140.
  14. If you want to work for the new employer under AC21 portability, which is theoretically possible, then you don't want to use premium processing as portability only applies while the petition is pending.
  15. A change of status from H-1B to H-4 would either be approved with an I-94 or denied completely. It sounds like you have the "courtesy copy," which doesn't include the I-94. The I-797A (with I-94) should have been sent to the attorney. If he's planning to leave the US and apply for a visa anyway, then he doesn't need the approval with I-94. He just needs to show the COS was filed prior to his I-94 expiration, to show he is not suject to 3/10 year bars, and needs your H-1B approval and proof of your maintenance of status in order to qualify for the visa (stamping in passport).