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Everything posted by Attorney_6

  1. Right, the USCIS policy/interpretation of the AC21 provisions regarding H1 extensions beyond the six year limitation require that the individual have a qualifying GC case in which they are the primary beneficiary. The USCIS does not interpret the law as providing this benefit to those that are only devivative beneficiaries in the spouse's case. Thus, in this example, the wife's six years of H1 time will end in February 2016 unless an employer sponsors her GC case in time to qualify for the 7th+ year extension(s).
  2. Attorney_6

    J1 Waiver Approval and now Initial Review

    If the approval notice is in hand, that is what is important. The online information is not always 100% accurate.
  3. Attorney_6

    Travel on EAD

    The EAD is a work authorization document. It is not a travel document. The Advance Parole is a travel document. Many people have combination cards, which are BOTH an EAD and AP. It is important to understand which document(s) have been approved. If traveling on the AP, there is no visa stamping involved. AP is advanced permission to reenter the US and be paroled in to continue to pursue the I-485.
  4. Attorney_6

    Holiday Travel

    Sagi85, The answer to this is, maybe. If the passport is returned, and the current visa is not cancelled, then it is possible. I have seen people do this without incident.
  5. Attorney_6

    Time line I 485 AOS to finger printing & GC

    GC can't be approved unless the priority date is current. EB2 India dates are retrogressing in November and no advancement is expected before June 2014.
  6. Attorney_6

    Currently in h1b + health problem

    If the leave of absence needs to go beyond the point where a person would be considered to be in H1 status (an issue that should be discussed with a lawyer), and it is necessary to continue to receive care in the U.S., it may be possible to file to change status to a B-1/B-2 for medical treatment. Check with the employer regarding the steps required to make sure that the insurance continues (and the cost). Also check with the employer regarding any short term or long term disability coverage offered through the company. One other option that may be helpful at some point is a part-time H1B. H1Bs are not limited to just full time employment---they can be filed for part time. Thus, if there comes a point where it is physically possible to resume work, but only on a part time basis, that is an option for an H1 if the company approves.
  7. There has to be a visa number to get the GC. If this case is EB2, India, the dates are retrogressing in November. Thus, it will have to wait through the period of retrogression to be eligible for approval. It is correct that this has nothing to do with interfiling.
  8. Attorney_6

    J visa Advisory Opinion

    While it is correct that the USCIS makes the final decision, the advisory opinion from DOS should clarify the matter. There is no other source for getting additional, authoritative, input into the matter. The USCIS doesn't issue advisory opinions on this issue. It is not particularly uncommon for there to be an error in the notation about 212(e) on the visa "stamp."
  9. The B1/B2 visa is still valid, since the VO did not cancel it. There is no legal prohibition against coming to the U.S. for a visit (and then leaving) while the I-824 FTJ case is pending. HOWEVER, whether or not a person will be granted admission in B1/B2 status is within the descrtion of the CBP officer at the Port of Entry. If they do not believe that a person will depart the U.S. after the visit, they can deny entry. Thus, such travel is not prohibited, but there are risks of being turned back at the POE. It would be best to set up a consulation to discuss how to handle matters if problems arise at the POE.
  10. Attorney_6

    Pregnancy leave while on H1

    A person on H1b can take leave from work for medical reasons. There is not a specific time limit for such leave, but, it is important to be careful and limit such leave time to what is genuinely needed/justified by the particular situation. FMLA provides a safe harbor for both the H1B employee and the employer. If the leave time falls within the (unpaid) FMLA time that employers must give to their employees, then, this is a permitted period of leave. Beyond that, for maternity, it is important to stay within the employer's usual policies, and any other state laws that might apply. If the employer's policies are not very clear, it is important to be mindful of standard U.S. business practices. FMLA is not necessarily a consecutive period of leave falling after the other leave time is utilized. Check with the employer as to the standard policy of the company.
  11. Attorney_6

    Holiday Travel

    The limitation on unemployment during the first 12 months of OPT is 90 days, not 60. Traveling while the STEM extension is pending can be risky. It is necessary to make sure that someone will receive any RFE that may be issued and that it gets answered within the deadline. The travel time counts as unemployment, unless the travel is part of the employment, or the person is employed and on a period of leave authorized by the employer. Of course, in the context of the STEM extension, the USCIS would have to believe that the employment is continung and that the employer authorized a 2 month leave for an employee they hired less than a year ago. The CBP may have similar questions given the duration of the trip.
  12. If the derivative spouse's case was properly filed, it will be processed as usual even after the approval of the primary's case. It can be processed, but not approved, unless the priority date is current. Thus, with retrogression in November, it will have to remain pending until the visa number becomes available again. Job changes shortly after receiving the GC are an issue that should be discussed with an attorney. It is generally not advisable to change jobs right away, as the GC is based upon a future job offer to take effect upon approval of the GC. Sometimes, such changes are unavoidable or unplanned, so there can be different fact patterns. But, that step should not be taken without getting legal input. As a separate option, it would be possible to file an I-130 family petition (FB2A) as an additional potential route for the spouse's GC. This would be in addition to the current EB2 derivative case, not as a replacement. She would then be eligible for GC status based upon whichever priority date became current first.
  13. The forms have to be accurate when filed. Since the spouse is not seeking benefits through this case, there is no need to proactively send an update on marital status. If the marriage breakdown has led to a change in address, make sure to follow the procedures for notification of that change.
  14. Right, the November Visa Bulletin applies for the month of November. The October Visa Bulletin remains valid for the month of October. So, if the priority date is current for October, it is necessary to file the I-485 by the end of the month----before the date retrogresses in November.
  15. Attorney_6

    Travelling while GC is on its way

    There would not be a problem LEAVING the U.S. The issue is returning. If the physical card is received after departure, someone could transport the card. The concern has to do with what would happen if the card got lost in the mail or otherwise delayed. While the POE would have a number of options, in order to get to the POE, it is necessary to be allowed on the plane. Without proof of a valid way to enter the U.S., the airlines won't allow boarding. There is a way to handle this----it is necessary to apply for a boarding foil at the appropriate consulate (this was previously a transportation letter.)
  16. From an immigration point of view, the various agreements with employees---notice periods, non-compete etc.-- do not prevent employees from changing jobs on H1 etc. Employers can not prevent someone from leaving or force them to work. The agreements involve financial penalties.
  17. Attorney_6

    Employer office location change

    The answers are right. It is commuting distance to the initial location. The address should just be updated. If the relocation was more dramatic, and the work location in the PERM didn't allow for any relocation (ie job location was strictly company location), then it would be necessary to utilize AC21 portability (same job, same employer, new location) for the GC case in order to have it work.
  18. The NVC contacts people in anticipation of the priority date becoming current. They essentially want to contact people in advance, so that the cases are all complete and in the pipeline so that they can have interviews when the visa is available. The I-485 can't be filed until the priority date is current. The NVC is basically just saying that if a person is going to adjust status, they shouldn't pay the consular fees or submit unneeded documents to NVC. They also want to know if the plan has changed, so they can close out the case from their end.
  19. Attorney_6

    Job change from Chemist to Manager

    The DOL puts every job into a code of some type---the categories are very broad. We could consult about this issue. To be 100% sure of the job category, it is necessary to get the PERM.
  20. Attorney_6

    Last name change after getting green card

    Travel shouldn't be particularly problematic. The marriage certificate and other proof can be used, if needed, as an explanation for discrepancies. And, now that everyone undergoes fingerprinting etc. at entry, there is even less of an issue of having to prove identity when there are name changes. We can only opine on matters of US immigration law. Education/experience certificates always have the individual's name from the time of education or employment. No need to do anything.
  21. Attorney_6

    Job change from Chemist to Manager

    Look to see how the first job was coded by the DOL. AC21 requires that the new job fall within the same/similar job classification. So, the starting point is to identify the classification of the first job and, then, figure out where the second job falls within the DOL classification system. If it seems that there is an arguement that the new job falls within AC21, but it is possible that the gov't may see it differently... see if the new company is willing to file a backup GC case for the new job.
  22. Attorney_6

    Visa Bulletin Developments

    ItsmeUSA, The primary benefit of continuing H1B status is that it gives one a nonimmigrant status, in case something goes wrong with the I-485. If a person relies on the I-485, alone, and it is denied, they are out of status. If they still have H1, then, they are in status and it gives more options for "fixing" the situation. There are also times when people MUST keep H1B status because of spouses who need H4 status because they didn't file I-485. Of course, it is correct that the I-485 pending/EAD provides much more flexibility and, once a person is AC21 qualified, many more job options. Thus, many people end up not keeping H1 status at some point after they file the I-485.
  23. Attorney_6

    Affidavit of support requirement?

    Set up a consultation to go over these issues. There is nothing legally wrong with entering on a tourist visa for a temporary visit (after which one will leave the country) while an immigrant visa is pending. However, the POE officers may not believe that the individual really WILL depart the country in this situation. Thus, it is necessary to be prepared for the POE and know what to do if to avoid further complications if they will not admit her as a visitor. As for the affidavit of support, it sounds as if it is necessary to establish employment etc. in the U.S. for a bit to overcome the affidavit of support issues, unless there is a joint sponsor available.
  24. Attorney_6

    Last name change after getting green card

    The initial plan of attack sounds good. Consider also the need to change: Social security card Drivers license Bank accounts
  25. Attorney_6

    Visa Bulletin Developments

    Neda, That is best covered in a consultation. As a general matter, we recommend extending/keeping H1B status, where possible.