--Q&A 8/10/06--
Q- Does individual processing date of a country have any dependancy on worldwide cutoff date?
My priority date is Sep 18 2002. It is under EB3 category and I am a national from India. My question is - which cut off d ate should I be looking at in the visa bulletin? The date for India or the WW cutoff date, for my priority date to be considered.
A- If you were born in India, then you should be looking at the India cut-off date. India, Mexico, China, and the Philippines have their own cut off dates due to the high demand for U.S. visas from nationals of those countries.
Q- If an employer is filing for h1-b and after stamping if i am not accepting the offer.Can the previous emplyer cancel my h1-b. I just wanted to know is there anty problem to change my compnay.
A- An H-1B petitioner is required to notify USCIS if your employment ends or never commences. This will result in cancellation of your H-1B petition by USCIS. Whether you can change employers depends on several factors including whether you are already in the U.S.; whether you ever took up employment with the H-1B petitioner or whether you took up employment and then quit; and how long you have been out of status (status ends when the authorized employment ends).
Q- I just got a notice of action of my I-824 and that it was stated that they have notified the consulate in manila that my status has adjusted to that of a lawful permanent resident. this is to avail the benefits of a following-to-join since my husband and kids are still in the philippines. What's the next step? Am actually confused because I was told to inquire NVC.
A- Your family members are counted against the same immigrant visa preference category through which you obtained your immigrant visa. If that preference category is currently retrogressed, then your family members cannot obtain immigrant visas until their priority dates become current again. See our articles at http://www.usvisahelp.com/nw_
If visa numbers are currently available for your family members, then the consulate should issue information packets to your family members so that they can begin the visa application process. If they do not issue any information to your family members within approximately 2 months of I-824 approval, then I would contact the consulate to inquire.
If visa numbers are not currently available to your family members, then the case is either at the National Visa Center or the U.S. Consulate in Manila. I would contact NVC first (1-603-334-0700), and if they do not have a record of the case, I would contact the U.S. Consulate in Manila for more information. Each consulate handles these cases differently. Consulate contact information is available through the Consulate's web site. A list of consulate web site links is available at http://usembassy.state.gov/.
Q- I am currently on a J-1 Visa and have a basic question about the exchange system. To be on a J-1 Visa at a university college do you need to have your tutition waived completely, meaning do you need full sponsorship or do you only need a certain percen tage covered and if so what is the minimum sponsorship one needs to get a J-1 Visa. Please help me in answering these questions I have tried contacting the department of homeland security and have never recieved a response.
A- DHS does not control this, it would be the program sponsor that issues the DS 2019 for the J-1 that would make this condition.
Q- I know somebody who is in the us on a student F1 visa. He wants to get married to his girlfriend. She is a us citizen. After they are married i f he should lose his F1 can he be removed? What if he is filing for permanent residency? Can he even file.
A- His US Citizen spouse can petition for his permanent residency (using form I-130) as soon as soon as they get married. He can simultaneously file an I-485 application for adjustment of status. Even if he falls out of status before the marriage occurs or before the permanent residency application is filed, he remains eligible for adjustment of status on the basis of the marriage to the U.S. citizen. However, being out of status makes him technically deportable, and the longer the lapse between going out of status and filing the I-485 application, the more likely it becomes that he will be placed in removal proceedings. He could technically be removed for falling out of status after the I-485 is filed, but this is highly unlikely, given that USCIS considers the period when an adjustment of status application is pending to be a "period of stay authorized by the Attorney General."
Q- Is it ok to have two H1Bs simultaneously? One is a full-time, salaried position with one employer and the other is a part-time, hourly position?
A- The H-1B regulations contemplate the possibility of an H-1B beneficiary working for multiple employers. The regulations state at 8 CFR 214.2(h)(2)(i)(C):
"(C) Services or training for more than one employer. If the beneficiary will perform nonagricultural services for, or receive training from, more than one employer, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform services or receive training, unless an established agent files the petition."
The I-129 form, on which H-1B petitoins are filed, also recognizes this type of arrangement calls it "concurrent employment".
The only potential issue I see is a credibility issue as to whether a person could really work the number of hours you will purportedly work in the two petitions. If that is not an issue, I see no problem with the arrangement under the regulations.
Q- Is there a way to expedite the processing of an I-824 filed at the California Service Center to send an approved I-360 immigrant visa to the NVC? The case involves someone whose R-1 status expired recently, was not eligible for an extension and knows that she can't be in the US unlawfully for over 6 months.She will applying in Brazil, her country of birth. Although the last address for 2 years before coming to the US was Italy, although she was just a temporary resident there (her citizenship remains Brazil).
A- There is no procedure to expedite the I-824 with USCIS. However, many consulates have a procedure in place to allow an applicant to submit an immigrant visa application prior to adjudication of the I-824. Usually they let you submit the I-824 receipt notice, a certified copy of the underlying I-360 immigrant petition, and the I-360 approval notice. The consulate then sends out the documents to get the immigrant visa application started. USCIS then electronically transmits the I-824 approval to the consulate when it is finally adjudicated. In this way, the immigrant visa application process can occur simultaneously with the I-824 adjudication rather than consecutively; this cuts down on the processing time.
I am not familiar with the procedures for the consulate in Brazil. Some consulates use a procedure like this to get around the long I-824 processing times, and others do not. Among the consulates that do use such a procedure, there is considerable variability in what the procedure actually is (e.g. some require the original I-824 receipt and I-360 approval while others only require copies or certified copies).
I would contact the consulate directly to ask them if they have any procedure in place to deal with this kind of situation, and if so, what that procedure is. Contact information for consulates is usually available on their web site. A list of consulate web sites is available at http://usembassy.state.gov/.
Q- I am Pakistani and my father have green card and social security but but he died of magnititus on 1997. and in that time I want to apply for the Visa of US so how can i get the visa or how can I prove I am the benefeciary or survivor?
A- If your father filed an I-130 petition for you; the I-130 was approved; and you have not yet immigrated to the U.S., the I-130 petition becomes invalid. However, section 213A(f)(5) of the Immigration and Nationality Act and the Family Sponsor Immigration Act of 2002 permits you to request that the Attorney General reinstate the I-130 petition that was approved prior to your father's death.
If the Attorney General reinstates the petition for humanitarian reasons, you can get a substitute Sponsor for the Affidavit of Support and file your immigrant visa application. The substitute Sponsor must be your spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild. The substitute Sponsor must be a U.S. Citizen or Permanent Resident who is over age 18, is domiciled in the United States or any territory or possession of the United States, and demonstrates the means to maintain an annual income of at least 125% of the Federal poverty line.
If your father died before the I-130 was approved, then the petition cannot be reinstated and it is not a valid basis for your immigration to the U.S.
Q- I filed for my B1/B2 visa couple of days back when my husband was not co-operating. Now he has come forth saying that he will file for my H4 exten sion. Can I go ahead with the H4 also?
A- Assuming you mean you filed an I-539 form to request extension of stay, there are a couple of ways this can be done. You can withdraw your pending B1/B2 application by writing a request to USCIS and enclosing a copy of the I-539 receipt notice. You would then file the I-539 request for change of status to H4 instead. You will not get a refund of the filing fee on the withdrawn application. USCIS will send you a written acknowledgement of withdrawal of the application. If you do this, you have to have time left on your current B1/B2 in order to file a valid (timely) request for change of status to H-4.
The other option is to wait until the B1/B2 extension is approved and then file another change of status request to H4. If your B1/B2 has already expired, you HAVE to use this option, as a request for change of status to H4 is invalid unless filed while you are currently in status.
If you file another I-539 requesting change of status to H-4 now could create a problem. USCIS uses a "last action rule" in that if there are multiple change of status or extension of stay requests pending on behalf of the same person at the same time, the last one approved determines status. If the H-4 is approved last, you have no problem, but if the B1/B2 extension is approved last, then you will be in B1/B2 status and if the H-4 had been approved, it would be cancelled by the subsequent B1/B2 approval.
Q- H1B candidate, in sixth year. Company ready to file labor certification, since it is PERM, results expected within 60 days. Once approved, shouldnt I be allowed to apply for seventh year extension ? I am told since I do not meet labor pending for 365 days condition, I can not apply for seventh year extension.
A- There are two ways to qualify for a 7th year extension. The first provision, which you referenced in your question, states that if a labor certification or I-140 petition was filed over 365 days ago and there has not yet been a final decision on your application for permanent residency, then you are entitled to extend H-1B status indefinitely in one year increments. In order to qualify for this, those 365 days have to have elapsed prior to expiration of your 6th year of H-1B status. Based on the facts you provided, it does not sound like you qualify for a 7th year H-1B extension on this basis.
The other way to qualify for extension beyond the 6th year of H-1B status is if your labor certification and I-140 petition are approved prior to the expiration of your 6th year of H-1B status, and you are eligible to apply for permanent residency but for the fact that visa numbers are unavailable. If you qualify this way, you can get extensions of H-1B status indefinitely in three-year increments. This provision MAY apply to you, if your labor certification and I-140 are approved in a timely manner, prior to expiration of your 6th year of H-1B status.
One provision which may assist you in maintaining your H-1B status until your I-140 petition has been approved, so that you will qualify for either the 1-year or the 3 year H-1B extensions, is the ability to recapture any time you have spent outside the U.S. in the past 6 years while in H-1B status. For as much time as you can prove (e.g. through airline ticket stubs showing international travel; receipts or credit card statements showing purchases made in other countries; letters from doctors who treated you for medical problems abroad; proof from your employer of the dates you were required to travel abroad pursuant to your employment; copies of passport stamps showing departure from and readmission to the United States, etc.), you are permitted to extend your H-1B status. Through a request for recapture, you may be able to extend your H-1B status long enough to get to the point where you qualify for a 1- or 3-year extension.
Q- My mom visited US with a non-immigration visa five years ago, overstayed more than two years, and returned to her country on her own. I just learne d a regulation about 'ten year bars due to overstay'. Does she eligible to apply a US immigrant visa in her country now or she has to wait up to ten years to apply?
A- The three and ten year bars only apply after a person's I-94 arrival/departure card expires. If a person stays in the US over 180 days after her I-94 card expires, and then leaves the US, she has a three year bar on being readmitted to the US. If she stays more than 365 days after her I-94 card expires, then leaves the US, she has a ten year bar on being readmitted to the US. See our article at http://www.usvisahelp.com/art_
Someone who has accrued a three or ten year bar is eligible for readmission only after the applicable time period has passed, unless they are able to obtain a waiver of inadmissibility through the US Consulate in her home country.
Q- I have 1 year remaining on R1 visa. If I file for an EB4 green card is it ok to exit the US for 2 weeks and return,or would I encounter problems?
A- The question of whether someone who is on an R-1 as a religious worker who has filed form I-360 to begin the green card profess for the EB-4 category will have problems re-entering or extending the R-1 is one that is frequently asked not only by clients, but by other attorneys.
In October 1997 the Administrative Appeals Unit (now known as the Administrative Appeals Office) decided in a non-precedent decision that even the previous approval of an I-360 special immigrant religious worker petition does not preclude approval of an R-1 nonimmigrant petition.
Non-precedent decisions are not binding on the various components of the old INS. It can be used as strong evidence that re-entry on an R-1 and even extension of an R-1 at the border for Canadians or at a consulate for non-Canadian R-1 religious workers should not be a problem.
This case stems from a denial of an R-1 religious worker petition from an I-129 by the Vermont Service Center Director. The Vermont Service Center Director denied the I-129 R-1 petition on the basis that work was not temporary in nature any longer as the I-360 had been filed and approved.
Further, I have never encountered problems at ports of entry with either reneweing an R-1 once the I-360 petition has been filed or in having anyone refused admission as an intending immigrant. Some of the ports of entry along the northern and souther border do have strange interpretations of the rules and I always recommend that an R-1 who is in this situation contact the proposed port of entry to find out their reading of the law.
