--Q&A 9/13/06--

Q- I am currently in year 5 of my H-1B with LC pending after two years at the DOL in Philly. My wife and 4 children originally where H-4s but since moving here both of my sons have turned 21 and no longer have H4 status. However, I was told that they remain in the green card process and are grandfathered in.

I have the opportunity to change employers in the same line of work. Can the new employer apply for an H-1B and hire me? If so what would happen to the status of my family? Can the I-140 be filed by the new employer if the DOL has not approved my case by the time I was hired by the new employer?

A- If you change jobs now, you will only be able to continue pursuing permanent residency with the currently pending labor certification application if both you and your current employer intend for your continued employment upon the granting of your permanent residency. You may change employers but only if you have an agreement with the employer who filed the labor certification that you will go back to work for him/her on a permanent basis upon the granting of your permanent residency. That employer would need to be willing to write letters verifying this arrangement on your behalf when the green card is ready to be issued. As you know, that could be as long as a few years from now.

You may want to check with the attorney who filed the labor certification to see if it would be reasonable to substitute a PERM application for the currently pending labor certification. PERM is the new method for applying for labor certification and it is much quicker (weeks or months as opposed to years). The problem is that if the PERM application is not exactly identical to the currently pending labor certification you will lose the priority date established by the first application and, since visa numbers are currently retrogressed, this would cause a severe delay in issuance of your green card. Again, this should be discussed with the attorney who filed your labor certification.

Q- My dad had sponsored me for permanent residency in 2000. (He was a permanent resident and then later he became a citizen and he had to switch my case from PR to citizenship). I went for an interview and then later on there was an investigation. A few years later (2005)I received my I-130 approval even though I had applied for I-485 and had gone for the interview. As of this moment, I have not received my I-485 approval and upon inquiry I was told that my name is forwarded to the name clearance and nothing can be done till that is taken care of. It has been 6 years and I haven't received an approval for permanent residency. Please suggest on what should be done? Also, If I have applied through my dad and that is taking forever, can I apply through my employer while this case is still open?

A- There is no way to speed up security clearances as they are conducted by outside agencies such as the FBI and CIA, and USCIS has no control over them.

Your employer could sponsor you through a separate petition. However, as the security clearances are related to you personally, there is a good chance that there will be a similar delay in conducting a security clearance on a petition filed by your employer.

Q- I am presently on my second term of H-1B visa. In october 2004 my employer filed for my premenent residence status through RIR. Since it was taking a long time we decided to file through PERM in January 2006 with a request that the priority date be maintained. We have still not received any reply from Department of Labor as of today. My question is that what are the chances that the DOL will maintain my priority date- that is October 2004 ?Secondly, my son is ninteen years and 8 months of age. Will he be covered after we receive Labor certification and filling of I-140?

A- The priority date should be retained so long as the PERM application is *exactly* the same as the previous RIR application that was filed. If there are any differences you will forfeit your priority date.

So long as your son is under 21 he will be eligible to derive permanent residence from your petition. The Child Status Protection Act preserves a child’s age due to processing delays with USCIS but unfortunately does nothing to cure delays caused by the Department of Labor, or by retrogression in the availability of immigrant visa numbers.

Q-Is it okay If I will apply for another hospital to petition me under EB3 or Schedule A (nurse) while I have another approved petition with the USCIS with a different hospital? My 1st petitioner doesn't seem paying attention to the petition they filed so I decided to transfer instead. Is this possible?

A- Yes, it is possible to have multiple I-140 petitions filed by different employers. However, your permanent residency can be based on only one of the petitions, and you must intend to work indefinitely for the employer on whose I-140 petition your permanent residency application is based.

Q- I am a proffesor of chemistry in CHEMICALENGINEERING in India with a total teaching experience of over 30 years. I am 56yrs old. I am teaching generalchemistry for both undergraduate and graduate students of chemical Engeneering and guiding 2 Ph.D students in polymers, with many international publications. My name is included in marquis world encyclopedia (for VIPs), Whos is Who 2004 . My option is: 1)I am looking for permanent job and greencard through an employer. I would like to work as proffesor in chemistry, acadaemic coordinator, dean of sciences, HOD in chemistry etc. in a reputed university or college (either engeneering or arts and science college); or through 2)aliens of extraordinary ability. Please send me the details and the time involved to migrate.

A- There are a few different types of I-140 petitions that may work for you depending on what kind of arrangements you have to work in the U.S. We can help you with the immigration paperwork once you have plans nailed down with a U.S. employer.

For the "alien of extraordinary ability" petition you would not need to have a specific position lined up but would need to have concrete plans for what your work will be in the U.S. (I.e., according to 8 CFR 204.5(h)(5), "the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.")

Q- I am a Chinese married an American citizen in July 2004. I got my interview few days ago. During interview everything was fine and visa office already issued my son and my visas. When I was ready to leave, I wanted to make sure if I can get 10 years visa based on my marriage time. I was told by visa offier he issued me 10 years via, I was thrilled, but suddenly he asked me if I am a communist member, as I already quited 2 years ago, so I told I him I am not as I already quited. Then he aksed my formal employer letter about it, but I didnt take it with me. Then he said he is sorry, according to American Law he cant give me visa at that time, but there is no problem to my son, he said if i like he can give my son's visa at that time. My son is only 9 and cant go to the US alone, so I asked hold on. I was told I need to fax or mail them my employer former letter and my personal statment about it. I have already mailed them yesterday. I want to know if my husband can apply for a wavier about it during Guangzhou.

Oh, another question is I had to join communist in June 2000, as my boss told me if I am not communist I might lose my job( my school merged to another big univeristy and we were told someone had to laidoff). I quited after I married my husband in July 2004. According to American law, I need to quit communist 5 years ago before I applied for visa, but my communist membership was only 4 years.

A- As long as you joined the Communist Party solely to keep your job, and you can get a letter from your former employer confirming this, you should be issued a visa. Section 212(a)(3)(D) states in pertinent part:

(D) Immigrant membership in totalitarian party.—

(i) In general.—Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

(ii) Exception for involuntary membership.—Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

Therefore, your employer must state that membership in the party was required for employment. If you can get a letter stating this fact you do not need a waiver.

Q- How do I keep track of my green card application/permanent resident here in the US? I just got here last april 2006 and I dont know how it'll be process or do I just need to wait until its approved? I have a US immigrant visa, EX category.

A- Your green card should arrive in the mail within a few months of your admission to the US. If you have not yet received it you should call 1-800-375-5283 to inquire with USCIS about the status of your case. Make sure you have your immigrant visa in front of you when you call so that you can give them your A-number (alien number). If you have your I-140 approval notice you should also have that in front of you when you call.