--Q&A 9/20/06--

Q- I have an approved H-1B petition and I think by mistake my attorney has put the place of stamping as Chennai, India. I am in Germany now on a residence/work permit. I have taken an appointment in Frankfurt already. what should I do? will they allow me for my stamping there or may say me to go back to India?

A- They should accept your application for stamping in Frankfurt so long as you have an attorney-certified copy of your H-1B petition when you attend the interview.

By placing the place of stamping on the I-129 petition and asking for cable notification to the consulate, USCIS will transfer a copy of the petition directly to the consulate for you. However, failure to do that does not mean you cannot apply for a visa so long as you present a certified copy.

Q- I'm in 7th yr of H1 on extension for 3 yrs, 140 approved (EB3), PD Nov 03. To take advantage of EB2 PD, I want to move to new employer. What are the risks ? If old employer revokes 140 and repeals LC. I heard that one 140 is approved, you can always retain the PD. Even if the employer revokes 140, you can retain the PD.

A- You can retain the priority date established by the first I-140 petition UNLESS the first I-140 is withdrawn or revoked. If it is withdrawn you cannot benefit from the earlier priority date.

Q-I am an Indian national but my wife is a Singapore national (born in Singapore). I am on H1B and my employer is supporting and sponsoring my filing of Green card. My spouse is on H4. Given the backlog of applications for Indians, can I use the principle of cross -chargeability in my case? Are there caveats?

A- If you choose adjustment of status, the Immigration & Nationality Act indicates that you *cannot* be charged to the country of which your wife is a national because you are the principal applicant. But in practice USCIS often grants cross-chargeability based on the country of birth of a derivative spouse.

If you choose consular processing, then according to the Foreign Affairs Manual you will absolutely be able to use cross-chargeability even though she is a derivative applicant.

Q- I am currently in H-1B status and my LC has just been approved as an EB3 but the I-140 has not been filed yet. If I use the "non frivolous" H1 portability opportunity to change jobs and my new employer files a PERM LC using EB2 which the job will require, will my priority date not remain the same as I originally filed the EB2 LC on my original job?

A- No, unless the I-140 is filed and approved and remains un-revoked, you cannot recapture an earlier priority date.

Q- My sister has been a model for more than five years. She has always been wanting to come to the USA for model jobs. Is there any advise you can help us with?

A- If she can prove that she is a model of distinguished merit and ability, and she has a job offer from a U.S. employer, she would qualify for an H-1B. However, H-1B visa numbers are used up for this year and she wouldn't be able to enter on an H-1B until next October, at the earliest.

The 0-1 or O-2 nonimmigrant categories may also work and there is no cap on the number of O visas that can be issued. According to 8 CFR 214.2(o)(1)(ii)(A), O-1 classification applies to:

(1) An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or

(2) An alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement.

Per 8 CFR 214.2(o)(1)(ii)(B), O-2 classification applies to an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O-1. The O-2 alien must:

(1) Be an integral part of the actual performances or events and possess critical skills and experience with the O-1 alien that are not of a general nature and which are not possessed by others; or

(2) In the case of a motion picture or television production, have skills and experience with the O-1 alien which are not of a general nature and which are critical, either based on a pre-existing and longstanding working relationship or, if in connection with a specific production only, because significant production (including pre- and post-production) will take place both inside and outside the United States and the continuing participation of the alien is essential to the successful completion of the production.

She would need to have a job offer from a U.S. employer who is willing to petition for her on the O-1 or O-2.

Q- I was 2 yrs old when I landed in usa with my parents, but at the age of 6 my father had to return back to his home country due to family business/reasons. Now I'm 29 yrs of age, and want to settle down in USA. I had green card and social security at that time. Can I get my green card revived or renewed as I was minor and my parents took decission on my behalf, which I think wasn't right. I have tourist visa and have visted usa in year 2001 and then again in 2002. But next time I visit usa, I would like to take help of some attorney who can help me out. Is it possible???

A- After spending nearly 20 years outside the US after getting your permanent residence, you have most certainly abandoned your residence in the U.S. even if the decision was your parents’ and not your own. There is no way to revive the old green card. The only option would be to start the process over again on your own, either by having a qualifying relative petition for you, or by having a qualified U.S. employer petition for you in a qualifying job.

Q- My husband filed an EB3 back in 2001, the LC and I-140 were approved. But due to the retrogression, he can't file I-485. In May, 2006, he filed a EB2 PERM with a different job title so that he can take advantage of a faster EB3 visa movement and keep the old PD. The new LC is approved and the new I-140 is pending at NSC. Now, the visa number is available for his EB3, can he go ahead file I-485 using the approved EB3 I-140? What should he fill the job title? Thank you very much for your response and help.

A- The EB3 I-140 petition continues to be valid and can be used to support the filing of an I-485 application so long as your husband’s priority date is current AND:

1.) The original I-140 has not been revoked;
2.) The original I-140 petitioner continues to intend to employ your husband indefinitely, at the wage proffered on the I-140 petition, upon the granting of his permanent residency, and is willing to write a letter stating as much to USCIS; and
3.) Your husband continues to intend to work for the original I-140 petitioner upon the granting of his permanent residency.

Q- In N400 form there is a column regarding the "information about marital history - How many times you married (include annulled marriages also)." My previous marraige was annulled. After annulment I got married again and I have a child. I came to US with my spouse and child based on employment. I am not aware, I need to mention in GC processing my previous annulled marriage (I understood annulled means reversed and not happened). N400 form requires annulled marriages also. Will this create a problem for my citizenship processing. And how it affects to my family.

A- There are two potential ways this issue could affect your case:

1. Accusation of Fraud. Failure to mention the annulled marriage in your adjustment of status application is not fatal in this regard. You must disclose it on the N-400 form as required. If you are questioned about it at the naturalization interview, you should explain truthfully your understanding that you did not have to report annulled marriages. Your application can only be denied on an accusation of fraud if you made an intentional misrepresentation for the purpose of obtaining an immigration benefit, and your misrepresentation, if any, was not intentional given what you have explained.

2. Eligibility for Adjustment. You would not be eligible for naturalization if your adjustment of status application was unapprovable when it was approved. If it turns out that your annulment would not be recognized as legally valid under U.S. law, then your subsequent marriage would also not be valid (because it would be considered polygamous). You may want to obtain the legal opinion of a U.S. family law lawyer as to whether your annulment would be recognized as legally valid in the U.S.

Q- I am working on H-1B visa with a firm in Florida. I had my initial H-1B visa in 10-16-2001 and my wife joined me on H-4 visa in 13 Oct. 2002 (visa issued in INDIA). Before the first 3 year term of my H-1B visa expired, my employer filed petition for green card (both I-140/I-485 was filed together). Based on this filing, both my wife and I got EAD and Travel document (Parole) for year 2005 (thereafter the EAD and Travel document was also extended for the year 2006). However, neither of us used these documents. While the application continued, my 1st H-1B expired on 10/10/2004; my employer filed an extension for H-1B as a backup to the green card processing. Unfortunately, the H-4 extension for wife was not filed (the original H-4 / I-94 expired on 10-10-2004).

On Aug.11, 2005, INS denied I-140 due to error in tax ID (EIN number) of the employer and on the same date I-485 was denied for both me and my wife because my I-140 petition was denied. In the denial of I-140 it is stated that the petitioner had no ability to pay the required wage. After that the present attorney has filed a motion to appeal (I 290B) the case. My employer is paying my committed salary without fail. On 11-21-2005 this case was forwarded to AAO. Since I had my H-1B extension approved (and valid until 10-11-2007, I maintained my legal status and continue working on my H-1B while the appeal on my green card case is being considered by CIS. However, my wife's H-4/ I-94 had expired on 10-10-2004 and we have filled an extension for her in 10/18/2005. In November 2005 USCIS has asked for request for additional evidence which was filed by my lawyer for her H-4 extension in Feb. 2006. Unfortunately, this application has been denied (my attorney has informed me about this) on 28 Feb.2006. CIS has given a 2 week period to file a motion to reconsider. A motion was filed timely in March 2006 with a notice date March 31, 2006. We have not received any decision on this as yet. Now I would like to seek you opinion how to fix this problem or what are my options at this time?

A- USCIS can approve an untimely filed request for extension of stay but the decision is purely discretionary. If USCIS refuses to grant it, there is no legal recourse other than filing a motion to reconsider which is, once again, discretionary.

Your wife has been out of status and accruing unlawful presence in the U.S. since the expiration of her H-4 status in 2004. If she departs the U.S. now, she will be subject to a 10 year bar because she has accrued over a year of unlawful presence.

If the motion to reopen and reconsider is granted, her H-4 status will be back-dated to the date when the previous H-4 expired, and her unlawful presence will be legally erased. If it is denied, she will continue accruing unlawful presence until she leaves the U.S.

Technically she is not legally authorized to remain in the U.S. at present and remains subject to removal from the U.S. at any time. You should discuss strategies as to when she should depart with your attorney.