--Q&A 10/5/06--
Q- I am in US on a H-1B visa filed by Company A. I plan to go back and resign from Company A and come back to work for Company B. I suspect that Company A could cancel my H-1B before I can get it transferred. I cannot resign from Company A in theUS itself. How should I proceed?
A- The safest course is to have company B file the petition and get it approved before you put in your notice at company A. Company A is legally obligated to report to USCIS when you resign.
Q- My husband's employer filed an I-140 in 1987. When we went home to the Philippines for consular processing the consular officer did not believe that he really worked for his employer. The I-140 was revoked. My husband applied and was approved last May 2006 for a new I-140 for a different employer and job. What is the consequence of having a previous denial and new approval? The I-485 has a question if he previously applied for permanent residence. We don't know what to say or do.
A- You must disclose the prior filing of the application on the I-485. USCIS asks this question so that it can investigate the previous denial to determine if it creates a ground of inadmissibility for you presently. Failure to answer truthfully could be considered a fraudulent misrepresentation.
Q- If an alien lied on their immigration application forms, is that reason enough to deport them? I am worried about my friend. She was supposed to report to a court in her country for a really minor offense (shop lifting) but she did not. When I was helping her fill in her immigration forms, I noticed there was a question about whether she's ever been arrested/ detained and she asked me to check "no." Could this be a problem for her in the future? If she answered yes, would that be a problem too? The offense was not committed in the U.S.
A- Yes, intentional misrepresentation of a relevant fact on an immigration application is considered fraud if the misrepresentation is done for the purpose of obtaining an immigration benefit. Fraud is grounds for removal from the United States.
If she had truthfully answered yes to the question and explained the situation, the application would likely have been denied until the case was resolved in her home country. An alien bears the burden of proving eligibility for immigration benefits. If there is an unresolved criminal issue, USCIS may deny an application on that basis.
Q- I have an approved H-1B visa to start 1 October 2006. I want to enter the USA 5 September 2006 as I have 3 children who need to start school in the USA and have been taken out of their school in the UK. Will I be able to enter the USA on H-1B purely due to children's sake and will be able to show evidence of sufficient funds to survive for 4 weeks? Or will I have to enter near the 1 October date?
A- You can only enter up to 10 days prior to the employment start date on the H-1B petition approved by USCIS. You would need to get yourvisa issued by the consulate with a start date of September 20 in order to enter early. There is no way to enter 4 weeks early on the H-1B.
Q-I sent DS-230 to NVC on June 27 along with the requested documents and I found on July 11 that they are missing some information. Upon calling, NVC said that they are missing my landed immigrant documents for Canada but when I advised them that I sent all documents along with my DS-230 they have forwarded my case to the supervisor, which will take another 7 to 15 days. I am on temporary work permit in Canada which is about to expire. Please advise me what I should do so that I can join my family soon.
A- The thing that will probably move the case through NVC quickest would be to re-send a copy of your landed immigrant paperwork to NVC using a courier service such as Fed Ex or DHL.
Q- I am working in Phoenix, AZ on an L-1 visa. I was convicted of a DUI (first offense and not extreme, BAC , 0.8) last week, and have been sentenced to 1 day in jail and some fines. I have no prior convictions. I am planning on going home for some time later this year. Will I be stopped at the port of entry when I come back to the US because of this DUI? If not, can the US immigration service order me to leave the country right now or would there be any action to such effect during my stay on the L-1 visa? In what and how many ways can this DUI conviction affect my case?
A- If it was a simple DUI conviction (meaning no aggravating factors), and you have no similar prior convictions, it should not affect your admissibility to the U.S. in L-1 status.
Q- Is it possible for grandfathered applicants under 245(i) to file for H-1B visas if the applicant has a sponsoring employer? Or is H-1 only for nonimmigrants whose base is in their home country?
A- If you already have an I-485 adjustment of status application pending and are not currently in a valid nonimmigrant status, there is no way to change to a nonimmigrant status such as H-1B. In addition, if you have been out of status more than 180 days, you cannot leave the U.S. to get an H-1B visa abroad. To work, you would need employment authorization (EAD card) issued by USCIS. This is applied for on form I-765.
Q- I am holding a 3 year Bachelors degree from India, Chartered Accountant in India, CPA from NY, 30 credits (from New York colleges). In your opinion will this education qualify under EB2 particularly at NSC? Also can one withdraw I-140 and resubmit?
A- The Nebraska Service Center's policy is that where a position requires attainment of a degree, they will only approve I-140 petitions where the beneficiary has the required U.S. degree or a single equivalent foreign degree. They will not accept a combination of degrees as equivalent to the required degree, even if you get an educational evaluation stating that the education equals the required U.S. degree.
Q-What is the maximum number of iterations we can reschedule dates for visa interview?
A- There is no maximum number of times a consulate interview can be rescheduled according to the Foreign Affairs Manual, which governs visa processing. You would have to pose the question to the consular post.
Q- After my 3 yrs of H1b1 i applied for extension last year and after 1 year I got a denial. In the mean time my original H1B1 expired too. So my question is what if I file a appeal? Will I be legal here and stay as long as the decision is made? And in the mean time can i get a new H1B from different company?
A- Filing of an appeal does not authorize you to remain in the U.S. legally. Because time has lapsed since your denial you are not legally eligible to get a new H-1B with a different company unless USCIS exercises discretion under 8 CFR 214.1(c)(4) to approve an untimely filed extension of stay. That section states:
An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide nonimmigrant; and
(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.
If less than 180 days have elapsed since your H-1B expired, then a new H-1B could be approved for you and you could apply for a new H-1B visa at a U.S. Consulate abroad. If more than 180 days have elapsed since your H expired then leaving the country will trigger a three year bar to your readmission. If more than 365 days have elapsed since your H expired then leaving the U.S. will trigger a 10 year bar to your readmission. If more than 180 days but less than 365 have elapsed since your H expired, please call our office for additional information on your options. We charge $150 for a consultation.
You should note that leaving the country will abandon your appeal.
Given the nature of your situation you should consult with an immigration attorney before making any decisions.
Q- I worked for company S for 2 years, got LC approved, filed I-140. Recently I changed to company F through H1B transfer. I am unhappy with company F. Can I go back to Company S after Company S has the approved I-140? (If they will not revoke). And can I continue the green card process with them?
A-There are several factors that relate to whether or not you would be eligible to change back to employment with company S. For example, you must have maintained your H-1B status with company F; company S must either be willing to file another H-1B petition on your behalf (in which case you must be eligible for more time in H-1B status), or your priority date has to be current so that you can file an I-485 adjustment of status, get employment authorization and begin working for company S pursuant to your EAD.
Because this is such a complex matter, and the answer depends on the specifics of your immigration situation, we would recommend that you consult with an immigration attorney before changing employers. If you would like a consultation, our fee is $150 for a half hour consultation, and most matters can be handled in a half hour.
