-- Q&A 11/30/06--

Q- My husband has filed for a change of status from B-2 to E-2 visa together with I-539 form for me and my daughter, last September 22, 2006. Our I-94 will expire on October 14, 2006. My question is since we are still waiting for the result of our application, are we going to be out of status after October 14 even if we have a pending application? It's only been 2 weeks now and we haven't received a receipt yet.

A- As long as your change of status to E2 is eventually approved, you will not have been considered out of status even though the B-2 status expired while your change of status application was pending.

Q- I have got an offer for employment, the employer is only interested in sponsoring a TN visa and has no objection to sponsor a green card on TN if the employee pays the expense. Now, I only know that my green card was filed in October or November 2002 but I do not have a copy of the receipt. However, I have full address and contact info of the lawyer who filed it and should have a copy of it. My question is: Do you think I can still get my green card even on a TN? I am not working with the old employer, who sponsored the H-1B and filed the green card. My 6 years of H-1B will be completed on 2/13/07, I still have not gotten my LC, three months ago I got my 45 day letter, and my employer laid me off on 8/30/06. Now I have a new job offer with a TN employer. Is there any way I can recapture the old green card process?

A- Labor certifications are employer specific. Unless you are willing to work with your old employer at sometime in the future, you cannot benefit from the old labor certification. Under AC21, a form I-140 would have to be approved and an I-485 would have to be pending 180 days before you could benefit from the old labor certification with a new employer. Your new employer would need to start the green card application process all over again.

Q- I am working for a company in FL. I cam to the US in 2000 on an H1B and my current employer filed labor certification in August 2005. In 2006, we applied for H1B extension for the 7th year. During the process of filing the I-129, our internal legal department failed to include ETA 9035. Now the H1B extension has been denied. My I-94 has expired on September 25, 2006. I have a family with 2 kids living with me. What are the possibilities of winning an appeal petition which includes the missing ETA 9035? How long will the appeal process take?

A- You need to have an attorney file a motion to reopen immediately including a screen shot of your pending labor certification showing that it was filed at least one year before the end of your six years in H-1B status. If there was any recapture time for periods while you were outside the US, that needs to be included as well.

Q- My wife is in H-4 status (8th year extension) and she got her H1B recently. Is it possible for her to go to India and come back on H-4 since she did not start her job yet. She doesn't even have her H-4 visa stamped. Will the H-1 still be valid if she gets the H-4 visa stamped?

A- It is unclear from your question how your wife qualified for H-1. Normally she would not be eligible for an H-1 unless she had her labor certification pending for more than a year. Generally though, departure and reentry on H-4 does not cancel the petition on which the H1 is based, but would cancel H-1 status.

Q- I had an H-1B petition applied in 2000 from my company. I came to the US for the first time on the H-1 in June 2003 and returned to India in Feb 2005. My original Petition was expiring in Oct 2003 and it was renewed. The renewed petition expired in July 2005. My company now filed an L1 for me and I came to the US again in Jan 2006. Now can my H-1 petition be revived by either my current employer or any other? Would it count under the H1 cap? I’m curious because I heard from somewhere that as long as I was out of the US for less than 1 year, something could be done. I was in India for 51 weeks. I’d like to know options are available in such a circumstance. Also, in case it is revived, how much time would it be valid for (I was in the US for 19 months on H1 and am now in the US for 9 months on L1).

A- As long as you did not spend any time period of one year or more outside the United States, you would still be titled to have an H1 petition filed on your behalf and not be counted against the cap. The best way to look at how much time you have available under the H1 is to take the total you were allowed of six years and subtract any time spent in H1 or L1 status. Thus you would have 44 months available in H1 status. You of course could only ask for an initial three-year period of time with your first H1 petition.

Q- The present priority date is July 2002. Mine is April 2002. If the date they have now is July 2002, does that mean that they're done reviewing my case? If so, why ain't I receiving any response from them?

A- The priority date has nothing to do with the date the case is reviewed. It only relates to whether or not an application for adjustment of status can be filed or an immigrant visa issued. You did not say whether your case is pending with the immigration service or the Department of Labor. If it is with the Immigration Service, it does mean that if everything else is ready, your case can be approved. However, there may be more work that needs to be done on your case with the Immigration Service or your case may be slowed by record checks. If it is with the Department of Labor, it would depend on which Backlog Center the case is pending at and whether it was filed for traditional or RIR processing.

Q- My questions have to do with the CSPA (Child Status Protection Act) - our son might have aged out of our Green Card process:

My husband is an H1B holder. His employer filed a Labor Cert for him - the Priority Date was Mar 25, 2004. Our son was then 18 years and 6 months old. The Labor cert was an RIR case - which we expected to take about 6 months. To cut a very long story short, the Labor Certification was approved on Sep 11, 2006. My son turned 21 on Sep 13, 2006, two days after that. It appears as though he now might have 'aged out' of our Green Card process, as we are now preparing to file our I-140 and I-485's together. (My son is now on F1 visa, studying for his Masters degree in CA (on advise of an attorney, we changed his H4 to F1 during the summer and when the university started in August, he was already on F1, although he was then still a minor)).

We have made phone calls to USCIS, my son and I had a visit to USCIS with an Immigration Officer, but we are no wiser as to what exactly should be done to try and salvage as much as possible for our son.

· We make the assumption that he has definitely aged out. But are we correct?

· If he has in actual fact aged out, what can be done - should we still include him on our I-140? From advise received so far (USCIS, attorneys), it appears as though he should be on our I-140, but we should not file an I-485 for him yet. Is that correct? What are the implications?

· Some attorneys make claims on their web sites that children who age out in similar situations, will under certain circumstances 'automatically' be reclassified to another category, namely Family based Green Card petition, preference category 2B (an unmarried child, older than 21) and best of all, such children will then retain the Priority Date of the principal's Labor Cert, which in our case, was the 25th of March, 2004. If that is true, how 'automatic' is that 'automatic' reclassification? I am sure we have to do something extra to make that happen.

· In summary - what do we have to do, to ensure that our son, who appears to have aged out, stays within our Green Card process and keep the Priority Date of my husband's Labor Cert?

General: For us, our Green Card process started with the filing of my husband's Labor Certification - that was our starting point. It appears, however, as though the age calculation for derivative children does not take that date into account at all. I was thus very surprised to read the write-ups of some attorneys about the retention of the Priority Date of the principal's Labor Cert Priority Date. Shouldn't the Labor Cert Priority Date be used in all Employment Based Green Card applications?

A-

• You are correct that your son has aged out. The Child Status Protection Act saves children from aging out due to USCIS processing delays with the I-140 petition, but it does nothing to remedy delays at the Department of Labor with labor certification applications. Since your son aged out while the labor certification was pending, the Child Status Protection Act does not help him.
• Your son’s name should be included in your husband’s I-140 petition because the form asks for biographic information on all children, regardless of whether they are eligible for a green card on the basis of the petition or not. Putting his information on the I-140 petition does not help your son at all. He cannot file an I-485 as your husband’s derivative.
• In order to obtain a green card through your family at this point, you and/or your husband need to file an I-130 petition on his behalf after you get your own green card. This does not happen automatically. He will not receive the benefit of your husband’s priority date; a new priority date will be established on the date the I-130 is filed.
• There is no way for your son to benefit from your husband’s priority date. He will either need to start his own green card process through employment after he graduates from college, or else you will need to wait until you become a permanent resident and then file a family-based petition for him. Family based petitions can take several years as priority dates are very backed up (not to mention the time you will have to wait before you can get your own green card). If it is at all possible for your son to work on getting a green card through employment, it will probably be quicker for him.