-- Q&A 5/21/07--
Q- I entered the USA on H-4 visa. My employer applied for H1 visa and got it approved Oct. 2006. My case type for H-1 is I-129. I received approval notice from USCIS but could not start working due to medical reasons. Does this mean my status automatically changed to H-1 and I can start wokring? If no, then what should I do in order to start working? Is it possible for some other employer to apply for my change of status to H-1?
A- If your employer applied for a change of status for you and it was approved, your status automatically changed to H-1B on the effective date of the petition. If that is the case, your previous status automatically ended when your H-1B took effect. Based on the facts you have given, there is some question as to whether or not you took up your H-1B employment when required to do so. If you did not, you may have violated your status and you may currently be out of status. You should seek a legal opinion as to whether you are out of status, based on all pertinent facts and documents.
Q- I was in the US and overstayed by under six months on a visa waiver, i didnt work as family helped me while there and left voluntarily on return to UK i applied for a tourist visa nine months later but was refused and told i would stay in the US if i was issued one,i was also told i have no ties to my country,even though my daughter goes to university here and lives with my ex wife and i have my mother and a sister here i also have a sister in US who is a legal resident and many cousins who are citizens.
Whats my best course of action?
A- It is very difficult to overcome the presumption that you have immigrant intent once you overstay a visa or the VWP. You will need to present stronger evidence of your ties to the U.K., such as a job you intend to return to, real estate holdings or a continuing lease on an apartment, etc. It may not be possible to overcome that presumption if you are applying for a tourist visa, and may only be possible if you come on an employment-based visa such as H-1B, for which the presumption of immigrant intent is not as relevant.
Q- I have a masters degree and ten years of experience. I got my LC approved. But after my lawyer filed I-140 and I-485 concurrently, we got a notice for additional evidence for EB2. My lawyer sent another form indicating my employer applied for EB3 instead of Eb2. Now I-140 has been approved. I also got my EAD card and fingerprint done.
Now despite my lawyer's mistake he put two years of experience with a college degree by mistake for LC petition, my question is: What do you think USCIS will handle this case since my priority date of January 2004 for EB3 was not current while my I-485 was filed in November 2006? Can it be denied? If yes, what can I do to avoid this?
A- I would have to see a copy of the labor certication to know what your place of birth is before I could answer. I would need to charge for a consultation. It does sound like it will be denied, but I couldn't say for sure without more information. You may need to get a second LC using the PERM process.
Q- I submitted an I-140 and I-485 before October 2005 and my I-140 was approved in February 2006 (but 485 is pending). Now I have an H-1B valid until 2009 and I am going to apply for an EAD card for a second job. Is it possible for me to do that? Is there any violation between my current H-1B and the EAD card if I get it?
A- An EAD would allow you to work for an additional employer legally. However, you would go out of H-1B status. You would still be considered in a period of stay authorized by the Attorney General, but would no longer be working on your H and would not be able to travel on your H visa. Also, unless you qualify for portability under AC21, in order for adjustment of status to be approved, you must maintain your intent to work full-time for the I-140 petitioner after the adjustment of status is approved.
Q- Here are my questions:
1. If I-485 application got denied, can one refile a new i-485? How many times can one refile new I-485 forms?
2. Is there a time limit for an approval I-140? I mean if an approval I-140 can become invalid after some time?
3. My husband filed I-140 and I-485 concurrently and recently filed EAD application for me and himself. I'm on h1 visa now. My question is if I can take a second job using EAD card. Will I loose h1 status after I start using EAD card?
Your help would be appreciated!
A-
1. There is no limit on the number of I-485 applications you can file after a previous filing is denied.
2. I-140 approvals are valid indefinitely unless revoked by USCIS
3. The EAD card does allow you to take up a second job, but this would violate your H-1B status. You would still be considered in a period of stay authorized by the Attorney General because of your pending application for adjustment of status. However, you would no longer be in H-1B status and would have to use Advance Parole, rather than your H-1B visa to travel. To maintain H-1B status while working 2 jobs, you need to have the second employer file another H-1B petition on your behalf and get it approved for concurrent employment.
Q- My husband recently received his Green Card, which is employment based. All the family applied within the US apart from our son who opted to be processed via the London Consulate. His I-824 has been approved. Can we by pass the NVC and directly to the London Consulate. We did call London and they were not very helpful. If we can, what do we need to do?
A- We just recently made the same inquiry to the London Consular IV Unit and received the following helpful reply via email:
“The Immigrant Visa Unit requires the following information in order to be able to accept a case in the "following to join" category:
- A copy of the principal applicant's Notice of Approval I-797
- A copy of the principal applicant's I-551 stamp or Permanent Resident card.
- The full names, dates of birth and United Kingdom mailing address of his spouse (or a DS-230-1 completed on their behalf)
- A copy of the marriage certificate
"Please send the information and documents requested above by international courier to the following address: Immigrant Visa Unit, 5 Upper Grosvenor Street, London W1A 2JB and include a covering letter. The Immigrant Visa Unit will contact you and/or your client as soon as this information has been processed.
"Thank you for your e-mail correspondence.
Consular Information Unit
U.S. Embassy, London
CONS/CIU/SF”
I hope this helps.
Q- My question is about retrogression. I was filed an I-140 last September 2006. Does that mean my processing has stopped entirely since there is a retrogression?
A- No, the CIS will continue to process the I-140 to completion. It will then send the I-140 to either the National Visa Center if you chose Consular Processing, or into storage until a visa number is available.
Q- I am trying to find a way to get a temporary work visa for the United States, so I can live and work there for a few months. Every avenue I have checked so far paint a rather bleak picture for me, so I was just wondering if there is any chance of my being eligible for any kind of temporary work permit. I am a UK national, born and raised. I have no degrees, but I am qualified as a lifeguard and a swimming teacher. Any information you can pass on to me would be gratefully received.
A- You may want to look for an employer that has already started working on obtaining H-2 visas for lifeguards. I am not sure how to find those employers though. You may want to see if you qualify for any J-1 programs that bring over summer workers.
Q- I'm havinga hard time trying to find information regarding the RIR process and I came across your web site. My question is this: If I pursue a green card and elect to submit my Labor Cert under the RIR process, what happens if a qualified candidate is located during the search? Is my case automatically terminated and will my employer be asked to hire this new person?
A- RIR is no longer available unless there is a traditional labor certification already pending, otherwise the PERM process must be chosen. An employer is never required to replace a current worker with a new employee, but the labor certification could not move forward.
Q- I have following two questions: a) i have filed for I-485 (I-140 has been approved) and is pending for more than 180 days now. I want to get married in few months and would like to include my wife in my application. Can I do it? Since she is from China (I am from India), can I benefit from the availability of visa numbers for China before India is avialable? b) Since my i-485 is pending for more than 180 days can I change my job, without fear?
A- As long as you are married prior to the approval of your I-485 application, your wife's application can be filed. Her I-485 can be filed at the service center where your I-485 is pending. It should be filed with a copy of your I-485 receipt notice and a copy of your marriage certificate on top, and a request that her I-485 be matched with your pending I-485 application.
If your wife was born in China you can also submit a request that your pending I-485 be cross-charged to your China based on your wife's country of birth. Again, you would want to file this with a copy of your I-485 receipt and a copy of your marriage certificate. USCIS is, however, notoriously bad at matching correspondence with your file, so they may not honor the request.
Since your I-140 is approved and your I-485 has been pending over 180 days, you meet the statutory requirements of the American Competitiveness in the Twenty First Century Act (AC21) to "port" to a new employer, so long as the new employment is in the same or a similar occupational classification as the position for which the I-140 was approved. See our article on AC21. However, you should be aware that to date, USCIS has not adopted any regulations interpreting AC21's provisions. Therefore, any reliance on a particular interpretation of the law is at your own peril.
