-- Q&A 8/7/07--

Q- I am an Electrical Engineer on H-1B visa. I have labor (green card) filed with a priority date of Oct 2003 and EB3 category. I am planning to quit my job after labor and I-140 get approved, and attend school (MBA) which will require me to change status to F-1. My question is after I finish school and re-apply for Green Card, will I be able to retain priority date of October 2003?

A- So long as the I-140 is not revoked by your employer, you can retain the priority date for use in connection with a future I-140 petition. There is some guidance from CIS stating that you can retain the priority date so long as the I-140 is not withdrawn for fraud or misrepresentation, but the law and regulations state that any I-140 revocation for any reason results in loss of the priority date.

However, you should be aware that in order to obtain F-1 status, you have to prove that you have a residence abroad that you have no intention of abandoning. If you have an approved I-140 petition, this could present a problem when you apply for an F-1 because it indicates that you intend to immigrate to the U.S. Particularly if you plan on traveling abroad at all while in F-1 status, the fact that you have an approved I-140 will present a problem when you apply for an F-1 visa in order to return to the U.S. to resume your studies.

Q- I have a strong interest in entering USA, work and live. I am 24 year old Filipino, Physical Therapy Graduate, and now taking medicine, I am only child of a Burmese Engineer and Filpina Businesswoman, my father earns 60,000$ annually in a German company. I have inquired for an immigration lawyer so I may know, what the best plans are, in getting in after I graduate medicine.

A- Before our office could assist you in obtaining a visa, you would first need to obtain a Visa Screen certificate through an agency such as CGFNS. Then, you would need to have a job line dup with an employer who is willing to sponsor you for a nonimmigrant visa such as H-1B. You would also need to make sure that you meet any applicable professional licensure requirements for the state in which you will work.

For the H-1B visa, you have to have the equivalent of a US Bachelors degree and the employer has to require that degree for your position. You should be aware that there is an annual cap on the number of H-1B visas that can be issued and that cap has been reached for this year. The new cap will open up on October 1, 2008. In order to get in under the cap, you would need to have the job lined up and the petition filed by April 1, 2008. If you miss the cap, you will not be able to apply for an H-1B visa until the following year. There may be other nonimmigrant statuses available to you.

Q-I would like to know if you can facilitate a working visa processing for me as a Medical Reception/Records Clerk/Transcriptionist as I am a Certified Medical Transcriptionist and worked for SPI Technologies Inc., (Healthcare Documentation Accounts) from the Philippines for 4 months and was issued a Certificate of Training/Competency, year 2005. I have also finished a 7-month Caregiving course from the Philippine Women's University. Right now, I am based in Thailand as an English Teacher. In reference to my college education I am a graduate of Bachelor of Science in Biology from the Cebu Doctors' University. Is there a certain strict Experience Requirement for H1B Visa, or my education and medical certification and 4 months experience is good enough? At this stage I am still trying to contact companies in the USA for a Valid Job Offer in the healthcare industry.

A- In order to qualify for the H-1B, you need to not only have a degree, but the job offer in the US has to require your degree for an entry level position. Most medical transcriptionist positions do not require a degree, but if you have a job offer from a US employer who can justify a degree requirement, then you may qualify for an H-1B.

There is no specific experience requirement for the H-1B.

Note that there is an annual cap on the number of H-1B visas that can be issued and the cap was reached for this fiscal year already. New H-1Bs cannot be issued with start dates prior to October 1, 2008. The earliest you can apply for an H-1B with an October 1 start date is April 1, 2008.

Q- My husband applied his green card by EB1A before leaving US. For some reason, he went back to China on Feb. 2006. His I-140 got approval on April, 2006. For his business, he can not leaving China now. So we decide to file I-824 to ask processing his green card application in China U.S. Consulate. Now I have some questions. They ask to attach the evidence as (1.) copy of the original petition or application. We file by E-filing, we have no copy of the form we filed. Then what should we send as the copy of original application? (2.) Copy of the Form I-797, notice of action, for the original petition or application. That is Receipt Notice or approval notice or Both?

A- As our firm does not use e-filing, I do not know what documentation is generated when an I-140 is e-filed. Your husband’s employer may have printed out what was filed. If not, they should at least have copies of any supporting documents that were submitted with the petition. The request for the I-797 Notice of Action is referring to the I-140 approval notice.

Q- I am a green card holder, and my visa was approved .I came on a EB3 visa(am a nurse). I had applied on Form I-824 (Application for action on a approved Petition) for my husband, . (SRC-06-220-52851).We were married but we I have received an approval letter from USCIS and also information that the application has been forwarded to the chennai embassy. I contacted the embassy and also sent them certified copies of our paperwork. Initially they told me that the interview would be in December 2006. Then when I contacted them , they said , they did not have a visa number and they would contact us when they have a number. My question is, is the retrogression responsible for the delay? How much of a delay should I expect?

A- Without knowing your priority date, I cannot say for sure whether retrogression is the reason for the delay, but EB3 visa numbers have retrogressed, and it sounds like the consulate’s reasoning (visa number unavailability) is consistent with retrogression. If you came under Schedule A, you should be aware that Schedule A visa numbers became unavailable in December 2006.

As a derivative family member, your husband shares your priority date and can only obtain an immigrant visa after your priority date becomes current once again. (Your priority date is located on your I-140 approval notice). See the Department of State’s Visa Bulletin to determine which priority dates are current. Our website also our article explaining how to read the Visa Bulletin.

Q- I have a few questions regarding the article 'Texas Service Center Clarifies Policy on Multiple I-140 Petitions', Immigration Newswire, Volume 5, Issue 7, August 16, 2006. I have a pending EB-3 RIR Labor Certification at the backlog center. Due to visa retrogression, I am thinking about filing two I-140 applications after the Labor Certificate is approved. I want to file an EB3 I-140 application and an EB2 Exceptional Ability I-140 application. According to the article it is possible to file two I-140 application with the same labor certificate. Since both I-140 application will need the labor certificate how can I apply two applications with only one original copy of the labor certificate ? If one I-140 application is denied will it affect the other one ?

A- That is an interesting strategy. I think what the TSC had in mind was not concurrently filed I-140s based on the same approved LC, but subsequently filed I-140 petitions. In that situation USCIS has set up a policy of requesting a duplicate original LC from the DOL in the course of I-140 adjudication, and it does slow down the second I-140 petition.

If you wanted to try multiple filings in this situation, it would be best to submit one I-140 petition first with the original LC, then wait to get the I-140 receipt notice. Then when you file the second I-140, you would state in the cover letter that the original LC is currently pending with the other I-140 petition, and you could give the receipt number from the other I-140 receipt notice. That way the files can be matched up.

Q- Me (US citizen) and my wife got married when she was in US on F-1 visa. Currently she is fulfilling her 2 years home requirement after J-1 visa (shewas in US on this visa before F-1). Also she has B1/B2 visa valid till 2009. My question is: can we file I-130 and I-485 when she comes to US on B1/B2 visa (after J-1 requirement is over) and wouldn't it be considered visa fraud? We would want to process this way to avoid long waiting for immigrant or K-3 visa in her country and to be together as soon as possible. She will have fulfilled the 2 year foreign residency requirement in June 2008.

A- In order to enter the U.S. as a B-2 visitor, your wife has to represent that she has a foreign residence which she has no intention of abandoning. She cannot honestly make that representation if she intends, after entering the U.S. to file the I-130 and I-485. Our office could not advise entering on a B-2 under these circumstances. However, you should be aware that you can file the I-130 petition now, get it approved, and get the immigrant visa application process started. So long as she does not enter the US on the immigrant visa prior to fulfilling the 2 year permanent residency requirement, she will have met all her obligations. There is nothing stopping you from getting the paperwork going while she waits to complete the 2 years abroad. That way, by the time she fulfills her 2 year residency, she should be able to very quickly get an immigrant visa and enter the US as a permanent resident.

Q- Myself and a friend from Iraq will be attending a Montessori teacher training course in September 2007. After we finish in June 2008, we would like to open a school together in Florida where I live. (I am a US citizen). We want the school to be a Montessori Arabic language school. What can we do to change her F-1 visa to allow her to work in the school that we want to start?

A- About the only employment-based nonimmigrant visa category that would work in this situation would be the E-2 treaty investor category, and unfortunately that category is unavailable to Iraqi nationals because the U.S. does not maintain a treaty with Iraq that would permit Iraqis entering the U.S. in E-2 status.

If you were to get the school set up first, you may be able to later hire her on an H-1B visa as a teacher or administrator of the school. This may take some time due to the amount of time it will take you to set up the school, plus delays caused by the H-1B cap. (See general H-1B info on our website as well as H-1B cap info).

The only other option I can think of is if she has close family members with permanent resident or citizenship status in the U.S. who can sponsor her for the green card. There may be other factors about your plans that could make other visa categories a possibility.