--Posted 11/1/04--
Q- Would the holder of a K-1 visa be absolutely required to come to the US for marriage, or would a marriage to the petitioning US citizen done outside the US prior to entry be accepted?
A- If the K-1 is issued and the couple marries, the K-1 is no longer valid. If you marry abroad, you must file the I-130 and then upon receiving the I-130 receipt, file a K-3 visa application.
Q- I would like to know the processing time for the I-824 petition (change of consulate) for an H-1B visa. My processing is in Vermont.
A- It is currently taking approximately 2 years for Vermont to process I-824s right now. You can keep tabs on the processing times online. However, as an alternative to waiting for the I-824 to be processed you can simply contact a different consulate and ask them to schedule an appointment for you.
Q- I changed my employer on 9/27/04. The I-140 was approved on 9/2/04 and I-485 was filed on 3/23/04. Do I need to send AC-21 to USCIS. If yes, then how do I do that and how much will it cost me? I searched for this form on USCIS.gov, and couldn't find any. Also, my previous employer is asking me for a resignation letter when he never gave me an employment letter. Any help will be highly appreciated.
A- There is no form for taking advantage of AC21 portability. It is suggested that to protect your rights, which can conflict with what is best for your previous employer, that you retain your own attorney. In cases where we know that the company is likely to notify the Immigration Service, very shortly after accepting the new job, a letter be sent that covers all requirements under AC21.
As to the resignation latter, as an immigration matter, I would not see this as a problem. But employment law and contract law are areas in which I am no expert and you should seek a separate opinion with regard to these matters.
We have handled several cases like yours and each one seems to be handled differently by USCIS and the amount of work varied greatly. Because of this, we charge on an hourly basis.
The following articles are relevant and should clarify the issue:
1. USCIS Clarifies Some Portability Rules for Adjustment of Status Applicants
2. Concurrent Filing and Portability: When Can Adjustment of Status Applicants Safely Change Jobs?
Q- I am currently in the U.S. on an H-1B, and my employer filed a Labor Certification for me over two years ago. It is "stuck" in processing. I'm a Canadian citizen, and I discovered recently that I have native ancestry. After submitting my proof of native ancestry, I was granted a "Certificate of Aboriginal Status" from the Native Alliance of Quebec. And I was told that such status might allow me to get a US green card. So, I was wondering if you had ever helped a Canadian with aboriginal status, and if you have, I would like to get information about it.
A- The "Certificate of Aboriginal Status" is not enough. You need your parents' birth certificates and possibly even your grandparents' birth certificates to prove you have at least 50% North American Indian blood. With that, you file for a Creation of Record under Section 289 of the Immigration and Nationality Act. Once the record has been created, you will be free to cross the border into the U.S. without even obtaining permanent resident status.
Q- I had a question about NAFTA entry as a Computer Systems Analyst. I already possess a 3-year Canadian Bachelor's degree in Chemistry. I believe this does not meet the criteria as specified in the INS memo released in 2000 requiring a closely related degree. I am currently 93% done with a 4-year American degree specializing in Information Systems/ Technology. What is your advice regarding entry as a Systems/ Business Analyst should any offers materialize?
A- Canadians have gotten TNs as Computer Systems Analysts with less. My article on "The Concept of Professional" explains why, legally, the degree must be related to the job. I would recommend finishing the degree before applying for a TN as a Computer Systems Analyst, unless you are willing to take the risk of being denied TN entry at the border. If you do try to enter as a Computer Systems Analyst on a TN before finishing your degree, the Niagara River crossings are all on the same page that the degree must be related to the job you have been offered. Alternatively, before you finish your degree, you could also try entering as a Scientific Technician if the circumstances are right.
Q- I had an H1-B until Nov. 2006, however after 4 months of working from my employer I quit and relocate to Las Vegas for the reason that me an d my family could not withstand the weather in New York. How many months do I need to be un-employed until I could find another employer and maintain the legality of my status?
A- Technically when you end employment with your H-1B employer, you have violated your status. Therefore you are currently out of status. However, USCIS has often forgiven periods of up to 30 days out of status, and sometimes as many as 60 days out of status. This is taken on a case by case basis and is not guaranteed. You have to make sure that when a new employer submits an H-1B on your behalf, the employer requests that your extension of H status on the basis of the appropriate regulations, which are:
8 C.F.R. 214.1(c)(4)-Timely filing and maintenance of status. 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 the 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 of 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 to be commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status; and
(iii)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.
[End Quote]
If you have gone longer than 102 months without employment, or if you have engaged in any unauthorized employment, then you will not be able to extend your H-1B status with a new employer in the U.S. under this regulation. Rather, when you find a new H-1B employer to sponsor you, that employer will have to file a new petition on your behalf. In order for you to take advantage of the H-1B status that new petition affords you, you would need to travel outside the U.S. with the new approval notice and re-enter in order to get a new I-94 card and new status.
If you are a Canadian citizen, you do not have to worry about getting a new visa. However, if you are not a citizen of Canada, and you still have an H-1B visa in your passport, then you can re-enter the U.S. with the new H-1B approval notice and the old H-1B visa. If you do not have a currently valid H visa in your passport, then you will need to apply for one at a consulate outside the U.S. before returning to work for your new H-1B employer. (Please note that a visa is different than status. For more information, see our article entitled "Is that a Visa in My Passport?")
Until USCIS notifies you that you are out of status, the date on which your current I-94 Arrival/Departure card expires is the last date on which you are authorized to remain in the United States. (However, you are not authorized to work for anyone besides your H-1B employer without getting a new employer to petition for you). If you remain in the U.S. for 180 days past the expiration date on your I-94 card, then upon leaving the U.S. you will not be able to re-enter for a period of 3 years. If you remain in the U.S. for 365 days or more past the expiration date on your I-94 card, then upon leaving the U.S. you will not be allowed to return to the country for a period of 10 years. The same is true for your wife and any children over age 18.
Follow-Up Q- Thank you for your response. As I understand it, the transfer of sponsorship could not be granted for the reason that I lapsed for more than 60 days (actually 5 months) despite that I have a new petitioner. Is there any way that the petition can be granted under these circumstances. And what is the technicality requirement without leaving the country? Is sickness a sufficient excuse for failure to file a timely extension of stay, or is termination from previously approved employment?
Follow-Up A- There are three ways an H-1B petition can be granted, as follow:
(1) As a change of status - This is where you entered the U.S. in some other nonimmigrant category and an employer subsequently filed a petition to change your status to H-1B. This obviously does not apply because you initially entered as an H.
(2) As an extension of stay- This is where you entered the U.S. as an H-1b and either your current employer or a new employer files another H-1B petition requesting an extension of your current stay. In order to be eligible for this option, you must have maintained your current H-1B status up to the date when the petition is granted. In your case, you left your original H-1B employer five months ago and have been out of status since that date. You do not facially qualify for an extension of stay. As I stated in my previous e-mail, it is possible for USCIS to exercise discretion and grant you an extension of stay under 8 C.F.R.214.1(c)(4). This could be granted in cases where you fell out of status due to circumstances beyond your control, such as, as you suggested, illness or some other reason. However, it is unlikely that USCIS would exercise this discretion to grant an extension of stay after a 5-month lapse of status. (That is a rather lengthy lapse).
(3) As a new petition- This appears to be the only option available to you at this point. When a new H-1B employer files a petition on your behalf for new employment, it is generally because (1) you are currently outside the U.S., or (2) because you are in the U.S. and failed to maintain your previous status, thus making a change or extension of stay unavailable to you. In the latter case, the employer files the H-1B petition with USCIS and upon approval of that petition, USCIS issues an I-797 Approval Notice. However, the approval notice does NOT contain an I-94 Arrival/Departure card showing actual issuance of status. This means that you are authorized to enter the United States to accept that status, but you are not automatically get that status upon approval of the petition. In order to actually get the new H-1B status, you would have to leave the U.S. and re-enter carrying the new H-1B approval notice. You would be issued a new I-94 card for H-1B status with the new employer's name on the back.
Because you need to leave the U.S. and re-enter on the new petition, you will also need an H-1B visa to re-enter (unless you are a Canadian citizen).
On another note, since you were already granted an H-1B petition in the last 6 years, you are not subject to the H-1B cap, so an employer could file the new H-1B petition for you at any time.
