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US Immigration Questions

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form. This answer is for information purposes only and does not create an attorney-client relationship.

Benefits of National Interest Waiver

1 week ago By Chief Editor
Question details

Two general questions,

1. What are the benefits of filing an EB2 NIW for a person whose I-140 has already been approved by an employer in the same category apart from NIW, not depending on your employer? Also, can you get your I140 approved priority date to your NIW?

2. Is it possible to renew the H-1B visa stamp before expiration? For example, if my H1B expires on November 1st and I apply for a visa stamp in October with approved extension I797, Would I be able to renew it?

 

ANSWER
FAQ Transcript

While an approved I-140 with an employer offers some benefits, an EB-2 NIW grants portability - you can keep your green card across job changes in your field. It also allows extending your H-1B past the 6-year limit and enables your spouse to work and travel with you.  For those with backlogged priority dates (e.g., India), NIW can help with I-130 petitions in specific situations. If your I-140 is approved already, the main advantage of NIW becomes self-sponsorship.  Finally, you can renew your H-1B visa stamp before expiry, though consulate lead times (like four months) might apply.

 

Nonimmigrant Visas

Green Card

EAD delayed - options

1 week ago By Chief Editor
Question details

If EAD approval is delayed and the employment is no longer valid unless the EAD is received by USCIS, then the employer has to terminate the employee. Can the company send the employee on leave without pay temporarily until the EAD is received? Both can be done, and it is up to the company how they want to handle the case.

 

ANSWER
FAQ Transcript

The employer can put the employee on unpaid leave to avoid unauthorized work. Termination is also an option but not mandatory. The company decides between leave and termination.

 

Nonimmigrant Visas

Agency

Immigration Law

What is Cap Gap Extension? How does it work?

3 weeks ago By Chief Editor
Question details

1) Is H1B cap-exempt to H1B lottery-based considered a change of status?

2) If I currently have an H1B cap-exempt visa and am filing for an H1B petition in June, when can I not travel outside of the US - from now to June, June to Petition Approval, or from Petition Approval to Oct ? My current H1B visa would be valid until Nov.

 

ANSWER
FAQ Transcript

Yes, potentially. It allows you to work while your STEM OPT expires (April 30th in your case), and your H-1B petition is pending, extending your work authorization until October 1st.

 

Nonimmigrant Visas

Layoff during Self-NIW application, changing jobs with NIW not yet filed, pending or approved

3 weeks ago By Chief Editor
Question details

I started the self-NIW application while working with employer A, but for some reason, I could not file the petition. Later I got laid off from employer A and now I'm working with employer B.

I want to restart the NIW application. Questions:

1. Since I got laid off with employer A, will that be a challenge/red flag in my petition?

2. It's only been one month with employee B. Shall I wait some time at company B to restart my NIW application? or doesn't it matter?

 

ANSWER
FAQ Transcript

Answer 1. Being laid off is not a challenge/red flag. 

Answer 2. There's no reason it should be. You don't need to wait to restart the application. You can file it even though you've only been with employer B for a month.

Green Card

H-1B lottery layoff before start, Automatic status change, Multiple filings, and Traveling

3 weeks ago By Chief Editor
Question details

Case: Picked for H1B lottery.

- What happens if the company lays off after June but before October 1? Would I stay on my current visa status? Or will I be on H1B but with a 60-day timeline to find the next job?

- Does the status automatically change to H1B on Oct 1? or does immigration require paystubs for a couple of weeks to prove our employment?

- If I file the petition with two companies separately, how will immigration decide which one to approve? Will they approve both?

- Are there any travel restrictions from June to Sept

 

ANSWER
FAQ Transcript

In this scenario, you won't be on H-1B status with a 60-day grace period to find a new job.

Nonimmigrant Visas

Unemployment Benefits for H-1, H-4 + EAD Holders with Previous H-1B Employment

1 month ago By Chief Editor
Question details

Can someone in H4 + EAD status receive unemployment benefits if they only worked on H1b status? Would receiving such benefits be considered a public charge or have any other negative impact down the road?

 

ANSWER
FAQ Transcript

Unemployment benefits in the US vary by state and can be complex. If you are an H1B visa holder who has been laid off, you may be eligible for benefits during your 60-day grace period, but it's important to confirm with your state's unemployment office. Regardless of your visa situation, it's important to remember that unemployment benefits are considered an earned benefit funded by your employer's contributions, so there's no public charge concern. Always check with your state's unemployment office for specific requirements and the application process.

 

Nonimmigrant Visas

Staying outside the US on Re-Entry Permit Validity, Usage, and Multiple Entries for Green Card Holders

1 month ago By Chief Editor
Question details

Background Context

Applied for I131, ReEntry Permit for my parents, who hold GC

Receipt Notice: 12/27/2022

Biometrics: Jan 2023

Left US: March 1, 2023

Approval Notice received: 03/07/2024 with validity from 02/29/2024 to 02/27/2026

Question

While the intention is to be back in the US as soon as possible, can parents stay outside US till 02/27/2026 or do they need to be back before Feb 25, 2025 (as it would be two years by then since they left)?​

Can the re-entry permit be used for multiple entries, or is it just for one-time use?​

 

ANSWER
FAQ Transcript

One can stay outside the US for the entire validity period of the re-entry permit, and yes, they can use it for multiple entries during that time.

 

Green Card

Staying in and Working from Home Country with Long-Pending I-485

2 months ago By Chief Editor
Question details

My I-485 is pending, and my PD is from October 2014. So, it will take a while for my case to be adjudicated. I have an EAD and AP that are valid for five years.

1. Can I go back to India through the same employer, work for 2 to 3 years, and return when my case is current?

2. Can I convert my case to consular processing and go back to India, but can the derivative continue working in the USA until my case is adjudicated?

 

ANSWER
FAQ Transcript

 You can stay in India for an extended period while your Form I-485 is pending, especially if you have a valid Advance Parole document and Employment Authorization Document (EAD) for five years. However, maintaining continuity in your job is crucial. If you're still working remotely for the same employer or a different one under the same or similar job, there shouldn't be significant issues.

Quitting your job may raise questions about your green card eligibility. However, if you obtain a job offer from another company, filing a supplement J to demonstrate job continuity is advisable. This ensures that you can re-enter the US smoothly using your Advance Parole upon green card approval.

You can return to India to work for the same employer for multiple years and then come back to the US. You can also convert your case to consular processing if needed, provided there's continuity in your job. As long as your Advance Parole is valid, there shouldn't be any significant impact on your pending Form I-485 until your priority dates become current.

 

Green Card

H-4 EAD or otherwise & Remote Work for Indian Company: Legality and Considerations

2 months ago By Chief Editor
Question details

I have H-4 EAD. However, I have not yet found a relevant IT job. Can I take up a remote job offer from one of the Indian payroll companies? Is it allowed legally?

 

ANSWER
FAQ Transcript

Yes, you can work for a company based in India while on an H-4 visa, especially if you have an Employment Authorization Document (EAD). Working remotely for a foreign company from within the United States is legally permissible. However, it's essential to consider tax implications. You may be required to pay taxes in the USA, so it's advisable to consult with a tax professional or accountant to understand your tax obligations accurately.

Nonimmigrant Visas

Immigration Law

EB-3 PERM Green Card Application: Implications of Applying for a Future Promoted Role

2 months ago By Chief Editor
Question details

Q1. I-485 Filed for EB3 ROW Category While I am not in PERM Sponsored Role

I am stuck in the scenario where my green card was prepared for a future/prospective role, but the AOS/485 is filed, and I still do not have that prospective role (not promoted yet). What are the issues or risks if the green card is approved but I am not holding that future/prospective role? Is it necessary for me to be in the PERM-sponsored role (future role) at the time when USCIS approves I-485?

If the green card is approved and I am not given that future sponsored role, what are the issues/consequences? And how do we go about navigating this process?

Q2. Filing of GC

If my green card application is prepared for a future role and I am not in the perm-sponsored role (future role), i.e., I haven’t got a promotion while the AOS is filed, is it necessary for me to have that future role or not? If yes, then at what stage will the promotion be required for me to get a green card? And if I don’t get a promotion by the time the green card is approved, will there be any issues? If yes, what are the issues?

 

ANSWER

 

FAQ Transcript

Answer 1: There isn't an immediate risk if you haven't been promoted at the time of filing Form I-485. However, it's expected that you'll be promoted within a reasonable period after your green card approval, typically within four to five months. Failing to be promoted after approval may raise questions, but it's not inherently problematic as long as the intention to promote was genuine.

Answer 2: If you haven't transitioned into the future role after your green card approval due to unforeseen circumstances or company issues, there generally aren't significant consequences. As long as all parties acted in good faith, the failure to fulfill the anticipated role doesn't usually jeopardize your green card status. While this situation may be contentious, it's typically manageable and shouldn't pose a substantial risk to your immigration status.

Green Card

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