Sunday, June 28, 2015

Do not try to file your form I-539 H4 COS electronically!

http://peerallylaw.comUSCIS has announced since June 16, 2015 that it has discontinued the electronic filing of the form I-539.  As such those who are planning to file electronically especially for change of status to H4 visa, please do it manually by printing the form and sending it to the the USCIS.  Note that in order for someone to change status, that person has to have maintained status.  This means if you are moving for example from H1B status to H4 status, make sure you prove that you maintained H1B status by providing pay check stubs, etc.  We recommend in case, your employer was keeping you on the bench while on H1B, you contact our office at (510) 742 5887 to assist you in the process.

Friday, June 26, 2015

Finally all the US visa embassies are back online

According to the DOS as per June 26, 2015, all visa-issuing embassies and consulates are now back online.  We are scheduling visa interviews and issuing nonimmigrant and immigrant visas.

We are now recommending to our clients who wanted to travel to get their visa stamped to proceed with their applications. If you need help, please call us at 510 742 5887

DOS announcing that 85 percent of State Department nonimmigrant visa demand worldwide, are now online and issuing visas

 It seems that 85% of the non-immigrant processing has resumed. But we might still see some issues so be ready in case you want to apply for a visa a the Consulate. We recommend unless emergency not to go for consular processing at this point.  

This is what the DOS website is showing:

The Bureau of Consular Affairs reports that 165 posts, representing more than 85 percent of our nonimmigrant visa demand worldwide, are now online and issuing visas. Posts overseas issued more than 82,000 visas on June 24. Posts overseas have issued more than 238,000 non-immigrant visas this week. For context, if systems had been operating normally, posts would have issued approximately 540,000 visas since the outage started. We will continue to bring additional posts online until connectivity with all posts is restored. All posts worldwide are now scheduling interviews with applicants, including with those who applied after the systems problems began on June 9. We deeply regret the inconvenience to travelers who are waiting for visas, as well as their families and U.S. businesses that have been affected. We continue to post updates to our website, travel.state.gov.

Wednesday, June 24, 2015

State Department Reporting now that 73% of their system back online.

The Bureau of Consular Affairs reports that 50 posts, representing nearly three-quarters (73 percent) of our nonimmigrant visa demand worldwide, are now online and issuing visas. Alert Here

Update on Visa Processing at the US consulate as per June 23, 2015

As mentioned earlier, the Department of State visa issuing system was completely down. However, it seems some of the functionality has been restored.  See updates posted here. We hope that the system will be restored, China is being mentioned but nothing precise for India except Chennai.  We hope that the system will soon be online so that those going for visa stamping are not delayed in the process.

Before leaving for visa stamping, make sure you communicate with the State Department.

Saturday, June 20, 2015

For those going for Visa Stamping - Note that as from Friday all US Consular system is down!

If you are planning to go visa stamping or obtain a visa at any US Consulate around the world. Please note that the system is completely down and it seems there will be no visa issued at any US embassy or consulate until further notice.  Please call us at 510 742 5887, before you leave for visa stamping.

WASHINGTON (AP) — The State Department said Friday it has been forced to suspend the issuance of U.S. passports and visas at its overseas diplomatic missions due to a glitch that has hit one of its computer databases.
In a statement posted to its travel.state.gov website, the department said a hardware failure in its Consular Consolidated Database glitch has left overseas embassies and consulates unable to print visas, regular passports and other travel documents. This means that people who submitted online applications for passports and visas on or after June 9 will likely experience delays in processing, it said.
Read More

Friday, June 19, 2015

Horray - First H4 EAD approvals are coming already!

From the emails we are getting, it seems that the first H4 EAD approvals are coming. Until we see the cards, we do not want to confirm, but it seems from the USCIS website that the approvals are coming - Horray! H4 Visa holders with EAD - your cards are the first in history. Seems the processing time is not that bad as we thought.


The emails states this:

Receipt Number: WACxxxxxxxxxxx

Application Type: I765, APPLICATION FOR EMPLOYMENT AUTHORIZATION

Your Case Status: Post Decision Activity

On June 19, 2015, we approved your Form I765, APPLICATION FOR EMPLOYMENT AUTHORIZATION, Receipt Number WACxxxxxxxxxxx. We will mail your approval notice. Please follow the instructions in the notice. If you move, go to www.uscis.gov/addresschange to give us your new mailing address.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations. 

When can the I-140 EAD become a reality?

Lately there has been a lot of talk on will the I-140 EAD come to reality and when will this happen.  At this point, it is on the "way to reality" because it is a proposed rule on the regulatory agenda and following a slow but almost sure course.  Our estimates is that unlike the H4 EAD rule which required a lot of lobbying and campaigning to pass, this rule was mentioned by the White House already in November 2014 and DHS is just following through.   As such we are expecting a lesser waiting time than the rule on H4 work permit, in case it passes all the musters including public comments.  Our estimates is around eight to twelve months before it becomes law.  Unfortunately there is no way to precisely measure this situation. Once it passes, it is going to change the dynamic for many.  So hang in there until it passes!  We will keep you posted. Check the page I-140 EAD for updates.

Meanwhile we recommend having your company start your PERM labor and ultimately your form I-140 as soon as possible.

Feel free to call us at 510 742 5887, should you need help.

We appreciate your signature on Change.Org to push for the EB2 and EB3 waiting time reduction. Please click on image to sign.
https://www.change.org/p/reduce-the-waiting-time-on-india-immigration-eb2-and-eb3-categories
 

Tuesday, June 16, 2015

Save Jobs USA coming back to request a judgment on the H4 EAD lawsuit.

 According to Law360,

"A group of tech workers who claim to have been replaced by employees on H-1B visas asked a D.C. federal court Monday to grant them judgment in their suit challenging a new rule allowing certain H-4 visa holders to work, saying the rule exceeded the power of the U.S. Department of Homeland Security."

My 2 Cents on the matter:

This is quite ridiculous. The injunction had no merits and now they are pushing for a judgment on what? I would like to know how the court is going to act in this.  Just because few H1B companies might not be compliant does not make the H1B  program totally useless and as such the two issues are not related.  I have personally seen thousands of H4 visa suffer, and it is inhuman to keep playing with people's lives like that. As much as I feel bad for the group (Save Jobs USA) whose members were terminated by Southern California Edison, the H4 should not be punished just because they were terminated. The H4 visa holders had nothing to do it.  It is like punishing Jane for the mistakes of Paul! Are we going to allow such things in the "land of the free"??? Read some of the comments on https://www.change.org/p/give-more-rights-to-h4-visa-holders about the sufferings of those who were on the H4 visa.

USCIS latest processing time indicates 3 months for I-765

According to the latest USCIS processing time for Texas Service Center and even Nebraska, the all other I-765 processing time is around three months. This means that we should expect the H4 EAD decisions (approvals or denials) hopefully before late August 2015. So hang in there! 
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] 3 Months
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] 3 Weeks
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] 3 Months
I-765 Application for Employment Authorization Based on an approved, concurrently filed, I-821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days
I-765 Application for Employment Authorization All other applications for employment authorization 3 Months 

Do not Omit H4 Change of Status when doing the H1B transfer.

It is not uncommon that many will omit doing the change of status H4 form I-539 when doing the H1B transfer, this can actually cause some major issues.  We recommend that you make sure your attorney or company is actually filing for the H4 spouse.  You should also file the EAD simultaneously if your H4 spouse is actually eligible for the H4 work authorization document.

Failure to file the extension on H4 during the transfer  might put your wife or husband out of status, and if H4 is out of status for more than 180 days, you might have an issue to reset back to status.  If you or your attorney omitted to file the H4 form I-539 while filing the transfer and has not filed the EAD, please call us at (510) 742 5887.

Monday, June 15, 2015

How the Infosys and TCS DOL investigation might affect H1B holders and ultimately H4 visa holders?

The Department of Labor (DOL) has launched an investigation in the two famous IT consulting companies: Infosys and TATA Consulting (TCS). This is a series following the Disney saga with the same argument that H1B workers are replacing American workers.  As we all know H1B workers are not cheap especially for the price which DOL LCAs impose on their cases.  As for displacement, we doubt it is reality based on market conditions.  It seems this new round of investigations might actually be more politically motivated than anything else.  As such the "witch hunt"! But until the investigation is complete, we will not be able to know.

Whether it is a 'witch-hunt' or good investigations, those who are really going to suffer are the H1B visa holders.  Their privileges will be obliterated and ultimaely their H4 dependents will actually suffer.  You need to prepare for a backup solution.  If you are an H1B employee and H4 dependent who might be affected by this situation, we recommend you talk to an independent attorney for advice. Unfortunately your company attorney might be having a conflict of interest.

Our law firm will be glad to schedule a consultation for you, please call 510 742 5887.


How to effectively use the AC 21 rules for H4 EAD?

AC 21, the American 21st Century Act, which allows certain H1B holders to extend their H1B visa status beyond six years, is also the key rule which is allowing H4 visa holders to obtain an H4 work visa aka H4 EAD. 

The AC 21 famous 2005 memo has regularly been invoked by many who are porting their green card or even those who are transferring on the H1B visa. Now the same rule is being invoked for H4 work permit.

The AC 21 2005 memo is very useful to understand exactly who can port their Green Card without having to start the process over.  Note that a person who has a pending form I-140 with an adjustment of status form I-485 filed can port to a same or similar position after 180 days if there is an approved or an approvable form I-140. If the form I-140 is approved, the employer cannot actually revoke the I-140 after 180 days the I-485 has been filed.

Unfortunately many has misinterpreted this rule to believe that an I-140 cannot be revoked after 180 days.  The truth is that an employer can always revoke the form I-140 even if approved unless you meet the above requirements.  As such you need to make sure that the form I-140 who are relying on for either extension, transfer or H4 EAD has not not been revoked.

It is important to note that an approved non revoked I-140 from any company or EB2, EB3/skilled workers can actually be used for H1B extension, transfer and ultimately to file for a spouse H4 work authorization document (EAD).

Therefore understanding the rule under AC 21 is very important for most people benefiting from employment based visa. Read the memo and inquire about its possibilities.

If you need help on any EB or non EB cases, please call us at 510 742 5887.

Saturday, June 13, 2015

How soon after your marriage to your H1B spouse can you file for your H4 Visa and H4 Work Permit?

In many communities, summer is often the "marriage season",  and this means that some new H1B or existing H1Bs will be getting married soon. First, congratulations - now it is time for the H1B holders spouse to apply for an H4 and if qualified for an H4 EAD.  You can actually apply as soon as your marriage is completed and registered.  We often encounter two types of H4 visa applications: 
  1. Change of status from F1 or other non-immigrant visas to H4 status, where you should file for a form I-539 change of status; and
  2. Those applying at the US consulate at the country of origin. Note that there is no need to have an H4 797 approved before applying for the H4 visa at the US Consulate.  You actually apply directly at the Consulate. Important:  H4 visa holders CANNOT apply for the H4 EAD at the US consulate or while you are abroad.  They have to first enter the United States then apply for their EAD.
For those who have been married for years, the two options above are quite an easy process where it is fairly easy to prove the bona fide of the marriage.  Bona Fide in simple terms  means it is a real marriage not entered to obtain immigration benefits. Documents such as marriage certificates, children birth certificates and few pictures should suffice.

Now with the new H4 EAD, and newly wed couples, the Department of Homeland Security (DHS) and Department of State might actually question the marriage intent.  As such H4 visa applicants might find themselves in an akward position of having to prove the bona fide of their marriages just like the family petitions cases.  Our recommendation is that if you are a newly married H4 visa applicant, you should be ready to prove your marriage just like any family immigration marriage petition.  You might want to show pictures of wedding, good marriage certificates, and other relevant evidence. So make sure you have reliable documents and other evidence to prove your case.  If you want us to assess your documentation or your case or even help, please contact us at (510) 742 5887 or email info@peerallylaw.com

The marriage re-enactment interview short movie below was created to give an idea of how a marriage interview is conducted.  While we do not expect such a big interview for H4 visa applicants, it might still be helpful to have an idea how they see a marriage in immigration. Please enjoy and hope it helps. Don't forget to subscribe to our mailing list!

Friday, June 12, 2015

Can an H4 EAD open his or her own business and can the H1 spouse transfer to this business?

This is probably the most interesting question that we get on a daily basis. The simple answer is yes because the H4 EAD unlike the H1B has no limitations on opening ones own business(es).  In fact, when we pushed for this immigration reform for the H4 EAD  new rules, one of the arguments we made to President Obama was that H4 visa holders have a potential to create new jobs.  Therefore it is time to prove that the H4 EAD holders can actually make a difference in the society.  Having encountered and listened to thousands H4 pain, and having witnessed their determination, I will not be surprised that the H4 group can actually become a driving force in the economy.

Can the H4 EAD open a company and transfer the H1B spouse in the company?

Well, if it is a small business it will be almost impossible to obtain an approval on the H1B transfer because it will be "self-serving".  However as the business grows and have a 'big board members' and many shareholders, it might actually be possible to transfer the H1B spouse. At this point, the answer is not clear. However, we hope that it will be possible.

My advice to all the upcoming H4 EAD holders is that you should actually follow your instinct and open your own business(es).  The ideas which were flowing from the H4 visa holders while they were in pain was amazing. I think if they put this idea into business plans and create businesses, it will not only benefit them but also the United States.

Good Luck to all.
If you need help on any immigration question, including H4, H1, PERM Labor certifications, I-140, and so on, feel free to call us at (510) 742 5887.

Thursday, June 11, 2015

Can you be investigated for filing H4 change of status or when filing H4 EAD?

Recently we have received some calls where people who were either previously on student F1 visa or H1B visa about being investigated by the Immigration Custom Enforcement (ICE) Document and Benefit Fraud Task Forces for their previous status.  Although we are getting such calls, it does not mean that most of the H4 change of status (H4 COS) will be investigated.  It seems that those who are being questioned are the ones who had been involved with some "shady" IT consulting companies, or the ones who have been involved with "bad schools" or who have 'abused' the CPT.

In the event ICE comes to your house, you are recommended to request to have an attorney present during the questioning. It is your right not to answer unless an attorney is present. You should not be rude or abusive but you should just request to speak in the presence of a lawyer.  Note that on immigration matters, the government does not pay for your lawyer. So you should have a lawyer retained beforehand.

This in no way should discourage  H4 COS or H4 EAD just because of such situations. But in case you know there might be some possible issues, we recommend you hire an attorney to handle the H4 COS and H4 EAD.  As for those hiring H1B visa holders or H4 visa, you should read this article "Avoiding Frequent H1B Mistakes and H1B Fraud trap"

We wish all of you good luck in your application.



Filed your H4 EAD, what should you expect next? Know your rights as an immigrant!

H4 visa holders have waited endlessly for the H4 EAD rule to pass, then they waited for May 26, 2015 to file for their employment authorization document (EAD), now what?  The truth is that if the paperwork was properly prepared and filed, there is not much to be done at this point. There are only few possible outcomes will be:

1. Wait for a receipt and then hopefully and approval will come within the next 90 days or so;
2. Once the receipt is obtained, watch if there is a possible RFE (Request for Evidence).  Note that if you filed on your own and changed address, you might want to file an AR-11 for change of address. If you filed via a real attorney, the document will probably be sent to the attorney or representative. If there is a RFE, we recommend you hire an attorney to help. You can contact us at 510 742 5887 for help;
3. After the receipt, after some months, you should receive an approval and ultimately your EAD card in the mail. We are expecting a turnaround of 6 weeks to 12 weeks before this happens; OR
4. A denial of the H4 EAD.

Depending on your circumstances whether you were filing for a change of status (COS) concurrently with the H4 EAD, the processing time will differ.  Those who are already on H4 when filing are expected to receive their EADs earlier. However, the USCIS can always question whether you maintained status or your H1B spouse maintained status. So make sure you are ready for such issues.  Lately we have seen an increase in investigation regarding H1B and H4 visa holders regarding maintaining the status.  If you are approached by any government authorities, we recommend that you tell them, you would like the presence of an attorney before speaking to them. Of course please be polite. The slide below might help. You can always call us at (510) 742 5887 if you need assistance, our lawyers have helped many in such immigration issues.





Wednesday, June 10, 2015

July 2015 Visa Bulletin is Out. No movement for India


July 2015 Visa Bulletin is out but no big movement for India.  Fortunately does not seem any retrogression except for the Philippines EB3 and Skilled workers became unavailable.

Please read and don't forget to subscribe to our newsletter for updated immigration news.

A. STATUTORY NUMBERS
1.  This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 9th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.
2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: 
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01OCT07 01OCT07  01OCT07 15NOV94 15MAR00
F2A 08NOV13 08NOV13 08NOV13 15SEP13 08NOV13
F2B 15OCT08 15OCT08 15OCT08 08APR95  15MAY04
F3 15MAR04 15MAR04 15MAR04 22APR94 22AUG93
F4 22OCT02 22OCT02 22OCT02 01MAR97 08DEC91
*NOTE:  For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15SEP13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15SEP13 and earlier than 08NOV13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.    
Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".
Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.
Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Employment- Based All Chargeability Areas Except Those Listed CHINA - mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01OCT13 01OCT08 C C
3rd 01APR15 01SEP11 01FEB04 01APR15 U
Other Workers 01APR15 01JAN06 01FEB04 01APR15 U
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs
C 01SEP13

Tuesday, June 9, 2015

Can I have an H1B and H4 statuses at the same time?

The simple answer is no.  You cannot have two statuses running at the same time. Although you might be able to obtain multiple H1Bs you cannot have two statuses running simultaneously.  But you can actually have an H1B visa stamp and an H4 stamp simultaneously on your passport.

In order to understand the concept you have to understand the concept of status (related to H1B and H4 in this article). The status is usually the I-94 card (now electronic) which is usually handed at the port of entry or in your change of status application.  The stamp visa on the passport is what allows someone to board a plane or travel to a port of entry where a Custom Border Protection (CBP) officer will make a determination whether he or she will allow the visa holder to enter the United States.  If the CBP officer allows this person to enter, the officer will grant a status to this person. At this point, the status controls. This means that although someone is allowed to lawfully enter the US and then the visa stamp expires, the I-94 status will usually control and this person can stay as long as the I-94 does not expire or is not revoked.

For those who are on a valid status inside the United States such as a B1, F1 or even H1B and some other status, they might be allowed to change status. Because status is unique you usually cannot carry two statuses at the same time.  As such someone cannot be on an H1B status and an H4 status simultaneously. Note that status dies as soon as you leave the United States or is revoked.

For example: Paul enters on an H1B visa or is on H1B status and now wants to change to H4 status.  Paul has to file a change of status form I-539.  After H4 status is approved, Paul wants to move back to H1B, he can actually do so as long as he is H1B cap-exempt. But there are few issues that Paul might want to check especially if the H4 status is pending, etc.  This is outside the purview of this article and should you need help with this issue, please call us at (510) 742 5887.

The concept of status can sometimes be very complicated because many do not really know what is controlling status -  the I-94 at the airport, the 797 I-94 or the visa on the passport?  Depending on your situation, it is worth analyzing which one controls your situation.  Note that if you are unlawfully present and do not even know about it, you might be faced with many multiple problems including not be able to change status, filing for your greencard or obtaining any kind of immigration benefits.  So make sure you are not confused about your status, you can call an experienced immigration lawyer to help. 

July 2015 Visa Bulletin should be out soon, what can we expect?

Awaiting the Visa Bulletin dates for many immigrants is like waiting for rain in a drought especially if you are born in India or China.  Lately there has been a lot of speculation to what extent the dates will move.  We are hoping it will actually move to around sometime to October 2010 but this might be too much to ask. It is more reasonable to assume that it will move to around September 2009 or so. Again, those are just intelligent guess, so we do not make predictions on the Visa Bulletin and we might be totally wrong.  We just have to wait on the actual situation bulletin which is Coming Soon!!!.

 

KEEP CHECKING THIS LINK TO KNOW IF THE BULLETIN IS OUT! 

 



Sunday, June 7, 2015

Getting a shorter period I-94 at the port of entry because of passport expiry.

Many have experienced when entering on either their H1B or H4 visas, that the Custom Border Protection (CBP) officer will issue only a limited I-94 approval although the I 797 approval shows a longer period.  For example, someone has an approved H1B form I-797 expiring in December 1 2018, however the H1 B or H4 holder passport expires in December 2016. When entering the United States, CBP will issue an I-94 which expires up to December 1, 2016.  As such the status will expire on December 1, 2016 and therefore the H1 or H4 visa holder will actually be out of status after December 1, 2016.

This is a major issue for those who are unaware of the rules of status especially if they are thinking that since their form I-797 I-94 is expiring on December 2018, it is perfectly alright to continue staying inside the United States.  This is a wrong concept.  Therefore, you need to fix the situation.  There are three possible solutions to this problem:

1. File an extension of the H1B and H4 status before the I-94 expires;
2. Get a new passport, leave the country and come back to the United States. Note you would have to be in possession of a valid visa (stamp on passport) to be able to re-enter; or
3. Get a new passport and contact CBP and try to have the problem fixed at the CBP office.

All the above solutions have worked, depending on your situation you might opt for option 1, 2 or 3.  It is always good to opt for leaving and coming back if you already have a visa stamp of your passport, but you should not just leave without talking to a lawyer because there might be other
issues of unlawful presence if you found out about this issue too late.

We have dealt with many such situations in the past, we recommend you call us at 510 742 5887 for any help.

Saturday, June 6, 2015

Beware of Wrong Immigration Help including non lawyer websites. Cheap US Immigration Consultants can actually cost you!

With the opening of the H4 EAD and other immigration benefits, it is important that immigrants especially H4 visa holders make sure that they are hiring attorneys and real attorneys to work on their cases.  Many websites which 'pop up' on the internet are usually unauthorized to practice law and as such might actually hurt your chances of getting an EAD or any immigration benefits. In fact, many of them when busted end up by bringing down their existing clients with them. You do not want to be one of them!

TWO IMPORTANT FACTS TO KNOW

1. Most of the forums or US immigration consultants on the internet especially the non-lawyer prominent forums are maintained by non lawyers and are actually not bound by any legal rules of ethics.  As such the information they provide are usually not reliable.  Relying on them might actually hurt you.  So you can use them at your own risks.  Also they cannot be attached to an attorney.  They can work for the attorney but not the other way around. Just because they have an attorney on the list does not make them legitimate.

Important: Known forums which are owned by attorneys are legitimate forums such as Murthy.com, Immigration.com or SPLawforum.com.  You can actually use some of the information although some might not be completely correct.  However, since we know that they are owned by real lawyers or a real law firm, you can actually trust them. 

2. Only licensed lawyers and BIA certified practitioners are allowed even to fill forms for you.  This is why the G-28 notice of appearance is so detailed right now. You should not use any internet forums or non lawyers to help you in your immigration matter because you might actually be an accomplice in helping them practicing law without a license.

Because there are many groups or people preying on innocent immigrants, you might be better off handling your case on your own or use a reputable immigration lawyer to help. 

The Shah Peerally Law Group PC consists of attorneys who are licensed to actually practice law in one jurisdiction of the United States.  Their offices are located in Newark and San Francisco California. The law firm is well know for its advocacy work and Shah Peerallly is rated among the Top Lawyers in California and a 10/10 on Avvo.com.  The law firm has sponsored and hosted a law show on KLOK 1170 AM since 2010. If you need more information call (510) 742 5887 or email info@peerallylaw.com

Friday, June 5, 2015

Is the H4 EAD a status?

http://facebook.com/h4toeadThe EAD in general is not a proof of status or even a proof of "authorized stay by the Attorney General".  An EAD simply means an Employment Authorization Document.  As the name suggests it is a document which only authorizes employment and does not grant any kind of status.  In fact, it is the other way around, you need a period of authorized stay or a specific status in order to obtain an EAD.

Many people would wrongly believe that by applying for the H4 EAD they are moving themselves to some sort of other status.  They are not.  They are just adding a component of work authorization to their status.  As such their status are H4 visa status and this implies that when asked, they should answer H4 visa status not H4 EAD.

This clarification becomes important because few people are thinking that with the H4 EAD, they will be allowed to travel without an H4 visa stamp on their passport.  This is a wrong conception and you should be aware that nothing has changed in the H4 rules except that it was amended to allow some H4 visa holders to file for a work permit (EAD).  We wish all the H4 visa holders good luck in obtaining their long awaited work permit.

If you need help in applying or your H4 EAD or any immigration matters, please call us at (510) 742 5887.

If you like our work and want us to continue please follow us on Twitter, Facebook and Linkedin.

Like Us on Facebook, Twitter and Linkedin

Dear Readers,

We have launched this blog only few months ago and yet it is having one of the highest hits on google and other search engines.  We wanted to thank you for this support. If you like our work and want us to continue please follow us on Twitter, Facebook and Linkedin:

http://twitter.com/h4toead
http://facebook.com/h4toead.com
https://www.linkedin.com/company/h4-work-authorization

Thursday, June 4, 2015

Abused by an Employer? H4 and H1B visa holders might now be eligible for a U Visa.

The Department of Labor after consideration, has now started certifying U visas.  In this article
 "The Department of Labor planning to exercise authority to certify the U Visa", we cover the new exercise of power of the DOL in certifying the U visas. Previously most U visas were certified by regular law enforcement such as the Police, the FBI or the District Attorneys.  With this new rule, DOL is now involved in the matter.

The DOL mentions that as of April 2, 2015, when detected in the process of investigating a civil law under its jurisdiction, the Wage and Hour Division will consider completing U visa certifications, Form I-918, Supplement B, for the following eight crimes: involuntary servitude, peonage, trafficking, obstruction of justice, witness tampering, fraud in foreign labor contracting, extortion and forced labor.

http://www.peerallylaw.com/dol-signing-u-visa-certifications/In simple terms, if you are an employee who have been forced to work without pay or have been subject to fraud in contracts as a foreign labor such as H1B, H3, H2, or now even H4 visas and you have been abused with one or several of the above crimes, you might be able to apply for a U visa. The U visas are very powerful because they ultimately lead to a green card.
So employer beware - do not abuse any American or Foreign citizens!!!

If you think you are victim of any of the above crimes, please call us at (510) 742 5887, we will be glad to assess.


Can my H1B spouse change job while my H4 EAD is pending?

The H4 EAD new rule is presenting a number of very interesting questions, which sometimes do not have direct answers.  One of them is whether an H4 EAD applicant has to re-file for a new H4 EAD if his or her H1B  spouse is transferring or amending his or her H1B application.

Whenever, an H1B transfer is made, the applicant has to also file for a change of status (Form I-539) for their H4 spouse.  This is a very strict rule that any good lawyer who knows about immigration law would know.  However while the case is pending the H1B applicant has an option under AC 21 either to stay with the present employer or move to the new employer.  The same rule applies even after the H1B transfer  is approved, the H1B holder can elect to move to the new employer or stay with the present employer.  Based on this logic, it seems that the H4 EAD applicant does not have to file a new application if a transfer is being effected because the underlying H1B and H4 will stay valid in both situations.

However we advise caution, unless it is really necessary to transfer your H1B during the pending H4 work permit (EAD) application, we do not recommend to do so.  The reason is that the system is new and any mistake or misunderstanding can actually be held against the H4 EAD applicant.

The H4 EAD rule  comes with a lot of difficulties and ease attached to it, however, if the case is well prepared and a good lawyer is handling it, your chances of success might be increased.

If you need help for your H4 work authorization or any immigration matter, please call us at (510) 742 5887 or email info@peerallylaw.com

Tuesday, June 2, 2015

Got a RFE? Don't Freak Out!

Request for Evidence aka the infamous RFEs tend to scare everybody who are filing for an immigration application. Yet it is a common tool employed by the USCIS to obtain clarification or to obtain additional documents on a case.

In an article written few years ago, we covered 10 Points to remember when answering a RFE (Request for Evidence). Things have unfortunately not improved since then. In fact, the RFEs are becoming more and more demanding.  Many times RFEs are issued despite the fact you have answered most of the questions asked.  It might be because the officer has actually not spend time on the case or simply because the package filed was not properly organized.  One of the other reasons which we are seeing now is that the USCIS officers are looking for certain specific things in an application and when they don't find it, they just issue an RFE.  As such, if the RFE is properly answered or the case is well prepared, you will actually receive an approval.  We have answered hundreds of RFEs and obtain approvals on the cases.

One of the common RFEs we are seeing lately for H4 change of status (H4 COS) are the requirements to prove that the H1B spouse  has maintained status.  This implies showing check stubs of the H1B holder and a letter of employment. Also those who are moving from H1 to H4, paystubs are required to prove status. Others who were on F1 visa, OPT and CPT they want to know everything about the school, etc.  So be ready if you are filing for H4 change of status or an H4 EAD, to actually are available to answer the RFE.  

As a note, we are also expecting RFEs on the EAD application. Please check the video below.


The article above is very limited in the nature of answering an RFE. But we are trying our best to anticipate the move of the USCIS to avoid any additional work or stress.

Our best advice and recommendation at this point is that if you receive on an RFE, please "don't freak out!" Call us at 510 742 5887 or email us at info@peerallylaw.com for help.

Clarification on the H4 filing for a Green Card Article.

Few days ago we wrote an article on "Can an H4 Visa holder file for a Green Card through Labor Certification or other means?".  Following the article we received many calls on how is this possible? Most people thought you have to be on H1B or L, or some other sorts of visas to be able to file for the green card.   The previous article in no way means that H4 are getting an automatic greencard.  In order for them to proceed, they still have to go through the process of labor certification like a H1B petitioner.  This entails applying with the DOL (PERM), then the form I-140 (USCIS) and ultimately the adjustment of status (USCIS).  The categories (EB1, EB2, EB3, or skilled labor) are determined by the qualification of the H4 candidate and the job offered.  Therefore, an H4 visa holder needs to have a job offer to file for the PERM labor for permanent residence.  In case the H4 visa holder qualifies for a National Interest Waiver or EB1(a), then no employer is required.
The article was an incentive to tell H4 visa holders that they do not have to move to an H1B or an L1 in order to file for a labor certification, NIW, or EB1.  The point was that the H4 visa is a dual intent visa even before the EAD rule was proposed or issued.  The other reason we wrote the article was that now that an H4 visa holder will obtain a job, an employer who is happy with the H4 holder services might actually be willing to file for a green card.  In addition, since they might be paying the prevailing wage, there will no be an issue on ability to pay at the I-140 level.

I hope this new article offers some lights on the previous article. If you want to know more, please call us at 510 7425887

 

 

Monday, June 1, 2015

Can I travel during the pending H4 EAD application?

This question has been asked several times and we have always recommended not to travel although the USCIS FAQ says it is possible to do so
.  There are many reasons we are not recommending travel during the pending H4 EAD application but here are few of them:

1.  USCIS has implemented a new system and traveling might not only delay the case but might signify that the person is outside the United States when traveling.
2. If a Request for evidence is issued, and you are traveling you might not answer and the case might actually be denied.
3. If USCIS wants additional biographic information such as fingerprinting, you will not be available to comply.
4. If you are doing a change of status (COS) and H4 EAD, traveling will automatically cancel the COS and ultimately the H4 EAD might be denied.

For the reasons above, we have discouraged our clients to travel during the process of the case. In case they have to travel, we have actually recommended that they travel, come back and then file for the H4 work permit.

For more information call us at 510 742 5887.


Immigration Law Show recorded live - KLOK 1170 studio by Shah Peerally on June 1, 2015