Immigration Law Forum - Part 2 of 2
THE IMMIGRATION LAW FORUM - A SERVICE OF THE INDIA NETWORK FOUNDATION
Edited and Contributed BY SHEELA MURTHY
SUBMISSIONS TO FORUM SHOULD BE SENT TO: FORUM@INDNET.BGSU.EDU
with appropriate subject line (limit your question to 20 lines).
We publish answer to questions on every 1st and 15th of month to
IMMNET list O N L Y
For old and latest Digests, check out our WorldWide Web at
http://indnet.bgsu.edu ** NEW ADDRESS ****
gopher://indnet.bgsu.edu ** New ***
************Forwarding of Digests is Prohibited************
MESSAGES WITHOUT A SUBJECT LINE WILL BE RETURNED.
__________________________________________________________________________
Contributions to support IMMNET can be made by check made payable to:
"INDIA NETWORK FOUNDATION"
and mail the check to:
India Network, P.O. Box 556, Maumee, OH 43537, USA
***************************************************************************
Date: Fri, 4 Oct 96 10:33:01 PDT
From: Shekhar Smahajan <qlogic!smahajan@netcom.com>
Subject: Need for multiple entry visa
Thank you very much for your prompt and accurate responces. I have a
question: My relative came to US on dependent (h-4) visa. Meanwhile a
company offered her a job and processed H-1 for her. She got her H-1
approval notice around 3 months back. Even though she got the H-1 approval
notice, she has not yet actually joined a company. The company is looking
out for a client to place her. Now she wants to go to India. The question
is : does she need to get her multiple entry visa stamped or her previous
mulpile entry H-4 visa should suffice ?
If she needs to take multiple entry visa, she is planning to take it from
Canada. What all documents she should have ?
I would be highly grateful for your guidance.
Thanks.
Dear Shekhar:
Thank you for your appreciation of our service.
If your relative intends to return back to the U.S. with the old H-4
multiple entry visa, it will mean that she has no interest in pursuing the
H-1 employment. On the other hand, if she obtains the H-1 multiple entry
visa from India or from Canada, she can continue to work based on the H-1B
approval notice. The only documents she is generally required to produce
are the H-1B paperwork, the forms, the LCA, the company letter and the
nonimmigrant visa application form, visa filing fees and photographs, etc.
Regards, Sheela Murthy
------------------------------
Date: Thu, 26 Sep 1996 10:36:23 -0500
From: "Venugopalan, Anil" <venugopa@interactive-group.com>
Subject: New H4
Many, many thanks for the service you have been providing to members of
the community. Here is my query: Currently, I am working on an H1B visa
with company A. My wife joined me in July this year on an H4 while I was
with company A. Company B has applied for my H1B visa and the petition has
been approved. However, due to oversight, they did not apply for my wife's
H4 at that time. Subsequently, they have applied for the same and it is
pending approval. Can I join Company B now that my H1B is approved, even
though my wife's H4 is still pending with INS? Does she become out of
status OR illegal in any way if I do so? My hunch is NO, but Company B's
attorney seems to think otherwise and he insists that I wait till such
time my wife's H4 gets approved. As far as my understanding goes, she is
on a valid status so far as the H4 validity period on her I-94 (even
though it is thru company A) is a future date. Please advise as to whether
or not it is safe for me to join Company B now.
Thank you in advance!
Anil.
Dear Anil:
Thank you for your appreciation. As far as I understand the laws and
regulations, it would be okay for you to join the new company since your
wife's H-4 is pending with the INS. There appears to be some lack of
consistency among the different regulations in this regard. As you know,
we are not allowed to provide legal advice on case specific situations
unless there is an attorney/client relationship present because there may
be some details on the case that we may not be aware of that your attorney
may be aware of. If you do require a legal opinion, it is advisable for
you to set up a consultation with our office with copies of all the
appropriate paperwork so that we may be able to analyze and provide you
the specific copies of the different regulations that apply in such a case
and that way you can make an informed decision whether it is worthwhile
for you to start working.
Regards, Sheela Murthy
------------------------------
Date: Tue, 24 Sep 1996 16:08:55 -0700
From: Narayan Bhagavatula <narayan@inow.com>
Subject: New Immigration Bill and Naturalized Citizens
Dear Ms Murthy,
I have been hearing lately that the proposed new Immigration bill gives
draconian powers to INS officers to stop and search any one they suspect of
being "illegal". Also INS actions are exempt from federal courts. Does this
mean that Naturalized US citizens (especially those from non-white
countries) will need to carry their US passport at all times in case some
INS officer stops them? What legal protection do naturalized citizens have
against such humiliating actions by INS officers ?
Thanks In Advance
Narayan Bhagavatula
Dear Narayan:
By law, any person travelling outside the borders of this country, is
required to carry their paperwork, including the passport. Although the
new law gives tremendous powers to INS officers, it has not yet been
challenged by courts and it is likely that some provisions may be
considered unconstitutional. In addition, there is the Nondiscrimination
Law which prohibits a person from being discriminated merely because of
their color of the skin, accent and such other factors. The U.S.
Constitution is a very strong force but as a practical matter it can be
pretty expensive to fight certain actions in courts. However, since the
law requires that any person travelling outside the country is supposed to
keep their paperwork like their passport readily available, hopefully that
is not a problem because even a white person is required to comply with
that requirement.
Regards, Sheela Murthy
------------------------------
Date: Thu, 26 Sep 1996 16:05:15 -0700 (PDT)
From: Ravi Krishnan <ravi@swdc.stratus.com>
Subject: practices in consultancy companies
Madam,
I deeply appreciate the time and effort that you are spending in doing
this free service. I dont think it is possible to express in words what the
real value of this bulletin is!
I suspect that some widely followed practices in software consultancy
companies (colloquial: bodyshoppers) are not strictly legal.
Could you please give your comments on them?
I guess these are H1B related and within scope of this forum.
It would be of great value to those who plan to come to USA through such
companies.
Thanks, --Ravi K.
-------------------
Software Engineers : Practice #1 : Place of employment
Scenario: Company ABC recruits engineer E from India, brings him to USA
on H1B visa, pays E a regular salary as (shown on the H1 papers) and then
"contracts" E out to clients on hourly basis.
There are no facilities other than few chairs in the offices of ABC. Only
profit ABC makes is the difference betwen what the client pays and E's
salary.
Question:
If the H1 visa papers says place of employment is the office address of
ABC, is engineer E breaking rules by working at a client site ? Is it
necessary to inform INS every time a client is changed.
------------------------------
Software Engineers : Practice #2 : Bench salary
Scenario: Same as above
There are 3 times when a engineer on H1B can be "without work", i.e., ABC
does not get any revenue out of X.
1. Engineer E enters USA fresh from India He goes on "bench" taking
interviews from prospective clients.
2. Engineer E is betwen projects and no client wants him.
3. Engineer E has given his resignation letter, and is serving his
notice period (by sitting in ABC's office)
Question: Should the Engineer get a salary during these 3 times.
Question 2: Same as all the above the offer letter itself says that there
will be "1/2 salary if there is no project" and engineer E has agreed to it,
-----------------
Software Engineers : Practice #3 : General Question
a) If there are any false declaration on the H1 petition say wrong
salary, or resume (experience) , and it becomes known to INS later on,
will it affect the future of E say during Green card processing.
b) Is there any publicly available document that tells of the Rules
and regulations pertaining to H1 visa. Such a reference will be useful to
Engineers so that they can be aware of their "rights" and "duties".
----------------
Software Engineers : Practice #4 H1B with salary but no work
Question: Will a H-1B visa be denied automatically if the visa applicant
declares the following to the consulate.
"I am recruited by ABC, a consultancy company, which is in the business
of supplying man power to clients. Right now I dont know what project I
will be working on. My plans are that I will go to the offices of my
employer, in USA and take interviews from various clients and only after
one of them selects me, I will start working on a project, given to me by
the client."
----------------------
Dear Ravi:
Thank you very much for your kind words and appreciation of our service.
Although some of the practices of bodyshoppers may not be completely
ethical, as long as such organizations comply with the law, there is no
need for you to worry about working with such a company. Depending on the
specifics of the case, there may or may no be a violation in a specific
instance.
Each time a location is changed, if it is not in the same metropolitan
statistical area as was filed in the original H-1B petition, it is required
to file a new LCA and sometimes a new H- 1B petition also.
Although there were strict requirements that a person had to be paid the
salary as stated in the H-1 petition, the recent victory of the National
Association of Manufacturers against the Department of Labor has held that
the Department of Labor cannot require an employer to pay a salary at all
times. The exact legal definitions and requirements may vary from project
to project.
If such a declaration should come to light later on, it will certainly
effect the future immigrant processing of the applicant.
Pertaining to rules and regulations pertaining to the H-1B visa, most of
this is public knowledge and is available in the Federal Register. It is
possible to contact the Library of Congress. The problem is that these
rules and regulations change on a fairly regular basis and it is important
to have them updated. The attorneys who are processing the petition should
explain the process but, as a practical problem, since many of them have
been hired by the companies, they probably will not explain in detail the
procedure for the benefit of the candidate/alien.
In the fourth scenario, it is unlikely that the H-1B visa will be denied
automatically if the consultancy company agrees to continue to pay the
salary and other benefits as set forth in the H-1B petition and explains
that to the INS officer and the applicant explains it to the consulate.
Also, even though you have given broad examples there may be many other
details and nuances in each of these cases that may vary the answers or
change them completely. By law, we are not allowed to provide case
specific legal advice unless there is an attorney/client relationship.
Regards, Sheela Murthy
-------------------------------
Date: Mon, 30 Sep 96 14:15:05 -0400
From: Prakash Rohra <Prakash.Rohra@GSG.EDS.COM>
Subject: Priority date for Green Card..
Dear Ms. Murty,
Thank you very much for the service being provided to us on immigration
matters.
I have few specific questions:
(1) what exactly is the priority date for GC processing? My lawyer
submitted my GC papers (form 750) in March '96 end and I got my labour
approved in Sept '96 end. I will be applying for the I-140 soon. What is
my priority date in this case? (2) Is it true that I have to wait for
quite some time before I can even "file" my I-485, assuming that my I-140
gets cleared in time? How much time do I have to wait? What is the current
queue in INS for I485 filing? (3) Is it also true that Baltimore,MD INS
is taking much less time for I485 processing than Arlington,VA INS? Is it
legal to change residence just before filing I-485? Can the place of
residence be changed "after" filing the I-485? Thank you very much.
-Prakash
Dear Prakash:
Thank you for your appreciation.
In connection with your questions, please note:
1. Depending on which category you filed under, whether second or third
preference, the priority dates right now are in 1994 for citizens of India.
2. The I-485 can only be filed when the numbers become current. Our office
posts the most recent Visa Bulletin each month soon after the Department of
State releases that information. You can obtain it by viewing our web site
in the updated section at http://www.murthy.com/
3. Although Baltimore is taking a little less time than Arlington, you can
only file your change of residence prior to filing the I-485 if you want to
file and be subject to the Baltimore INS jurisdiction.
Regards, Sheela Murthy
------------------------------
Date: Wed, 2 Oct 1996 10:37:16 CST
From: LSINGANA@Athena.valpo.edu
Subject: Query
Dear Attorney. Murthy, My parents are green card holders and they have
applied for my brother's card in 1993. Is it possible for them to visit
every two years instead of every year in order to keep their card valid?
They are 74 and 63 years old respectively. I am looking forward to your
reply and thank you for setting up this e-mail address and your effort.
Thank you. Sincerely Lakshmi, S.R.
Dear Lakshmi:
Although it is possible for your parents to keep their green card alive by
coming in every 2 years, they will certainly not be allowed to file for
citizenship because they have broken the continuity of residence. After 2
renewals, they will be expected to continue to live in this country,
otherwise there is a likelihood that they may lose their green cards based
on the Doctrine of Abandonment of Intention.
Regards, Sheela Murthy
------------------------------
Date: Fri, 4 Oct 96 16:24:49 EDT
From: ukkan ninish <nukkan@monet.csc.vill.edu>
Subject: query
i wnated to know that can a person on an F-1 status who has completed 2
months in the u.s and is bound by ins to work only on campus shift to an
H-1 status if the company is willing to sponsor.
Dear Ninish:
Although it is possible for a person to shift to an H-1 status while filing
the appropriate paperwork with the INS and the Department of Labor in the
U.S. itself, it is possible that should you apply for an H-1 visa at one of
the consulates in the neighboring countries, it will be denied because you
did not comply with the requirements and your statements as mentioned to a
consular officer.
Regards, Sheela Murthy
------------------------------
Date: 30 Sep 96 9:08:20
From: "Sanjiv V. Kabad" <Sanjiv_V._Kabad%BPOI@notes.worldcom.com>
Subject: Question about H-1
Hi, I am posting this request for a friend of mine, who is out of town and
has no access to email. Here's his question:
"I am presently working for Company A (present employer). I recently
interviewed with Company B (future employer), and they have offered me a
job which I have accepted. My current visa status is H1B. My future
employer will be starting the processing for my new H1 on September 30th
and we are hoping that the papers will be passed by the end of October. At
this point I will resign from my present employer. However, I do not want
to join my future employer until December 1st. The H1B petition that my
future employer will file will mention the starting period of November
20th. After I resign from my present employer, and before I join my future
employer, I want to visit India for a couple of weeks or so (in November).
With this brief background information, here is my question: Can I travel
to India between jobs and then re-enter the U.S. on my old multiple-entry
H1B stamp on my passport? (provided I have valid papers from my new
employer). My old visa was issued in April 1996 and is valid until 1999.
Also, my passport is valid well beyond that period. I have heard that this
should not be a problem, but the Human Resources Manager at my future
employer told me that I may have to obtain a new visa-stamp. Are there any
forseeable difficulties in this scenario?
Thanks a lot for your response.
Dear Sanjiv:
Although your friend can resign from his earlier job, the problem is that
as soon as he resigns his old job, he is no longer considered to be in
valid legal status in the U.S.
However, according to the present position of the U.S. State Department, he
can travel on his old visa as long as he shows his new H-1B approval papers
at the time of entry to the INS officer.
The Human Resources Manager of the future employer is probably thinking of
the earlier rules of the State Department which are no longer valid.
Regards, Sheela Murthy
------------------------------
Date: Fri, 27 Sep 96 10:59:24 EDT
From: Soma Basu <somabasu@lehman.com>
Subject: Question about Hawaii
Hi, I want to know whethere^H a non-American citizent (H1 B holder) need to
get a re-entry stamp/pass thru immigration/require a multiple entry stamp
on his/her passport if he/she travels to hawaii and comes back to the
mainland US. I know for sure that hawaii and alaska are states of US but US
virgin island is not though the virgin islands are under fed rule. I also
know that one has to pass thru immigration in the virgin islands in order
to comeback to the mainland. (for non-citizens)Do we require a re-entry
permit/multiple entry stamp on passport if we travel to hawaii and come
back to the mainland ? Why do we require the same for touring US virgin
islands and come back to the mainland ? my email id is somabasu@lehman.com.
Thanks Soma Basu
Dear Soma:
A person is not required to obtain a visa if they are travelling between
states in the U.S. Therefore, if you travel to Hawaii, since it is
considered part of the United States, a visa would not be required. On the
other hand, if you want to travel to other neighboring countries of islands
which are subject to federal rule but are not considered to be part of the
U.S., a visa may be required in such a situation.
Regards, Sheela Murthy
------------------------------
Date: Tue, 24 Sep 96 14:26:00 PDT
From: Devi Chandramohan <Devi_Chandramohan@ccm.ra.intel.com>
Subject: Question about how an alien can start a business in the U.S
Hello Attorney Murthy, We have a question and would appreciate it if you
enlighten us about how an alien (no green card, atleast as of now)
currently here on a H1 B visa can start a small business ? Can our parents
at home be major shareholders of the firm ? We believe that the company we
start must get us H1's and only then we can get paid ..Is it possible to
give away all the earnings to the shareholders (who will be in India) and
do this business without the H1's. We will be happy to work with your law
office after we learn the basics. Can't afford right now :)
Thankyou,
Devi
Dear Devi:
A person on an H-1B can invest money in any business but is not allowed to
work for that business until and unless that person obtains an H-1B for
that new company. It is possible to give away all the earnings to the
share holders but then if there are no net revenues for which no U.S. taxes
are paid, the drawback is that no green cards can be processed because
there are not sufficient net revenues to pay the employees salaries.
Regards, Sheela Murthy
------------------------------
Date: Sat, 05 Oct 1996 13:51:31 -0400 (EDT)
From: Sanjay <smog@vivanet.com>
Subject: Question on "out of status"
Ms Sheela
A couple of questions on when a person goes out of status (in light of the
new law which is critical on this aspect).
(1) My visa expiry date (and the date for "admitted until" on the I94) is
earlier than the my H1 expiry date. At what time will I go out of status -
the visa expiry date or the H1 expiry date? (2) Also - if I go out of
status does it mean that I have to go back to India to apply for a Visa or
does it mean that I am ineligible for a Visa for a length of time.
Thanks again for any info.
Sanjay
Dear Sanjay:
As long as you are in valid status in the U.S. on your H-1B visa, the
expiration date of your visa stamp is not relevant.
This question may not be relevant if you have maintained continuous valid
legal status in the U.S. throughout.
Regards, Sheela Murthy
------------------------------
Date: Tue, 24 Sep 96 17:12:40 PDT
From: Sanjay Charagulla <sanjaych@lsil.com>
Subject: question on Aliase names for H4 Visa
Inadvance thanks for your info.
I will be marring a girl, who is converting to Hindu with a new name. The
marriage certificate from the Hindu Samajam and from the local Register
office will be on the new name with an aliase of old (passport one) name.
We will be appling H4 visa with old (passport one) name. So does it make
any problem to get the H4 visa. In that case do I need to get notaize the
marriage certificates along with the old name? Pl. suggest me.
Thank you very much sanjay
Dear Sanjay:
If your spouse is changing both her first and her last name, she will need
to obtain affidavits of other documents for any travel in order to prove
that she is one in the same person as mentioned before on the paperwork.
If she is continuing to travel with her old passport name, she should not
have a problem in obtaining the visa but than all the other paperwork in
the U.S., for example social security card, drivers license, etc. will
require that it be issued in her old name also.
Regards, Sheela Murthy
------------------------------
Date: Wed, 25 Sep 1996 08:56:51 -0500
From: Ramanarayanan Tharacad <rama@brcsun0.tamu.edu>
Subject: Question Reg. I-485
Dear Ms. Murty:
Thank you very much for the service you render to the to the India Network
community. I have a question regarding the status of application for I-485.
I got the I-140 approved on August 31. I applied under priority 2, National
Interest Waiver. The recent status report from INS says that for priority
2, only persons who got their I-140 approval on or before August 1994 are
eligible to apply for I-485. My questions are:
1. Do we have to wait for two more years until our status becomes current?
or what would be your best guess for the time when our status will become
current?
2. How often does INS update the status? -- that is, will the status be
updated monthly or quarterly or is the present status final for the fiscal
year?
3. Before checking the INS status we went ahead and completed the medical
checkup. How long is this medical report is valid?
Thank you very. Again, the India Network community really appreciates you
for taking time to help us out.
Sincerely, T.S. Ramanarayanan.
Dear Mr. Ramanarayanan:
Thank you for your appreciation of our service.
For your information, the November 1, 1994 Visa Bulletin provides that
second preference has moved to November 22, 1994.
In connection with your questions, please note:
1. It is impossible to be sure of when and how quickly the visa numbers
will move but it is expected that second preference numbers will move
faster because any numbers that are remaining after the first preference is
not completely used up can be used for the benefit of second preference
holders.
2. The U.S. State Department updates the priority dates each month around
the middle of the month for the following month.
3. The medical report is valid for a maximum period of 1 year.
Regards, Sheela Murthy
------------------------------
Date: Tue, 24 Sep 1996 17:37:15 -0700 (PDT)
From: Mohan Chandra <mchandra@cyberg8t.com>
Subject: Questions about GC processing
Dear Ms. Murthy
I would like to congratulate you on the wonderful work you have been doing
for fellow Indians.
My family comprising of husband , self and two daughters aged 11 and 5
completed our GC card interview on June 10 nth . All of us except the 11
year old got the GC in hand by the first week of September. For the 11
year old the message on the Automated Answering system at Texas was the
application was rejected and sent back to Los Angeles INS as the
immigration officer's signature is missing. This messg kept coming for
about a month . Then when we spoke to the INS Officer at the Texas office
they said that we have to contact the INS Officer who conducted the
interview . Our attorney is trying to contact him but could not do so. We
are extremely worried about it though my daughter has a temporary Green
Card stamped in the pass port for a year. Please advice. Regards K
Chandra >
Dear Mohan:
Thank you for your appreciation of our services.
Based on the information you have provided. It should not be a big deal
for your daughter to obtain the green card at the same time. It appears
that it was an error on the part of the INS officer when they will probably
correct it within the next few months. If there is a delay, the temporary
green card stamp in the passport will be extended pending the INS
correcting their act.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 13:49:19 -0400
From: "Modi, Nirav" <NModi@PCSIUSA.com>
Subject: Questions about the wrong entry on I 94
Hi. My wife has multiple entry H4 visa. Recently ( April 96), when she came
back from India, at the JFK airport (port of entry) INS officer put B2 visa
on her I94 with expiration date Sept. 12, 1996. My wife's H4 visa is valid
till December 1998. Can you please let me know what actions should be taken
to correct this error? We called INS at Newark, NJ without any help.
Thanks -Nirav nirav@ix.netcom..com
- Nirav Modi Email : NMODI@PCSIUSA.com
Dear Nirav:
If indeed the error was done by the INS officer at the port of entry, it is
possible to contact the INS and send them copies of the documents and
request that they send a revised I-94 under the circumstances. Also, it
stresses the importance of watching and verifying what the INS officers do
so that this kind of error cannot occur in the future.
Regards, Sheela Murthy
------------------------------
Date: Thu, 26 Sep 96 07:55:32 EDT
From: 26-Sep-1996 1430 <raju@adca01.ENET.dec.com>
Subject: Questions related to L1s & H1s.
My status: L1 since May'92. I have been in the US for 4 years and
returned to India in May'96. Current visa expires on 1-1-97.
Questions: If I go to USA now, 1/ How long can I have this L1 extended
? 5 years (till May'97) or 7 years (till May'99) ? 2/ If I or my company
applies for a new visa, with a different category, (from L1 to H1), how
long a period can I have it issued for ? One year ? 2 years ? or 3 years ?
Any help would be highly appreciated. Best Regards...Raju.
Dear Raju:
A person is allowed a maximum status either on L-1 or H-1, or a combination
of both for no more than 6 years. Since you have used up 4 years, you only
have 1 more year remaining if you are a person that came in based on
specialized knowledge or 3 more years remaining if you came in as a manager
of executive on the L-1 visa.
If your company applies for an H-1 for you, you will only have 2 years
maximum remaining.
Regards, Sheela Murthy
------------------------------
Date: Sun, 29 Sep 1996 15:36:49 -0400 (EDT)
From: Ramesh Venkataraman <venkatar@umbc.edu>
Subject: Re-applying for EB-1 with approved EB-2 based I-140 in hand
As a new subscriber to this forum, I must say that I have to appreciate the
amount of time and effort Ms. Murthy is putting into answering subscribers'
queries.
Given the apparent backlog in EB-2 category, I am working on collecting the
material together for applying in the EB-1 category. I do believe I qualify
for this category based on criterion I have recd. from various sources (I
have a strong record and letters to back this up).
The questions I have are as follows:
1) Is it legal to re-submit a petition with an approved petition in hand?
If so, does the other (Eb-2 based) petition become void a) as soon as I
reapply or b) as soon as I get the approved Eb-1 based petition? or c)
never. bottomline, is there a risk of the approved petition (EB-2 based)
becoming void, if this (EB-1 based) petition gets denied for whatever
reason?
2) on the I-140 it asks for other prior petitions submitted and an attached
explanation. what kind of explanation do they want (given that I have an
approved as opposed to a denied petition, which I presume is what that is
primarily intended for)
thanks a lot in advance, -ramesh
Dear Ramesh:
Thank you for your appreciation of our services.
Based on your questions, please note:
1. It is legal to resubmit a petition even though you already have an
approved petition in hand. Both will remain valid and you can choose under
which category you want to file. There should be no risk because our
office on a very regular basis files 2 applications simultaneously for a
majority of our clients.
2. You will need to state the prior petition that was approved but explain
that because of the backlogs and the slow movement of the priority dates,
you want to file a simultaneous application in the first preference
category.
Regards, Sheela Murthy
------------------------------
Date: Thu, 26 Sep 1996 9:15:12 PDT
From: Rohit Mittal <mittalr@engmail.ulinear.com>
Subject: REg. I-485 pileup
Hi Ms. Murthy,
I had a simple question reg. I-485 info that you gave last time ie its now
taking 2 yrs. to get AOS (adjustment of status).
1) Isn't AOS state-dependent. then how come its 2 yrs for everyone
2) Is 2 yrs. when you get your passport stamped or is it when they give you
an interview date. If its the latter how long does it take to get the
interview date after 2 yrs. (I reside in California)
3) Could you also tell me how long its taking now days for labour and AOS
in Boston and North Carolina..
Thanks a lot Rohit
Dear Rohit:
In connection with your questions, please note:
1. The Adjustment of Status does vary from state to state but citizens of
India will not be allowed to file until their priority date becomes
current. For example, if you had already filed Labor Certification over 2
years ago, you will probably be allowed to file for your Adjustment of
Status right away.
2. The 2 years does not depend upon either scenario but when you are
allowed to file your I-485 or when you are actually called in for an
interview and the passport is stamped with the green card stamp "processed
for I-551".
3. Labor Certification on an average takes approximately 1 1/2 years to 2
years in the Boston region and 1 1/2 years in North Carolina. These time
frames can increase or decrease depending on the then backlogs of the
Department of Labor.
Regards, Sheela Murthy
------------------------------
Date: Thu, 26 Sep 1996 22:51:53 -0400
From: RKGULATI@aol.com
Subject: Request for information
I would like to know what are the documents relating to the relative, that
need to be attached to the petition for immigration visa for alien
relative, specifically a sister of the petitioner. As far as I can
understand, only the birth certificate of the sister is required, but it
needs to specify the names of both parents. Is this correct?
Also, is one supposed to send the original birth certificate or is a
photocopy sufficient ? If the birth certificate is not available, I
understand an affidavit can be sent. Does it have to be attested by
someone ? Can it be obtained from people living in India ?
What documents need to be sent, relating to the person filing the petition
(the US citizen brother/sister) ?
I would appreciate it if someone can help me to get this information..
Thanks.
Dear Sir/Madam:
The forms itself provide the exact documents that will require to be
submitted for each petition, especially in cases of family based
applications.
Never send original documents unless you are willing never to have them
back returned to you. If there is no birth certificate, the statement is
required from the municipality stating the nonavailability of the birth
certificate and then affidavits can be submitted in its place. It is
usually required from the mother, then the father and then other relatives
who were present at the time of the birth.
The petitioner will need to file proof of citizenship, for example, the
naturalization certificate, photographs and the G- 325, Biographical
Information.
Regards, Sheela Murthy
------------------------------
Date: Thu, 3 Oct 1996 13:44:16 PDT
From: Anand Narayan <narayan@cadem.mc.xerox.com>
Subject: Response time of INS
Dear Ms. Murthy :
I work for a company in Rochester, NY. I filed for my Green Card Labour
Certification in Jan'96 and so far haven't had an initial response from
INS. I am told that INS in New York is taking as long as an year to send an
initial response. Is this true? Is there anything I can do to speed up the
process? Thanks a lot for your help.
-- Anand Narayan
Dear Anand:
It is true that New York the processing for Labor Certification is
extremely slow. They take approximately 1 year to approve the language for
the advertisement!
Depending on your education, background and credentials, you may be
eligible to file under a different category. You can discuss this with
your attorney or set up a consultation with our office if you would like.
Regards, Sheela Murthy
------------------------------
Date: Sat, 05 Oct 96 14:41:00 PDT
From: Jawahar Garg <JawaharG@pptvision.com>
Subject: Section 245 (i) deletion from new law.
Dear Ms. Murthy,
I really appreciate the voluntary work you do for the Indian community. It
has been very beneficial to a lot of us.
I have a question from a friend who does not have email access.
My friend came to US on visitor visa and applied for change of status to
student visa in July 1991 ( I-94 valid for six months ). He never got a
reply from INS. He finished his studies and went back to India in Oct. 1992
on his own. Now he came back to US in April 1995 to work for a US company
and has got his I-140 approval. He will apply for I-485 when visa numbers
are available.
1. My friend does not know whether he was out of status during his previous
stay. Is there some way for him to find out from INS? 2. Can this be an
issue during I-485 application / GC interview? 3. Has section 245 (I),
allowing change of status in US for out of status individuals been deleted
in the new law, and how much is the 3 year bar on people who stay out of
status for more than six months valid in such a case where the person has
already stayed out of the country from Oct'92- April'95 on his own and is
in legal status since he came back to US in 1995.
Your reply will be greatly appreciated. Thanking you again for your
selfless services.
Jawahar Garg
Dear Mr. Garg:
Thank you for your appreciation of our services.
Based on the scenario you have presented, and your questions, please note:
1. It does appear that your friend was out of status if he never received
an approval from the INS. Under the new bill which was passed by the
Congress and signed by President Clinton, he may be prevented from becoming
a green card holder because of his lengthy illegal status in the U.S.
2. This could effect both his I-485 application and his green card processing.
3. Since a majority of the provisions of the new law will only become
effective from April 1, 1997, it may not make such a big difference in his
case. The fact that he was out of the country for a long time will also
prove to be of some help.
It is probably advisable for him to discuss these matters since they are
case specific questions and by law we are not allowed to provide case
specific information unless there is an attorney/client relationship
present.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 15:53:10 -0500 (CDT)
From: asabuwal@csci.csc.com
Subject: Status of baby born to an H1b
Hello Ms Murthy,
Thanks for your service and effort. I am here on a H1b and my wife is on
H4. We had a baby girl in US 3 months ago. What is the status of my baby.
can she claim to be a citizen of US. Also if she is a US citizen can that
help us to get our GC or any other status by which we can stay and work
here without any restrictions.
Thanking in advance
regards
Aniz
Dear Aniz:
You guys can file for the U.S. passport for your child. A U.S. citizen
child cannot sponsor the parents until the child is 21 years old.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 17:30:36 -0500 (EST)
From: sandeep gupta <sgupta@bach.helios.nd.edu>
Subject: Status of F1 Visa
Dear Ms Murthy,
Kudos for the great service that you are providing. I am sure that all
people subscribing to this list appreciate your candid and valuable advice.
As for me I have a question regarding my F1 student status:
I originally received my F1 for 5 years as i was enrolled in a Ph.D
program. However i decided to leave after a Master's and am currently on
practical training EAD .. 1) Would the 5 year F1 visa stamped on my
passport still be valid. 2) Is it possible to extend the EAD linked t o
practical training beyond 1 year?
I would appreciate it if you could take some time to answer to the above
queries
Sandeep
Dear Sandeep:
In connection with your questions, please note:
1. The 5 year F-1 is valid during your EAD.
2. Under no circumstance is it possible to extend the EAD beyond the 1
year period even if you decide to pursue your Ph.D.
Regards, Sheela Murthy
------------------------------
Date: Mon, 30 Sep 1996 12:39:50 EDT
From: "Krishna.Srinivasan@TARGET" <ustgt2nq@ibmmail.com>
Subject: Studying CPA while in H-4 status
Hi Sheela,
My wife is currently in a H-4 visa status. She is preparing to write her
CPA (Chartered Public Accountant) exams by May '97. Is it necessary for
her to change her visa status to F-1 as one would do to join a university
masters or bachelors course?
If the answer to the above question is yes, please do elaborate on the
action that should be taken to acheive this.
Thanks so much for sharing your expert opinion.
Krishna Srinivasan.
Dear Krishna:
It is possible while on H-4 to pursue academic programs as long as one does
not obtain funding.
Regards, Sheela Murthy
------------------------------
Date: Fri, 27 Sep 1996 17:19:19 -0400 (EDT)
From: Nirav Parghi <nparghi@hopper.unh.edu>
Subject: Transfer of schools
I am a new Graduate student of Chemical Engineering at theUniversity of New
Hampshire. I got another schol from Virginia Tech. I tried to change in the
fall itself, UNH did not allow it ( they want stdnts to do at least one sem
). so I got the schol fromVT defffered to spring.( now I am hesitant to
apply for trfr , lest I am refused again!) Can the int'l advisor at UNH
refuse the transfer again? is there any way around this? What is the
process? any special tips?
Advise Please!!
(nparghi@hopper.unh.edu)
Dear Nirav:
If any of our subscribers on India Digest can share their experiences with
International Student Advisors in the process for transferring from one
school to the other, that would be much appreciated. Hopefully it can be
posted on IMMNET Forum itself.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 19:05:34 -0400
From: AJAYVONK@aol.com
Subject: Travelling on H1-B multiple Visa
Dear Ms. Murthy First of all let me thank you for all the help you are
giving to the indian community regarding immigration. I have started
working in Dallas in 1993 and obtained my H1-B in May 1994. As i had to
travel to india I went and obtained my multiple H1 visa from Jaurez.
Recently I had to change my jobs and had to obtain a new H1-B visa. My
question is as iam planning visit to India again in December 96, can i use
the earlier multiple H1 visa (my old h1 visa is valid till May 97). If so
what are the documents I have to take with me, like a letter from my old
employer or paystubs. I would appreciate your suggestions on this and again
thank you for your generous efforts to help Indian community.
Thak you Ajay AJAYVONK@AOL.COM
Dear Ajay:
Thank you for your appreciation.
You are allowed to use your earlier H-1B visa in your passport and show the
new H-1B approvals with the new company at the time of reentry into the
U.S. You are not required to show any papers with respect to the previous
employer at the time of the entry.
Regards, Sheela Murthy
------------------------------
Date: Wed, 02 Oct 1996 14:31:10 CDT
From: Ramakrishna Kuppa <rkuppa@csci.csc.com>
Subject: Visa cut off dates for green card
Ms Murthy
Greetings to you for your efforts on answering our questions.
I am as confused as any body else on these dates and how it affects. For
employment based third category petitions,
- When is the Green card number allotted? - Suppose status is current and
were able to file I-485. Is obtaining permanent residency dependent on the
interview date also? Since time for the I485 application varies from state
to state(3months to more than year), if interview date is scheduled after 6
months, should the status be current even when at the time of interview
also? What happens if the numbers are not available by the date of the
interview? (I hope,donot have to wait for next October).
Thanks, Ram
Dear Mr. Kuppa:
Thank you for your appreciation.
If the numbers are not available at the date of the interview, that could
pose to be a problem because you will not be allowed to have your passport
stamped at that time.
Regards, Sheela Murthy
------------------------------
Date: Sat, 05 Oct 1996 14:38:56 -0400 (EDT)
From: Sanjay <smog@vivanet.com>
Subject: Visa expiring before H1 status
Ms Sheela
Thanks for the extraordinary service! A quick question on immigration status.
(1) My Visa expires in June 96 while my H1 is valid till Sept 96. Do I have
to file for Visa extension in June to maintain my Immigration Status?
(2) If yes then what options do I have to file for this extension? One's I
am aware of are (a) file outside US e.g. Canada or Mexico (b) file in
Washington DC.
I will really appreciate any info! Thanks.
Sanjay
Dear Sanjay:
Thank you for your appreciation of our services.
In connection with your question, please note:
1. You do not need to file any extension of your visa as long as you are
in valid H-1B status.
2. This question is not relevant in view of the answer to 1 above.
Regards, Sheela Murthy
------------------------------
Date: Wed, 25 Sep 1996 15:29:13 -0500 (CDT)
From: Mohamed Ali <mali@empros.com>
Subject: Visa requirement for Canadian landed immigrants
Dear Ms.Shella Murthy,
My daughter is a Canadian Landed Immigrant and a legal resident of US on H4
visa. She has a valid I-94. She is now studying in a US University. The
university authorities are telling that they will issue an I-20 and that
she will have to get it endorsed on her passport. This will enable her to
get certain benefits from the university. Since she is already a legal
resident, Is it necessary for her to go outside US to obtain a visa and a
fresh I-94? or can she get it endorsed here itself, please advice.
Mohamed. e-mail: mali@empros.com
Dear Mr. Ali:
Your daughter is not a legal resident because that definition is generally
used for a permanent resident of the United States. She is legally residing
in the U.S. on an H-4 visa. Although a person is allowed to pursue
education while on an H-4 visa, the person will not get any financial
tuition remittance or other financial aid if they do not convert to F-1
status. This can be done by travelling abroad and obtaining the F-1 visa
stamp from a foreign country by approaching the U.S. Consulate in the
foreign country or an application can be made to the INS but that process
takes 2,3 and sometimes even 4 months.
Regards, Sheela Murthy
------------------------------
Date: Tue, 01 Oct 1996 15:16:10 CDT
From: Generic Login for PB <unitadm@csci.csc.com>
Subject: visitors visa
Hi Sheela Murthy,
Thank you very much on behalf of Indian community for your yeomen service.
Bear with me for my long question and I really need an answer to my
question.
My wife is pregnant and expecting in March 1997. Suddently last week
doctors advised her complete bed rest for the remaining of her pregnancy of
5 months due to complications. May God give us enough strength to endure
through this. To support her emotionally and otherwise, we would like to
get her mother here on a visitor visa(B2?). My H1 expires in Feb 1997 and
have 2 more years out of 6 years. My GC has been filed in Chicago and in
the last stage of clearance from labor dept. I've priority date of June
1994. If by that time I can't file I485, my employer will extend H1.
Geographically my m-i-l resides in Hyderabad, India.
1. What are the documents to present for visa in India? Where should she go
to for such purpose?
2. Can I mention that my wife is pregnant and a doctor's letter in support
of emergency? Will it have adverse effect? I heard in some pregnancy cases
that visas were rejected. Is it true in that?
3. In view of my H1 expiry in Feb 1997, can she get visa for 1 year? She
has a son and daughter and all other relatives, and all property in India.
She can't settle in US! We need her dearly for at least 8 months.
Thanks,
Mani
Dear Mani:
In connection with your questions, please note:
1. All that your mother-in-law will need to show is a letter of invitation
from you/your wife and the Form I-134, Affidavit of Support showing that
you have sufficient finances in case of any emergency to take care of her
expenses, including medical expenses. This form can be obtained by calling
1-800-INS-FORM.
2. In view of the circumstances of this case, it would probably be helpful
to tell the truth and explain that your mother-in-law intends to visit only
for a few months until your wife/her daughter requires such assistance.
The burden of course is on the nonimmigrant visa applicant to show that
they are not an intending immigrant and intend to return back after the
temporary stay in the U.S.
3. She can certainly ask for a visa for a longer period of time to explain
that she will need to travel back and forth between her family and property
in India and her daughter in the U.S. requiring her assistance. It is more
likely than not that she will be able to obtain the visa if the medical
reasons are explained clearly.
Regards, Sheela Murthy
------------------------------
Date: Wed, 2 Oct 96 14:48:28 PDT
From: 02-Oct-1996 1441 <arvind@marin.ENET.dec.com>
Subject: Visitor Visa By mail
This is in response to Mr Pandit's question in Oct1 Forum Answers - 6 of 7
regarding obtaining visitor visa by mail.
My parents have obtained visitor's visa by mail without ever visiting USA
before. For senior citizens (above 60 years) there is such a provision if
all the paperwork is correct. This process took 6 weeks back in 1995 when
getting a visa was in Madras was not as insane as it is nowadays (with
months of waiting etc).
Once you send all the paperwork,passport and application form with the
application fee, the consulate informs you to send the visa fee if they
accept the application. So unless something has changed over the last one
year it is still valid.
Regards,
Arvind
Dear Arvind:
Thank you for sharing your recent experience in connection with your
parents obtaining the visitor visa. Recent experiences of people with
different consulates will certainly help others also. Also, it should be
noted that the consular officers always retain the discretion whether to
require a person to attend in person even though such a provision exists
for not requiring the persons to be present if they satisfy the age
requirements.
Regards, Sheela Murthy
------------------------------
Date: Fri, 04 Oct 96 10:22:00 PDT
From: "Jayalakshmi, Gutala SJ" <gjayalak@sjeng3.sj.unisys.com>
Subject: Visitor visa question
Thanks for providing your services to the Indian community.
I have a question regarding visitor visa. I came to US 10 months back on
H1 B visa. My sister is also in the US and she has a green card. We are
planning to get our parents during February 97' on visitor visa but are
confused as to who should sponsor. My parents had never visited US before.
My questions are:
a.) Who should sponsor my parents for the visitor visa - my sister or me
(ie GC holder or H1 B) so that our parents can get visa without any
problems? b.) Will there be any problem for my parents' getting the visa
since both of us are here? c.) Whoever sponsors, during visa interview
when they ask about children residing in the US what should be my parents
answer? I recently heard of a case of visitor visa rejection for parents
because the son was on GC and had 2 more sisters living in the US. My
father is still working. Thanks.
my e-mail address is : gjayalak@sjeng3.sj.unisys.com
Lakshmi
Dear Lakshmi:
It does not matter which of you 2 sponsors your parents because your
parents will need to explain on the nonimmigrant visa application form all
their children who are present living in the U.S.
It may be a problem for your parents to obtain the visitor visa depending
on their family and property ties abroad.
Your parents should answer the truth about the children who are at present
residing in the U.S. because any misrepresentation is regarded very
seriously as fraud on the application and can be a reason for permanent
debarment for entry into the U.S.
If there are strengths in the case like your father working, that should be
stressed to the consular officer.
Regards, Sheela Murthy
------------------------------
Date: Thu, 3 Oct 1996 09:08:37 -0700
From: jakwani@sprynet.com
Subject: Visit to Mexico
Dear SHEELA MURTHY, I was planning to visit to Mexico (CD Juraez) to apply
for HIB multiple visa. I already have HIB approval and good standing with
the company.
What I need to bring with me to apply for Visa.
Thanks a bunch. Asif
Dear Asif:
All you need is to show your H-1B paperwork, the visa processing fees, the
photograph and the entire documents submitted by your company in connection
with your H-1B and maybe a more recent company letter stating that you are
still working for the company.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 10:17:09 -0700
From: Shamkant Dumbre <Sdumbre@netbasecomp.com>
Subject: Waiver and Nonwaiver Cases
First Of all I greatly appriciate for your valuable Service and Time.
Question : My employer has filed for labor(In connection with GC ). They
have filed my case as waiver. What are waiver and nonwaiver cases as far as
DOL is concerned? Is there any significance/special requirement of each
other?
Thanks Once again. Shamkant
Dear Shamkant:
If your company has filed for a waiver of the Labor Certification process,
your petition is likely to get approved much faster than if you went
through the regular Labor Certification process. There appears to be some
confusion in your question because a person does not file for the national
interest waiver or other waiver with the Department of Labor but directly
with the INS.
Regards, Sheela Murthy
------------------------------
Date: 1 Oct 96 14:04:35 EDT
From: Chid Kollengode-1 <Chid_Kollengode-1@sbphrd.com>
Subject: What a great service?
Dear Ms. Murthy, I have no specific question but thought I must compliment
you for the wonderful service you are doing to the community.
I wish we had someone like you to guide and educate us when we went thru
all this a few years back. I enjoy reading your replies and it keeps me
informed and educated.
Great job and keep up the good work. Wish the world had more people who
cared to earn and give.
Regards Chidambaran
Dear Chidambaran:
Thank you very much for your kind compliments and appreciation of our
service. It is equally wonderful to have someone like you who only sends us
a message to compliment our service. We look forward to the opportunity,
should you ever require it, to assist you, your family, or your friends in
connection with any immigration-related matter.
Regards, Sheela Murthy
------------------------------
Date: Wed, 25 Sep 96 17:27 EDT
From: Premdeep Singh <PSD3@PSUVM.PSU.EDU>
Subject: What does "become current" mean?
Ms. Murthy, Just a quick question. In response to some questions in a
couple of recent immn et bulletins you have replied that Eb3 petitions are
taking almost 3 years to b ecome current. What does "to become current
mean"? Does it mean that currently one has to wait for 3 years to get their
green card after labor certification h as been approved? Thanks for all the
efforts you put into answering everybody's questions. Premdeep Singh
Dear Mr. Singh:
If your priority date was on or before January 1994, your date is already
current and you will be allowed to file your I-485 and obtain your green
card when the INS has processed your case. The 2 or 3 year time period is
confusing because priority dates for Labor Certifications are usually 2 or
3 years old by the time the person gets the Labor Certification approval in
most cases.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 13:59:00 -0700
From: "Nagarajan, Sundar" <Sundar.Nagarajan@alliedsignal.com>
Subject: Work authorization-Another Interview?
Dear Ms.Murthy:
I applaud your contribution to the Indian community and thank you for the
same. I had my GC interview on July 3, 1996 and a physical examination
for I-485 in November 1995. Is it true that- 1) I have to have another
interview prior to getting the visa stamped on the passport 2) Have
another medical examination if the GC is not issued within a year of
previous Medical examination.
Thanks for your help,
Sincerely Yours,
Sundar Nagarajan
Dear Sundar:
Thank you for your appreciation.
Depending on which category you are filed under, you may be eligible to
obtain your green card right away if you are in the first preference
category. The other categories have some waiting periods.
You may not be required to go through another medical examination because
the I-485 has already been accepted for filing.
Regards, Sheela Murthy
------------------------------
Date: Tue, 1 Oct 1996 18:33:10 -0400 (EDT)
From: Tarun Krishnamurthy <tarun@openenv.com>
Subject: Working outside US with H1B.
Dear Ms. Murthy:
Is it possible to be on an "assignment" outside of US when employed/paid by
a US company in the US on a H1B status/visa? How long can one be outside
the country working at the company's international office while retaining
the H1B currently held? What are the possibilities of being denied
(re)entry back into the US after the assignment period is complete. Will
additional papers be required? Taxes will be filed in the US.
On a continuing note, is it possible to process for Green card while away
from the US, at least until the Labor certification stage?
Thank you. regards, Tarun.
Dear Tarun:
Actually, as long as the original H-1B petition explained that the job
would require extensive travel abroad to other offices, you should not have
any problem in reentering the U.S. In fact, it will be more helpful if you
have lived abroad for 1 year because you will continue to have 6 additional
years on H-1B.
It is possible for you to start your green card processing both the Labor
Certification and the I-140 while you are still abroad, as long as you
intend to continue working for that employer that is sponsoring you.
Regards, Sheela Murthy
------------------------------
_____________________________________________
END OF IMMNET IMMIGRATION LAW FORUM Q & A
DISCLAIMER - PLEASE NOTE :
Information in these mailings should not be construed as legal advice and
does not constitute an engagement of the Law Office of Sheela Murthy. Any
response by this Office to an enquiry or any information contained in the
Bulletin is of a general nature and may not apply to a particular set of
facts or circumstances. If you have a case specific question/situation on
an immigration matter, it is advisable to consult with an attorney who
concentrates in the area of immigration law. IMMNET is a public forum and
its contents are accessible to the general public. The INDIA NETWORK is in
no way responsible and cannot be held liable for any views expessed by
participents or subscribers of IMMNET. Your subscribtion to IMMNET and
your participation in any manner whatsoever in this Forum (including your
reading the mailings) confirms that you have read and clearly understood
the above contents and agree to be bound by it.
-----------------------------------
LAW OFFICE OF SHEELA MURTHY
10451 MILL RUN CIRCLE, SUITE 400
OWINGS MILLS, MD 21117-5577
Tel: 410-356-8830
Fax: 410-356-8804
E-Mail: immigration@murthy.com
web page: http://www.murthy.com/
------------------------------------
****************************************************************************
Contents Copyright (c) 1995 India Network and Research Project, Maumee State University. All rights reserved. Material may not be
reproduced or distributed without express written permission of the India
Network Project Director, Dr K.V. Rao.
****************************************************************************