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: [email protected] 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 <[email protected]> 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" <[email protected]> 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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: [email protected] 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 <[email protected]> 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%[email protected]> 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 <[email protected]> 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 [email protected]. 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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" <[email protected]> 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 [email protected] - Nirav Modi Email : [email protected] 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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: [email protected] 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 <[email protected]> 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 <[email protected]> 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: [email protected] 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 <[email protected]> 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" <[email protected]> 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 <[email protected]> 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!! ([email protected]) 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: [email protected] 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 [email protected] 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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: [email protected] 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 <[email protected]> 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 <[email protected]> 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" <[email protected]> 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 : [email protected] 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: [email protected] 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 <[email protected]> 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 <[email protected]> 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 <[email protected]> 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" <[email protected]> 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 <[email protected]> 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: [email protected] 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. ****************************************************************************