EB3 Green Card

Potential conflict between employment in India and F-1 visa status

2 years ago By Chief Editor

Question details

I am currently working at a company in India. I am eligible to claim Employee Stock Option (ESOPS) on 17th August 2022. However, I will be landing in Dallas, USA on 10th August on F-1 Visa (For Fall 22). The company will still offer those ESOPs, but the official relieving date will be on 17th August. From 9th August onwards till 17th August, I will be on Loss of Pay Leave i.e (unpaid leave). I am worried that situation would create a conflict with my F-1 visa status.

1. I want to know whether this is legal as I will be employed at a company in India for 7 days after arrival in the U.S. on an F-1 visa.
2. Whether this will cause problems in future when I apply for OPT or H-1B or even EB-3 as my previous employment end date is 7 days after arrival in the U.S.?

1. It appears that you are getting a benefit based on the work you have already done. You will NOT be performing any "new" work for the Indian company.

2. I do not see this as an issue.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Frequently asked questions answered in The Economic Times NRI Helpdesk by Rajiv : What are the risks involved in renewing F1 visa in another country?

2 years ago By Chief Editor

Published by: The Economic Times: August 01, 2022

Question: I have been in the U.S since 2017, and my F1 visa expires this month due to the 5 year validity period.

Answer: First of all, unless you are traveling, you do not have to renew your visa. If the visa expires while you're still completing your course, it's absolutely no problem.

Read more by clicking the link below or the pdf attachment.

https://bit.ly/3Q8z7Hx

Recording of July 21, 2022 Conference Call with Rajiv S. Khanna

2 years ago By Chief Editor

Citizenship and Naturalization

Nonimmigrant Visas

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Discussion Topics, Thursday, July 21, 2022:

Recording of July 07, 2022, Free US Immigration Community Conference Call with Rajiv (Every Other Thursday)

2 years ago By Chief Editor

Nonimmigrant Visas

Immigration Law

FOIA and Privacy Act

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Discussion Topics:

FAQs: Experience & education requirements for a PERM/labor certification-based green card || Continuing work or reverting to STEM OPT during H-1B Change of Status || For PERM, can I use my master's degree completed after I joined?

Recording of June 23, 2022, Free US Immigration Community Conference Call with Rajiv (Every Other Thursday)

2 years ago By Chief Editor

Nonimmigrant Visas

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Discussion Topics:

"Same or similar job" criteria for green card AC21 portability

2 years ago By Chief Editor

Question details

1) I-485 Filed under EB 3 Downgrade - More than one year back and pending
2)Independent I140 Approved both in EB2 and EB3 (Not as Amendment)
3) Currently working on H1B Work Authorization
4) I-485 EAD and AP Available but never used (EB3 Category)

Questions: -
1) If you change your job but by transferring your H1B (Change of Employer) and NOT use EAD, would the AC21 still apply (Same or Similar Job constraint) if you want to keep the I-485 alive?2) You said the last call that for Same of Similar Determination - USCIS Looks at all aspects:
a) Do the Job Duties and Actual Job Title need to be a dollar-to-dollar match?
b) Job Location Changes (One City/State to Another) and Job Mode Changes (From Onsite to Hybrid or Fully Remote) - Allowed?
c) Compensation Differentials - Positive or Negative - Any specific considerations/grey areas

FAQ Transcript

1. Absolutely fine. There is no law that states that in order to enjoy job portability you must necessarily use your EAD. In fact, in ninety nine percent of the cases I would advise you to transfer on H-1B simply because if there is a problem with your I-485 we are on solid footing to fight it out, otherwise you would be out of status and unlawfully present if your I-485 is denied. Hence definitely keep your H-1B active.

2. That depends. It doesn't have to be a one-on-one match job location. You can move from one state to another as this is a part of AC21 compensation. The only time you will have a problem is if the compensation is unexplained and it's a huge jump. Always ask an attorney who understands your situation to review your file.

I-485 interfiling to use EB-2 instead of EB-3 with a new employer

2 years ago By Chief Editor

Question details

I'm an Indian national living in the USA.

1) Employer A filed I-140 (EB2) which got approved with a PD: AUG-2014.
2) I switched jobs from A to Employer B.
2. a) Employer B concurrently filed I-140(EB3) and I-485/765/131. This wasn't a downgrade from EB2 to EB3. This I-140 also got approved and able to port PD: AUG-2014. Also I-765/131 got approved. But I never used them.
3)I switched jobs from B to Employer C.
3. a) Employer C only filed H1B and I-485J.

Currently, with Employer C and my EB2 final action date became current(As per the June visa bulletin). Now I technically have tw
o approved 140s(One in EB2 and the other in EB3)

Questions:
1) Can employer C do a I-485 interfiling to use I-140 (EB2) instead EB3?
2) Since my PD became current in EB2, What would be the best option for me so that I get my 485 adjudicated sooner and get the GC.

FAQ Transcript

1. The reply is “No”. They cannot because employer B’s EB-3 was inherited by employer C, and you never filed a I-485 so that cannot be used.

2. Either go back to the first employer if they have a job offer. You can actually apply for a I485 without joining but this should be discussed with your lawyers in detail. Hence you could file for a I-485 based upon the job offer and I-140 which was approved through employer A but if you want to stick with employer C either you stick with EB-3 or you start another PERM application through them for your EB-2 categorization.

Traveled on Advance Parole - Maintaining H-1B status without going for stamping and filing multiple I-485 or Interfiling

2 years ago By Chief Editor

Question details

I entered USA on AP (EB3 EAD), I have a valid H1B I-797A till May 2024 I have approved EB2 I-140 I also have RFE on my EB3 I-140 (EAD and AP received on EB3 filing)
1) How can I get back on H-1B status without going for stamping?
2) Can I interfile my EB3 485 to EB2 485 with pending EB3 I-140

FAQ Transcript

Since you have already entered and resumed the same job you are still considered to be on H-1B. There is nothing to get back to.
Yes, you can. Although you have traveled on advance parole you should be able to file EB-2 interfiling.
For more information you can also visit my blog:
https://immigration.com/blogs/adjustment-status-transferring-basis-i-48…
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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

April 28, 2022, Free US Immigration Community Conference Call with Rajiv (Every Other Thursday)

2 years ago By Chief Editor

Immigration.com

Community Conference Calls

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Discussion Topics, Thursday, April 28, 2022:

Protecting immigration status: Traveling with advance parole, divorce proceedings, and an entrepreneur on an H-1B visa

2 years ago By Chief Editor

Question details

1. I-140 didn't get approved but received a GC-EAD card approved for 2-years along with advance parole. Is it fine to travel to India for 2 months or for how long staying from the US is valid while on EAD?
2. I didn't need to worry about having a valid visa while returning to the USA, just advance parole will suffice for return?
3. Prior to getting GC-EAD I was on H4-EAD, due to family issues I may seek a divorce. Now that I have GC-EAD will divorce affect my current status or upcoming Green Card? or should I wait until the Green card is through?
4. I have been an Owner of an Inc company while on H-1 and H-4 and H-4 EAD, but I haven't taken any profits or pay-stubs, except for signing on Company Tax returns. Does this situation restrict me from getting a Green Card? or since I have already received GC-EAD under the EB3 category, should I stay positive that I will receive GC in the near future?

FAQ Transcript

1. Sure. EAD allows you to work, but advanced parole allows you to come back.
2. The law is if you return to the same job that you were doing on H-1B even though you used your advance parole you are still considered to be on H-1B.
3. I am assuming that the green card was filed by you and not your wife so the divorce has no effect on you.
4. I do not see any obvious violation of the law. I am just suspicious of that time you were on H-4/H-1 and had your own company. The only time you are completely free is when you were on H-4 EAD.

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