 ASK VISALAW.COM
by Marc Topoleski, Partner in SSHD's Detroit, Michigan office.
My company filed a Labor Certification for a person who has since left the company. Since my skill sets are same, my employer is planning to use the Labor Certification for me. Is this possible, and, if so, what would be my priority date?
Yes, a person can be substituted for another individual in a previously filed Labor Certification as long as the person has the qualifications set forth in the original application. Generally, the INS would grant you the priority date of the earlier applicant.
Is it required for an employer to cancel the H-1B visa of an employee if that employee resigns? If so, how soon must the employer cancel the visa?
Under the January 21, 2001 U.S. Dept. of Labor regulations, the employer is required to notify the INS of a termination of an individual’s employment so that the INS can revoke the H-1B petition, whether the termination is based on a decision of the employer or a decision of the employee. It is advisable to contact the INS as soon as the termination takes place to prevent being liable for any continuing wage obligations towards the employee.
I have been granted conditional residency status based on my marriage to a US citizen. Am I able to sponsor a family member for a family-based green card petition while I am in conditional status, or do I need to wait until I have permanent residency status?
During the two-year period of conditional residency, an individual has all the rights and responsibilities of a lawful permanent resident, including the ability to file immigrant petitions for qualifying family members. Qualifying family members would include spouses or children (under 21 years of age) of the conditional resident or unmarried sons or daughters or the conditional resident. If the conditional resident fails to file a petition to remove the conditions, or if the petition to remove the conditions is denied, any permanent residency petitions for eligible beneficiaries sponsored by the conditional resident would be invalidated.
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