If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q - I was given 6 months allowable period to stay in US by the immigration officer upon entry on a B2 visa and it will expire on December 24th. I am applying for an extension to stay for another three months to spend Christmas and New Year here with family friends and to visit some more places in the US so I requested for 3 more months extension. If the application is denied and am I in danger of being subjected to the reentry bar if my I-94 has been expired? What will happen to my current multiple entry visa?

A - The reentry bars kick in if you overstay by six months or longer and that should count from the day the extension is denied. A consular officer or border officer can always give you a hard time if you have overstayed so if you are denied on the extension, you should try and leave immediately. Also, you might want to ask for less than three months. You should generally only ask for the amount of time you genuinely need. Long requests are often viewed suspiciously by USCIS and consular officers.

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Q - I know there are travel restrictions but does asylee status prevent the asylee from contacting his home country - by phone, e-mail, or mail, for example?

A - No, just physical travel is problematic. The other things you mention are fine.

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Q - My sister came here through H-1B. She already passed the board of pharmacy here and her employer is sponsoring her for permanent residency. My sister has a petition through our parents prior to coming here. Will the filing affect her getting permanent residency through employment? I know petition through employment has a shorter waiting period than through families. If ever can my parents withdraw their petition to her?

A - No. The family petition will normally have no bearing on getting permanent residency via employment and it is not unusual for a person to have a family petition and an employment-based petition pending at the same time.

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Q - My F-1 visa is going to be expired in March 2007 and I am planning to obtain H-1 visa after my optional practical training. I know an expired F-1 visa is legally no problem to have OPT opportunity, but my question is whether the expired F-1 visa does negatively affect to obtain H-1 visa and a green card in the future. Could you please advise me? Thank you very much.

A - An expired visa is not a problem as long as you have been maintaining your valid status. Changing to H-1B and green card status will be possible assuming that is the case. Visas are only required for actually entering the US and in a student’s case, the I-20 and employment card validity dates determine legal status. As long as one has maintained status, having an expired visa stamp won’t impact a change to another non-immigrant category.

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Q - I am citizen of India and I am mechanical engineer. My employer is a manufacturing company has HQ in State A and a branch office in State B. I was working in the branch office since 2003. My employer filed labor certification in State B and it was approved in 2005. The prevailing wage in the LC is 65K. Then we filed I-140 (EB2) and 485 in 2005. My I-140 was approved and the I-485 was pending more than 18 months. Four months back, my employer asked me to relocate to State A as they were expecting a big project to be completed at HQ. Also, they increased my salary from 65K (in State B) to 85K in State due to cost of living difference. My legal counsel treated my employment relocation to State A as an AC21 job change, as my LC was filed in State B, (though I was still working for same employer). My legal counsel has informed the USCIS about my employment relocation and new salary.

Unfortunately, the new project got cancelled and my employer laid me off without notice. It was a big shock for me in new location. I was unemployed for a month. I was scared and tried to find a same or similar job quickly. Luckily I got a similar job offer in my mechanical engineering field (same title). However, the salary was less than my previous salary. The salary that I will get is 70K compare to my previous salary of 85K. However, it is more than prevailing wage of 65K. It is difficult for me to find higher salary in my field as most of the job opening in my field requires “ US person status - citizenship or LPR for export licenses”, as I am specialized in aerospace materials. In this situation, can I accept this job offer with less salary? Am I required to inform USCIS again about my job change? My 6 years H1B term has expired and I am in EAD. Please advise me.

A - Fortunately, salary should not matter in a portability case. But note the issue of whether a major salary difference could indicate the jobs are not "same or similar." The relevant USCIS guidance on this (from the Aytes December 2005 memorandum) states the following:

"Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?

Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”