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.
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Q - I have recently graduated with a Master's degree from a reputable U.S. university in December 2008. I am currently working full-time under the work authorization granted by my F-1 optional practical training, which started on Jan 5, 2009 and ends on Jan 4, 2010. I am in the negotiation process with my employer regarding the possibility of them sponsoring my H-1b work visa (they have never done it before). One of the questions they raised is that once an employer terminates employment with an employee under H1b visa, the employee only has 10 days to find another H1b sponsoring employer or he/she must be out of the country. My boss is not sure if this is in my best interest and she wants to know if they did sponsor my H1b and somehow things didn't work out, would I have the rest time of my OPT (if my H1b visa becomes valid on Oct 1 then I would still have about three-month's OPT unused) to fall back on so I wouldn't be constrained by the 10-day time frame to look for a job (which is considered mission impossible).
A - Two things. First, once you switch in to H-1B status, your F-1 status ends. So you won’t be able use your employment card anymore. You might be “portable”, however, which means that you would likely be able to switch employers quickly while you wait on your new approval. You should also know that there is no ten day grace period that allows you to remain legal if you are terminated before the end of your H-1B time. You do have the ability to remain legally in the US for ten days at the end of your H-1B stay, but that only applies when your I-94 expires. I would discuss these options, of course, with your immigration lawyer.
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Q - Hi. I would like to know how I would go about bringing criminal charges against a federal officer, (USCIS), that works overseas, (U.S. consulate in Ho Chi Minh City)? While I am aware that federal employees are immune to prosecution, that rule does not apply when there has been a violation of the U.S. constitution and a violation of oath to uphold the U.S. constitution. Hence, a double felony. Your help on this matter is greatly appreciated. Thank you in advance.
A - I would contact the Department of Homeland Security’s Office of Inspector General which is responsible for investigating misconduct by employees of the agency (and USCIS is under DHS). They may refer the matter for criminal prosecution if the facts warrant. You can find out more by going to http://www.dhs.gov/xoig/about/gc_1163703329805.shtm.
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Q - My current status in the US is H1-B. I am employed full time for 40 hours per week. My employer is reducing the work week for the entire firm from 40 to 35 hours with a corresponding pay cut (about 12%). This change is planned to be only temporary for 2 months starting on February 1st.
How does this affect my H1-B status?
A - You will likely need to amend your H-1B petition to reflect the change in hours. If you do that, I don’t think you would have further problems assuming your salary remains the same on an hourly basis. But your immigration lawyer will be able to do the checking to make sure there are no issues with payment of the prevailing or actual wage.
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Q - Can the priority date from a previously approved I-40 petition be used on the I-130 that was submitted by beneficiary of the I-140 after becoming a permanent resident? The derivative beneficiary could immigrate because she turned 21 before she could immigrate.
A - The answer to your question is no and yes. You cannot transfer the I-140 priority date to the new I-130. However, under the Child Status Protection Act, you may be able to apply under the F2A preference category using the original I-140 petition, which the CSPA states may automatically convert into an F2A I-130 petition.
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Q - I am a 21 year old single mom and my 5 year. old daughter is a U.S Citizen. I am currently here in the U.S with a tourist visa. I want to ask if she can petition me to be a permanent resident here because I heard she can, because she is still dependent and the mother should take care of her.
A - Though your daughter is a citizen by virtue of her birth in the US, she is not permitted to petition for you until she is 21 years old. You would not be entitled to stay because you are taking care of her. If you are not qualified to remain in the US through some other avenue and you don’t want to violate US law by remaining in the US illegally, your choice would be to take your daughter abroad with you or arranging for your daughter to be cared for by someone in the US while you are abroad. Assuming you choose the former (as most people do), then your daughter could come back to the US later. Her citizenship is permanent and a long absence from the US won’t matter.
