Immigration: EB I-140 based H1 extensions

Question: I have an approved I-140 by employer-A. I want to switch my job. When can I safely switch.?

 If H1-B premium processing is available, you can switch even when you have less than 6 months available. Say, you are switching job to employer-B, and you just have less than 1 year left on your H1b. When employeer-B applies for your H1-b you can get full 3 year extension unless the petition is filed by an employer who is not a direct client.

Question: I have an approved I-140. I am getting promoted? will this impact my I-140

Your H1B extension on your approved I-140 should have no impact. Most of your roles remain the same. Ensure you provide most of your job duties from your previous H1B/H1B extension and add new additional roles.

Now for your I-140, as per my attorney, a promotion to a more senior position shouldn't be an issue if your 50% of job duties remain the same 
An increase in salary is not an issue but it must not be less than the salary provided in your Perm and Perm wage determination certificate
A relocation to a different state or city far away from the region of your SOS in perm can have an impact on your I-140


Promotion to the Manager role will have a 100% impact on your I-485 but not on your H1-B. If your priority date is closer and you want to use your existing I-140 for filing I-485, then I would refrain from such a promotion. Believe me, you will not be alone. Many including me have done such sacrifices for securing GC. It's a question of whether you want a GC or a promotion that impacts I-140 and how far are you from the filing date.

But if your priority date is further than 1 year then you can restart your perm process from scratch as a manager and you will get your old priority date. It's from scratch, so it will take a good one year. 

Question: I have an approved I-140 by employer-A. I am currently working for employer-B who hasn’t processed by perm. Can I switch my job to employer-C?

Yes, you can switch job to employer-c based on approved I -140 of employer-A

Information: I-140 based H-1B Extension that is granted beyond  Six Years will not be granted if Priority Date is Current and Green Card is Not Applied for Within One Year

http://blog.cyrusmehta.com/2022/05/h-1b-extension-beyond-six-years-will-not-be-granted-if-priority-date-is-current-and-green-card-is-not-applied-for-within-one-year.html

Immigration: B2 based visitor visa related questions

Question: Is it safe to wait for a B2 visa extension beyond the I-94 expiry date.

Attorneys recommend making the necessary arrangements and leaving the country before the I-94 expiry if your extension approval has not arrived before the I-94 expiry. You can continue to stay only if your extension is been approved before the I-94 expiry. If you decide to wait for your extension beyond the I-94 expiry, and if your extension gets denied, your stay will be considered illegal from the I-94 expiry date, the moment the decision is made to deny extension. You will be subject to INA222(g) visa overstays, which will automatically result in your multi-entry visa being approved for many more years in the future, also getting void. You will have no other way but to reapply for the visa all over again as well. There are posts in SOS Global Facebook groups where such reapplication of visas is also getting denied.

Here is the rule mentioned https://fam.state.gov/fam/09FAM/09FAM030201.html 
Search for 9 FAM 302.1-9  (U) APPLICANTS SUBJECT TO INA 222(G) in the link provided above.
It says INA 222(g) renders void the visas of nonimmigrants who remain in the United States "beyond the period of stay authorized by the Secretary of Homeland Security.” 

Also see, 9 FAM 302.1-9(B)(6)  (U) Summary of INA 222(g) Scenarios, in the link provided above,
They have clearly provided all the scenarios that will be subject to and the ones that will be not subject to.

Unfortunately, Applicant admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is denied is Subject to INA 222(g)
So their previously approved multi-entry visa, which was approved for many more years in the future (for 10 years from the date of approval) will now stand void.

So, if the application for extension is denied after the previously approved stay based on I-94 has expired (even if the extension application was filed on time), the applicant will be considered “out of status” as of the date the original period of stay expired as indicated on the I-94 record. The applicant should depart the United States immediately so as to avoid accumulating excessive unlawful stay and/or presence. Also, any nonimmigrant visa [B-1 visa] in the passport granted in connection with the classification becomes void. Once the visa is void, a new visa application must be submitted at a U.S. consulate in the home country.

Question: B2 visitors applied for visa extension in timely manner, had biometric completed  (or biometric is still pending)  waiting for the approval. I-94 expiry date is approaching. Can I remain in US beyond expiry date until I receive the final decision.

The recommendation is to make travel arrangements before I-94 expiry and wait for the final response. If the final decision is approved, then postpone your travel. But if the extension is not approved before the I-94 expiry date, then leave the country unless the extension was for medical emergencies or emergencies that makes it not possible or difficult to leave the country. See the answer for my next question on the reasoning for this recommendations. 

Question: B2 visitors applied for visa extension in timely manner and stayed beyond the I-94 expiry date, but left before the final decision was received. As per the final decision, the extension was rejected.

Rejected extension can automatically result in visa revocation if 

1) it’s subject to INA 222 G

2) the officer reviewing extension decides to revoke visa even if it’s not subject to INA 222 G

In this case it’s not subject to INA 222 G. So, this will not result in automatic visa revocation.

Though there were exceptions during Covid times (2020-early 2021), visitors who overstayed after I-94 expiry inspite of applying extension in timely manner and leaving US before extension rejection had their visa revoked by the extension reviewing officer or the CBP officer at port of entry during their next arrival. It all depends on the officer.

Question: Is it safe to stay until the I-94 expiry date as my B2 visa expires before the I-94 expiry date.

The visa is only for your entry and the date of your visa expiry doesn't have an impact on your departure. The departure date is defined by the I-94 date that is authorized by Homeland Security. You can stay until the I-94 expiry. However, you will not be able to apply for an extension as the visa is expired.  Also traveling back via European countries requires a valid US visa for transit unless you have a separate European Schengen/Transit visa to transit from these countries.

Question: when can I apply for B2 visa extension beyond the I-94 expiry date.

The recommendation is 45 days before I-94 expiry date but can be applied anytime before I-94 expiry date if you have valid reasons like medical emergency etc

 Call CBP number 1-877-227-5511  with passport and visa info to confirm the status of visa.

You can also check DS-160 confirmation 

You need to enter ds160 number https://ceac.state.gov/CEACStatTracker/Status.aspx?App=NIV

last updated date will be changed when your visa is revoked and status will be empty or revoked.

Note: This is for those who applied their visa after certain year(please confirm the year online)

You can also email ustraveldocs.com with visa & passport info for them to answer my query.

Immigration: EB based I-485 questions

Impact on the retrogression of final action dates:

Question: The dates have retrogressed. But I have appeared for the interview before retrogression. Will the retrogression impact my GC?

Unfortunately, it doesn’t matter. If the priority date of your I-485, adjustment of status application is retrogressed and if, at the time of adjudication, an applicant’s priority date no longer meets the cut-off date published in the Visa Bulletin, due to retrogression, his or her case will be held until the date becomes current again. Employment-based visa-retrogressed cases are held at the Texas Service Center (TSC) upon completion of any required interview and other processing steps.

Check How USCIS Processes Retrogressed Visas Cases under section https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression

Question: The dates have retrogressed. But I have submitted RFE and the applications have reached USCIS before retrogression. Will the retrogression impact my GC?

It doesn’t matter. If the dates retrogress after you submitted your I-485, no matter what stage of I-485 you are in, if the decision was not made before the dates were retrogressed, your I-485 will still be archived until the dates become current again. If your interview was not done, your case will be held at the USCIS Service Center where you initially filed your application.

Check How USCIS Processes Retrogressed Visas Cases under section  https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression

Question: Should I be physically present in United States while filing I-485
Furthermore, you must be physically present in the United States to file this application. You may apply as the person who directly qualifies for an immigrant category (“principal applicant”) or, in some cases, as a family member of the principal applicant (“derivative applicant”).

Check this link: https://citizenpath.com/faq/eligibility-file-form-i-485-adjust-status

Immigration: Tips for avoiding RFEs for your I-485

Checklist of Required Initial Evidence for EB based Form I-485

To avoid any RFEs for I-485, Application to Register Permanent Residence or Adjust Status, make sure you have submitted all the mandatory

Should I submit sealed medical documents (I-693) along with my I-485?

USCIS sent a notification last year through twitter and their website to file I-693 along with I-485 to speed up process. The validity is also increased to 4 years temporarily. 

https://citizenpath.com/faq/evidence-birth-green-card/

1. If a birth certificate is not available:
As per USCIS, https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf : All Form I-485 applicants, except refugees and asylees, must submit a photocopy of their birth certificate issued by the appropriate civil authority from the country of birth. USCIS will only accept a long-form birth certificate which lists at least one parent.

If your birth certificate is unavailable or does not exist, you must prove its unavailability or nonexistence and provide acceptable alternative evidence of birth. You can look up your country of birth on the following website, travel.state.gov/content/ visas/english/fees/reciprocity-by-country.html, to see if birth certificates are known to be unavailable or nonexistent in that country.

If this resource shows that birth certificates from your country of birth are generally unavailable or nonexistent, you do not need to do anything to prove that your birth certificate is unavailable or nonexistent.

If this resource does not show that birth certificates from your country of birth are generally unavailable or nonexistent, you must submit an original document from the relevant governmental authority explaining why your birth record does not exist and indicate whether similar records for the time and place are available.

India issues birth certificates. So birth certificate is mandatory for Indian citizens. Immihelp has also provided very good details on what to do when your birth certificate is not available. 

https://www.immihelp.com/delayed-birth-registration-issues-for-us-greencard/

Birth certificate must be translated in English and must have following mandatory information:

1. Full name
2. Date of birth 
3. Place of birth 
4. At least one of the parents full name
5. Issuing Authority’s Government seal
6. Registration Date (Must be registered within one year)
7. Issue Date

2. If  a birth certificate is not registered within one year:
When a birth is registered after one year of your birth it's called Delayed registration of the Birth certificate.  Delayed birth certificates are not considered conclusive evidence of birth.  So, you will have to provide supplementary evidence of your birth to USCIS.

It is highly recommended to provide two affidavits to support your Delayed registered birth even if you provide other secondary evidences for birth certificate.

Here are some of the secondary evidence you can use for Birth certificate:
https://www.immihelp.com/second-evidence-birth-certificate-usa-greencard/

https://citizenpath.com/faq/evidence-birth-green-card

3. What if my birth certificate doesn't match the information provided in the passport or doesn't have all the required information
I can't comment on this accurately, but I read in some places that affidavits can be used to prove that the birth certificate has the right information. But unfortunately changing the place of birth on an Indian passport is not as easy as you may think. Many assume that it can be corrected in the passport by just reissuing a new passport by providing your birth certificate. But, you would need a court order issued by a judicial officer of the rank of 1st Class Magistrate in India and above. The easiest way is to correct your birth certificate and reissue the birth certificate based on your passport and 10th/12th Standard documents. 

Updates: I was updated recently that they were able to update the place of birth on the passport based on the place in the birth certificate. They got a letter from Indian consulate and they just reissued the passport. But the place was in same Taluk ( the place in passport was place of home while the birth certificate had place of hospital) so, it may depend on specific case.

Refer to below links for more information

1. https://www.path2usa.com/change-of-date-andor-place-of-birth-in-indian-passport
2. https://www.avvo.com/legal-answers/mismatch-in-place-of-birth-between-home-country-pa-2381971.html
3. https://www.path2usa.com/us-birth-certificate
   

Sample Documents:
https://www.immihelp.com/sample-documents-for-birth-certificate-us-immigration/

My birth certificate was not available and I used the information in #1 to issue my birth certificate. For secondary evidence, I produced two affidavits (Using  #2), one by my mother and the second by my paternal uncle (mother's brother). The affidavits were on stamp papers and sworn in front of an attorney and were notorized by the same attorney.

Other references:

1. https://www.uscis.gov/i-485Checklist
2. https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-4
3. https://www.uscis.gov/green-card/green-card-processes-and-procedures/finding-a-medical-doctor
4. https://www.path2usa.com/us-birth-certificate#rectifyincorrectbirthcertificate
5. https://www.uscis.gov/policy-manual/volume-7-part-e-chapter-5