James A. Bach’s Answers

James A. Bach

San Francisco Immigration Attorney.

Contributor Level 8
  1. H1B Petition was approved in Oct '12 for 3 Yr. outside USA and never used/Stamped but came to US on F1 visa. What option I have.

    Answered over 1 year ago.

    1. James A. Bach
    2. Shahpour Meir Matloob
    3. F. J. Capriotti III
    4. Jose Antonio Moreno
    4 lawyer answers

    I disagree with both of my colleagues. You have been counted against the H-1B quota, and therefore are cap-exempt.

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  2. US Green Card EB1 Category - International Manager

    Answered over 1 year ago.

    1. James A. Bach
    2. F. J. Capriotti III
    3. Kevin Lawrence Dixler
    3 lawyer answers

    EB-1 eligibility depends on work in a managerial or executive capacity outside of the US for at least one year in the three years preceding your entry into the US in a nonimmigrant status. That nonimmigrant status does not have to be L-1 status. It appears that you meet the essential requirements, but success will depend on the exact circumstances of your employment, including the nature of your managerial duties. A question in my mind, and probably that of the immigration examiner as well,...

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  3. At what point would US immigration allow F-1 student's marriage allowable?

    Answered over 2 years ago.

    1. James A. Bach
    2. J Charles Ferrari
    3. Robert West
    4. Rostyslav Saciuk
    5. F. J. Capriotti III
    5 lawyer answers

    I don't see that as a desparate act, but a wonderful move to move your life forward. I assume your boyfriend is a U.S. citizen. The USCIS will look at whether it is a real relationship, and whether you are commited to a permanent life together, and the timing in this case should not be an issue. I would suggest that you marry and file your application within the period of your F-1 status (that is, before 60 days have passed after your OPT expires) so you maintain continuously a legal status....

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  4. I am called for an AOS interview. I may be out of status. please see the details below

    Answered almost 2 years ago.

    1. J Charles Ferrari
    2. James A. Bach
    3. Luis Alberto Guerra
    4. Robert West
    4 lawyer answers

    It might be that simple, but few attorneys would venture such an opinion on this site. That is because, despite all disclaimers, you could blame the attorney if the opinion turned out to be wrong, and you ended up stuck outside of the U.S. I suggest hiring an experienced immigration lawyer to review all of the relevant facts and documents, and then getting a second opinion in writing.

    4 lawyers agreed with this answer

  5. Marriage after working illegally

    Answered over 2 years ago.

    1. James A. Bach
    2. Jeffrey Adam Devore
    3. Katie D.T. Sanders
    4. Richard Stephan Kolomejec
    4 lawyer answers

    The unauthorized employment is not a problem, but you could have a problem if there was a misrepresentation to gain entry into the U.S. See my article, "A Lie Can Exclude You From the U.S. Forever", on our website at http://www.immilaw.com/Newsletters/2007%20January%20Lies%20and%20Waivers.htm.

    4 lawyers agreed with this answer

  6. Will I be forced out of the country when I apply for green card/residency?

    Answered over 2 years ago.

    1. Robert West
    2. James A. Bach
    3. Christian Schmidt
    4. Parastoo Golesorkhi-Zahedi
    4 lawyer answers

    The USCIS recently confirmed that it will implement its new program to adjudicate waivers of inadmissibility in circumstances such as yours by the end of the year. Generally, the requirements of this new program are as follows: 1. You are no inadmissible on any other basis (e.g., no criminal convictions, and only the one illegal entry into the U.S.). 2. You are married to a U.S. citizen. 3. It would be an "extreme hardship" to your spouse if you were to return to Mexico. This is a...

    4 lawyers agreed with this answer

  7. My H1B petition is pending and I received an RFE. Am I eligible to file a new H1B with a different employer, cap is full?

    Answered almost 2 years ago.

    1. James A. Bach
    2. Gen Kimura
    3. Robert West
    4. F. J. Capriotti III
    4 lawyer answers

    I agree that the LCA cannot be corrected, and that you are not counted against the cap. There is probably not much you can do, but it would be a good idea to have another attorney review the entire petition. Perhaps there is a creative solution available. For example, although you cannot amend the LCA, you may be able to amend the petition to conform to the LCA (if the employer actually has a job opening available that fits the "wrong LCA"). Other than that, you may wish to consider a...

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  8. Can I change from F-1 to O-1 while in the U.S. despite not fulfilling 212(e) from my past J-1 visa?

    Answered almost 2 years ago.

    1. James A. Bach
    2. Giacomo Jacques Behar
    3. Vladimir Galstyan
    3 lawyer answers

    The answer is "no". There is a rule, 8 CFR 248.2(a)(4), that precludes those subject to the 2-year return requirement from changing status. You can, however, apply for the O-1 visa at a consulate abroad, and then return.

    3 lawyers agreed with this answer

    1 person marked this answer as helpful

  9. If a permanent resident petitions for citizenship, can she leave the country while the petition is pending?

    Answered over 2 years ago.

    1. James A. Bach
    2. Wells Ted Wakefield
    3. Luis Alberto Guerra
    4. Neil Ian Fleischer
    4 lawyer answers

    She is required to "reside continuously" in the U.S. from the date the naturalization application is filed until she becomes a U.S. citizen. However, continuous residence does not mean that she must be physically present in the U.S., and often our client travel abroad while their applications are pending. If she is absent from the U.S. for more than six months, she probably will not be able to naturalize, but a short trip should not be a problem. After she files her application, she will be...

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  10. My H1B stamp on my passport is still valid although I already moved back to my home country. Question is: can I use H1B visa for

    Answered over 1 year ago.

    1. James A. Bach
    2. Cynthia Beth Rosenberg
    3. Christian Schmidt
    3 lawyer answers

    You cannot use your H-1B visa for that purpose. Instead you should travel to the US as a visitor (using a B-2 visa or the Visa Waiver Program [ESTA]). Probably, the employer has already cancelled the H-1B visa. One possible outcome of using the H-1B visa is that you could be subject to "Expedited Removal" and barred from the US for five years. Even worse, if the immigration inspectors believe you have told them a lie (that you are still working for the H-1B employer) you could be barred...

    3 lawyers agreed with this answer

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