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James A. Bach
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James Bach’s Answers

48 total

  • Renewal of H1B that expired 2 years ago?

    My H1B expired in 2010. I've been working in India ever since for a different employer than the one who processed my Visa. Is it possible to renew my H1B now out of quota? For upto how many years can an old/expired H1B be renewed without having ...

    James’s Answer

    You may renew your H-1B visa out of quota if you have not yet used up the 6-year limit. This is called the "remainder option". For example, if you were in the U.S. for three years in H-1B status, you can get back into H-1B status for the remaining three years.

    It does not matter that the employer is different than your first H-1B sponsor.

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  • L1b and EB1C

    I am on L1B since 2010 Feb. If my employer can support following evidence then can I be filed under EB1 C. Please advise. 1. I was manager in Overseas Parent Company from Oct 2008- Jan 2010 before coming to US Child company in 2010 Feb. AND ...

    James’s Answer

    It is possible to present an EB-1C case for a future managerial position, but it is clearly better to start the managerial position before filing. It is a matter of credibility, that is, whether the speculative future job will actually happen. If your employer really wants you in the managerial role, it can promote you to that position before starting the green card case. You can petition to change your nonimmigrant status from L-1B to L-1A before the promotion.

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  • L1A and EB1

    Is there any minimum period a person should be in EB1 before he can even apply EB1 GC. Is there any advise like , start GC processing only after X number of months of L1A.

    James’s Answer

    There is no minimum period: you can start your EB-1 case before, during, or after the L-1A petition. However, the sponsoring company (the U.S. petitioner) must have done business in the U.S. for at least one year.

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  • 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?

    I am on OPT and my employer filed H1B but I received a complex RFE because wrong LCA was submitted. USCIS has desired to submit a new LCA approved *prior* to current filing date and documents to prove that position is a specialty occupation. Am I ...

    James’s Answer

    • Selected as best answer

    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 malpractice action against the attorney. That is a clear error, and your damages may be extensive. Of course, if your OPT expires after April 1, 2013, you may have another shot at H-1B. You should also consider a STEM OPT extension.

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  • Need information on green card processing under EB1

    I am staying in the US on L1A since 2005 and hit my 7 years in November 2012 . My I-94 expires in Jan-2015 while the visa is valid till Jan-2013. The petition is blanket with no expiry date. My company is applying for my green card now (under EB1...

    James’s Answer

    You can remain until you receive a decision on the I-485, and can work using your EAD (employment authorization document). There is no premium processing for transferring managers.

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  • H-1B portability - filed I-129 yesterday for an employee, do I need to wait for receipt number before letting them start work?

    The employee and situation meets all the criteria below excerpted from page 17 of the USCIS I-9 Handbook (http://www.uscis.gov/files/form/m-274.pdf) so it sounds to me like it's OK to have the employee begin work prior to receiving an official con...

    James’s Answer

    I agree with Mr. Dobson. The current I-9 Handbook that you quote (the 2011 edition) is changed from the 2009 edition, which mentioned the requirement of a receipt. The AC21 law itself only refers to filing the petition (and not receiving a receipt), and the USCIS has never issued a regulation to clarify the requirement. When the law was first passed over a decade ago, the USCIS (called the "INS" at the time) did issue informal guidance that suggested that the FedEx or other delivery confirmation was sufficient, but both the USCIS and the I-9 Handbook referred to a receipt in communications on the subject in the late 2000s. People who seek to follow the law, which refers only filing, cannot be expect to comply with an additional requirement (waiting for the receipt), that has not been clearly articulated by the government.

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

    I worked for company A from 2009 till 2010 Changed employer(B) got h1 approved with out I94( but have previous I94 valid till 2012 sep) My lawyer told me I am fine because I have a valid visa and valid I94 I can work for company B. Now couple d...

    James’s Answer

    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.

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  • Conversion to L1-A from L1-B - 6 months from L1-B maxout required?

    Hi, I'm currently in the US on an L1-B which expires on July 27th 2012 while my I-94 is applicable till October 31st, 2012. My maxout of 5 years on L1-B occurs on Dec 21st 2012. I had file for a conversion to L1-A petition and am in an executive/...

    James’s Answer

    Actually, there is a regulation that provides that you must have been employed in the executive/managerial position for at least 6 months to be eligible to extend your stay to 7 years. This regulation also provides that the change to the executive/managerial capacity must have been approved by the USCIS "at the time that the change occurred".

    Since you will have 6 months in the new position on November 1, you should be able extend to 7 years without leaving the U.S. I would handle this case with two petitions. The first should be filed right away, to obtain approval for the change. It is not exactly "at the time that the change occured, but may be close enough. You could then file a second petition to extend your status in November.

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  • Options for employment visa given I am outside of the US and want to start work during 2012

    Hi, I am trying to understand my options for employment in the US now that there is no h1b cap left for a start date in 2012. I am from Argentina, have a Master's from a US university in Computer Science. Got h1b visa on March '03, and remaine...

    James’s Answer

    1. That is called the "remainder" option, and USCIS policy allows you to obtain an H-1B visa immediately (i.e., not subject to the quota). There is no time limit for using the remainder option.

    2. You could apply for you green card after beginning your employment in H-1B status.

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  • How to find list of active EB-5 regional center projects

    I would like to find a source that lists Regional Center projects that are open to investors. I know many web sites give information on Regional Centers, but usually all they do is give name and address, and description of past projects. Where can...

    James’s Answer

    Most immigration attorneys will not recommend Regional Centers, but often can help find independent companies that can evaluate the Regional Centers for you.

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