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James A. Bach
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James Bach’s Answers

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  • I have L2 EAD valid upto Aug 2012 my visa will expire on oct 2012 and I 94 in march 2013, will I get L2 EAd Extension Approval?

    If approved than is it upto oct 2012 or march 2013

    James’s Answer

    You should get the extended EAD to March 2013. The visa is only an entry document and does not govern the length of your stay in the U.S. The I-94 does that, and the EAD can be issued for the time left on the I-94.

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  • My husband has a green card and he doesnt want to get citizen and give me the green card? What i should do?

    i have been married for 2 years. My husband has a green card and he doesnt want to get citizen and give me the green card, He is using agains to me. I have been waiting 3 years. I cant work , I cant do anything, I dont want to go back my home and ...

    James’s Answer

    "VAWA" is the "Violence Against Women Act" and it applies to spouses who have been "battered or . . . the subject of extreme cruelty". Extreme cruelty might include verbal and psychological abuse, as well as physical abuse. One of the most important provisions in VAWA gives immigration status to spouses of U.S. citizens and green card holders who have been abused by their spouses, even if the spouse will not cooperate and even if the marriage has fallen apart. VAWA also provides a defense to deportation ("Cancellation of Removal") if you have lived in the U.S. for at least three years and you can demonstrate that your removal from the U.S. would result in an extreme hardship to you. Cancellation of Removal also leads to a green card. There are other benefits of VAWA as well. However, all of the benefits depend on demonstrating that you or a child has been battered or subjected to "extreme cruelty."

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  • Marriage after working illegally

    I've been admitted to the US on TN-1 visas as a management consultant for over five years but actually working as a waiter (and paying taxes as a waiter). I'm currently in the US on a B2 and still working. My American girlfriend and I want to marr...

    James’s Answer

    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.

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  • OPT change to J1, but lay off before J1 effective date

    If the student has an approved J1 petition and change of status, but is laid off/terminated by the J1 employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?...

    James’s Answer

    It depends on the change of status approval notice. If the change date has not yet arrived, you can take steps to prevent the change from occuring.

    However, if you are already in J-1 status, you may not be able to change back to F-1 (and OPT). I have never heard of this situation (in over 30 years of handling such cases!). That is something your attorney should research; perhaps a persuasive argument for changing back can be made.

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  • Please tell me the procedure for me to legally stay in US while H1B pending from J1.

    Hi , I am currently a J1 intern until May 14,2012. My employer is filing a H1B on April 1, 2012. I understand that I can legally stay in the US without working until I receive the result of H1B petition, but I do not know if there is any thing I h...

    James’s Answer

    I would also question your understanding that you can legally stay in the U.S. until the H-1B start date of October 1. There is no "gap cap" protection for those in J-1 status as there is for students in F-1 status (see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7f1a046c43360210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD).

    There may be a way to remain in the U.S. until October 1 (when you will be able to begin your employment). You should consult with the attorney handling the H-1B petition on this matter.

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  • I am irish national wishing to travel to the US for business within a company what are my entitlement to a visa in immigration?

    I have been decilined B1/B2 business/Personal visa on the grounds that I do not hold a permanent poition within my company as I am on contract. My company is based in ireland and has a sister company in the US that I was planning to travel to for ...

    James’s Answer

    I disagree with my colleague who believes that work as an employee rather than as an independent contractor is normally required for an L-1 visa. Actually, it is settled law that it is never required. Work as an independent contractor is sufficient if it has all of the attributes of employment (for example, it is full-time, there is only one company you work for, and that company controls and directs your work).

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

    I entered the country illegally at the age of four, my mother siblings and I were in danger living in Mexico. I married a US citizen seven years ago and now have two children with him. I'm afraid of applying for green card because I do not want to...

    James’s Answer

    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 very rough summary of the requirements, tailored to your situation and based on the limited information provided. You should discuss your case with an experience immigration attorney. If your application is approved, you would only have to go to Mexico for a week or so, to undergo a medical exam, attend an interview, and pick up your immigrant visa.

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  • My lawyer did not hit the send button on green card application for employee

    I have key employee on h1b. Did all processes necessary to apply for green card one year ago. Today instead of hearing good news, lawyer informs me she made a mistake and did not correctly hit the send button so application never filed. What can...

    James’s Answer

    • Selected as best answer

    Since you mention a "send button", I am assuming that the green card process was a labor certification. If so, the recruitment you conducted has all expired, and you will need to start the entire case from the beginning.

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  • H1B EMPLOYEE ON BENCH NO SALARY

    Dear Sir/ Madam, My employer is in Chicago and I worked in California for 4 months during my OPT. My employer later filed for my h1 and it got approved on November 2011 but I lost my job in October 2011 and my OPT was also over. I have been on b...

    James’s Answer

    Your employer has violated Department of Labor rules by failing to pay you while you are in H-1B status, and you can claim back wages from your employer. If your employer refuses to pay, the Wage and Hour Division of the Department of Labor can assist in securing those back wages.

    I agree that you should hire an attorney to assist you in this matter. The attorney could make the claim to your employer to secure a recent paycheck, which in turn would help you change your status to F-1.

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  • W2 and Form 1099 from two H1-B employers.

    I was employed on H1-B (valid until 2014) with company A (not a client side type job). Now I got an offer from company B (not a client side job) and they did my H1-B (also valid until 2014). I just started working with company B. Now,Company A wa...

    James’s Answer

    H-1B status requires employment, and it is a violation of your H-1B status if you work as an independent contractor. Also, your employer (Company A) would be in violation of its Labor Condition Application (LCA) obligations if it does not pay you on a regular payroll (and can be penalized by the Wage and Hour Division of the Dept. of Labor).

    You can work for two employers at the same time, as long as you have an approved H-1B petition for each (or have an AC21 right to work), and are an employee of each. So if Company A can keep you on the payroll, and treat you as an employee, you can continue to work for them until they can find a replacement.

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