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Stuart Jonas Reich
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Stuart Reich’s Answers

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  • Can I stay after 5 years on L1B if I have valid I-140 or I need to go back to my country ?

    Hi, I am on L1B and my company has applied for Green card. On L1B, I can stay in USA for 5years at max. Thanks, Arjun

    Stuart’s Answer

    I agree with my colleagues.

    The I-140 does not in itself provide a valid legal status allowing you to remain in the US - only the I-485 provides any protection in this regard. And unless there are immigrant visas immediately available for you - your priority date is current for your preference classification - you can't file the I-485 and obtain this protection.

    You would need to either explore other nonimmigrant visa options for when the L-1B expires or depart.

    Consult an attorney for further guidance.

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  • Is it still okay to travel out of the country and use my extended sticker on my green card even though I received an RFE?

    I applied for a green card renewal on November 2015 and it is still in the process even up to this day. During biometrics, they gave me an extension sticker on the back of my expired green card and that sticker is still valid until August of this ...

    Stuart’s Answer

    It's still OK to travel during the RFE period - as long as the I-90 is still pending, this isn't an issue.

    the only concern is that you've already responded to the Request for Evidence and so processing would have resumed; were they to determine the case while you were abroad and deny it, you may have an issue returning.

    I think you should review your situation - including the Request for Evidence and the response you sent - with an attorney before doing anything further.

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  • How long will process take for I-130 and I-485 ? Should i apply for OPT extension or I-130 form or both? Please advise.

    I came to USA in 2011 in F-1 visa. Now i am in OPT. My sister is US citizen. i would like to apply for green card via the Petition for Alien relatives. Also its time for extension of my OPT. if i apply for Extension, it will get approved for ne...

    Stuart’s Answer

    You would want to speak with an attorney before pursuing this.

    There is an extremely long wait for visa availability in the Family 4th preference category (siblings of citizens). you couldn't file the I-485 until the category is current for your priority date, and may have trouble reentering on an F-1 or other strict nonimmigrant intent visa once this is filed.

    May not be the best option. speak with an attorney.

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  • Will I get 3 more years extension from my H-1B transfer to new employer based on approved I-140 of current employer?

    I have an approved I-140 from current employer. My H-1B is valid for 1 more year until June2017. I got an offer from new employer who is willing to transfer my H-1B and file for Green card after 6 months from joining date.

    Stuart’s Answer

    • Selected as best answer

    I agree with my colleague - your primary source of information here should be the new employer's attorney responsible for filing the petition.

    generally speaking, with an approved I-140 and a priority date that is not yet current, you can apply for a period of up to three years after the end of your initial six years of H-1B status. but, you can't get longer than three years in a single approval - if you have one more year in the initial six year period, plus any "recapture" time (time spent abroad during the initials ix years that can be "recaptured" and added to the end of the initial calendar six years), you would exhaust this before gaining any post-sixth-year extensions time.

    Your new approval wouldn't be for more than three years no matter what.

    Speak with the new company attorney.

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  • Can I apply for H4 EAD with I-539 receipt number?

    Hello, My Wife's H1B expired this week and we have applied for H4 COS (i-539) 2 months ago and got receipt notice. The status is still showing received. I was wondering if we can apply for H4 EAD with the I-539 receipt number. Do we get approval ...

    Stuart’s Answer

    Yes, you can file for the EAD while the H-4 change of status is still pending (supply a copy of the Receipt).

    It may not ultimately move any faster this way, however.

    Speak with an attorney for further guidance.

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  • Can an employer refuse to sponsor a transfer of an H-1b visa legally? If yes then is discrimination limited to "on paper" only?

    I received an offer letter from a County through a competitive interview scoring process and now I am requesting them to file my H-1b transfer but they are not willing to incur the cost of the H-1b. Is this legal? According to form I-9, the empl...

    Stuart’s Answer

    If you had some valid form of employment authorization already (post-graduation OPT, a green card, etc.) that didn't require sponsorship, the employer can't refuse to accept it - this would be discriminatory.

    But, the employer isn't required to affirmatively sponsor you for anything - as they would need to do to move your H-1B from your current employer to them.

    It's a little unfortunate this didn't come up earlier in the hiring process - an employer is permitted to ask "are you eligible to accept employment" and "will you now or in the future require sponsorship to accept employment" before hire. this usually brings up the issue/need for sponsorship/employers [un]willingness to sponsor before the point of offer letter where everyone has already wasted time on the process.

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  • Can I apply my wife's H-4 in October or I can basically do it anytime before her EAD expires? What happens if my H1B is pending

    I am currently on H1-B (expiring September 2016) and my wife is on 17 STEM-OPT (EAD expiring October 2016). We both are from Nepal. My employer has initiated the H1B renewal process as well as they are planning to file my I-140 as well by June 201...

    Stuart’s Answer

    As my colleague notes, you really need to speak with an attorney directly due to the complexity of the multiple issues here.

    This will all come down to timing - you're right that switching to H-4 would invalidate the STEM OPT which is dependent on F-1 status. the TPS EAD is an option if it comes through in time - but the time frames need to be analyzed.

    Your green card preference classification and the movement of immigrant visa availability also come into this. If your priority date is current in your category and you both otherwise qualify (maintenance of status to date), you can both file adjustment of status cases concurrent with the I-140 and ask along with these for employment and travel authorization - this too may come through in time to solve the problem.

    If priority dates in your category aren't current at time of I-140 filing, it may be work premium processing the I-140 so that your wife is eligible to file an H-4 spousal EAD application (requiring H-4 status and that an I-140 be approved for the H-1B spouse with a priority date not yet current).

    there are many interlocking possibilities here; you need to talk them through and work out timing with an attorney.

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  • Can a permanent resident parent apply for her adult son's green card while he lives in U.S?

    If adult son lives in U.S. as a worker or student and permanent resident parent applies for his green card, can that be processed as he continues his studies or work for U.S. employer? What will be his status under those circumstances? Will it con...

    Stuart’s Answer

    Yes, it can be processed while the son remains in the US - but to change to a green card while here when the time comes the son must have been maintaining valid immigration status the entire time he is living here - student visas, employment visas, etc.

    If there is a lapse in status the son may find himself in a position where they would otherwise be eligible for the green card based on the mother's sponsorship but can't process in the US, and leaving to process abroad may subject him to a long (three or ten-year) bar to coming back.

    the mother ans son should consult an immigration attorney before beginning the process.

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  • Can my fiancee go to US using her tourist visa even if She have a pending K1 Fiance visa petition

    I have fiance in the Philippines. I filed a K1 Fiance visa and stiill pending. My fiance has a 10 year tourist visa.

    Stuart’s Answer

    There is no strict legal prohibition on this - in theory, it's possible.

    But in reality, it would be very difficult to prove the required "non-immigrant intent" -the intent to be here only temporarily and then to return to a home and life abroad - once a fiance visa has been requested. Your fiance can try bringing evidence of a home to return to, job to return to, assets still over there, etc. - but there is still a risk of being turned around and sent back after a very long and expensive flight and some uncomfortable questioning.

    Theoretically possible, but not advisable.

    speak with an attorney for further guidance

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  • The entry permit

    I am green card holder. I am in USA. My fingure prints are done. But my re entry book is pending. Is it advisable to leave Usa at this time or should I wait for the re entry permit.

    Stuart’s Answer

    I agree with my colleagues that you can travel once the biometrics are completed -but give some thought to how the forms were completed in terms of where the approved document was to be sent.

    If it was to be sent to the US home address, you have to have a system in place for the mail to be checked and the reentry permit, once received, to be forwarded to you abroad.

    If you requested that the reentry permit be sent to the consulate abroad nearest where you will be, you need to check the consular web site - often they will publish lists of case numbers for which they have received approved reentry permits and instructions for making an appointment to pick up the permit.

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