World Journal Weekly Q & A - June 13, 2010

Q & A 1. 2.


Q&A 1.

Can Reader Get Credit for One Year Four Months of 6 Year Maximum Time in H-1B Status That Reader Was in China?

Deng reader asks:

I came to U.S. under H1-B work visa.  My 1st employer’s H1-B valid period was from 6/3/2004 to 3/30/2007 and the 2nd employer’s H1-B valid period was from 6/12/2007 to 3/25/2010.  Between 7/18/2005 to 11/20/2006, I was in China for 1 year and 4 months.

My current H1-B visa has already expired on 3/25/2010.  But I heard the 1 year and 4 months that I was in China should be deducted from my total period, which means I could stay in the U.S. for another 1 year and 4 months.  Is it true?

Dear reader:

You are allowed to deduct from the 6 year maximum period of time in H-1B status any time that you have spent outside the United States.  You will have to present evidence that you were not in the United States for the one year and four months, but upon such a showing, you would be allowed another year and four months of H-1B stay.  I note that continued stay past the sixth year limit is allowed where an individual has had a labor certification application pending 365 days or the I-140 immigrant visa petition is approved and there is no current visa availability to file for adjustment of status to permanent residence (I-485). 

Q&A 2.

With Case on Appeal to BIA, What Can Reader Do If His Employer Closes The Restaurant?

Hu reader asks:

I applied for employment base immigrant visa as a cook.  Unfortunately, I did not pass my interview.  In 1/2009, I filed appeal papers to the Board of Immigration Appeals.  But as of today, I have not heard from BIA.  I checked on-line, but only knew that my case has only completed two parts and do not know when I will receive a decision?  My boss wants to sell the restaurant at this time.  What should I do if I lost my job?  What will happen to my appeal?  What should I do in the future?

Dear reader:

If you have an appeal for adjustment of status to permanent residence and the adjustment is based upon a labor certification that you obtained as a cook with your present restaurant, the fate of your argument for adjustment of status may very well depend upon your ability to port your I-140 petition to same or similar employment.  Under the American Competitiveness in the 21st Century Act, individuals who have I-140 immigrant visa approvals and whose I-485 applications for adjustment of status have been pending at least 180 days are allowed to port the I-140 to employment which is in the same or in a similar occupation.  Such request for porting is normally made to the U.S.C.I.S. Service Center which is presently holding the I-485 application.  As I assume that you have appealed an I-485 denial to the Board of Immigration Appeals, the I-485 should be considered pending until the BIA makes a decision.  Since no Service Center is presently holding the I-485 application, I suggest that you send the porting papers to the Service Center which is indicated on your I-485 receipt.  In this way, the basis of your adjustment of status application might be preserved so that you can continue to contest the merits of the adjustment of status denial itself.  Porting is usually done through the applicant's letter requesting that the case be ported to same or similar employment and with an original letter on your new employer's letterhead outlining your employment or offer of employment containing a detailed description of the offered position, duties, remuneration and prospects for continued employment.

 

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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.