Published on Lawyers.com and the Epoch Times on November 11, 2016
Q & A.
I-797 Consulate Different Than Home Country
I am a citizen of India. I got my H1-B approval from company A and got my visa stamped in 2014. However, I changed my employer to Company B in Oct 2015 but never got the visa stamping done as per new i-797 issued by company B, marked to US consulate in South Africa, where I was working when the I-797 was issued. Now I am working in US and have to go back for fresh stamping according to my new I-797 as per the Immigration officer at the port of entry. Question: Can i get my visa interview scheduled in India even if my I-797 is marked to US consulate in South Africa?
Mr. Lee answers:
As you are a citizen of India, you should be able to have your visa interview scheduled in India even if your I-797 was marked to the US Consulate in South Africa. I note that as opposed to the advice that you received from the immigration officer at the port of entry, it is generally recognized that an individual can use a prior company's H-1B visa to enter the US as long as he or she bears the original I-797 approval form from the second company.
Petition for Relative - Sister
My sister petitioned for me (I-130) my application was sent to California Service Center, they are processing applications from 2011, Texas and Potomac Service Center are processing applications from this year. I'm wondering why my application was sent to California, what's even more confusing is that my sister lives in Texas.
Mr. Lee answers:
This is a trend with U.S.C.I.S. to ship cases across the country for adjudication. That is because the agency is one with limited resources, and so wishes to be smart in distributing its workload among its service centers and field offices. Therefore when the work load is light in one center, the agency will ship more cases there in a certain category. To its credit, U.S.C.I.S. does announce most of these moves ahead of time. There is also no rush to adjudicate these cases as they take over 10 years to complete and the priority date is assigned when the petitions are filed.
EAD Extension
I am currently on L1B and my spouse is working on L2 EAD. Both Visa and EAD of my wife are valid till September 8th 2017. My L1B to L1A visa conversion along with my spouse L2 extension is applied and we have an stamping appointment on Oct22nd 2017. Now that my spouse have her EAD valid till September 2017 and there is no change of status (Spouse still on L2 after Oct 22nd but on a different petition), can she continue to work on current EAD till Sept 2017? Or Do I need to apply for EAD renewal as primary applicant visa has changed to L1A and petition also changes. Please help in understanding the approach
Mr. Lee answers:
Regardless of which L-1 category you hold, your wife remains an L-2 as long as there is no break in status. Normally I believe that your wife would not need to do anything concerning her work authorization if she did not apply for an L-2 extension when you applied for your L-1B to L-1A visa conversion. The difficulty here is that the employment authorization is generally seen as tied to the application. U.S.C.I.S. has a procedure under which the application for L-2 benefits must be approved first and then the EAD application can be approved. So technically, the first petition would be superseded by the second petition and the EAD attached to the first petition could be seen as invalid. It may turn out, however, that if no one says anything, nothing will happen as your wife is still carrying around a facially valid EAD and the law in this area is not clear.
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