1. H-1B Extension by Re-filing I-140 with Ex-employer
I left my Employer A on May 07 2012 and went back to Malaysia but still have 5 months left in my H1B after max out calculation. They also filed my GC and went up to I140 stage, but they revoked/withdraw because I left the company. (Revoked on August 30 2012). SRC1200251588 is the receipt number, but submitting a query for notice on USCIS, I received response stating my case was denied but USCIS website shows approval is revoked. Anyhow, I’m out of US and Now the same Ex employer (Employer A) have approached me with a new job offer, I understand that i’m cap exempt since I have not completed full six years but just 5 months is not enough, so would like to know whether the H1B can be extended based on the old PERM based on 365 days rule or by re-filing the revoked I140.
Mr. Lee answers:
As the I-140 has already been withdrawn by the employer and revoked by U.S.C.I.S., it would not appear that you would have a basis to extend the H-1B by refiling the revoked I-140 or using the 365 day rule. You would most likely have to start all over again, especially as the rules on labor certification/I-140 petition filing require that a petition be filed within 180 days of the labor certification approval for the labor certification to continue. In all likelihood, the labor certification cannot be used to support a new petition. In addition, there would not appear to be grounds to reopen the matter inasmuch as motions must be filed within 30 days of a decision and even a timely motion would not be able to name any error on the part of U.S.C.I.S. in revoking the petition.
2. Citizenship for My Husband
Me and my husband have been married 3 years and have a child. I am trying to help him become legal but I am confused. I don’t even know where to begin.
Mr. Lee answers:
I will assume by the words in your summary that you are a US citizen. If so and your husband entered the country legally and has no bars to immigration such as crimes or fraud, you and he could file papers to U.S.C.I.S. to adjust his status to permanent residence. The basic forms are form I-130 petition for alien relative which would be signed by you, and form I-485 application to adjust status to permanent residence which would be signed by your husband. A complete list of the required forms and documents and where to send them to is on the U.S.C.I.S. website at uscis.gov. If your husband entered the US illegally and does not have the benefit of section 245(i) which allows most undocumented immigrants to adjust status upon the payment of a fine amount of $1000 if they had a labor certification or immigrant visa petition filed by April 30, 2001 and were physically present in the US on December 21, 2000, you could explore the Administration’s I-601A program under which you would file the I-130 petition, and upon its approval, your husband would file for an I-601A waiver of his illegal time in the US. The standard for the I-601A waiver is whether a denial would cause extreme hardship to you. If the waiver is granted, your husband could then arrange for an immigrant visa interview in his home country, which would in all likelihood be normal. When approved for the immigrant visa, he would normally be back in the US within 1-2 months.
3. How Can I Get a Green Card After I Receive My Updated OPT?
I’m single and I have a BA in hospitality. Is it easier to apply for a green card through my friend if he starts a small business or automatically apply to a company that will file a H-1B? Or should I be an investor to my friend’s company and apply as an investor towards my green card? What is the best possible but legal way?
Mr. Lee answers:
Your best path to the green card of the three choices that you present is probably of going through a company on an H-1B and perhaps later being sponsored for PERM labor certification, I-140, and either adjustment of status or consular processing for an immigrant visa. Small startup businesses by friends more times than not have problems meeting immigration standards for green card sponsorship. Investment may lead to a nonimmigrant visa (E-2) if your country of nationality has a treaty of navigation and commerce with the US. However, a smaller size investment does not normally lead to a green card. Investment green cards are through the EB-5 program which currently has investment levels of $1 million or $500,000 in areas of high unemployment or away from the cities. (I note that EB-5 regional centers have in many cases done away with the two conditions on the $500,000 investment by gerrymandering the project areas in ways to even have investments in affluent parts of cities).
