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Member Profile: funnyman (236 posts)

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Hello, I'm funnyman (report this user)
I am from India
I last logged in on 07 Dec 2014
I have been a member since 07 Feb 2013
I have added 236 posts in trackitt forums
I added my last post on 15 Oct 2014
funnyman's Posts
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Posted in H-1B Forum on 15 Oct 2014
Topic: How to get H1B Petition number

I am not even sure if a FOIA request can be made for an H-1B petition. FOIA requests can only be made to request your records. For example your A-File. Since an H-1B petition is pretty much an employer's petition and even though you are listed as the beneficiary, I am not sure you have any legal rights under FOIA to request a copy.

None the less, you do not need to have an US address to make a FOIA request. As long as you provide the details of the record that you want released to you, attest to the fact that you are the "subject" for the record, verify your identity and provide a sworn statement under the penalty of perjury, you should be good. For the last part, you can provide a notarized statement instead of a sworn statement. You can use G-639 but this is not required. FOIA request needs to be in writing (scanned copy sent by email, mail or fax).
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Posted in H-1B Forum on 27 Aug 2014
Topic: H1B Approved for 7 years


would declare you illegal retroactively if you work on H1 past the 6 years.



Curious. Can you cite the law or a statute regarding this? I personally know someone who was in exact same situation and our company's immigration lawyers said that:
a: USCIS cannot rectify a mistake that will penalize the beneficiary even if there was an oversight or an mistake on the agency's part.
b: The agency cannot retroactively put someone out of status unless it detect fraud in the the petition.
This is considered as unconstitutional as it violates the beneficiary's due process rights. My co-worker, who was in this situation, got a second independent legal opinion on this which pretty much concurred with our company's lawyers.
Furthermore, if USCIS ends up processing further benefits, like H-1B extensions; I140 approvals, on top of this "mistake" things get much trickier.

I am not saying that this is not possible. USCIS can very well declare the petition to be fraudulent and proceed with retroactively putting someone out of status.

@OP, I suggest that you get a competent legal opinion on this.
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Posted in H-1B Forum on 27 Aug 2014
Topic: Applying for SSN before October 1


but they wont issue your paycheck untill you provide your SSN.



This is illegal and a violation of multiple federal and state labor laws. SSN is not mandatory to start an employment. Employer needs to pay his / her employee on a set pay date. Taxes due can be withheld and paid to the appropriate agency once a tax identifier is known. In worst case, no tax will be withheld and the employee will end up under paying taxes which can be always addressed while filing annual returns and / or by adjusting future with holdings.
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Posted in I-485 Forum on 07 Aug 2014
Topic: F1 to Green card


F1 is a nonimmigrant visa and GC is an immigrant visa. In most cases, you cannot apply an immigrant visa while being on nonimmigrant. When I say cannot, it means it has greater chance of denial. H1 on the other hand, is dual-intent visa so you can apply GC while on H1.



Not true. USCIS understands that situation can change and hence a you can gain immigrant intent on a non immigrant status after some time. Usually, 90 to 180 days.
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Posted in I-485 Forum on 07 Aug 2014
Topic: F1 to Green card


F1 --> OPT ---- GC is fine. But one cannot use CPT after OPT is over. In fact CPT should be used in very rare case like paid internships ( with consent and supervision of University rules etc)




Not true. You can do a CPT after a Pre-Comp OPT.
http://www.uscis.gov/eir/visa-guide/f-1-opt-opt...
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Posted in H-1B Forum on 05 May 2014
Topic: Traveled to India on H4 in Mar 2014 and H1b 2015 picked


Yes, u need to file amendment with COS request



Not required if returning before 1st October under "leap frog" rule. Just present a copy of your latest I-94 that was issued before departing US, the one that was used while filing the original H-1B to CBP Officer and the officer will issue a new I-94 that's continuation of the previous entry record. In essence you never left US.


Is there any negative impact on her H1b processing because of travelling and issuing new I94?


No. But a new I-94 is not required. Use the "leap frog" rule. On Murthy Law: http://www.murthy.com/2005/05/06/travel-after-c...
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Posted in H-1B Forum on 02 May 2014
Topic: H4 and H1 Question


Why do they have to request CP if they dont plan to travel outside the country.



There are inherent benefits with continuing current status. Some students prefer utilizing the entirety of their F-1 status from taxation point of view. I have known a person who was waiting for his PhD admit to work out and had applied for H-1B as a back up option. There are lot of Engineers working with Indian tech companies that apply H-1B with another company while they are on L-1. Since these offers are accepted well in advance there is a good probability that the job may not exist on Oct 1st. And as OP said, if the person is currently on L-1 his / her spouse can work on L-2 EAD as long as he / he maintains the status.
Of late, consultancies have been misusing this provision. They do not have to pay until the employee is on H-1 status and they can control the timing for this status change based on the availability of the project.


Unless CP is explicitely requested, they get a I-94 along with the I-797.


Again, extremely untrue. I-94 is only issued if ALL the condition is satisfied.
A. The beneficiary has maintained his / her current status.
B. The current status is COSable. Not all status are.
C. The beneficiary is assumed to be on valid status on Oct 1st.
If these conditions are not satisfied, COS is not approved. Common reasons include status (H4, F-1 expiring), SEVIS record issues, OPT expiring, Ask anyone who had to go through the process 2007 / 2008 pre Cap Gap era. Infact, Cap Gap was designed to address some of this specifically.


Even in 2013, my friends wife who was on H4 applied h1b and started working from october 1.


Again, factually untrue. Just because an I-94 was issued doesn't mean you can start working on Oct 1st. Since this I-94 and your current I-94 are for the same record, if you were to go Out of Status anytime between H-1B approval and Oct 1st, the COS is NULL and VOID. However, you are still considered cap exempt and the petition is considered valid approved petition.


There is no need for a seperate I-129.


For employment based COS this is the prescribed form.


Its like you are asking your employer to file a h1b for a h1b thats has already been approved.


I-129 is an Application to Hire Non Immigrant Worker, not a H-1B form, with dual usage of doing COS for the beneficiary as well. This is employer's application so the decision on this impacts the company primarily and beneficiary secondarily. Also, I-129 can have multiple beneficiary. So over all approvability of the petition is isolated from beneficiary's status.


And I-129 is not something you can file yourself. It has to be done by the employer.


And this is by design since you cannot be in a Employment based Non Immigrant status without an employer.
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Posted in I-131 (Advance Parole) Forum on 30 Apr 2014
Topic: Do i need a transit visa for Abu Dhabi?

Depends on Nationality. Indians do in general need a transit visa for UAE.
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Posted in H-1B Forum on 30 Apr 2014
Topic: H4 and H1 Question

COS needs to be specifically requested. Part 2 Question 4 on Form I-129 (http://www.uscis.gov/sites/default/files/files/...). If someone wants CP explicitly, then he / she can choose so here.

CP is by default as clarified in Part 4.

If the beneficiary or beneficiaries named in Part 3 is/are outside the United States or a requested extension of stay or change of status cannot be granted, state the U.S. consulate or inspection facility you want notified if this petition is approved.





if what you are saying is true, Whats the process to file for COS from H4 to H1B while the person is in the US, to start working on october 1? I-539?



No. You need to file a separate I-129 again. http://www.uscis.gov/sites/default/files/USCIS/...
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Posted in H-1B Forum on 28 Apr 2014
Topic: H4 and H1 Question

Um. 1 is not true. You need to explicitly request COS. By default H-1B petitions are treated as CP, last time I checked.
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Posted in H-1B Forum on 28 Apr 2014
Topic: H4 and H1 Question

Your spouse probably applied H-1B as Consular Processing (CP) instead of Change of Status (COS). In this case, you'll not change status until:
A. You are in US and you file COS.
B. You are outside US, you go for stamping and enter on H-1B status.
C. You are within US. Once your H-1B is approved, you go outside US and do B.

Most petition are filed as COS. Ask your attorney if yours was filed as COS or CP. If it was filed as COS your status will change to H-1B automatically on Oct 1 unless:
A. USCIS only approves your H-1B but not COS. In this case your petition will be treated as CP. Rare occurance.
B. You lose legal status before Oct 1.
C. You exit US. Caution in this case even your H-1B can be considered as abandoned.
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Posted in H-1B Forum on 25 Apr 2014
Topic: Regarding H1b stamping- new petition


1. For someone who is coming to US for first time? What is benefit of PP for H1B petition? Since one cant start working before october 1st, what is the advantage of having petition approved in 2 weeks?



No advantage. You can PP the application any tie once a receipt has been received.


2. For someone who is already in US on lets say L1/H4/H1(academic cap-exempt) visa and new employer is filing new H1 petition but only through consular processing and not through AOS. What could be reason behind that?



You need to ask the employer this question since it's mostly related to business logistics. Shady consulting companies do this since they do not have projects in hand and can avoid paying the mandatory pay to the beneficiary until he / she is on H-1B status.


If the H1 petition is approved through CP, I believe one doesn't get the new i-94 and has to go to the consulate to get the visa stamping,



Correct.


but is any there any difference in i-797 or any other difference in general?



No.


Once the petition has been approved through CP and i-797 has been received, is one eligible to transfer H1 to other companies before going to consulate



Yes. You can change employers and transfer your H-1B. Cap Exemption has nothing to do with CP or COS.


for visa stamping if the i-94 is still valid?


You can do the following. Company A sponsored your H-1B, you can:
a. Using approval notice, file COS to H-1B.
b. Using approval notice, travel outside and get H-1B stamped.
c. Using receipt or approval notice and current I-94 file COS to H-1B with a new employer.
d. Using receipt or approval notice file CP H-1B with a new employer and then do b.
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Posted in H-1B Forum on 25 Apr 2014
Topic: Applying for a green card from H1B without a masters?

Even if you do a Masters now, I doubt it'll count. USCIS and DOL, except on rare occasions, will not accept any experience and degrees earned while working for the current employer. You need to earn these before starting with your sponsoring employer unless the position for which you are being sponsored is drastically different.

Say you are working as Sr. Awsome Engineer. Your PERM requirement for Sr. Awsome Engineer cannot be Masters + Some experience because you have been working in that position already without a Masters. So if someone (you) can be productive in a given position without a Masters how can the company say that someone needs a Masters to do this job? Ae you getting what I am trying to say?
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Posted in H-1B Forum on 15 Mar 2014
Topic: H4->H1 Change of Status

As far as I know, USCIS will approve your spouse's H-1B but not COS as she will not be in status on Oct 1st based on documents submitted. I even doubt if your spouse's attorneys will even file her H-1B as a COS application. None the less the usual flow of events would be:
1. Apply H-1B on 1st April with out COS.
2. Apply H4 EOS, preferably Premium.
3. Once H-1B & H4 is approved, either request a H4->H-1B COS or do a stamping and reentry procedure.

You can definitely try and submit H4 receipt along with H-1B application and if the H4 was approved before USCIS acts on H-1B, then there is a possibility that COS might be approved.

Ask a well qualified attorney, I would say.
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Posted in I-131 (Advance Parole) Forum on 15 Feb 2014
Topic: Really really confuse about rules of EAD/AP


When she recommences employment, she will lose her H-4 status again and resume being an AOS Pending applicant.



Don't think so. A Non-Immigrant Status can exist in parallel with a pending AOS.
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Posted in I-131 (Advance Parole) Forum on 15 Feb 2014
Topic: Really really confuse about rules of EAD/AP

Here we go. Another friend's friend story. Firstly OP's wife wants to use her H4 visa to reenter and your "friend" used AP. So your "friend" was never admitted under H-1B status so he could never resume his employment under H-1B (Technically possible, though).
OP's wife wants to reenter as H4 using a valid visa. Folks who have pending AOS have dual immigration status in US. The Non-Immigrant (NI) status under which they were admitted or COSed and Pending AOS status. Using EAD for employment doesn't make one lose the NI status, which continues to exist until the I-94 expires. If I-485 is denied, the applicant will fallback to the NI status.
Also, there is nothing called as H-1B getting cancelled.
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Posted in H-1B Forum on 30 Jan 2014
Topic: Options to come to USA ( B1 to h1)

It's not as simple as that. You are admitted into to US for specific purpose. Searching for jobs may actually violate your status based in the class of admission. Also, visitors are required to demonstrate that they DO NOT have immigration intent and searching for a job actually demonstrates the contrary.
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Posted in H-1B Forum on 30 Jan 2014
Topic: Options to come to USA ( B1 to h1)

Not true. B1/B2 is generic visitor visa and it depends on the POE officer to decide the Class of Admission.
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Posted in I-485 Forum on 30 Jan 2014
Topic: EB Green Card for already divorced wife

1. Her I-485 is her COS application. Deal with it. In fact you tracking her I-485's status is in fact a violation of her privacy rights.
2. Why didn't you file for divorce in India. You chose to file it in United States which means there is more than it meets the eye.
3. I am assuming you were "OK" with accepting generous gifts from her family. How about you tell us who paid for the marriage? I am assuming it's her parents.

This forum is for immigration advice and discussion. Not for you to find various ways to express your vindictiveness and bitterness.


This girl and her family is trying to ruin my family in India for no mistake of ours.



Yeah, right.
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Posted in I-485 Forum on 11 Dec 2013
Topic: Does IRS trace accounts that are not NRO or NRE ?

No worries and sorry for using strong language.
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