Q. What happened to the INS?

A. The Immigration and Naturalization Service, formerly known as the AINS@ has been eliminated by the Homeland Security Act in November 2002 and has been restructured into three separate agencies under the Department of Homeland Security: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Citizenship and Immigration Services (CIS).

Q. Can my attorney’s office call a CIS Service Center regarding my case? Can my attorney get the CIS to expedite my case?

A. We are no longer permitted to call a Service Center and speak directly with an officer regarding your case. All inquiries are now handled through the government’s National Customer Service Center. Prior to the expiration of the processing time indicated on your receipt notice, there is very little we can do to assist you with any useful information. To check the status of your case within normal processing times, refer to the government’s online case tracking system at https://egov.immigration.gov/cris/jsps/index.jsp.

Q. I heard that if I contact my Senator, they can get the CIS to expedite my case-is this true?

A. Your senator cannot usually intervene to expedite your case. If significantly more time than the estimated processing time listed on your notice of receipt has lapsed or if there is an unusual problem in processing, a Senator may be able to make an inquiry regarding the status of your case if there is a compelling reason to do so, but he/she cannot influence the outcome of your case.

Q. How can I get my case expedited?

A. The government will grant requests to expedite cases only under very limited circumstances. When the immigration benefit is urgently needed in a time frame that is less than the normal processing time and the need for expedited processing was not the fault of the applicant or petitioner (e.g., the filing was made late), or when there is a great humanitarian basis to consider, the government will consider requests for expeditious handling. Under all other circumstances, requests to expedite will not be considered and may even delay processing. Please note that the arrival of an alien’s six-year limit in H-1B status is not a basis for seeking expedited adjudication of an I-140.

Nonimmigrant worker filings (I-129) can be expedited through the use of the CIS's Premium Processing service, which requires the filing of an additional form and an additional $1,000 fee. Initial processing is guaranteed within 15 calendar days under this system.

Q. Why is it taking longer than the processing time listed on my notice of receipt to process my case?

A. The processing times indicated by the CIS on your notice of receipt are estimated processing times only. They do not guarantee that your case will be adjudicated by a certain date and they are subject to change by the CIS at any time without notice. Only I-765 applications for employment authorization documents have a set time for processing (90 days).

Q. Can I travel on my current nonimmigrant visa or do I need to get advance parole?

A. Adjustment of status (I-485) applicants who maintain valid H-1 and L-1 nonimmigrant status do not need to obtain advance parole prior to traveling outside the U.S. if they travel in possession of a valid H-1 or L-1 nonimmigrant visa and the original I-797 receipt notice for the adjustment of status application. All other nonimmigrants with pending adjustment applications must still obtain advance parole before traveling outside the U.S. At this time, with the consular delays and security issues involved in issuing nonimmigrant visas, it may be a good idea to travel on advance parole if you currently have H-1 or L-1 status but do not have a valid visa.

Q. I am on H-1B status and want to switch employers. Do I have to wait for a new H-1B petition to be approved?

A. An H-1B worker can start working for a new employer after filing the change of employer H-1B petition with the CIS (rather than having to wait for an approval of that petition), provided that the worker has never worked without authorization.

Q. When my six years of H-1B time expires, can I then remain in the U.S. by changing my status to that of an H-4 dependent based upon my spouse's H-1B status?

A. The regulations permit an alien to spend a maximum of six years in the U.S. in H status, without differentiating between H-1B and H-4 classifications (see an exception in the question below). The law does not therefore allow a change of status from H-1B to H-4 (or vice versa) after the six years have been expended.

Q. If my H-1B status is due to expire before my I-140 is approved, what options do I have?

A. H-1B nonimmigrants whose labor certification or I-140 was filed at least 365 days prior to their H-1B expiration, may obtain extensions of their H-1B status beyond the six year limit, in one-year increments, until their immigrant via petitions are decided or adjustments of status are granted. If the underlying labor certification or I-140 is denied, however, the H-1B status extension ends at that time.

Q. Why did I get a Request for Evidence on my case?

A. Requests for Evidence are becoming more and more common in all types of cases with the current atmosphere at the CIS. Many times they may ask for items which you have already submitted or which may not be legally required for your case. Your attorney can help you deal with these requests effectively. They are not necessarily an indication that your case will be rejected; they are many times merely a request for further documentation.

Q. My EAD is going to expire in a few months. What is the procedure for renewing it? Should the application be filed at my local CIS office or through the Service Center?

A. Routine EAD applications should be processed through the Service Centers (for employment-based cases). The Service Center has 90 days to adjudicate the application. If more than 90 days have elapsed since the I-765 receipt notice date and you do not have an EAD, it may be possible to get an interim EAD in person at a District Office. In addition, emergency EAD applications will be accepted by CIS District Offices. The District Office has discretion to determine whether the presented circumstances constitute an emergency. Because EADs are not backdated upon approval, be sure to apply for an extension well in advance of your current EAD’s expiration (up to six months in advance).

Q. Can I work for my employer before I receive my H-1B approval if I am not paid for my services? Can I be reimbursed for services rendered after the H-1B approval comes through?

A. Volunteer services for a prospective employer may constitute unauthorized employment if the alien will ultimately derive some benefit from the work. If the alien expects future compensation or benefits, volunteer work may violate the alien’s current status. Working on an employment-prohibited visa can permanently bar an alien from adjustment of status in the future.

Q. Can I switch employers while my I-485 is pending or do I have to wait until I am granted permanent resident status?

A. An individual who has filed an I-485 and whose application to adjust status has been pending for more than 180 days is allowed to change jobs within the same or a similar occupational classification without affecting the validity of her underlying labor certification or I-140 petition, providing that: (1) she holds a valid EAD; (2) she has never worked without authorization; (3) the I-140 has been approved; (4) the original employer has not formally revoked the I-140; (5) the new employer has the ability to pay at least the wage offered on the labor certification (both now and at the time your old employer started your permanent residency process); and (6) the pay of your new job meets at least the prevailing wage as determined for your I-140.

Q. Do I have to get my medical exam done in the state where I live and work or can it be done by any designated Acivil surgeon@?

A. All applicants for adjustment of status are required to have a medical examination performed by any civil surgeon who has been designated by the government.

Q. My friend's case is progressing more quickly than mineBWhy?

A. It is not generally useful to compare the progress of your case with that of a friend’s case. Various factors influence the rate of progression of a case, including cooperation of all parties (employer and alien) in getting information and documents turned around quickly, and (most importantly) changing government processing times (as well as changing agency interpretations of laws, regulations, and policies). Remember that processing times with the CIS and other agencies frequently change quickly, drastically, and without warning.

Q. Does my spouse automatically have H-4 status if I am granted H-1B status?

A. No. Your spouse (and dependent children) must apply for H-4 status separately. Remember to file a new I-539 for your spouse if you switch employers while on H-1B status so that your spouse’s status will be extended for the same period of time as your current H-1B classification.

Q. If I marry a U.S. citizen, do I automatically obtain permanent resident or U.S. citizen status?

A. No. After you marry a U.S. citizen, your spouse must file a Petition for Alien Relative and you must make an application for adjustment of status in order for you to be granted permanent residency status. There is no automatic status given to a spouse of a U.S. citizen.

Q. If I marry a permanent resident, can I stay in the United States while my spouse’s petition on my behalf is pending?

A. No. Your permanent resident spouse’s filing of a Petition for Alien Relative does not preserve your status in the U.S. You must maintain some other immigration status in order to remain in the U.S. lawfully for the several years it may take for a visa to be available under this family category.

Q. Am I required to let the government know when I move? How long does that obligation last and how do I do that?

A. Yes. Until you become a citizen of the U.S., you must always inform the government of address changes in writing within 10 days of the change. You can use form AR-11 for this purpose, which is downloadable off of the CIS web site at www.immigration.gov with instructions. File a separate Form AR-11 for each family member moving with you. Don’t forget that you must separately inform the CIS by calling the National Customer Service Center if you have a pending case. You should also notify your attorney of any address change.

Q. Do I need to carry my immigration papers with me at all times?

A. Yes. Foreign nationals 18 and older are required by law to carry evidence of status with them at all times, even within the U.S.

Q. I am nervous to travel. How am I impacted by the events of September 11 and the resulting war on terrorism?

A. Please contact an immigration attorney prior to making travel arrangements. Increased security measures at border posts and consulates abroad have made travel more complicated and frequent changes to policy may make information you have quickly outdated.

We realize that potential clients also have extensive questions regarding visa retrogression issues and Department of Labor issues regarding PERM and the Backlog Elimination Centers. Please e-mail or call us if you have any such issues to discuss.

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