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Ashwin Sharma is an Immigration Lawyer who caters to the special needs of the Indo-American population. He is based in Jacksonville, Florida and represents clients in Florida, Georgia, Texas, Canada, India and the U.K. He can be reached at 904-779-0111 or jaxlawyer@gmail.com.
Click here to visit  Sharma’s new website, www.immigrationfirm.net for detailed information on Immigration topics.

SEND IN YOUR QUESTIONS
Get answers to all your Immigration-related questions. Write to us at contact@nripulse.com. Ashwin Sharma will answer each query. All questions and answers will be published in the forthcoming issues of NRIPulse.com.

READERS' QUESTIONS

Applying for TN Visa, Options for Indian doctor and other questions

Dear Ashwin,
I am planning to apply for TN visa. I am a Canadian citizen and my new born two weeks daughter born in Canada. My spouse is Canadian Permanent Resident. I would like to know the procedure to apply for TD for my spouse and infant. What documents would they need and where do we apply? I will greatly appreciate your 
reply.
-Aamir

Dear Aamir,
For successful TD processing, you will need your TN approved and a 
marriage/birth certificate for your spouse and child. You should obviously have proof of Canadian citizenship, your TD dependents do not necessarily have to be Canadian citizens. Everyone should bring a passport. It is my understanding that you can apply at any point of entry into the US. 
-Ashwin

Dear Ashwin,
My Brother is a Doctor in India, and recently completed his Masters. He is interested to come to the USA for work. Could you please advise how he should go about doing it? Is it a good option to come on a visitors visa and then change to a work visa (once he finds a job) while he is in the country? I believe it is a different 
process for Doctors, What is the work visa for Doctors called is it the same as H1-B? 
Please advise. 
-Sonali 

Dear Sonali,
Your brother could utilize either the J or the H-1B visa to work as a Doctor in the US. As an international medical graduate (IMG), he will need to fulfill special requirements which include steps 1-3 of the USMLE and possibly TOEFL. The H-1B is the better option for him as there is no requirement for him to leave the US for a 2 year period. Normally IMG's have to complete all the Medical testing requirements and then complete a 3+ year residency (which he can work on as an H-1B holder) at an IMG/H-1B friendly teaching hospital. Many of these hospitals are H-1B quota exempt so he could still find a job during this H-1B blackout. 
I don't recommend him coming to the US on a B visa unless he is coming to write the requisite medical exams and then leave the US to apply from home. Often there are intent problems if a person comes in a B visa and immediately changes his/her status. A change of status from B to H-1B is possible, but you need to ensure that you can establish a particular intent at the time of B visa application. Also, the change of status should not be carried out within 60 days of entering the US on a B visa. 
-Ashwin

Dear Ashwin,
I understand that you are busy people but I would much appreciate a brief answer regarding applying for entry of immediate family into the USA now that we are resident. My husband's company are applying for his green card and both my older children aged 26 and 29 would like to come and live in the USA for as long as we 
reside here. My son is prepared to work at anything and my daughter is a science teacher. Will there be obstacles or will the green card smooth the way? 
-Liz Charters 

Dear Liz,
This is a complex topic; you should arrange a personal consultation with an Immigration lawyer to get your question answered fully. Your kids will likely not be included in your husband's green card petition as dependents since they are over 21 (and perhaps married). They will probably have to get their own independent status in the US, otherwise it will take many years for them to get a family based green card through their parent(s). Your daughter could perhaps qualify for an H-1B visa if she has a 4 year degree which has a US educational equivalency, and if she can find a sponsor in her educational specialty. 
-Ashwin


Dear Ashwin,
Is it possible for persons holding non-US masters and above (e.g. from Australia, Canada or New Zealand) to fall under the 20,000 cap exempted for US masters holders, if it appears that the cap may not be reached? 
-RD

Dear RD,
I do not believe so.
-Ashwin


Dear Ashwin,
I am on H1B visa. I recently moved to a new address. I want to send the Form AR-11 to notify USCIS about my change in address. My wife and son are on H4 dependant visa. Do I have to send AR-11 forms for them also or only my form would suffice?
-Asad Zaidi

Dear Asad,
I always recommend you send AR-11 forms for all members in the family as it ensures an additional level of protection.
-Ashwin

Dear Elizabeth,
1. Yes, for a position which requires a 4 year degree but does not require a Pharm. license. You will have to examine the Occupational Outlook Handbook (do a search in Google for OOH) to determine whether such a position exists. I believe that it does. 
2. Depends on the size and nature of your sponsoring company. Relevent factors include: whether it is non-profit or affiliated with an Institution of Higher Learning as defined in the Higher Education Act of 1965 and the size of the company (25 or less, or more than 25 employees). Attorney fees also vary. 
3. Depends on the attorney and how motivated your company is in assisting the attorney with the supporting documentation. My firm can have the H-1B application compiled, reviewed and submitted within 2-4 days of getting everything back from the applicant and company. 
4. Immediately
5. The proper term is "change" not "adjust". If you are not violating the intent requirement of the B visa, and it runs through October 1, 2006 then the answer is yes.
-Ashwin

Dear Ashwin:
My bachelor son aged 24 years has done his BS and MS( Computer Science) in USA has been working on H1B since 2004 . He intends to do his MBA in a US university. He will now have to change his visa status to F1. 
We came to US in 2003 on green card as permanent residents. He could not be taken on our green card application as he was above 21 years of age. After our arrival we have filed for his green card in February 2005. It was fine as H1B visa permitted dual intention, but F1 does not.
What options can my son have to to attend school in US for his MBA and then get H1B once again. Can he study in the university on I -20 only.
Judith


Dear Judith,
Your son could change his status to F-1, however I would be cautious about exiting the country while in that status, as you correctly assume, re-entry could become a problem due to intent issues. I would recommend that he not exit the country while he is on F-1 status. When he finishes the degree, he should reapply for an H-1B. 
Ashwin

 

Hi Ashwin,
Is travel abroad possible based on a previously stamped H-1B visa?
Bijay P.


Hi Bijay,

The legacy INS Memorandum from Michael A. Pearson, Executive Assoc. Comm'r, Office of Field Operations (January 29, 2001)
states that an H-1B beneficiary is admissible at a port of entry even if he or she is no longer working for the original petitioner, provided that the following conditions are met: 
1. The applicant is otherwise admissible;

2. The applicant, unless exempt under 8 CFR §212.1, §1212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);

3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates; and 

4. The applicant presents evidence that the new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B's previous period of admission. The burden of proof is on the applicant to show that he or she is admissible as an H-1B and eligible for visa portability provisions described in AC21. Please ensure that you collect all proper documentation prior to utilizing this process. In addition, you should obtain a letter from your current employer certifying that they are aware of your trip. If possible, consult an attorney for details concerning your specific case.


Driver's License Issuance

Dear Ashwin,
I'm interested in obtaining a driver's license, however, I believe I may be out of status. How do I find out whether I am eligible and what I need to bring to get a driver's license? 
Ronaldo


Hi Ronaldo,
Click here for more information about Driver's License Issuance.



Change of Address

Hi Ashwin,
I'm planning to change my address, I heard that I need to contact the INS and let them know? 
Chandra


Hi Chandra,
All aliens changing their address must complete and file a form AR-11 and send it to one of the two addresses below: 
U.S. Department of Homeland Security
USCIS
Change of Address
P.O. Box 7134
London, KY 40742-7134

For commercial overnight or fast freight services, only: 

U.S. Department of Homeland Security
USCIS
Change of Address
1084-I South Laurel Road
London, KY 40744 

Thanks,

Ashwin

Social Security Number Delays and Employment Authorization

An individual who has applied for a Social Security Number but is subject to administrative delays by USCIS/SSA may lawfully begin working until he or she receives the SSN, as long as they can produce other documents evincing work eligibility (See Form I-9 for a listing). The following excerpts and supporting documents are provided for further information. 

"Do I need to have a number before I start working?
We do not require you to have a Social Security number before you start to work, but the Internal Revenue Service requires employers to report wages using the Social Security number. While you wait for your Social Security number, your employer can use a letter from us stating that you applied for a number." 


- From Social Security Administration SSA Publication No. 05-10107 - April 2003

In fact, it is an I-9 violation for a US employer to specifically require an SSN prior to the employee starting work. 

See also:

"There is no federal law administered by any federal agency which prohibits the hiring of a person based solely on the fact that the person does not have a Social Security Number (SSN). Similarly, there is no federal law which prohibits the making of a payment to a person based solely on the fact that the person does not have an SSN.”

- From "Delays in Issuing SSNs to Aliens by the Social Security Administration"

Further Reading:

Fact_Sheet - Employment_Discrimination

US Dept. Of_Justice - Guide_To_Fair_Employment


Social_Security_Online - Employer_Responsibilities_When_Hiring_Foreign_Workers

Archives:

April 16th: Laws Need to be Re-examined Often 

March 16th: The E3 Visa: The FY2007 H-1B Season Is Upon Us 

January 16th: The E3 Visa

January 1st: The TN Professional Visa for Canadian Citizens

December1st:  issue: Immigration Updates, H-1B Consular Processing & H-1B Employer Sanctions for Attestation Violations

 

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