Highlights from MurthyChat Session: 16.Sep.2013

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

Question: I did my 2-yrs masters (M.S. in Mechanical Engineering) in India and have 7 years of IT experience. Am I eligible for EB2 for GC?

Senior Attorney:

The starting point in the EB2 vs. EB3 analysis is always the employer's minimum requirements in terms of education and/or experience. Then, of course, the individual must be able to prove that s/he has that education and/or experience. It potentially is possible to qualify for EB2 even if the master's degree is not equivalent to a U.S. masters, because it was preceded by a 3-year bachelor's degree. EB2 may still be an option by showing that the master's equates to actually more than a U.S. bachelor's degree. If so, it is possible to qualify for EB2 showing that one has at least a bachelor's plus five years of experience.

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Question: What is the fastest option to get the Canadian spouse of a U.S. citizen to the USA?

Senior Attorney:

If the Canadian spouse has a valid way to come to the U.S. in a category that allows for dual intent (H or L), or if the spouse is already in the U.S. legally, it is generally possible to do a concurrent marriage-based adjustment filing. HOWEVER, it is not appropriate to come to the U.S. in a pure nonimmigrant category (such as visitor) with the intent to remain permanently on that visit. So, even though Canadians are visa exempt for nonimmigrant categories, this does not mean they can just hop over to the U.S. as visitors and file for adjustment of status. If that is the situation, then it is necessary to do a consular processing for an immigrant visa. We can help with this type of case at the Murthy Law Firm.

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Question: If I stay out of status for 20 days while filing my green card, will there be any problem?

Senior Attorney:

The answer to this depends on what action is taken after the 20 days. As a general matter, if a person is out of status for 20 days and fixes the matter (usually by travel and reentry from abroad), this will not be an issue in the GC case. In employment-based GC cases, the USCIS will overlook up to 180 days of status / employment violations at the I-485 stage, but obviously it is not a good idea to be careless about these matters as problems can arise well before one reaches the end of the GC case.

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Question: Does moving to Canada for one year meet the GC-EB1 criteria (working outside of North America for 1 year)?

Senior Attorney:

It is possible to meet the EB1, Multinational Executive Transferee criteria by working in Canada for a year. The requirement is to work abroad (outside of the U.S.), not out of North America. But, the requirement is stricter than just working for a year abroad. This category is for employees of multinational companies. It is necessary to hold a position with a multinational that is high level managerial or executive for at least a year abroad and, then, transfer to the U.S. to do the same type of work for an affiliate of the same company.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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