Frequently Asked Questions - General Nonimmigrant Visa
- Licensing of Foreign Persons Employed by a U.S. Person
- Social Security Number And Card
- Employment Authorization Document (EAD)
- Administrative Processing
- Information on Printing I-94
- Applicant Accompanied by a Third Party for an Interview
- Bangkok’s Local Policy on Issuing B Visas
- Interview Protocol
- B-1 in Lieu of H-1
- Moving Outside USA For A Year While H-1B Has Not Expired
- Change of Visa From H-1B to F-2
- Grounds for Rejection for B and F Visa
- Exploring Other Options During H-1 Transition
- O-1B Extension and Authorized Period of Stay
- L-1A to EB-1
- Evaluation Required for Non-U.S. Education Credentials
- Export Control Regulations
- Form I-129 and Denial of Petition Based on License
- Form I-129 and Copy of the Export Control License
- Supervisory CBP Officer initiated to have the cancellation reviewed
- Electronic Immigration System Eligibility
- O Visa Applicant Applying for Green Card
- Prevailing Wage
- H-1B petition and Quota
- F-2 to H-4 Visa
- Two-year home residency requirement
- Nonimmigrant waiver
- L-2 visa and EAD processing
- L-2 visa application for spouse
- Multiple entries for UK Citizens
- I-94 Extension Time
- L-1 Blanket petition
- Canadian with J-2 visa
- Visa Stamp
- J-2 holders and work authorization
- Out of F-1 visa status
- J-2 to TN
- Stopping at USA
- Visa for family to visit brother
- Working Visa
- H-4 Visa and Status Validity
- Pharmacist visa for FPGEE
- B-2 visa
- H1B interview travel cost reimbursement
- J-1 Waiver Pending
- J-2 visa and I-275
- H1-B to F-1
- H1 Renewal Denial/I 94 expired
- L-1 visa from an affiliate
- Can I petition my Fiancé
- Wife work permit
- B-2 to B-1
- Parents B-2 Visa
- AOS applicants applying for H-1 visa
- My wife filed for Skilled Worker
- F-1 reinstatement
- L1B - resignation in US
- Lost old EAD card for another OPT application
- Student visa
- Advise needed for replying visa
- Where to file complain?
- H1B Restamping
- Travel during H4 processing
- L1B to H1
- E3 visa
- B-2 Visa Multiple destination
- B-2 Visa
- B1/B2 Category
- G-4 to H1B
- H1B- denial
- Having a board test on B1/B2
- L1A visa and H-1
- L1A Extension processing time
- B1 rejected because I had applied for Green Card
- Quickest way to get a GC
- Visa for Mother in law
- Business Visa
- Return to America on a B-2 visa
- H1B Pending
- F1 visa to business visa or H1/L1
- H-2B Visa
- H1 working in University (non profit organization)
- Transfer to a startup company H-1
- H1 approval and stamping
- H1 B question
- Renewing O-1 visa
- J1 overstayed by years, married to a greencard holder
- Need information
- E3 to H4
- Out of Status
- H1B Status
- Importance of having continuity of employment/pay stubs
- Visa for parents and niece
- F1 visa to H1-b
- Questions on AC21, EAD, losing job, etc.
- Time Frame for Green Card
- How to apply for visitors visa?
- H1B extension for pending labor
- H1 6th Yr - Labor Approved - NO I-140
- Information regarding pharmacist immigration
- Travel during 90 days of OPT without Job
- Filling out a DS 160 Non-immigrant visa Form by mistake ...
- How does one assist family in applying for B-2 (Visitors/Tourist) visa
- Divers Licenses, while H-1 extension pending
- I-485 AOS Pending, Employer's Bankruptcy
- Obtaining H-1 Extension beyond 6 years
- Important questions on H-1, AP and Travel
- May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
- H-1 visa denial and investigation
- Applying for green card while on a B-1 or B-2 visa
- Compensation for H-1 lay off
- Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
- Visa after B-1 to F-1 conversion
- F-1 visa stamp, H-4 pending
- H-1 denial, appeal, MTR
- K-3 visa when I-130 approved
- Can H-1 be extended based upon family-based green card?
- Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
- From H-4 to F-1
- What kind of company is good for H-1B processing
- Entering on/applying for nonimmigrant visa while green card is pending
- Status, authorized period of stay and unlawful presence
- LCA's for H-1 will probably take longer now
- When to apply for L-2 extension
- H-1 Quota Count still at 45,000 as of 4 May 2009
- H-1 extension denied - status
- H-1 Extension based upon spouse's 140; Child born in USA
- H-1 Quota still open
- PROPOSED Legislation to Reform H-1B Visa Program
- H-1 without specific job/GC continuation without H-1
- H-1 Count 44,000 -- You can Still File
- US employee working from India
- H-1 holder aplying for H-4 visa
- New H-1 employee returning -- rights and issues
- Effect of Bankruptcy on immigration
- When is an H visa stamping required?
- H-1 visa stamping -- is it difficult?
- Unreasonable H-1 requests from CIS
- Inviting parents to provide care during pregnancy or postnatal period
- H-1 Quota Status
- USCIS is continuing to accept H-1 filings
- GC future job; H-1 ext. revocation upon 140 denial, etc
- Converting from EAD back to H-1--Updated 6 April 2009
- Are H-1 holders being turned back at the airport?
- Employers and Employees -- H-1 or EAD?
- H-1 and EAD
- H-1 Lottery for 2009
- GC Compliance for Employers
- When does CIS investigate fraud?
- H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
- L-2 EAD and H-1
- Starting business while in AOS/I-485/H-1/H-4
- Employers questions on H-1 compliance
- How does the Stimulus Bill affect H-1b, L-1 and Green Cards
- H-1 Quota - what is acceptable evidence for degree
- Can B visa holder convert to F or other status?
- Can F/J holders apply for green card?
- Do physicians have the right to an extension beyond 6 years for waiver jobs?
- Employers responsibility in H-1 process
- Turning 21 - do I have to convert to F-1 from H-4?
- What happens when an employer is under criminal investigation/indictment?
- Is salary reduction possible/legal?
- If I-140 gets revoked/denied does my H-1 extension get canceled?
- Note! Employer subject to H-1 quota, but the job may not be
- Consequences of not using an H-1 visa
- L-2 to L-1 COS or Visa?
- Employer not paying, may I tranfer H-1?
- L-1/H-1 COS Issues
- What to do if an I-140 gets rejected?
- Do advanced degrees help in marriage-based green card?
- H-1 converting to H-4 and then (maybe) back again
- Can H-4/F-2 holders perform volunteer work?
- L-1 - H-1 COS issues
- H-1 related I-94 issue
- Start-up applying for H-1 and AC21 for employees
- H-1 Quota issues for students
- H-1 where there is no license in hand
- H-1 - how to revert to old employer
- F-1 OPT - No Job
- H-1 quota - the law
- H-1 transfer - what action is needed for H-4
- E-3 Issue
- B visa while GC pending or similar situation
- H-1 Quota
- Using B visa with F-1
- Multiple H-1 approvals
- How to get back to H-1 status?
- AOS Pending, Should H-1 be Renewed
- Filling DS 156
- Does J-1 HRR Prohibit Issuance of F-1?
- H-1 I-94 given at the airport for a duration shorter than the H-1 approval, how to extend I-94?
- Fraud or misrepresentation findings in visa or petition, what should you do?
- Changing from H-1 to F-1 and back to H-1
- Do jobs have to be same or similar when I port my priority date?
- Doing business in the USA on a B-1/B-2 visa
- H-4 EAD changing back to H-1
- Changing employers after 6 years of H-1 are over
- Filing two quota H-1 petitions simultaneously through different companies
- Does the H-1 60 days grace period apply when one quits a job?
- Carry Immigration Documents Every Day
- How does H-1 60 day grace period work?
- AC21, changing jobs, when to file Supplement J
- Revoke H-4 EAD Regulation
- F-1 Student Directly Filing for a Green Card
- Legal Rights/Benefits of Green Card Compared to H-1B
- Entering the USA on B-1/B-2 visa to get married
- Can pending immigration applications be affected by changes in the law?
- Should I travel outside the USA/H-1B visa stamping
- Issues regarding changing jobs while on H-1:-- Is there a minimum time gap necessary to transfer H-1 from one job to another, change jobs, timing of resigning and joining
- STEM OPT Extension for Consulting or Staffing companies
- Changing Jobs After I-140 Approval
- I-94 Given for Duration Shorter than Entitled
- Changing Back to F-1 Student Status After Filing for Green Card
- Name variation in diploma or degree, name change for immigration
- Does H-4 EAD have to be applied again if H-1 changes jobs?
- Travel while H-1 COS is pending
- H-1 entering USA when visa is about to expire
- The Proposed I-140 EAD Rule - FAQ's
- Birth certificate late registration and secondary evidence
- Immigration implications of crime; petty offense exception; admissions and convictions; 212(d)(3) and other waivers
- H-1B Laid Off Issues
- H-4 EAD Expediting Possible?
- H-4 EAD - Starting business
- Denial based upon immigrant intent, 214(b)
- Enter USA while Green Card is Pending on B-1, B-2/H-1 Visa
- I-94 Admission Record
- H-4 and I-140
- Withdrawal of Application for Admission at the Airport Under INA 212(a) (7)(A) (i)(I) & 235(b)(1)
- Effect of Tourist Visa Denial on Student Visa
- K Visa for Spouse of Green Card Person
- Sister Filed Petition
- LCA for Singapore H-1B1
- Can I Travel Back On F-1 Visa If My Reinstatement Is Denied?
- Is CPT an Acceptable Way of Working?
- Visa for Medical Treatment
- Can H-4/F-2, etc. non-work visa holders volunteer?
- Visa Status (Void when out of status)
When is a foreign person considered an employee?
A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your number.If you are a noncitizen living in the United States, you also may need a Social Security number. For more information, see Social Security Numbers For Noncitizens (Publication No. 05-10096).
What is an EAD?
Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.
Why does my new EAD look different than my prior one?
Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer. Applicants are advised of this requirement when they apply.
1. Bangkok does not have any “policy” on evaluating B-1/B2 visa applications other than the approaches outlined in 9 FAM. Each case is treated individually and is decided based on the personal interview.
The State Department says that on the Immigrant Visa side, the petitioner may accompany the beneficiary if the petitioner is in the Consulate city at the time of the interview. The interviewing officer will speak to the petitioner only if he/she determines it is
No making up please, unless federal prison is a part of our career plan. B-1 in lieu of H-1 is uncertain, but you can keep trying extensions. If the new law for comprehensive immigration reform passes, things could change drastically.
1. The one year out starts when you leave USA.
2. It may be best not to visit during that year.
You must be married to the F-1 holder in order to be eligible for F-2 status. Fiances do not qualify for derivative status.
The grounds for rejection for B and F visa are usually the "immigrant intent." If indeed that is the reason for your visa rejection, I do not see any difference between B and F applications.
As long as you had filed your extension application before expiration of the current status, you are not illegal as long as the case is pending. You are in
Since A and B are not related, H-1B is the only obvious option to join B. B can start your green card even before you join, but it will not be EB1 (international manager/exec.).
The evaluation should be done by a professor in the related field of employment.
DOC’s Bureau of Industry and Security (BIS) administers the Commerce Control List (CCL) and is responsible for issuing licenses under the EAR. Information about EAR and how to apply for a license from BIS can be found at www.bis.doc.gov. Specific information about EAR’s requirements pertaining to the release of controlled technology can be found at
No. USCIS will not deny the petition on the basis that a license is required but has not been obtained prior to the filing of the petition.
No. At this time, USCIS does not require a copy of the export control license as part of the nonimmigrant visa petition process.
U.S. Customs and Border Patrol (CBP) indicates that, in instances in which an officer refuses to admit a visitor due to the period of time he/she was previously present in the U.S., the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place.
You may be able to apply for a Green Card if you meet the requirements of EB-1 (Aliens with Extraordinary Ability) based upon a job offer, or if a family-based possibility exists.
Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.
If the employer is exempt from the quota, they may apply at any time. If they are subject to the quota, they can file the H-1B petition to reach USCIS no earlier than April 1, 2013, with a requested start date of employment no earlier than October 1, 2013.
If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.
Yes. F visa is NOT forbidden. But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.
Look into a 212(d)(3) waiver, which should allow you an entry. Ask CBP at the border how much time they need to process the waiver (usually a few weeks).
You should apply (not the employer) for the EAD ASAP. Processing times are on USCIS web site.
Tell the truth. I see no reason why you need to worry. An L-2 is permission, not an obligation. She can come and leave as she pleases.
He can be denied entry. UK citizens have the same options to work in USA as the rest of the world; typically H-1, L-1, E-1 and E-2 visas.
It can take a few months. You can apply for premium processing even when the case is filed and pending.
As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.
You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.
J-2 holders can get work authorization and work as per the licensing requirements of their profession.
You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).
You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).
You will need an unexpired passport to enter USA. People in your situation carry both the new and the old passports.
Tourist visa seems to be appropriate. Times vary by consulate and are usually very short -- often visa is issued the same day an application is made. You can also get an appointment for emergent reasons.
It is possible if he has the relevant degrees and has a job in his field in USA. The most commonly used visa for professional workers is an H-1B visa.
Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.
You will apply for B visa (B-1/B-2).
I think if you wait till you have a steady job and roots in Canada, and then apply to visit USA, you should have a better chance.
Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.
Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.
It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.
If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.
In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.
Interesting situation. Not having researched this issue, I am guessing, the only way you can qualify for the L-1 is if you can establish that the hotel in Spain was your "true" employer in that they controlled you, even though your salary was paid by the consulting company.
There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.
Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.
I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.
I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.
We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.
There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.
As far as I know, reinstatement requires exceptional circumstances. A sprain may not be it.
What you are asking me has nothing to do with US immigration laws. This is a matter for an employment lawyer in the state where you are working. Under US immigration laws, you can resign in USA any time.
First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.
If you withdrew your application, you were not deported. You could apply for a work visa.
If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.
If you travel during change of status, the request for COS is deemed to be abandoned.
You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.
The employer should withdraw your application.
As long as the visa is valid and permits multiple entries (not all visas do), I see no problem.
Getting a B-2 visa for a single person tends to be very difficult. If you meet him once, you can get him here on a Fiance (K-1) visa. That is much better if you want to get married.
If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.
Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.
As far as I know, this should not be a problem if you are truthful about your intentions.
L-1A extensions are very difficult unless you meet all the criteria.
I do not know of any special proof that you can provide. This is purely a matter of consular discretion.
Generally speaking, where there is a choice, we always file multiple green card applications for spouses.
A B-1 visa is appropriate for medical treatment.
If you make the details of the transaction clear to the consulate, I feel you should have a shot.
I cannot give you a hard and fast rule, but generally speaking, CBP wants you to spend more time outside than inside USA each year.
You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.
If you qualify, H and L visas are certainly more secure than an F visa.
Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.
For university and other quota exempt positions, you can apply for an H-1 any time.
These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.
You will need to have the employer apply for a new O-1 petition with USCIS.
Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.
Generally speaking, getting a new visa endorsement should not be a problem. You cannot get a visa within USA.
Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.
A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'
As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.
Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.
In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.
For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.
I see no reason why they cannot all apply. Separation should not raise a problem as far as I can see. But consulates may want some additional paperwork for a minor to travel with grandparents.
Since the H-1 quota is over, OPT is your best option as far as I can tell.
2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).
3A. Correct. You are in authorized period of stay. That has been explained in my blog.
4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).
The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.
She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.
Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).
This is what ICE says:
Contact the consulate. If they have not already done so, they will correct the situation upon request.
A1. There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.
I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.
1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or.
2. An amendment should be filed, though it is debatable if it is required.
3. In my view, AC21 port is easier.
H-1 extension beyond six years can be obtained under two circumstances:
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the process was started a year ago. The process is started for:
- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .
2. No. See answer above.
3. It is impossible to predict times. Plan for a six-month turnaround.
4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
5. Advance Parole and Passport.
One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.
In the E visa context, this is what the govt says:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.
2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.
A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.
There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.
There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.
That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.
Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.
1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.
2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.
3. Generally speaking, no.
1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.
2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.
3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.
In your case, a K-3 cannot be issued. You must wait for IV.
If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled.The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.
You cannot. This extension is available only to employment-based applicants.
Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.
Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm
H-1B and E-3 workers, go here:
1. No. An I-539 is used if you want to change status within USA.
2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.
3. No one can predict that. Sorry.
I think this is a timely question. I can give some pointers based upon my experience.
H-1 approvals are easier:
- for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and
The answer is it is unlikely, but not impossible, that they will be permitted entry if CBP finds out about the I-130. If it were my own parents, I would probably not take the chance.
Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.
Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.
New LCA Online System Beginning May 15th, 2009
Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/.
Our office will use the new iCERT Portal System (http://icert.doleta.gov/) to file LCAs online using the latest Form 9035.
I believe you have three choices. Add her L-2 extension/EAD to your L-1 extension in the same package; apply for your extension, wait for the receipt then apply for her L-2 extension/EAD; or apply for your extension, wait for the APPROVAL then apply for her L-2 extension/EAD (note that she must be in status when you apply for her L-2/EAD). I have listed these choices in the order of my preference.
USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Quote: Hi Rajiv,
Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.
Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?
Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
Here is the release from USCIS.
April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;
Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program
Thursday, April 23, 2009
[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.
1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.
1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?
The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.
There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).
Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.
1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?
PS: I do not have H4 stamping.
The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.
In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.
USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:
Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.
A1. I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.
USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.
Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.
Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.
Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?
Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)
If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.
There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.
Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.
Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.
Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.
Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
The attached document explains the criteria.
1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.
Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.
1. Ans. It lapses upon change of status from the date the status is changed.
2. Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.
3. Ans. Yes.
1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.
You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.
1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.
Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.
There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.
1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.
When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.
USCIS has stated:
While it is permissible to change from one status to another from within U.S., it may not always be advisable.
Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.
1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:
a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?
I do not see any way around filing an F-1.
That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases.
1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.
If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?
Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.
Difficult to say what the chances are, but read on.
Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.
Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.
It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.
You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.
It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.
You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
You can also contact the local WHD of DOL where you are:
I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.
To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.
Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.
1. Advanced degrees do not help in a family-based green card.
Changing the way she is planning is perfectly legal. There is no question of a "bad impression."
In my view, she will not be subject to quota unless she is outside USA for a year.
The companies are required by law to revoke her H-1. I see no issues there.
The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.
Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?
Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.
Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.
H-1 by Start-up Companies
Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.
Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?
In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.
Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.
In my view, he cannot go back to company A without taking some additional steps.
Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.
Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.
People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.
Ans1. Yes. You should not need an original I-94 to travel out.
Ans2. You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).
They way I see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and reentry not assured.
This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.
Ans 1. In my opinion, you will not be subject to the quota again.
Ans 2. You should not be subject to the quota.
My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.
While in USA, your stay and status is controlled exclusively by your I-94.
You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.
If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.
I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions
Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Ans1. Yes. I usually recommend that all I-94’s be surrendered.
We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.
Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?
Bottomline - I think H-1 should be renewed.
A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:
One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.
I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.
The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.
Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.
1. Yes, if you can get a 212(d)(3) waiver for a limited time or limited purposes.
1. According to the regulations what my best guess is it was reserved for those circumstances where you had no choice but to be out of status, but if you quit voluntarily I don't think you can claim the 60 day grace period.
You must carry the I-94 printout at all times. A photo ID is also important. The evidence of status COULD be in the forms of copies, I think. It is not required, but I recommend you do carry it.
For more on this issue watch this video.
Watch the Video on this FAQ: Revoke H-4 EAD regulation
There is nothing in law that stops an F-1 student from directly filing for a green card. But, exhibiting immigrant intent while on an F-1 visa can raise some issues that should be discussed and planned for with your lawyers.
It is easier to define the rights of a GC holder in comparison to the rights of a U.S. citizen. You can pretty much do everything that the US citizen can do.
Video Transcript: Under the current laws, if you change jobs after I-140 approval you keep your priority date, but you lose your right to H-1 extensions beyond what is given if your old employer revokes/withdraws the I-140.
Now answering your questions
Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation?
Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.
Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. In order to demonstrate eligibility for automatic revalidation, a traveler may be required to present a copy of the website printout to the air or sea carrier prior to boarding. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements.
Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.
When the tourist visa denial is based upon a possible intent to immigrate (also known as INA Section 214(b) denial), it CAN be a problem for student visa.
V visa no longer exists. There is no K visa option for green card holders. Sorry.
That category takes 13-14 years. During the time you are waiting for your priority date to be current, you cannot stay in the USA just because your green card is pending. You can, however, stay or come to the USA under a visa independent of the green card such as L-1, H-1. You can also apply for a green card in several categories simultaneously.
Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA.
In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry.
This is tricky. Usually CPT in the first semester is looked upon with suspicion by USCIS, unless: 1. yours is a graduate program; 2. the practical training is integral to the academic program; and 3. the employer has signed a co-operative agreement with the school.
Typically, medical treatment in the USA is undertaken on a B-1 ("Business" visa. Strange, huh?). But do not get confused. Consulates often mark visas as B-1/B-2 or even B-2 (visitors/tourist) for medical treatment. Once here, you can ask for extensions of stay if the circumstances so require. I remember extending the stay of a child and his parents for two years (in 6-monthly chunks), where the baby was being treated for ongoing medical problems.
This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration. I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.