General Nonimmigrant Visa

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

H-4 EAD - Starting business

Detailed question:

1.Can we own our business? 2. Do we have to run own payroll?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/3Heaadpk1Ik?t=933 

FAQ Transcript:

1. Yes you can.

2. You do not.

A business owner often does not get paid. Make sure you got a back up plan. If your EAD runs out for some reason and it is not renewed you should have someone run the business while you do not have an EAD. 

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Denial based upon immigrant intent, 214(b)

Detailed question:

My F-1 visa was denied twice for the reason 214(b). I have visited my uncle in U.S for 6 months on a vacation. My Uncle (U.S citizen) sponsored me for my both F-1 (student visas). On my first appearance for F-1 visa interview in Chennai consulate my B-2 visa was cancelled by interviewing officer . Now I plan to appear for F-1 visa with my parents sponsorship. Will there be any problem for me in applying F-1 visa interview this time?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/GtOqgqgEG6I?t=87

FAQ Transcript

214(b) denials, typically you will come across in student visa applications, tourist visa applications, even J-1/J-2 applications. They can be problematic because they are very difficult to overturn. It is a matter of subjective determination of the consulate that they suspect the applicant has an immigration intention.

If somebody has come to the US on a tourist visa or any other nonimmigrant visa and gone back within the time permitted that’s a good sign. That shows that you are somebody that you can be trusted. In a case like yours unless there was a reason for the consulate not to trust your submission they should have considered your case more sympathetically than the case of somebody who has never been to the United States.

I don’t think the sponsorship is a problem.

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Enter USA while Green Card is Pending on B-1, B-2/H-1 Visa

Detailed question:

I am US citizen and planning to sponsor green card for my sibling. My sibling has already visited US in B-1/B-2 visa few times and holds that visa for another few years. I know that this kind of application takes 10+ years to approve. From this context in mind, I have few questions -<br> 1) Can my sibling enter United States on the same B-1/B-2 visa after I apply immigration application?<br> 2) Can my sibling apply for renewal or new B-1/B-2/H-1 visa while application is being processed?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=baprYGs8IzQ&t=782

FAQ Transcription

There really is no statute law that specifically prohibits such an entry. Well maybe there is something that says you must have nonimmigrant intent but the question is can they do it. Theoretically  yes they can enter on a b visa while the green card is pending especially when something is pending for 13-14 years they maybe allowed an entry but they can be disallowed an entry at any point of time. So there is no guarantee that the B-1/B-2 option either the renewal of the visa or entry at the airport will be permitted on a indefinite basis. You could be stopped any time.  However H visa, L visa, E visa and O visa are some of the visas that are not subject to the problem of green card pendency. These visas can be utilized. Also remember a green card can be filed through several different categories at the same time. So if your sibling qualifies for other categories they can apply under all the categories available for them. So H-1 visa is no problem b but B-1/B-2 no guarantee.

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I-94 Admission Record

Detailed question:

How does a traveler revalidate a visa without their I-94?

Answer:

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. For more information about automatic revalidation go to http://www.cbp.gov/document/bulletins/automatic-revalidation-visas.

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H-4 and I-140

Detailed question:

Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?

Answer:

Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

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Withdrawal of Application for Admission at the Airport Under INA 212(a) (7)(A) (i)(I) & 235(b)(1)

Detailed question:

Iam a Indian National Married to A US PR holder She has cleared her N400 Interview .I have been last year Denied Admission (deported) from Airport after me being initially on Student (F-1) Visa & then on H1B (61/2 years previously) with Citations : 212(a) (7)(A) (i)(I) & 235(b) (1) .<br> The questions I have for you are :<br> Q) Do I have any 3 yr, 5 Yr or 10 yr ban on my entrance to USA ?<br> Q) Do I need any waiver like I-212 or anything else for my future entry to USA ?<br> My I-130 had been approved and I believe I can upgrade my I-130 by my Spouse sending her Naturalization Certificate & her passport copy to NVC(Kentucky)<br> Q) Do you think I might have difficulties while facing this changed IR-1 Category Visa Interview and any other problems at the Port of Entry ?<br> Q) What timeframe does NVC take to notify the Consulate & Can it be Hyderabad,India ? & Overall how much time will it take for me to get the Visa or the Conditional Green Card

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://www.youtube.com/watch?v=xp4B1_qhvtM#t=1825

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Effect of Tourist Visa Denial on Student Visa

Detailed question:

Last year my tourist visa was denied because the officer thought I may not come back. Now I am going for student visa. What effect will the tourist denial have on my student visa application?

Answer:

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.

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K Visa for Spouse of Green Card Person

Detailed question:

Can I get K visa for my spouse? I am a US immigrant with green card. Is there something called a V visa?

Answer:

V visa no longer exists. There is no K visa option for green card holders. Sorry. 

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Sister Filed Petition

Detailed question:

My sister filed petition for me last year maybe I-130. I am an Indian and my wife is Italian, I am in California nowadays since last week. Can we stay here permanently under I-485 or AOS whatever?

Answer:

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.

my sister filed petition me last year maybe i-130,i am an indian and my wife is italian,i am in califonia nowdays since last week.can we stay here permanantly under i-485 or aos whatever? - See more at: http://www.immigration.com/comment/14928#comment-14928
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LCA for Singapore H-1B1

Detailed question:

Do we need to send an LCA for H-1B1 Singapore quota?

Answer:

Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA.

Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA. - See more at: http://www.immigration.com/comment/14777#comment-14777
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Can I Travel Back On F-1 Visa If My Reinstatement Is Denied?

Detailed question:

Do I have to get a new visa stamp for my F-1 or can I travel back using the same F-1 visa stamp if my reinstatement is denied? I fell out of status because I registered for less than a full course load.

Answer:

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.

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. - See more at: http://www.immigration.com/comment/14631#comment-14631
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Is CPT an Acceptable Way of Working?

Detailed question:

My H-1 6 years are about to be over. No way to extend per lawyers. Can I move to CPT?

Answer:

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.

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. - See more at: http://www.immigration.com/comment/14458#comment-14458
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Visa for Medical Treatment

Detailed question:

What kind of visa can I get for medical treatment. I have an appointment with a Surgeon in Anderson. Can the visa be extended without leaving America?

Answer:

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.

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Can H-4/F-2, etc. non-work visa holders volunteer?

Detailed question:

Answer:

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.

I intend to inform them that under US immigration laws, if the work is performed for NO remuneration or other benefits, it would not violate the law. This issue has been explored in my blog entry here.

The problem, however, is that the Fair Labor Standards Act (Federal Law) does not permit for-profit employers to hire unpaid "interns" or "volunteers." See this link for FLSA standards according to US Department of Labor. There has been considerable litigation on this issue with employers on the losing side. So, please consult your employment law counsel before deciding on retaining the services of unpaid employees.

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Visa Status (Void when out of status)

Detailed question:

How do I know if my visa is voided or not? I applied for a change of status while in the USA and got a denial, so I left the country 11 days after, with my I-94 already expired. Some people say my visa is voided, but where can I check this?

Answer:

That is covered by section 222(g) of INA. See this link: http://www.uscis.gov.edgesuite-staging.net/ilink/docView/SLB/HTML/SLB/0-...

"(g) 2/ (1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay."

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Licensing of Foreign Persons Employed by a U.S. Person

Detailed question:

When is a foreign person considered an employee? If residing overseas, is the foreign person employee considered a broker? Should current authorizations be replaced or amended to be consistent with current guidance? Can multiple employees be covered under one authorization? How is an employee providing marketing services overseas identified in a license application? What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from? What value should be entered on the license application? How should the foreign person employee of a U.S. person be identified in the TAA or MLA? Who should sign the DSP-83 for the transfer of U.S. classified information?

Answer:

When is a foreign person considered an employee?
A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

If residing overseas, is the foreign person employee considered a broker?
If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

Should current authorizations be replaced or amended to be consistent with current guidance?
Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

Can multiple employees be covered under one authorization?
Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

How is an employee providing marketing services overseas identified in a license application?
If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

Wha value should be entered on the license application?
DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

Who should sign the DSP-83 for the transfer of U.S. classified information?
The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1

http://www.uscis.gov/working-united-states/temporary-workers/frequently-asked-questions-about-part-6-form-i-129-petition-nonimmigrant-worker 
http://www.bis.doc.gov/

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Social Security Number And Card

Detailed question:

How do I get a number and card?

Answer:

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). If you are temporarily in the United States to work, see Foreign Workers and Social Security Numbers (Publication No. 05-10107).

How do I get a number and card?

To apply for a Social Security number and card:

Complete an Application For A Social Security Card (Form SS-5); and

Show the original documents or copies certified by the issuing agency proving:

—U.S. citizenship or immigration status [including Department of Homeland Security (DHS) permission to work in the United States];

—Age; and

—Identity.

Then, take or mail your completed application and documents to your local Social Security office.

Citizenship or immigration status: 

The center accepts only certain documents as proof of U.S. citizenship. These include a U.S. birth certificate, a U.S.passport, Certificate of Naturalization or Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current U.S. immigration documents. Acceptable documents include your:

Form I-551, Permanent Resident Card (green card, includes machine-readable immigrant visa with your unexpired foreign passport);

I-94, Arrival/Departure Record, with your unexpired foreign passport; or

I-766, Employment Authorization Card (EAD, work permit).

International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

Age: You need to present your birth certificate. (If one exists, you must submit it.) If a birth certificate does not exist, Social Security may be able to accept your:

Religious record made before the age of 5 showing your date of birth;

U.S. hospital record of your birth; or

Passport.

Identity: Social Security can accept only certain documents as proof of identity. An acceptable document must be current (not expired) and show your name, identifying information and preferably a recent photograph. Social Security will ask to see a U.S. driver's license, state-issued nondriver identification card or U.S. passport as proof of identity. If you do not have the specific documents asked for, Social Security will ask to see other documents including:

Employee ID card;

School ID card;

Health insurance card (not a Medicare card);

U.S. military ID card;

Adoption decree;

Life insurance policy; or

Marriage document (only in name change situations).

All documents must be either originals or copies certified by the issuing agency. Social Security cannot accept photocopies or notarized copies of documents. Social Security may use one document for two purposes. For example, Social Security may use your U.S. passport as proof of both citizenship and identity. Or, Social Security may use your U.S. birth certificate as proof of age and citizenship. However, you must provide at least two separate documents.

Social Security will mail your number and card as soon as they have all of your information and have verified your documents with the issuing offices.

What does it cost?

There is no charge for a Social Security number and card. If someone contacts you and wants to charge you for getting a number or card, please remember that these Social Security services are free. You can report anyone attempting to charge you by calling our Office of the Inspector General hotline at 1-800-269-0271.

Are there different types of cards?

Social Security  issues three types of Social Security cards. All cards show your name and Social Security number.

The first type of card shows your name and Social Security number and lets you work without restriction. Social Security issue it to:

—U.S. citizens; and

—People lawfully admitted to the 

United States on a permanent basis.

The second type of card shows your name and number and notes, “VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” Social Security issues this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work.

The third type of card shows your name and number and notes, “NOT VALID FOR EMPLOYMENT.” Social Security issues it to people from other countries:

—Who are lawfully admitted to the United States without work authorization from DHS, but with a valid nonwork reason for needing a Social Security number; or

—Who need a number because of a federal law requiring a Social Security number to get a benefit or service.

How do I get my child a Social Security number?

It is a good idea to get the number when your child is born. You can apply for a Social Security number for your baby when you apply for your baby’s birth certificate. The state agency that issues birth certificates will share your child’s information with us. Social Security will mail the Social Security card to you. Or, you can wait and apply at any Social Security office. If you wait, you must provide evidence of your child’s age, identity and U.S. citizenship status. If you are filing an application on behalf of someone else, you must show us evidence of your relationship to, or responsibility for, the person for whom you are filing. You also must show us proof of your identity. Social Security must verify your child’s birth record, which can add up to 12 weeks to the time it takes to issue a card. To verify a birth record, Social Security will contact the office that issued it.

Anyone age 12 or older requesting an original Social Security number must appear in person for an interview, even if a parent or guardian will sign the application on the child’s behalf.

Adoption: Social Security can assign your adopted child a number before the adoption is complete, but you may want to wait. Then, you can apply for the number using your child’s new name. If you want to claim your child for tax purposes while the adoption is still pending, contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S Adoptions. For more information, see Social Security Numbers For Children (Publication No. 05-10023).

What if my name changed?

If you legally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected card. If you are working, also tell your employer. If you do not tell us when your name changes, it may:

Delay your tax refund; and

Prevent your wages from being posted correctly to your Social Security record, which may lower the amount of your future Social Security benefits.

If you need to change your name on your Social Security card, you must show us a document that proves your legal name change. Documents Social Security may accept to prove a legal name change include:

Marriage document;

Divorce decree;

Certificate of Naturalization showing a new name; or

Court order for a name change.

If the document you provide as evidence of a legal name change does not give us enough information to identify you in our records or if you changed your name more than two years ago (four years ago if you are younger than age 18), you must show us an identity document in your old name (as shown in our records). Social Security will accept an identity document in your old name that has expired.If you do not have an identity document in your old name, Social Security may accept an unexpired identity document in your new name, as long as Social Security can properly establish your identity in our records.

Citizenship: Also, if you are a U.S. citizen born outside the United States and our records do not show you are a citizen, you will need to provide proof of your U.S. citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

Your new card will have the same number as your previous card, but will show your new name.

How do I make sure my records are accurate?

Each year your employer sends a copy of your W-2 (Wage and Tax Statement) to Social Security. Social Security compares your name and Social Security number on the W-2 with the information in our files. Social Security add the earnings shown on the W-2 to your Social Security record.It is critical that your name and Social Security number on your Social Security card agree with your employer’s payroll records and W-2 so that Social Security can credit your earnings to your record. It is up to you to make sure that both Social Security’s records and your employer’s 

records are correct. If your Social Security card is incorrect, contact any Social Security office to make changes. Check your W-2 form to make sure your employer’s record is correct and, if it is not, give your employer the accurate information.

You also can check your earnings record on your Social Security Statement. The Statement is available online to workers age 18 and older. 

To review your Statement, go to www.socialsecurity.gov/myaccount and create an account.

What if my immigration status or citizenship changed?

If your immigration status changed or you became a U.S. citizen, you should tell Social Security so Social Security can update your records. To get your immigration status or citizenship corrected, you need to show documents that prove your new status or citizenship. Social Security can accept only certain documents as proof of citizenship for new and replacement cards. These include your U.S. passport, a Certificate of Naturalization or a Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

What if my card is lost or stolen?

You can replace your card or your child’s card for free if it is lost or stolen. However, you are limited to three replacement cards in a year and 10 during your lifetime. Legal name changes and other exceptions do not count toward these limits. For example, changes in noncitizen status that require card updates may not count toward these limits. Also, you may not be affected by these limits if you can prove you need the card to prevent a significant hardship.To get a replacement card, you will need to:

Complete an Application For A Social Security Card (Form SS-5);

Present an unexpired original document with identifying information and preferably a recent photograph that proves your identity;

Show evidence of your U.S. citizenship if you were born outside the United States and did not show proof of citizenship when you got your card; and

Show evidence of your current lawful noncitizen status if you are not a U.S. citizen.

Your replacement card will have the same name and number as your previous card.

How can I protect my Social Security number?

You should treat your Social Security number as confidential information and avoid giving it out unnecessarily. You should keep your Social Security card in a safe place with your other important papers. Do not carry it with you unless you need to show it to an employer or service provider.Social Security do several things to protect your number from misuse. For example, Social Security requires and carefully inspect proof of identity from people who apply to replace lost or stolen Social Security cards, or for corrected cards. One reason Social Security do this is to prevent people from fraudulently obtaining Social Security numbers to establish false identities. Social Security maintains the privacy of Social Security records unless:

The law requires us to disclose information to another government agency; or

Your information is needed to conduct Social Security or other government health or welfare program business.

You should be very careful about sharing your number and card to protect against misuse of your number. Giving your number is voluntary even when you are asked for the number directly. If requested, you should ask:

Why your number is needed;

How your number will be used;

What happens if you refuse; and

What law requires you to give your number.The answers to these questions can help you decide if you want to give your Social Security number. The decision is yours.

Contacting Social Security

For more information and to find copies of our publications, visit our website at www.socialsecurity.gov or call toll-free, 1-800-772-1213 (for the deaf or hard of hearing, call our TTY number, 1-800-325-0778). Social Security treat all calls confidentially. Social Security can answer specific questions from 7 a.m. to 7 p.m., Monday through Friday. Generally, you’ll have a shorter wait time if you call during the week after Tuesday. Social Security can provide information by automated phone service 24 hours a day.Social Security also want to make sure you receive accurate and courteous service. That is why Social Security have a second SocialSecurity representative monitor some telephone calls.

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Employment Authorization Document (EAD)

Detailed question:

What is an EAD?

Answer:

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 

USCIS has enhanced the EAD with new security features to reduce fraud. This is part of USCIS’s ongoing efforts to improve the integrity of the 
immigration process. USCIS will replace EADs already in circulation with the new security enhanced EADs as individuals apply for the renewal or 
replacement of their current EAD.  

How do I know if I can get an Employment Authorization Document (EAD)? 

Whether you can obtain, or even if you need, an EAD depends upon what status you have in the United States or, many times, if you have filed or 
are filing for certain other benefits. 

 • If you are in, or want to be in, a valid nonimmigrant category, including a NATO category

• If you are an asylee or refugee

• If you have, or are filing for, Temporary Protected Status (TPS) 

• If you are filing a Form I-485, Application for Permanent Resident Status, you can apply for employment authorization at the same time you file your I-485 or at any time while your I-485 is pending. 

• If you are filing, or have filed for political asylum on Form I-589

• You may also be able to apply for employment authorization if: 

o You have been granted deferred action by USCIS or ICE, 

o You have been granted voluntary return under the Family Unity program, or 

o You are under an order of supervision issued after receiving a final order of deportation or removal from an immigration court.  

How do I apply for an Employment Authorization Document?  

To apply for an Employment Authorization Document, use USCIS Form I-765 

When should I file for an extension of my employment authorization?  

You should not file more than 120 days before the expiration date shown on your current employment authorization document; however, you 
should file 90 days before the expiration date.   

How do I get the Form I-765 "Application for Employment Authorization” (EAD)?  

The Form I-765 can be obtained by downloading it from the USCIS website at www.uscis.gov 
 Note: E- filing may also be available on certain categories on the I-765. 

Under the “I am applying for” area of the form, there are three different blocks. Which one should I check?  

• Initial EAD (this is your first application under a specific category), 

• A Renewal EAD (an extension of previously granted employment authorization), or 

• A Replacement EAD (to replace a lost, mutilated, or destroyed EAD, or to update information, such as a name change on the EAD),  

Initial EAD  

An application for an initial EAD is one in which the applicant is filing for an EAD under a specific category for the first time. For example, if the 
applicant previously had an EAD under the Form I-765(c)(8) category and is now filing under the (a)(5) category, the application is considered an initial application because it is the first one filed under the new category (a)(5), even though they had been issued a previous card under a different category. Each applicant who is required to have an EAD must have it in their possession before they can begin working.  

Renewal EAD  

An application for a renewal EAD is one in which the applicant is filing for an extension of his/her EAD under the same category as he or she 
previously had. Except for applicants in refugee or asylee status, each person must have a valid card in their possession to be eligible to continue working. Therefore, it is important to stress that renewal EADs should be filed at least 90 days before the expiration of the old EAD in order to avoid lapses in employment. 

 Replacement EAD  

An application for a replacement EAD is filed if a card has been lost, stolen, or mutilated, or when the previously issued card contains 
erroneous information, such as a misspelled name or name change. If an application for a replacement EAD is approved, the replacement  EAD will have the same dates and category as the EAD that was lost, stolen, etc.  

Persons applying for replacement documents can present the receipt for the I-765 as evidence of employment eligibility but must produce a
valid card within 90 days of showing the receipt.  

For question 16, how do I know for which category I should apply?  

• If you are filing for Consideration of Deferred Action for Childhood Arrivals, file under category (c)(33) 

• If you are an asylee, file under category (a)(5) 

• If you are a refugee, file under category (a)(3) 

• If you were paroled as a refugee, file under category (a)(4) 

• If you were paroled in the public interest, file under category (c)(11). 

• If you are filing for Temporary Protected Status (TPS), file under category (c)(19) 

• If you have been granted TPS, file under category (a)(12). 

• If you are filing a Form I-485, Application for Permanent Resident Status, file your I-765 under category (c)(9). 

• If you are filing, or have filed for political asylum on Form I-589, please refer to Volume 4.4.3.5, Special Programs and Services before 

filing. If it appears you can file for employment authorization, file under category (c)(8). 

• You may also be able to apply for employment authorization if: 

o You have been granted deferred action by USCIS or ICE, file under category (c)(14) 

o You have been granted voluntary return under the LIFE Act Family Unity program, file under category (a)(14) 

o You are under an order of supervision issued after receiving a final order of deportation or removal from an immigration court, file 

under category (c)(18) 

o You have been granted withholding of deportation by an Immigration Court, file under category (a)(10)  

For other categories, please follow the instructions to Form I-765.  

Note: E- filing may also be available on certain categories on the I-765. 

Do I have to submit photos with the Form I-765?  

Yes, you must submit two standard passport-style photos. The photos must have been taken no earlier than 30 days prior to the date you file the
I-765. Please see the Form I-765 for the required specifications for the photos.  

Do I need to submit a “signature card,” I-765A, with my I-765 application?  

No, the signature card is no longer required as part of the filing process. 

How long does USCIS have to make a decision on my Application for Employment Authorization?  

The required times in which USCIS must make a decision on an I-765 are:  

• Ninety (90) days of receipt of applications filed under categories other than asylum-based, or  

• Thirty (30) days if filing based upon a pending asylum case and filing for an initial EAD,  

One exception to this rule is if USCIS requires additional evidence. The processing time limit is extended by the amount of time it takes for you to receive the request for evidence and respond to it. Also, the processing time is extended when a request for evidence is issued for any Form filed concurrently with the I-765.  

If USCIS has to send out a Request for Evidence, the processing “clock” stops. The maximum allowed time to submit evidence is 12-weeks. Once USCIS receives your response, the processing “clock” starts up again.  

When am I eligible for an Interim EAD? 

If USCIS does not make a decision on your I-765 within 90 days, (30 days for Asylum applicants), you may request an Interim EAD. The interim EAD can be granted for a period up to 240 days.  

Note: If the time frame for a decision on the I-765 has expired, please call our toll-free number at 1-800-375-5283.  

My I-765 was approved, but I have not received my EAD. Can I get temporary evidence of employment authorization?  

Customers who have an approved (or denied) I-765 are not eligible for an interim EAD.  

Note: If your I-765 was approved at a Service Center, but you have not received the EAD 30 days or more from the date of approval, you may be eligible for a Non-Delivery of Employment Authorization Document service request referral to the Service Center. Please call our toll-free number at 1-800-375-5283 for further assistance with this issue. 

 Can I get a Social Security card after I get my EAD?  

In most cases, you can apply for a Social Security card after you receive an employment authorization document. You will need another type of officially issued photo identification, a passport, I-94 bearing a stamp of refugee or asylee status and/ or driver’s license.  

For more information about how to apply for a Social Security card, please call the Social Security Administration at 1-800-772-1213.  

What if my EAD has incorrect information on it when I receive it?  

For help with this question, please call our toll-free number: 1-800-375-5283.  

Who is eligible for an EAD that is valid for two years?  

The two-year EAD is only available to pending adjustment applicants who are currently unable to adjust status because an immigrant visa numberis not currently available. In order to be eligible for an EAD with a two year validity period, an applicant’s I-140, Immigrant Petition for Alien Worker, must be approved. 

 When will applicants expect to receive the new two-year EAD?  

Applicants filing Form I-765 began receiving their two-year EAD after June 30, 2008. 

Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application?  

Generally, no. Initial EAD filings will generally receive an EAD that is valid for one year because they are usually submitted with the Form I-485 which can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.  

How will USCIS decide whether to issue an EAD valid for one or two years?  

USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.  

If I am filing for a replacement EAD, how long is the EAD valid?  

If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date.  

Why is USCIS changing the validity period for some EADs?  

USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers. 

 When I file Form I-765, how long will it take to receive a decision?  

You should receive a decision within 90 days (30 days for Asylum applicants) from the receipt date on your Form I-765. In some cases, an EOIR- granted asylee will receive an EAD card valid for 2 years by mail within 7 to 10 days from the day the biometrics information is received. 

Note: If you have not received a decision and over 75 days (25 days for Asylum applicants) has passed, please call our toll-free number at 1-800-375-5283 for further assistance with this issue.  

Will the new EAD affect my current valid EAD card?  

No, it does not affect your current valid EAD card and you do need to file for a new card before your current card expires.  

Why USCIS redesigned the Employment card?  

The new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States.  

For more information about  EAD please visit our Blog and Podcasts and Video sections. 

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Administrative Processing

Detailed question:

What is Administrative Processing?

Answer:

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. Most administrative processing is resolved within 60 days of the visa interview. Learn more.

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Information on Printing I-94

Detailed question:

I do not have an I-94 from my last entry to the US in June, but I need it for my H-1B renewal. What should I do?

Answer:

Please refer to the following link for information on printing your I-94: http://www.immigration.com/news/general-nonimmigrant-visa/i-94-web-appli...

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Applicant Accompanied by a Third Party for an Interview

Detailed question:

May a third party (spouse, sponsor, etc.) accompany an applicant to an interview for a Nonimmigrant or Immigrant Visa?

Answer:

The State Department says that on the Immigrant Visa side, the petitioner may accompany the beneficiary if a 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 necessary to assess the case.  Applicants under 17 years old MUST be accompanied by a parent or legal guardian on the Nonimmigrant Visa side.  Other third parties are not permitted to accompany the Nonimmigrant Visa applicant.

 

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Bangkok’s Local Policy on Issuing B Visas

Detailed question:

1. Describe Bangkok’s local policy on issuing B visas. 2. How does HCMC <b>(Ho Chi Minh City)</b> typically handle B visa adjudications for pregnant mothers who wish to give birth in the U.S.? 3. How does HCMC <b>(Ho Chi Minh City)</b> typically handle B visa adjudication for dependent parents? 4. How does HCMC <b>(Ho Chi Minh City)</b> typically handle B visa adjudication for domestic employees? 5. How does HCMC <b>(Ho Chi Minh City)</b> typically handle B visa adjudication for cohabitating partners of NIV (nonimmigrant visa applicant) or USC (U.S. citizen)?

Answer:

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.

2. One case may require a particular piece of information and the other case may not require the same information.  However, in some cases, presenting certain information may help the applicant explain their B-1/B-2 qualifications.  For example, pregnant mothers traveling to give birth may wish to demonstrate their ability to pay their medical expenses.

3. Dependent parents may wish to demonstrate family and financial ties to Vietnam.  As noted in 9 FAM, each case is treated on an individual basis.

4. Domestic employees must demonstrate the duration of employment and contractual agreement with the employer.

5. Partners of U.S. citizens must demonstrate the length of the relationship with the U.S. citizen and strong personal ties with long term plans to maintain residency in Vietnam.  HCMC does not have any specific requirements for documents beyond the basic documentary requirement for an NIV application; however, as mentioned in 9 FAM, consular officers may request additional information.

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Interview Protocol

Detailed question:

May a third party (spouse, sponsor, etc.) accompany an applicant to an interview for a Nonimmigrant or Immigrant Visa?

Answer:

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 necessary to assess the case.  Applicants under 17 years old MUST be accompanied by a parent or legal guardian on the Nonimmigrant Visa side.  Other third parties are not permitted to accompany the Nonimmigrant Visa applicant.

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B-1 in Lieu of H-1

Detailed question:

I came with B-1 to work until I obtain H-1B (this is B-1 in lieu of H-1 clause that authorize me to work). I was not selected at 2013 H-1B lottery. How long can I stay on B-1: 6 months + one renewal, would the second renewal be granted,I am looking at L-1B as an alternative but I did not complete the one continuous year before coming to US with my employer. Can the company "make up" some months of work abroad to complete the 12 months? How deep are they digging into for L-1B?

Answer:

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.

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Moving Outside USA For A Year While H-1B Has Not Expired

Detailed question:

I have a valid H-1B until April 2014. I left my employment with my company March 2013 and we were in the process of applying for the GC. I did not have time to find another employer and file a GC application before entering my final year. Therefore even if I transferred my H-1B I still would have had to leave in 2014. Therefore I have decided to come back to England for a year and reapply when I have completed 365 days out. I have 2 questions: 1) Does my time start from when I left the US or do I have to cancel my H-1B? 2) If I go back to visit, I assume I just visit under the visa waiver?

Answer:

1. The one year out starts when you leave USA.

2. It may be best not to visit during that year.

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Change of Visa From H-1B to F-2

Detailed question:

I am currently on H-1B visa. Is there a way I can change the visa to F-2 without going back to India? My fiancé is here on F-1 visa and this visa is valid till Sep 2014.

Answer:

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.

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Grounds for Rejection for B and F Visa

Detailed question:

I have done my masters in USA and stayed there for 4 years and came back to India. My visa got over on Jan 2013, and I plan to pursue my MBA in USA and went for the visa interview twice it got rejected, and now my friends and family are suggesting me to apply for B-2 visa. What should I do?

Answer:

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.

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Exploring Other Options During H-1 Transition

Detailed question:

As my husband's H-1 expires, we are moving back to India around August/September. I am exploring options to quit my job (also on H1) in the last 2-3 months, but since this is a short period, I'm looking for the most convenient and economical transition. Can you please advise: - Convert to H4: What is the expense incurred and how much in advance would I have to apply for this? - I have a tourist visa that is valid till 2016- can I take advantage of this? - Is there a grace period after leaving a job here (giving up your H1) that I can take advantage of if I time it properly?

Answer:

You will need to figure out the filing fees for Form I-539 (used for H-4). You can convert to tourist visa (status) if you leave USA and reenter using the tourist visa. To let you back in or not would be at the discretion of the CBP officer who interviews you. There is no grace period under these circumstances.

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O-1B Extension and Authorized Period of Stay

Detailed question:

I have been in the US for six years. First O-1B expired on Feb15, sent in application for the 2nd O-1B already in December. The itinerary wasn't sufficient, response due by April 26th, ready to send in the completed itinerary plus additional letters of intended employment. My household is in New York. I am still here. Am I illegal now? Is there a grace period?

Answer:

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 authorized period of stay.

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L-1A to EB-1

Detailed question:

I am on L-1A (been about 4 years) from company A and in closing stages of getting a very good offer from company B. Both A & B are global corporations. For company A, I oversee business across continents (Both North America & Latin America). Company B is very keen on having me on board. 1. What are all the possible options on visa front so that I can join company B? 2. What is the quickest option that can help me get on to company B? 3. If I want GC, can company B file for it when am still on payroll of company A - if so, can it be EB-1?

Answer:

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.).

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Evaluation Required for Non-U.S. Education Credentials

Detailed question:

What kind of evaluation do I need for my non-U.S. education credentials?

Answer:

The evaluation should be done by a professor in the related field of employment.

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Export Control Regulations

Detailed question:

Where can I obtain additional information about the export control regulations?

Answer:

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 
www.bis.doc.gov/deemedexports.

DOS’s Directorate of Defense Trade Controls (DDTC) administers the U.S. Munitions List (USML) and is responsible for issuing licenses under the ITAR. Information about the ITAR and how to apply for a license from DDTC can be found at www.pmddtc.state.gov. Specific information about the ITAR’s requirements pertaining to the release of controlled technical data can be found at
www.pmddtc.state.gov/faqs/license_foreignpersons.html.

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Form I-129 and Denial of Petition Based on License

Detailed question:

Will a petition be denied if an export control license is required but has not been obtained prior to filing the petition?

Answer:

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. However, the certification on Form I-129 includes a statement that the petitioner will prevent access to the controlled technology or technical data until and unless the petitioner has received the required license or other authorization to release it to the beneficiary. Failure to do so, where required under applicable law, may constitute a basis for revocation of the Form I-129 petition.

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Form I-129 and Copy of the Export Control License

Detailed question:

Regarding Part 6 of Form I-129, does USCIS require a copy of the export control license if one is necessary?

Answer:

No. At this time, USCIS does not require a copy of the export control license as part of the nonimmigrant visa petition process.

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Supervisory CBP Officer initiated to have the cancellation reviewed

Detailed question:

For a CBP port of entry, what is the procedure available to seek supervisory review of an officer’s refusal to admit a visitor due to the period of time he or she was previously present in the U.S.?

Answer:

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. Such refusal would definitely result in a visa cancellation taking place, in which case an inquiry with the Special Cases Office could be initiated in order to have the cancellation reviewed.

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Electronic Immigration System Eligibility

Detailed question:

Can I use ELIS (Electronic Immigration System) to file an extension of status for my H-4 dependents?

Answer:

Please refer to the following for classifications that are eligible to use ELIS: http://www.uscis.gov/uscis-elis

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O Visa Applicant Applying for Green Card

Detailed question:

I have an O-1 visa. Can I apply for a Green Card?

Answer:

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.

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Prevailing Wage

Detailed question:

Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

Answer:

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.

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H-1B petition and Quota

Detailed question:

I am in the US in F-1 status. I just received a job offer and the company is ready to sponsor my H-1B. When can we apply for my H-1B visa?

Answer:

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.

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F-2 to H-4 Visa

Detailed question:

I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?

Answer:

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.

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Two-year home residency requirement

Detailed question:

Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Answer:

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.

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Nonimmigrant waiver

Detailed question:

I recently abandoned the US for Canada. I had been living in the US illegally for 15 years (since the age of 11). I got an opportunity to conduct biological research at the University of Alberta, AB, and Canada. I'm fully funded to live in Canada by the institution. Anyway, I would like to return to the US in 2013 for my 10 year high school reunion. I would like to know how likely I would be to get a tourist visa given my recent history. I have no intentions of staying in the US, just visiting. Am I automatically banned?

Answer:

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).

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L-2 visa and EAD processing

Detailed question:

I am in USA on L2 visa and I intend to start interviewing/ working immediately. For the EAD application, do I have to apply it before I interview or does the employer apply on my behalf once they make an offer? What are the processing times for EAD? I still haven't got my SSN but have scheduled the appointment for SSN. Should I apply for EAD after the SSN is approved or soon after SSN application?

Answer:

You should apply (not the employer) for the EAD ASAP. Processing times are on USCIS web site.

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L-2 visa application for spouse

Detailed question:

I’m applying L2 for my wife. She is working in India and she is coming here on vacation. Do I need to mention her working details while filling L2? Or shall I mention saying that she is not working?

Answer:

 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.

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Multiple entries for UK Citizens

Detailed question:

I am a US citizen - my partner is a citizen of the UK (we are not married). He is a consultant in the international development field so travels frequently, but often visits me in the US when he is not working. He has been to the US for visits of 2-3 weeks duration about 6 times in the last year. The past few times, immigration has hassled him about the number of visits he is making. We are concerned that one of these times he may be refused entry - is this likely?

Answer:

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.

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I-94 Extension Time

Detailed question:

I have a L1-A VISA through company Blanket. I have visa up to 2013. But my blanket expires in 2011-dec. I got I-94 up to Dec-2011. I have already applied for I-94 extension. How long will it take?

Answer:

It can take a few months. You can apply for premium processing even when the case is filed and pending.

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L-1 Blanket petition

Detailed question:

I have an L-1 Blanket petition and I traveled to US for one week and used that VISA. Part of my job, I need to work in one of our offices outside USA for a year, but will just have to go to US for one week every 2 months. Will that affect my visa since I would not be fulltime working in US? I have M entries in my L-1.

Answer:

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.

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Canadian with J-2 visa

Detailed question:

I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

Answer:

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.

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Visa Stamp

Detailed question:

I am planning to go home (outside US) for a month vacation this coming Dec. I have a visa stamp from my PREVIOUS employer that will expire on March 15, 2012. 1. Do I still need to go to the US embassy in my home country (where I am going for a vacation) since I have a new employer? 2. Could I use the visa stamp from my previous employer and present it to my point of entry? 3. Let's say I did not move to another employer, is there a time line when I can still use the visa stamp when I leave&go back to US(like for example, mine is nearing the expiration)?

Answer:

1. In your situation, the same visa stamp is good for any employer as long as you have not been out of status even for a day while in USA.
2. Yes.
3. Visa can be used as long as it is valid.

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J-2 holders and work authorization

Detailed question:

Can I use my J-2 visa for internship and work after completion of FPGEE?

Answer:

J-2 holders can get work authorization and work as per the licensing requirements of their profession.

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Out of F-1 visa status

Detailed question:

I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?

Answer:

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).

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J-2 to TN

Detailed question:

I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

Answer:

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

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Stopping at USA

Detailed question:

I am working in a Federal Gov't Agency, and in the near future leaving for Frankfurt, Germany, for a conference, and with a plan in mind to fly to USA via Germany after my conference is completed. My question, here, is that whether I can use my US visa, which is valid up to Apr 06/2012, whereas the passport has already expired by last May 23/2011, and due to be replaced by a new one.

Answer:

You will need an unexpired passport to enter USA. People in your situation carry both the new and the old passports.

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Visa for family to visit brother

Detailed question:

I have a brother here in US who is diagnosed with cancer. I would like my mom and brother who live in India to come and visit him. What type of visa should they apply for in India and how long will it take? On which visa can they come as soon as possible.

Answer:

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.

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Working Visa

Detailed question:

My fiance is from Pakistan, currently working in Kenya.He has done IT and Web-design. He is willing to work in the United States, Is it possible to get the visa?

Answer:

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.

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H-4 Visa and Status Validity

Detailed question:

My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012 My questions : 1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ? 2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Answer:

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.

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Pharmacist visa for FPGEE

Detailed question:

I have plans of taking the FOREIGN PHARMACY EQUIVALENCY EXAM (FPGEE), I am from the Philippines what kind of visa should I apply for?

Answer:

You will apply for B visa (B-1/B-2).

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B-2 visa

Detailed question:

I'm a non-married Iranian citizen who’s my first-degree family members are US citizens, currently residing in USA. During last several years I've been rejected every time I requested for a US visa (both F and J). Now, I am qualified to become a Canadian PR through the skilled-worker program. The visa is issued and I will be soon landing in Canada. I was wondering if my chances for getting a B-2 visa to visit my family will be any better once I'm a registered Canadian resident. Is it wise to ask for a visa once I get my PR card?

Answer:

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.

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H1B interview travel cost reimbursement

Detailed question:

I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?

Answer:

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.

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J-1 Waiver Pending

Detailed question:

I applied for my waiver in Aug 09 from the US and sent completed DS 3035 to the Waiver Review Div. in St. Louis, MO and Indian Embassy in DC. I returned to India in Sept 09.I have not had any updates since then. I would like to know (1) If I have missed any steps and if that is the reason why my waiver status remains unchanged (2) If I HAVE TO and can still apply for the NORI and obtain my waiver since I already have my case number and barcode (3) If I apply for the NORI from India, where do I send the Statement and Affidavit for attestation? (4)Are there any additional steps for waiver from India?

Answer:

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.

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J-2 visa and I-275

Detailed question:

My spouse is J-1 and is in US and I want to apply for J-2 to enter US. But 10years back I was denied entry in US on my B1/B2 Visa with I-275 executed stamp on my passport because in my last stay in US I attended college for a semester on B1/B2 visa. So I need to ask are there chances that I will get a J-2 visa to join my spouse?

Answer:

It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.

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H1-B to F-1

Detailed question:

I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

Answer:

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.

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H1 Renewal Denial/I 94 expired

Detailed question:

My H1 visa and I94 expired on 30th sept’10; we filed for a renewal but got an RFE in about 10 days for client letter. Replied to the RFE with client letter on October 29th, got visa denial on November 10th as client letter had project end date of 11/5. Current lawyer says I am ok to stay here 180 days from visa expiry, currently looking for new project with client letter to file for new H1 B visa and then go to India to get stamping and reenter. Am I ok to be here in the country or should I leave immediately? Will stamping and reentry be a problem? Is filing with the same company a good idea?

Answer:

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.

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L-1 visa from an affiliate

Detailed question:

I worked as Dept. Director at a Spanish Hotel from Jan 08-Jul 09. My employment was in the Hotel full-time, but was hired/paid through a consulting firm they employed (and still employ) to manage the operations of that department. I have now been offered a position (Dec 2010) in a similar Managerial/Director job within the Hotel's parent company in the USA but I have not got a US work permit, (I am Spanish). Can I qualify for the L1-blanket visa of the Company, based on my history with their consultant? Do I need to be employed by Hotel in Spain again prior to applying for the L1 visa?

Answer:

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.

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Can I petition my Fiancé

Detailed question:

How can I bring my fiancé to United States, can I apply for him by green card? I am not still a citizen.

Answer:

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.

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Wife work permit

Detailed question:

My company is giving me option of taking a L1 visa or H1B. My wife recently completed a 3 year Bachelors degree in Computer application from India. I want to make sure that she can work once we immigrate to US. Can you suggest what approach should we take? 1) Get myself H1 and then she does a MS from US. 2) Get a L1 visa and she can find a job in US with her 3 year degree.

Answer:

Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.

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B-2 to B-1

Detailed question:

I am an IT professional who has come to the US for medical treatment on a B2. I am getting better. Since I like to constantly upgrade my skills, I found some training programs that I could attend as they are more frequent in the US than in Canada. Can I attend them on a B2? I mean I have a B1/B2 visa, but the officer marked it as B2 on the stamp on my passport at the POE. Second - I also have got an offer for a one day lecture to some technology professionals for which I might get paid. How would the folks know I worked for a day if while exiting the country there is no checking?

Answer:

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.

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Parents B-2 Visa

Detailed question:

My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches: a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems. b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

Answer:

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.

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AOS applicants applying for H-1 visa

Detailed question:

My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

Answer:

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.

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My wife filed for Skilled Worker

Detailed question:

My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

Answer:

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

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F-1 reinstatement

Detailed question:

I am a F-1 student from India. I was declared out of status by the college as I dropped below 12 credit hours this semester. I had a sprain in my ankle, but i did not visited any doctor for such small thing, and as a result i don't have any medical proof to back my story in reinstatement. I am confused weather this reason (ankle sprain) will be sufficient for my reinstatement application to be accepted, or weather i should try re-entry with a new I-20; and if re-entry is a better option, from which country? (my home country(India) or any other country such as Canada, or Mexico).

Answer:

As far as I know, reinstatement requires exceptional circumstances. A sprain may not be it.

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L1B - resignation in US

Detailed question:

I am currently on L1B in US. Could you please let me know if it is legal to resign on L1B while am in US or is it required by law that I need to return to my home country and resign? Am on US payroll and I believe am governed by US labour laws and they will supersede the Indian laws even if I signed a document mentioning that I will return to India. Could you please confirm?

Answer:

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.

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Lost old EAD card for another OPT application

Detailed question:

I am currently a PhD student and preparing for application for OPT. Previously in 2004 upon earning BS degree, I got OPT and worked for a summer. In preparation for a new OPT, I realized that I need to provide copy of front and back of the previous EAD card. However, I cannot find the card. I just found copy of I-765, I-94, and I-20 for the previous OPT.If I submit without copy of the previous EAD card, will I be likely to be denied for the new OPT? Also, what is the safest way to deal with this situation.

Answer:

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.

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Student visa

Detailed question:

I have student visa and want to come to the US earlier than that 30 days allowed period of time.Probably one month earlier.Can I enter on visa waiver and before school starts re-enter the US by going to mexico or canada to activate the student visa? (which i was told i need to do).if i do so,do i need to buy one way or round trip ticket since i do not need to go nack to europe to re enter the US and how do i explain it to the immigration officer that i only have one way ticket? a while ago i learned i need to obtain change of classification and fill form I539 which takes months.is that so?

Answer:

There are several issues here and the outcome is uncertain, so I would advise against it. Your idea of entering on visa waiver and then later "activating" the F-1 through reentry should work, but I am concerned about how CBP will view your entry without a return ticket. Of course, you must always tell the truth and the truth appears to favor you, but I have no clue how a CBP officer would view this entry on Visa Waiver.

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Advise needed for replying visa

Detailed question:

I am a traditional artist, visited US in 2005 with P3 visa and later I have visited with 10 years B-1/B-2 visa two more times. And on fourth time the immigration officer, deported me from NY airport, saying that you have not paid tax $6000- of my sold paintings in the US. and if you agree to volunteerily withdraw applicatition then we will allow you to come back with right working visa.And the problem is my wife is in US and has applied for asylum, so do you recommend me to reapply for working visa or wait untill my wife gets the green card and I am deported on may 2009.

Answer:

If you withdrew your application, you were not deported. You could apply for a work visa.

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Where to file complain?

Detailed question:

Some of my friends filed H1B through a Consulting company. They gave 1.5-2K USD each. All of the cases were rejected for some unknown reason. Now, that consulting company is not giving money back. Where should they file complain? The consulting company's mother company is listed in Bombay stock exchange.

Answer:

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.

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H1B Restamping

Detailed question:

My visa is valid till Sept,2011. I recently changed employers;have received my approved I-797 from the new employer.Iam planning to travel to India in May,2010. Do I need to go for re-stamping? Shouldn't the employer name on my visa and my I-797 be the same? If not,then what all documents should I be carrying with me to show to the Immi officer at the Port of Entry? Should the employer name on the visa match the employer name in my I-797? My visa is valid till Sept,2011. I recently changed jobs and my I-797 from the new employer has the new employer's name;however my visa has the old employers name.

Answer:

Generally speaking, if you have never been out of status, you can travel out of USA and back without changing the visa stamp on an unexpired H-1 visa, even though you have changed employers through a valid H-1 transfer while you were in USA.

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Travel during H4 processing

Detailed question:

I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

Answer:

If you travel during change of status, the request for COS is deemed to be abandoned.

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L1B to H1

Detailed question:

I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

Answer:

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.

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E3 visa

Detailed question:

My E3 visa was applied and approved through an employer. I never joined the company or got paid. Are there any legal implications to the company as a result of me not taking employment with the company?

Answer:

The employer should withdraw your application.

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B-2 Visa Multiple destination

Detailed question:

My grandmother has a B2 visa to visit Guam. After her two week stay, she wants to visit her other daughter in California but she will have to go back to Philippines for a day because its cheaper to travel from Phil. to Cali. Can she still use the same B2 visa. When will she have to surrender her I-94? After the California trip?

Answer:

As long as the visa is valid and permits multiple entries (not all visas do), I see no problem.

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B-2 Visa

Detailed question:

I am US citizen trying to bring my friend from Pakistan to visit me in America , how hard is the process for him to visit, as we have never offical met in person, but are connected online. I hear you have to have proof that we actually have met, like pictures?. Is this hopeless? Would it be better for me to meet him out of the country?

Answer:

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.

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B1/B2 Category

Detailed question:

I have already applied for the draw for the Diversity Lottery Visa for which I am eligible.If at all I dont get selected and want to make a B1/B2 application thereafter will I have to mention in the application form that I have been denied such a chance for lottery before and if I choose not to do so can the consulate people find out that this person has made such an application before.Please advise for the correct approach.

Answer:

As far as I can think, you would have to reveal your DV application. Not having researched DV specifically, I can only say that generally, having applied for a green card makes getting a B visa much more difficult.

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G-4 to H1B

Detailed question:

1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B? 2. Can they apply for a GC after I have an H1B approval?

Answer:

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.

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H1B- denial

Detailed question:

I was approved for an H1B by USCIS There is a new I-160 form, electronic to the previous form. I want to be able to travel to my home country during this working period, but I have to go home to get it stamped. Could I still be denied the visa even though I obtained my H1B?

Answer:

Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.

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Having a board test on B1/B2

Detailed question:

have a valid B1/B2 visa.I visited usa( 2 years ago, when I was a student) for tourism.Is it legal to use this visa to enter the usa to have a professional test (foreign pharmacy graduate equivalency examination)?. is there any problem to show this purpose to the officer at the port of entry (in airport)?

Answer:

As far as I know, this should not be a problem if you are truthful about your intentions.

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L1A visa and H-1

Detailed question:

I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?

Answer:

That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

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L1A Extension processing time

Detailed question:

I had applied for my L1A extension back in Novemeber 13 2009 and yet the status is showing Initial Review. I am little concerned that would it really take this much time?What is the experience of other, with similar situation. Are L1's getting extended easily.

Answer:

L-1A extensions are very difficult unless you meet all the criteria.

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B1 rejected because I had applied for Green Card

Detailed question:

I was denied B1 because of lack of documents. On reality I have applied for Green Card as my sister is citizen of USA. How can I convince US officers that I will not abandon India and settle down in USA.

Answer:

I do not know of any special proof that you can provide. This is purely a matter of consular discretion.

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Quickest way to get a GC

Detailed question:

I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Answer:

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

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Visa for Mother in law

Detailed question:

I am a U.S citizen but my husband is not yet. My mother in law has been battling cancer for a while and I would love for her to come here and get medical treatment and to just see her grandson. She is from El Salvador, is there any way for us to do that?

Answer:

A B-1 visa is appropriate for medical treatment.

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Business Visa

Detailed question:

I sent an invitation to my business associate in India for supplying and installing equipments. The visa was rejected saying it is illegal to pay in US in USD. Actually, I am paying the company in India for supplying and installing equipments and not as a salary to the installer/project consultant.Now, I have asked him to reapply for the visa. What is the best way to present the case to the consulate office during interview?

Answer:

If you make the details of the transaction clear to the consulate, I feel you should have a shot.

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Return to America on a B-2 visa

Detailed question:

I want to know how long I have to spend in my country before I can return back to America,I left there on october 27 and I have a B-2visa.

Answer:

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.

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H1B Pending

Detailed question:

I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?

Answer:

You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

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F1 visa to business visa or H1/L1

Detailed question:

Which visa is easy to apply. Is it business visa or H-1 visa?

Answer:

If you qualify, H and L visas are certainly more secure than an F visa.

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H-2B Visa

Detailed question:

I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Answer:

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

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H1 working in University (non profit organization)

Detailed question:

My question is "what is the last date for applying academic H1" Is it april 1st or any time during the year.

Answer:

For university and other quota exempt positions, you can apply for an H-1 any time.

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Transfer to a startup company H-1

Detailed question:

I currently have an H1-B status supported by a large enterprise company. This visa is valid for another 2 years. In the next 2 months I would like to transfer to a brand new startup company that will only have 1 American employee and myself. Do you have any recommendations I need to watch out for when moving to a start up company like this. I guess I'm wondering if the government is more suspicious for these smaller companies than the large coorporations. I'm also looking for immigration lawyer to help me with this.

Answer:

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.

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H1 approval and stamping

Detailed question:

I got H1 approval and they asked me to immediately go to home country for stamping. What is the best answer that I can give when they ask me about the gap where the status was illegal. My stamping is on March 9th 2010 in Chennai.

Answer:

There are too many variable for me to be able to respond meaningfully. The general answer to your question is that the response must be the truth. Before you leave, make sure you are not subject to the 3/10 year bar from coming back because of unlawful presence. There is an entry on my blog on this issue.

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H1 B question

Detailed question:

Can an individual be granted H1-B status if they are doing an internship (unpaid) or any type of volunteer position? If not, can anyone tell me how an individual would go about getting anything resembling this type of visa for an internship?

Answer:

H-1B is available only for paid positions. Generally speaking, unpaid internships could be undertaken on a B-1 visa. That would be at the discretion of the US consulate.

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Renewing O-1 visa

Detailed question:

My husband used to have visa O for 2 or 3 years, and we decide to come back to Mexico in 2001, now we want to come back to USA, could you renovate this visa or is easy apply for new different visa? He has a BA in Spanish Literature and I have BA in psychology, we have one eighteen and one 15 years old sons and 1 year old baby girl, and we live in Canada right now.

Answer:

You will need to have the employer apply for a new O-1 petition with USCIS.

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J1 overstayed by years, married to a greencard holder

Detailed question:

I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Answer:

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.

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Need information

Detailed question:

I entered USA on F1 visa with my married name. As i got divorced a week before flying to USA wasn't able to change the last name. Now i am graduating soon and wish to obtain certificate in my maiden name. So i got my last name changed in passport from Indian Consulate San Francisco. But in my new passport there is no visa. So what should i do? The consulate and my school says that whenever i go back home i need to get a new visa. So is that true? Will there be any problem in going back India for summer vacation and getting a visa again? Is it possible to get visa here?

Answer:

Generally speaking, getting a new visa endorsement should not be a problem. You cannot get a visa within USA.

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E3 to H4

Detailed question:

I am in the US from Australia and just lost my job as an Engineer. I was on an E3. My wife has an H1B and is employed. Since E3 restrictions give about 10 days grace period, our immediate option is for me to go to an H4. Does anyone know how long this process usually takes if I am currently in the US and what I may have to do.

Answer:

Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.

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Out of Status

Detailed question:

How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

Answer:

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'

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H1B Status

Detailed question:

My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

Answer:

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

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Importance of having continuity of employment/pay stubs

Detailed question:

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Answer:

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.

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Visa for parents and niece

Detailed question:

I want my parents and my niece to visit me here in US. Can I apply for visa for all 3 of them together. My brother and sister in law are currently undergoing separation. Will there be any issues because of that?

Answer:

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.

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F1 visa to H1-b

Detailed question:

I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Answer:

Since the H-1 quota is over, OPT is your best option as far as I can tell.

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Questions on AC21, EAD, losing job, etc.

Detailed question:

1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

Answer:

1A.  Yes.

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).

5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.


6A. No.

7A. No.

8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.

9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

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Time Frame for Green Card

Detailed question:

I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?

Answer:

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.

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How to apply for visitors visa?

Detailed question:

My mother in law would like to visit me and her grand daughter and i would like to get her a visitor visa what do i need to get that and how do i get one?

Answer:

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.

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H1B extension for pending labor

Detailed question:

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

Answer:

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

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H1 6th Yr - Labor Approved - NO I-140

Detailed question:

My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Answer:

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).

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Information regarding pharmacist immigration

Detailed question:

I need an information regarding the pharmacist immigration. I have cleared Fpgee and right now i am in usa on F-1 visa. How can i end up getting an internship?

Answer:

You may want to ask in the forums http://forums.immigration.com about how to get an internship. We do process H-1 for Pharmacist Interns, but I do not know how you would get a job.

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Travel during 90 days of OPT without Job

Detailed question:

My OPT started on September 16th, 2009 and I don't have job or job offer yet. But I need to travel outside the USA for 1 week. I talked to the International Adviser of my University and she told me its fine to travel no problem. I don't still feel safe. Can anybody answer whether I will be allowed to enter or not? I have other documents.

Answer:

This is what ICE says:
2.O. Can I reenter if I left while on OPT?
If your OPT has been approved and you depart before you get a job, your OPT ends and you cannot reenter unless you have a written job offer.
If you have a job, you may travel and reenter to resume work at the same job or you have a written offer for another job.

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Filling out a DS 160 Non-immigrant visa Form by mistake ...

Detailed question:

My wife needs to transit through a US airport for not more than 5 hours in February 2010 in order to go back to her birth country. However, she filled out by mistake a DS-160 Non-immigrant visa to submit to the US consulate in Vancouver (Canada) because at the US consulate in Vancouver they require DS-160 Forms to be submitted to them. However, she decided to fill out a second form called DS-156 in order to apply to another US consulate in Canada (in Calgary) for the same US transit visa to get an earlier appointment there. What does she has to do now to correct this situation ?

Answer:

Contact the consulate. If they have not already done so, they will correct the situation upon request.

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How does one assist family in applying for B-2 (Visitors/Tourist) visa

Detailed question:

Q1. How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa? Q2. In filling out Form I-134 form (Affidavit of Support), If you look at the question No.1. It says are your Citizen...., or permanent resident of US. It has no column says are you H1B etc. What should I do here. Should I leave this column or do something else please guide me.

Answer:

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.


Once a visa is obtained, the visa holder can travel to USA. Assuming, they travel by air, INS (actually, CBP) will grant them stay at the airport. The usual period of this stay is 6 months. Extension is possible but is usually not advisable. Visa duration governs the time within which someone can land in USA. I-94 (issued by INS (CBP) at the airport) governs how long they can stay in USA. So for example if your visa is expiring tomorrow and you flew into USA today. INS (CBP) has given you an I-94 expiring in 6 months, you may stay in USA for 6 months.


A2. Hand write or type next to it "H-1B Holder"


 


 

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Divers Licenses, while H-1 extension pending

Detailed question:

How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?

Answer:

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.

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I-485 AOS Pending, Employer's Bankruptcy

Detailed question:

My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

Answer:

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

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Obtaining H-1 Extension beyond 6 years

Detailed question:

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

Answer:

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 green card process was started a year ago. The GC 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
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

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Important questions on H-1, AP and Travel

Detailed question:

1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

Answer:

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.

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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?

Detailed question:

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?

Answer:

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:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

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H-1 visa denial and investigation

Detailed question:

1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

Answer:

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.

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Applying for green card while on a B-1 or B-2 visa

Detailed question:

1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?

Answer:

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.

The tricky thing is, intent being a state of mind, can only be inferred from circumstances. If intent ever became an issue, INS may look at how soon after entering a green card was applied. Obviously, the more time has elapsed, the better the case is.

Once the I-130/I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site at: http://www.immigration.com/node/1412/

A2. Maybe. If they already have a visitors visa stamp on their passport, they should be able to visit. Chances of INS (CBP) sending them back from the airport are probably small. But if they will be applying for a tourist visa (also known as visitors visa) now, they may be refused the visa by the US consulate because they have exhibited immigrant intent. In that case they will have to wait until they receive their green card approval.

A3. In terms of legal effect - they are both the same.

Consular processing is faster (as of May 2002 taking about 3-5 months to completion).

For persons outside USA, consular processing is the only option. Once the I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site. See link in the question above.

A4. As I understand the law, they should be able to get their green card. You should talk with a lawyer.

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Compensation for H-1 lay off

Detailed question:

My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

Answer:

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.

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Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?

Detailed question:

I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

Answer:

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.

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Visa after B-1 to F-1 conversion

Detailed question:

I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.

Answer:

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.

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F-1 visa stamp, H-4 pending

Detailed question:

I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April. In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India. Now we are very much concerned that what will happen to my H1 and her H4? 1) Since she has F1, will it affect H1/H4 processing? 2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same? 3) Is it possible to have F1 and H4 both together at the same time? 4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

Answer:

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.

4. Let your employer know. They should be able to withdraw for you. If not, do it yourself as I have suggested.

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H-1 denial, appeal, MTR

Detailed question:

My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details. H1B/H4 filed: March 1st 2009 RFE was issued in April RFE replied: May 6th 2009 H1B/H4 denied: June 1st 2009 Our H1B/H4 I-94 expired: Apr 10, 2009 My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.). 1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status? 2) While new H1B is pending, what is my status? Am I considered to be in status? 3) Can we file brand new H1B through the same company while appeal is pending? 4) Can I work for my employer while appeal is pending, without filing new H1B? 5) Can I work for my employer while new H1B is pending? 6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition. 7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

Answer:

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.

4) No.

5) No.

6) This is totally in the discretion of USCIS. They can "forgive" your being out of status if there are VERY good reasons for it.

7) In your case, from the date of the denial. You were protected until the timely filed extension was pending.

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K-3 visa when I-130 approved

Detailed question:

We have an appointment set for the K-3 interview in Nairobi. Our I-130 Petition has been approved, IV fees payed and documents submitted. We have not seen each other since 12/08. If we go forward with K-3 processing, what are the negative consequences? Will my approved I-130 be cancelled?

Answer:

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.

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Can H-1 be extended based upon family-based green card?

Detailed question:

I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

Answer:

You cannot. This extension is available only to employment-based applicants.

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Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B

Detailed question:

I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know a- Can they do it legally? b- What are my options including can i sue this employer despite being on EAD?

Answer:

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:
 

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:
http://www.dol.gov/esa/whd/forms/wh-4.pdf

To complain to ICE, go here:
http://www.ice.gov/about/contact.htm

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From H-4 to F-1

Detailed question:

1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification: If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ? 2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same? 3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?

Answer:

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.

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What kind of company is good for H-1B processing

Detailed question:

Can you give us some tips on legally what kind of companies should one look for to process H-1.

Answer:

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

- for companies that do not have a negative history with USCIS. I do not consider investigations to be negative history. Investigations are a way of life. What I do consider negative is an adjudication of willful violation and/or a finding of misrepresentation in any prior case.

As a rule of human conduct, a company that lies for you will also lie to you (the same is true for lawyers). So, stay away from companies who are "easy going" with the truth. While good advocacy and emphasizing the positive points in any case being filed are legitimate and desirable goals, misrepresenting truth is a crime.

Also from my experience, there are plenty of honest, sincere people doing business out there. The laws are so complex that even with the best of intentions, employers can unknowingly be in violation. Usually, employers can avoid findings of willful violation by obeying the laws in good faith and not getting "cute" with the investigators, but not always. For a job seeker, this is all I can say. I will add to this note if I think of something else. Now I have to get some work done. Good luck!

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Entering on/applying for nonimmigrant visa while green card is pending

Detailed question:

I filed I-130 for my parents in April 09 which is still pending. They have 5 years multiple visa and they been here 4-5 times already. Is it ok for them to visit for a month again while their I-130 is still in pending status?

Answer:

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.

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Status, authorized period of stay and unlawful presence

Detailed question:

Answer:

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.

Status
Status is the immigration designation what has been given to you by USCIS. For instance, when USCIS approves your H-1 with an I-94 attached to the approval notice, you are in H-1 status.

Status and Visa
The difference between status and visa is important. A visa is a stamp on your passport. This stamp is placed by US consulates outside USA. The system of entry and stay in USA is governed by dual permission (DHS and DOS). When you are outside USA and you wish to enter, you first go to a US consulate (an arm of DOS - Department of State or State Department) for the appropriate visa stamping.

For instance, for a tourist visa, you go the US consulate in your home country, follow their procedures and apply for a "B-2" visa. When you get the B visa stamp you have been permitted by one agency (US State Department) to enter USA. If the visa stamp is valid for 5 years, you may travel to USA any time during those 5 years. This is your first permission in the dual permissioning system.

Now with the B-2 visa, you travel to USA. When you land at the US port, CBP (an arm of DHS - the Department of Homeland Security) decides whether you will be allowed to enter USA and how long you can stay in USA. The permission to stay in USA is given to you in the form of a small card that is put inside your passport. This card is called "Arrival Departure Record" or Form I-94. The I-94 has an expiration date.

Once you are inside USA, you are "in status" only till your I-94 is unexpired. If you wish to seek an extension of of your stay, you must request USCIS (another arm of DHS) for an extension.

Authorized Period of Stay
Authorized period of stay means you are not illegal but you are not in full status. Taking the example of B-2 extension I was discussing above, let us say you want to stay longer than the stay initially given on your I-94. You will need to apply for an extension BEFORE your current status (the termination date on your I-94) expires. Once you have made a timely application for extension or a change of status (for instance you wish to change to H-1B), you can continue to stay in USA till your application is decided (but not past the point you had asked for as an extension). The moment your I-94 expires, you go from being "in status" to being in "authorized period of stay." This is less than full status (for instance you cannot change status within USA when you are in authorized period of stay, but you can do so when you are "in status."

Authorized period of stay also applies to people who have applied for the last step of their green card, "Adjustment of Status" (AOS or I-485). When someone files an appropriate AOS, they are in authorized period of stay until their AOS is adjudicated, no matter how long it takes.

Unlawful Presence
This is the real bad one you have to watch for. If you accrue 180 days of unlawful presence in USA, you are barred from entering USA for 3 years. If you are unlawfully present for one year, you are barred for 10 years. This is referred to as the 3/10 bar. A rule of thumb is, unlawful presence begins to accrue when your I-94 expires and you have done nothing to extend/change your status or when the government says your unlawful presence has begun (typically happens when an extension or change of status is denied.
 

In AOS (I-485) Context

Quote: Hope you remember me. I am one of your clients and you had represented me for my H1-B. Today I was laid off from my employer who was the H1-B sponsor. I have my AOS EAD as a beneficiery to my husband's PR process. I am concerned about my status in the US. My husband is also on EAD as he recently changed his employer using AC-21. Could you please help me? What status am I on now? Can I stay in the US? I currently have a valid I-94 in my passport. I need to decide the future course of action

Ans. You are now in authorized period of stay and can legally stay in USA. To work, you will need an EAD and to travel an AP.

In Change of Status Context
Updated 11 May 2009

Q. I am currently on H4 visa and the expiration date of my I-94 is May 23, 2009. My spouse had applied for an extension during the last week of April 09. In between, I received an offer for MS course at Penn state University, PA - US. I am planning to join school again on F1 visa since I have received assistantship/ financial aid from my University. I am planning to join for Fall 09 semester which begins in August 09.

Since I have to apply for a change of status from H4- F1 , is it possible to do this having applied for H4 extension now? Is there any way by which I can submit an application for F1 visa directly to USCIS without going for H4 extension?

Ans.
The rule of thumb is you can always apply for COS when you are in status, but not when you are in authorized period of stay. Upto 23 May, you are still in full H-4 status. After that day you will move to authorized period of stay because your H-4 status would have expired. So, if you file for a COS now, it should be fine. After 5/23 you have two choices. Wait for H-4 to be extended, then apply for COS to F-1 OR go outside USA any time and get F-1 visa stamping.

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LCA's for H-1 will probably take longer now

Detailed question:

Answer:

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.

PLEASE NOTE: This new system can take up to 7 business days to process LCAs.

Because of this extended processing time, we will no longer be able to instantly process and submit LCA Forms online. Therefore, please allow our team ample time to review and process your H-1B application.

Please feel free to contact us if you have any questions.

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When to apply for L-2 extension

Detailed question:

My employer is in the process of extending my current L1 status for another 3 years. Current I94 is due to expire on June 20, 2009. My wife is on L2 and employed with an EAD valid till June 20, 2009. How can she extend her EAD at the same time as my L1 is being extended? My company lawyers will not handle extending her EAD. Please advice.

Answer:

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.

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H-1 Quota Count still at 45,000 as of 4 May 2009

Detailed question:

Answer:

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.
 

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.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at www.uscis.gov/h-1b_count.

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H-1 extension denied - status

Detailed question:

Answer:

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.

I have a situation: My current Employer had applied for my H1B extension in regular processing in January, 09 which was expiring on 29th, April, 2009. They got a query, asking for agreement between me and the employer and agreement between my employer and 'ULTIMATE END CLIENT' and complete itenarary of services. When, my employer applied for extension in Jan, I was working for a project in CA, and they submitted LCA showing, CA as my work place. But, by the time, they got RFE, my CA project was ended and i got another project in TX. Then, they replied to RFE under premium processing along with new LCA showing, TX as my work place. On 22nd April 09, USCIS denied my extension saying, they cannot accept new LCA with an old dated I-129. I had filed for my H1B extension with a new employer and USCIS received my application as of 27th April, 09. But now my new employer also got a RFE.

Note: My I-94 is expiring on 09th May, 09. According to this, I can legally stay in country.

Ans. This situation is a bit complicated. Do get together with your lawyers. I am giving you the advice that I can based upon what I see. The good thing about your situation is that you did not start working with a new employer. Since you continued working with the old employer, a strong argument can be made that you are still in status (despite the change in locations). When your employer (new or old) files an extension; that, if timely filed, keeps you in authorized stay and gives you permission to continue working for 240 days.

Quote: My question is:
Since my new employer got an RFE, now I will not have a decision on my H1 Transfer before 9th May, can I stay untill I get any decision?

Ans. Yes, you can stay.

Quote: If, I start working for my new employer and suppose I get a denial from them, will the duration I work for them will be legal?

Ans. Yes.

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H-1 Extension based upon spouse's 140; Child born in USA

Detailed question:

Answer:

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.
 

Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

Ans. No other way.
 

Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.
 

Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

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H-1 Quota still open

Detailed question:

Answer:

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;
however, we continue to accept advanced degree petitions since experience has shown that not all
petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are
exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium
processing period began April 7. For cases filed for premium processing after the filing window, the
premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be
found on the USCIS’ Web site at www.uscis.gov/h-1b_count.
– USCIS –

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PROPOSED Legislation to Reform H-1B Visa Program

Detailed question:

Answer:

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.

 

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.

“The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said. “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.”

The Durbin-Grassley bill would mend the H-1B visa program, not end it, making reasonable reforms while not reducing the number of H-1B visas that are available. Congress intended H-1B visas to benefit the American economy by allowing U.S. employers to import high-skilled and specialized guest-workers when no qualified American workers are available. While initially successful, loopholes in the program have allowed foreign guest-workers to displace qualified American workers.

Some claim that the H-1B program helps to create American jobs, but it is currently being used by some companies to outsource American jobs to foreign countries. Under current law, an outsourcing company can use American workers to train H-1B guest-workers, fire the American workers and outsource the H-1B workers to a foreign country where they will do the same job for a much lower wage. In fact, Indian Commerce Minister Kamal Nath has referred to the H-1B as “the outsourcing visa.”

Employers can legally discriminate against qualified Americans by firing them without cause and recruiting only H-1B guest-workers to replace them. The U.S. Department of Labor (DOL) has said: “H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of a foreign worker.” Some companies that discriminate against American workers are so brazen that their job advertisements say “H-1B visa holders only.” And some companies in the United States have workforces that consist almost entirely of H-1B guest-workers.

To address these problems, the Durbin-Grassley bill would, among other things:

* Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers.

* Prohibit the blatantly discriminatory practice of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders.

Under current law, it is very difficult for the federal government to monitor the H-1B and L-1 visa programs. For example, the Department of Labor (DOL) is only authorized to review applications for “completeness and obvious inaccuracies.” DOL does not have the authority to open an investigation of an employer suspected of abusing the H-1B program unless it receives a formal complaint – even if the employer’s application is clearly fraudulent. Even if there is a complaint, the Labor Secretary must personally authorize the opening of an investigation. DOL’s Inspector General has concluded that the H-1B program is “highly susceptible to fraud.”

To address potential fraud, the Durbin-Grassley bill would give the government more authority to conduct employer investigations and streamline the investigative process. For example, the bill would:

* Permit DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;

* Authorize DOL to review H-1B applications for fraud;

* Allow DOL to conduct random audits of any company that uses the H-1B program;

* Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. offices for up to seven years. Experts have concluded that some employers use the L-1 program to evade restrictions on the H-1B program because the L-1 program does not have an annual cap and does not include even the minimal labor protections of the H-1B program. As a result, efforts to reform the H-1B program are unlikely to be successful if the L-1 program is not overhauled at the same time. The Durbin-Grassley bill would institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.

Durbin and Grassley introduced a similar bill last Congress.
-------------------------------------
Note that this is just a PROPOSED legislation, not law. I have no issue with enhanced enforcement but I certainly have an issue with the hue and cry against outsourcing. I am not an economist, but common sense says if a company can get a job done cheaper in another country, why should they not? The world has become a strange place where capitalistic economies are spouting communist rhetoric and communist countries have embraced profit with gusto. We are in a global economy. We have to stay competitive. We can never compete with businesses that are domiciled in the low labor cost economies. China is an obvious case in point. I see "Made in China" on almost everything I buy. Is that virtual monopoly created because China restricts outsourcing? I believe the answer is no. It is because China is where manpower is cheaper and so is India and many, many other countries around the world. How can we compete with these businesses? In my view, we need to enhance our dwindling edge in science and technology. Instead of competing for low end jobs, should the emphasis not be on creating a more highly skilled US work force? Let the lower end jobs go where they will. Congressmen Durbin, Grassley notwithstanding, we cannot stop that migration. I see nothing in our policies that addresses the long term goals of enhancing our strengths. Instead, I see more knee-jerk responses that would cut US businesses off at the knees. I hope this administration and legislature will have the good sense to consider the long term repercussions of their blind law-making.

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H-1 without specific job/GC continuation without H-1

Detailed question:

Answer:


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.

Ans. USCIS has criminalized civil conduct. To my amazement, I saw a criminal indictment count against an employer (Vision Systems - recently in the news) alleging that to obtain H-1 without a specific job in hand is a crime. I think this is ludicrous overreaching and misuse of law. Nevertheless, it is not a good idea to file an H-1 unless there is a specific job in hand.

2. My labor and I-140 is approved but if H1B extension is denied then I have to go back to Inida. Can GC processing be continued? If yes, In order to maintain my GC processing how quickly do I need to come back to US? What other options do I have in this scenario?

Ans. The green card can go on in your absence, but I am concerned that USCIS may consider that since there is no permanent job available, the green card should be canceled. To the best of my knowledge, they have never done it so far and may not do it, but the risk remains. Not much I can say other than if you dont have a choice then you have to leave and we will deal with other issues when (or if) they arise.

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H-1 Count 44,000 -- You can Still File

Detailed question:

Answer:

From USCIS:
Quote:

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 44,000 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; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count.

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US employee working from India

Detailed question:

Answer:

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?

Ans. I see no problem with that from the immigration law perspective. I am not a tax expert, but the way it is done is the company pays you as an independent contractor. Since you are working in India, they do NOT need to deduct any US taxes. You are responsible for your own taxes to the Indian govt. Do double check the details with a CPA. Feel free to call our CPA. Anna o Suman ji can give you the number or anyone in accounting can.

2. On their accounts they would show that they are paying me in India as a consultant, will that be okay? ( I won't be on their payroll here in the USA).

Ans. Yes. That is fine.

3. Is it sufficient to say that I was doing independent consultation or sub-contracting work for my current company from India?

Ans. Yes. Immigration laws require nothing more.

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H-1 holder aplying for H-4 visa

Detailed question:

My wife has been in US for 6 months on H1 and is going back to India. In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1? Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

Answer:

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.

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New H-1 employee returning -- rights and issues

Detailed question:

Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

Answer:

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).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

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Effect of Bankruptcy on immigration

Detailed question:

I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Answer:

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.

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When is an H visa stamping required?

Detailed question:

Answer:

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.

Ans. I do not believe you need a new visa stamp because you already have an H-1 visa from another employer. You should be able to travel with the same visa (and a new H-1 approval). If you had ever been out of status, you would have been well-advised to get a new stamp. In your case, you appear to always have maintained status (albeit H-4 for a brief while). So, I see no issues. As always, double check with your H-1 lawyers.

PS. I would be careful how I phrase my thoughts if I were you.

2. In order to have a valid status I got married on Feb 15th?

Ans. I know you do not mean that :-), but the govt might think otherwise.

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H-1 visa stamping -- is it difficult?

Detailed question:

My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions. Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India. What is the procedure.

Answer:

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.

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Unreasonable H-1 requests from CIS

Detailed question:

Answer:

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:

Quote: Submit evidence that clearly substantiates that the petitioner or petitioner's client's are legitimate business entities and employers. Evidence should include copies of the client’s most recent signed Federal Tax Return and quarterly wage reports for the last quarter. If the clients are publicly traded companies, provide a copy of their most recent annual report and a letter from the president of the company explaining what business they have with the petitioner. If the client is a government agency, provide the contract number and the name of the company that has the primary contract.

As with most things dished out by USCIS, we are dealing with it.

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Inviting parents to provide care during pregnancy or postnatal period

Detailed question:

Here's the situation: LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.

Answer:

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.
 

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.

Q2. Should the couple get letter from their doctor stating the due date of the baby and requesting the embassy to allow the mother to visit US to take care of kids in the postnatal period etc.
A2. Yes, but only if there are some special health concerns.

Q3. Does it matter if at the time of her visa interview, the couple is already overseas? Then she can't claim that she wants to see her son in addition to tourism related activities.
A3. The truth.

Q4. Should the mother go for visa interview when the couple had returned back to US after seeing her overseas? Will the fact that the couple just visited the mother not a good thing for her visit visa application?
A4. If the reason is to visit her grandchild and hold him/her and be the loving moral support for the family, why should it matter.

Q5. If the main reason for visit is to provide care for the yet-to-born or new-born grandchild, what are mother's chances of getting visit visa?
A5. Consulates have a very twisted idea of what "care" is. They start thinking of it as a job and not a part of what a grandparent normally does. So tell the truth but make it clear.

Q6. What should the couple and the mother do in order to increase her chances of getting visit visa? What documentation/proof etc would be considered sufficient. Should they provide affidavits under oath that the visitor will return to her native country after her short stay in US?
A6. I do not know of anything that would improve chances.

 

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H-1 Quota Status

Detailed question:

Answer:

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 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.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.

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USCIS is continuing to accept H-1 filings

Detailed question:

Answer:

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.

When USCIS receives sufficient number of petitions to meet the caps, it will issue public notification that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may randomly select (lottery) the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

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GC future job; H-1 ext. revocation upon 140 denial, etc

Detailed question:

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Answer:

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.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

 

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Converting from EAD back to H-1--Updated 6 April 2009

Detailed question:

Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

Answer:

 

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?

Ans. Yes.

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?)

Ans. You will need to get an H-1 approval by having your new employer apply to USCIS any time you like (just like a new H-1 or an H-1 transfer. This is, of course, NOT subject to quota). After the approval you need to exit and reenter USA using your H-1 visa. You may use the old visa stamp if it is still valid and you have not been out of status or get a new stamp if you were out of status or the old stamp has expired.

Quote: Rajivji,

If I convert from H1B to EAD with my current sponsoring employer and they revoke the H1B as you have mentioned before being the best thing to do.
1) Does the H1B revocation still mean that my H1 status is dormant?
2) Would I be able to reactivate my H1 again with the current employer?
3) Would my employer have to reapply for the H1 approval or the current approval that I have valid till Apr 2010 enough?
4) I am assuming based on the answer to Q3 above, I will have to go out of the country and come back on my current H1 visa that I have stamped?

Ans. Once revoked, the H-1 will have to be reapplied, will not be subject to the quota and will be valid for 1 or 3 years depeneding upon your situation. And, yes, you will need a visa stamping to activate the H-1.

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Are H-1 holders being turned back at the airport?

Detailed question:

This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

Answer:

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

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Employers and Employees -- H-1 or EAD?

Detailed question:

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

Answer:

 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.

 Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

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H-1 and EAD

Detailed question:

Answer:

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?
Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

Qo. After USCIS approves H1-B extension in this case, are we required to go immediately to India to get visa stamped or can we keep working on EAD and get the H1-B visa stamped when we like. My I-140 is approved and I-485 pending.
Ans. You can go when you like.

Follow up Qos/Ans

Qo. Thanks a lot, Rajiv. Just one clarification related to H1-B visa stamping in the above case. Do you think the US embassy will ask me why I want to come back to H1-B after having worked on EAD for say 6 months or 1 year after 6 years of H1-B expiration at the time of applying for H1-B visa?
Ans. It should not be any of their concern.

Qo. what should be the response to their question?
Ans. The truth.

Qo. Also, God forbid, in a worse case scenario, if my I-485 is denied after my H1-B extension has been approved in the above case and then I go for H1-B visa stamping, w'd they still give me visa?
Ans. That is legally uncertain. So it is wise to get stamping while the 485 is still "alive."

Qo. On a different note, is there any basis other than a crime, misrepresentation, public health, or revocation of approved I-140 on which the I-485 can be denied?
Ans. Sure. AOS is a discretionary process. It can denied for many reasons (but usually is not).

Qo. If not, then will it still be more advantageous to work on H1-B instead of EAD? I am just trying to evaluate the benefit of coming back to H1-B as opposed to keep working on EAD. Your answers to the above questions will help me greatly in that direction.
Ans. As I have commented several times, I like to keep both options open. So, work on H-1 while keeping your EAD in hand.

Further Questions 

Quote: Me and my spouse are working on H1B for two different companies. My spouse company is processing the green card and the process started in 2005 in EB2. We got married in 2006 and I-140 got approved before our marriage. We filed together for I-485 after marriage in August 2007. We got our EAD card in Nov 2007. We also got our second EAD card in Nov 2008 and it will be valid till Nov 2010.
Though we had EAD card, we are using our H1B. Now, I got laid off from my company last week. I am looking for opportunities. I hope I could find one in a week or two. My questions are
1. When I join my new company should I use EAD card or I do H1B transfer? Please advise.

Ans. H-1 is the best option usually. You can try for a transfer. Usually, CIS declines transfer within USA (requiring you to go outside USA for a visa stamping) if there is any gap in status. But, it is in their discretion to permit it. Joining on EAD is no end of the world. You can start work on EAD and file an H-1. Gert stamping done whenever it is convenient. When you reenter on H-1 visa, you are back on H-1.

Quote: 2. Also, if the market goes further bad and my spouse also got laid off, what will happen to me if I am using my EAD?

Ans. If she uses AC21, you should be fine. Otherwise, if her 485 is void, so is yours. 

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H-1 Lottery for 2009

Detailed question:

Answer:

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.

USCIS has said that they will not begin to issue fees receipts, until sufficient H-1B petitions have been received. After the lottery is conducted, USCIS will then issue receipts for those cases that are selected, and the receipts will probably all have the same receipt date: April 8, 2009. If, however, the quota is not filled by April 7, they will continue to accept H-1 filings.

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GC Compliance for Employers

Detailed question:

Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Answer:

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.

Quote: (2) Do we need to notify anyone about their GC process and let them know that they are no longer working for us?

Ans. There is no such requirement, but the better practice is to write to CIS revoking the I-140.

Quote: (3) Can we re-hire them on their EAD after few (or several) months once they get a project on their EAD?

Ans. Yes, but the question about "permanent job" remains.

Quote: (4) Can we continue their Medical Insurance (and our company pays for it) even if they are NOT employed with us.

Ans. I can see that as objectionable on several grounds.

Quote: (5) Can they stay in USA if I cancel there H-1 and they have a valid EAD but they are NOT employed by anyone.

Ans. Yes. Have them review the entries on my blog under I-485. You will still have unanswered questions about "permanent job."

Quote: (6) Is there an alternative for them to apply for Consular Processing, under what circumstances should they do so, what are the benefits / disadvantages

Ans. I see no advantage in CP. The basic question about a permanent job remains unanswered.

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When does CIS investigate fraud?

Detailed question:

Answer:

The attached document explains the criteria.

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H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

Detailed question:

Answer:

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.

2. For an exempt employee, where are not agreeing for Recruitment Efforts, Displacement and Secondary Displacement conditions, is it compulsory to do the Job Posting at the place of work ? How will be the approach of DOL at the time of auditing the LCA of an exempt employee, as we are maintaining the list of exempt employees as per DOL regulation in the public access file? Can we expect any kind of relaxation regarding the doing of job posting at the place of work, which is not always practical for the IT consulting companies? Nowadays we are listening to the stories, where the Officers from the Service Centers, Port of Entries and Consulates are questioning the employers or their clients regarding the recruitment efforts that were made in the case of exempt workers also. Then what is the use of hiring exempt employees?

Ans. You are not required to show recruitment or non-displacement for exempt employees, but there is no exemption from posting. Your notices MUST be posted at the work site.

3. In some cases, for the H1B employee who is entering into US for the first time, SSN is being issued after one month. Is it compulsory to put the new H1B employee on pay roll from the very next day he got admitted on H1B, by asking him to fill up the I-9 form before he gets SSN? Or Can we ask the new H1B employee to come and report after obtaining SSN? Is there any allowable waiting for the new H1B employee to report for his work after he got admitted into USA on H1B visa? If the new H1B employee enters into USA without informing the employer and starts living in the USA and the H1B employer comes to know about the H1B beneficiary’s stay in USA after some time, what kind of action the H1B employer has to take in this kind of scenario?

Ans. An employee can start work even without the SSN. You are REQUIRED to start the payroll upon the earlier of the following two conditions:
A. When the employee reports for the job; or
B. No later than 30 days for employees coming from outside USA or 60 days for employees in USA. The days begin to be counted from the date of the H-1 approval.
For "uninvited" employees, the better practice is to withdraw the H-1 immediately and document the fact that the employee did not report for the job. This document can be a detailed statement of an employee, such as HR, about the facts of the case with times and dates. Place the original of the statement (preferably notarized) in the employee's file.

4. After taking the new LCA for the new work location, is it compulsory to file the Amended I-129 petition? If not, in what circumstances we need to file the amended I-129 petition compulsorily?

Ans. An H-1 must be amended if the job location is changed to a place beyond normal commuting distance from the approved location.

 

 

 

 

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L-2 EAD and H-1

Detailed question:

1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2? 2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)? 3. Does EAD allow one to be do multiple things as a free-lance professional?

Answer:

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.

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Starting business while in AOS/I-485/H-1/H-4

Detailed question:

1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

Answer:

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.

2. I think that should be fine. But passive means performing no work. Think of it as investing in IBM on the stock market. Just because you purchase a few shares, you do not get a seat at the Board of Directors of IBM. That is passive investing.

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Employers questions on H-1 compliance

Detailed question:

Answer:

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.

2. Is it OK to give advances - besides paying LCA wages while the person in on project and then during the project break, run the payroll for LCA wages but recover the advances (post-tax obviously) and pay only balances if any?

Ans. In my view, this is illegal for many reasons.

3. Is it OK to pay all our consulting employees a wage of 60K or the LCA wage whichever is higher, irrespective of the skill set - by making this a standard wage policy in the company.

Ans. As long as you are following the wage guidelines and paying according to the seniority level of the job, I see no issue with this arrangement. But you cannot pay level, 1, 2, 3, and 4 employees $60,000. The wage must be paid according to the job they perform.

4. Further, is it OK to give discretionary bonuses above these levels to employees that the management considers are more valuable to the company?

Ans. As long as you can objectively justify the salary variance, I see no issues with this.

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How does the Stimulus Bill affect H-1b, L-1 and Green Cards

Detailed question:

What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?

Answer:

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.

2. These requirements are already in place for employers whose workforce contains a substantial number of H-1 workers. These employers are referred to as H-1B DEPENDENT employers.

3. The additional requirements that TARP accepting companies have to follow are:
a. They must not displace U.S. workers in similar positions nor may they place H-1B employees at places where such displacement has or will occur (I can give more details to those who wish to know more. Feel free to send me an email through the contact form on http://www.Immigration.Com).
b. They must have made good faith efforts to recruit US workers (there is a whole bunch of regulations on how we are supposed to do this. Again, feel free to send me an email through the contact form on http://www.Immigration.Com)
c. TARP employers are bound by these requirements even if they hire exempt workers. An exempt worker is one who makes at least $60,000/year OR possesses a Master’s or higher degree in his/her filed. Normally the additional requirements of non-displacement and good faith recruitment do NOT apply with respect to exempt H-1B workers. Nevertheless, the Bill says, this exemption is not available for TARP recipients.
4. This restriction on hiring H-1B workers will stay in effect for two years after the President signs the Bill.
5. There appears to be no change regarding L-1 provisions.

For those, who would like to read more on the laws, read section 1611 of referred to as “Employ American Workers Act.” This section refers to 8 USC 1182(n)(3). The full text of the American Recovery and Reinvestment Act of 2009 which I referred to is at http://www.house.gov/billtext/hr1_legtext_cr.pdf

Regards to all. Rajiv.

6 March 2009

CIS has clarified that extensions of existing H-1 are not restricted by the new laws. 

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H-1 Quota - what is acceptable evidence for degree

Detailed question:

Answer:

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:
 

Quote: We will accept the following so long as the degree requirements were completed prior to filing:

A final transcript; OR

A letter from the Registrar; OR

A letter executed by the person in charge of the records of the educational
institution where the degree was awarded.

If the third option is utilized, then that person must show that they are authorized to issue such letters.

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Can B visa holder convert to F or other status?

Detailed question:

My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands

Answer:

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.

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.

In April 2002, INS changed its regulations regarding B to F-1 or M-1 (students) status conversions for people who enter USA from then on. INS maintains that B to F-1/M -1conversions from within USA will be permitted only if at the time of entering the USA (for instance at the airport) the applicant expressly declares to INS his/her intent to change to F-1/M-1 status. AS A PRACTICAL MATTER, HOWEVER, CIS seems to have often given changes from B to F status ignoring its own regulations. But in these cases also, the visa problem from consulates will remain.

The better thing to do is to go back to your home country and try for a visa there. Chances of getting a second visa are better if you have done nothing to violate the terms of an earlier visa.

 

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Can F/J holders apply for green card?

Detailed question:

I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

Answer:

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

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Turning 21 - do I have to convert to F-1 from H-4?

Detailed question:

My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

Answer:

 I do not see any way around filing an F-1.

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What happens when an employer is under criminal investigation/indictment?

Detailed question:

What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

Answer:

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. 

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Do physicians have the right to an extension beyond 6 years for waiver jobs?

Detailed question:

Answer:

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.
Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

2. How to leverage the I-140 to get H-1 extensions?

Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

3. Is an approved I-140 ground for an automatic denial of J visa?

Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

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Employers responsibility in H-1 process

Detailed question:

Answer:

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?

b) We are having difficulty finding project for one of our h1b worker. As a small firm, we are unable to run a payroll while the candidate is on bench (so to speak). Should we need to withdraw the petition and send the candidate back home? or is it ok to accept a leave of absence from the candidate? She has a EAD also (as her husband has filled I485 in Nov 2007)

Travel on H-1
The rules on travel while on H-1 are fairly complex. Let me state the basic law.

If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.

If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.

There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.

Leave of Absence on H-1
Regs do permit leave of absence if an employee genuinely needs it. But you must not use LOA as a pretext to bench employees. In my view, you must withdraw the H-1.

FAQ
 

Quote: I have a question regarding the h1b candidates who left our firm almost 2 years ago(there are two case). We didn't send the withdrawal form (as we weren't familiar with the case). If we send a withdrawal notice now (stating that they resigned in the 2006 or 2007) will there be any implications for us? Appreciate your help.

I do not believe we have a choice. You MUST inform USCIS. In my view, the fact that we are stepping forward to correct problems voluntarily is in fact helpful to us.

By the way, I think I am scheduled to do an employer-only phone seminar answering and discussing all compliance issues this Thursday at 2 PM. This may be more for our existing clients. But go ahead and send an email though the "contact us" form on our home page. Send email from your corporate account. We are not opening the seminar for anyone but employers. There is no charge, fo course.

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Is salary reduction possible/legal?

Detailed question:

Answer:

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

Ans. Probably yes. That is the safest thing to do. The rule of thumb is, you can never pay an H-1 holder below the prevailing wage. You can also not pay them below what you pay other similarly employed professionals in the geographical location of the employment. So, if the 10% pay cut does not violate these two principles, the only other issue in immigration compliance is whether 10% cut in salary is a "substantial" change in the job. An H-1 amendment is always necessary when there is a substantial change. To be safe, I would recommend you amend.

Quote:

2. If an employee is on a GC processing (I140 or I485) they can have a reduction but need to be paid the amount equal to or greater that was listed on the GC petition on the day their GC is approved.

Ans. Basically, yes.

The main issue here is, if the salary being paid is below that expressed in the GC application, does the employer still have the ability to pay wages. This issue is usually not raised past the I-140 approval, but I see no law that says it cannot be raised after the I-140 approval. And in all cases before 140 approval, the salary shortfall must be balanced by showing an equal amount of taxable income or net current assets for each GC beneficiary (employee) still in the process.

For example, you have to give a pay reduction to an employee on H-1. Assuming you have not violated the H-1 requirements we have discussed above, you will need to show continued ability to pay the GC salary. Let us say the salary stated on the GC application in $80,000. The employee is now making $75,000 after the pay cut.

For GC, we will have to show $5,000 taxable income/current assets (or the proportion of salary that falls in that tax year). If there are 5 employees in the same situation, that amount would rise to $25,000.

Quote:

3. If an employee is on a GC processing and has a H1 they need to have their H1 revoked and work on their EAD for the #2 above to be accepted.

Ans. You can do that as long as that employee is getting paid the same as others.

Quote:

4. Benefits that were listed as a part of an employees immigration processing cannot be decreased.

Ans. There is no place where we commit to benefits or state them in the GC application as far as I know. The law does not require benefits.

 

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If I-140 gets revoked/denied does my H-1 extension get canceled?

Detailed question:

Answer:

Quote:

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.

Quote:

I really want to thank and appreciate the good work you and your team is doing.
I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
My question is if my present employer lays me off and terminates my H1,
1. Can apply for H1B transfer to other company?
2. Will I be consider out of Status under any condition?
3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

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Note! Employer subject to H-1 quota, but the job may not be

Detailed question:

My wife is on cap-exempt H1B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution. It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think, any chances here ?

Answer:

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.

One case was for an educator who was doing trainings for a private company. The employer is obviously subject to the quota, but there was a large component of the job where she is assisting art education outreach for a university. H-1 approved.

But this is never easy, simply because CIS itself does not understand its own law. The first set of cases were returned as unapprovable by CIS 4 times and finally approved. The second, returned once and then approved. I will not get into the amount of pushing we had to do to get the govt. to obey the law, but we did get them approved.

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Consequences of not using an H-1 visa

Detailed question:

I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

Answer:

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. But I am pretty sure there is such a question and you have to get that answered truthfully.

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L-2 to L-1 COS or Visa?

Detailed question:

Hi...i have a question...i came to US on my L2 visa and am here for 1 month.meanwhile my company has initiated for my L1b visa in India..now my question is... 1. Should i have to travel back to my native for Visa stamping or i can apply for COS from L2 to L1B in US itself? 2.Since i already own L2 visa is there any chance that my L1B is rejected?i have been working in the company for 1yr and 2 months only now. 3.in case if my L1b is rejected is there will be any impact on my already approved L2 visa?can i come back to US again using L2 visa?

Answer:

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.

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Employer not paying, may I tranfer H-1?

Detailed question:

At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

Answer:

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:
http://www.dol.gov/whd/forms/wh-4.pdf

You can also contact the local WHD of DOL where you are:
http://www.dol.gov/whd/

Not only will you most likely get your full salary for every day of H-2, you also well protected from any problems past or future due to non-payment. Good luck!

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L-1/H-1 COS Issues

Detailed question:

I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa). 1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1) What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1. 2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?

Answer:

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.

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What to do if an I-140 gets rejected?

Detailed question:

Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Answer:

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.

But here are some things to consider.

Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

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Do advanced degrees help in marriage-based green card?

Detailed question:

I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

Answer:

 1. Advanced degrees do not help in a family-based green card.

2. H-1 approval also does not help in the GC process.

3. Check with your international students office about the OPT part. This one is difficult for me to comment upon.

4. Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important. Regarding taxes, check with a CPA. You do not want tax advice from a guy who barely passed his Federal Tax exam in law school.

If I were you, I would depend on my H-1, not OPT. The H-1 permits dual intent (Nonimmigrant and Immigrant) and is likely to be a strong visa for a person married to a green card holder

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H-1 converting to H-4 and then (maybe) back again

Detailed question:

I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B . Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project. While working she have been paying taxes regularly. Pl let us know what needs to be done now:- * She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS ? * When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work? * If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?

Answer:

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.

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Can H-4/F-2 holders perform volunteer work?

Detailed question:

Answer:

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?
A. Probably yes. The provisions of law noted below are vague and unclear. But it appears as long as you do not receive any money or other remuneration, you should not be considered to be violating any laws. If you do receive any “in kind” benefits, things get very tricky. Such benefits may be permitted if the H-4/F-2 holder did not ask for the benefits as a condition for volunteering, nor were they offered in exchange for the volunteer work, and if the volunteer would have performed the services regardless of whether he or she were to receive the in-kind benefits. Subsection (f) below defines “employee” as someone who works for an “employer” for “wages or other remuneration.

Subsection (g) defines an “employer” as an individual or entity who engages the services or labor of an “employee” for “wages or other remuneration.”

The problem clause is (h), which states that the term “employment means any service or labor performed by an employee for an employer within the United States.” This subsection makes no reference to wages or remuneration. So, is it legal to perform volunteer work without receiving any money in any form? My best GUESS is yes. Even though subsection (h) makes no reference to money and contains in its definition “any service or labor,” such work must be performed by an “employee,” who by definition (subsection (f)) is someone who works for an “employer” for “wages or other remuneration.”

The Regulations

TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS/Sec. 274a.1 Definitions.
Sec. 274a.1 Definitions.

For the purpose of this part--

(a) The term unauthorized alien means, with respect to employment of an alien at a particular time, that the alien is not at that time either:
(1) Lawfully admitted for permanent residence, or
(2) authorized to be so employed by this Act or by the Attorney General;

(b) The term entity means any legal entity, including but not limited to, a corporation, partnership, joint venture, governmental body, agency, proprietorship, or association;

(c) The term hire means the actual commencement of employment of an employee for wages or other remuneration. For purposes of section 274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when a person or entity uses a contract, subcontract or exchange entered into, renegotiated or extended after November 6, 1986, to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien;
….

(f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

(g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

(h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

INS Comments
Back in 1989, INS had commented on the definition of "volunteer" in the context of the employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA).

In an October 10, 1989 letter, Mr. Schroeder speaking on behalf of INS stated that while the INS regulations implementing IRCA define such terms as "employer," "employee" and """employment," they fail to define "volunteer." It is clear, however, that employer sanctions apply only to acts of employment, and referral or recruitment for a fee. The regulations, Mr. Schroeder continued, define an employee as a person employed by another for "wages or other remuneration." Any determination as to whether an individual is an employee or a volunteer is made on a case-by-case basis.

Quoting from a hypothetical presented, Mr. Schroeder stated that an individual on an H-4 visa who does volunteer work for a theatrical group does not appear to fall within the definition of employee simply because he or she receives free tickets for the group's performances or is permitted to attend at no cost. Mr. Schroeder continued:
Factors that the Service would examine in making such a determination would be that the volunteer work was entered into without any expectation of compensation, that the volunteer did not require the free tickets, nor were they offered, in exchange for the volunteer work, and that the volunteer would have performed the services regardless of whether he or she were to receive free tickets or attend performances at no cost.

 

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Fulfilling J-1 HRR in installments - not possible

Detailed question:

I have been issued F1 and I fulfilled only 1 year of my previous J1 HRR. It was not difficult to get it once you show all the funding documents from school. I have another question though. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times - can I fulfill my second year of HRR in that way? The question is does it have to be consequent or I can split it like this?

Answer:

You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences - a week or two may be permitted but should be made up by spending that much extra time in your home country.

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L-1 - H-1 COS issues

Detailed question:

Answer:

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.

Questions

Qo1. Can I continue working on my L1 visa? If yes, for How many months? Is it legal to work on L1 after 1st October 2008 as my H1 has already been approved? (I am not sure COS has been applied or not)
Ans1. The key to this is COS. If you have obtained Change of Status (issuance of a new I-94 with your H-1 approval), you are on H-1 beginning October 1 (or whatever the date of H-1 approval and COS is.

If COS was not given, you can continue working on L-1 and either get COS or H-1 visa when you want to begin working on H-1. Of course, CIS or consulates may need an explanation for how/why the H-1 employer is willing/able to wait for you to join.

Qo2. Can my wife continue working on L2-EAD as long as I continue working on L1?
Is it legal to work on L2-EAD after 1st October 2008 as her H1 has already been approved? (I am not sure COS has been applied)
Ans2. The key again is COS. If you have it, she cannot work after 10/1 because she would no longer be on L-2 from the date forward.

Qo3 My wife will be joining on a permanent position for a company C on L2-EAD
shortly. Can she get her H1 transferred to company C from Employer B (Who applied for her H1) from 1st October 2008 ?
Ans3. In my view, she can do the transfer even before October 1.

Qo4. What would be the best options to continue our L1 and L2-EAD status for another 3-6 months ? By doing this would the H1 be Invalid ? Do I have to apply for new H1 considered under CAP ?
Ans4. You will not be under cap no matter whether you join the new employer right away or not. Read on for the rest.

Qo5. I read from some of the postings that staying out side USA (Canada, Mexico, India) on October 1st and re-entering USA after 1st Oct will enable L1,L2 status back (if COS has been applied for H1). Is this the only way to retain the L1/L2 status?
Ans5. In my view this is the best way. Leave on or before Sept 30th (or a day before COS kicks in) and come back on or after October 1st (or the day on which COS kicks in).

Qo6. .I entered US on a L1-B visa from a 'company 1' on a blanket Visa (L1-b) from India to USA in 2006.
2.Filed for H1 through 'company-2' in mar 2008.Approved as COS starting Oct 1st.
3.I did not/could not switch over to H1(company 2) till date due the lack of jobs matching my skills.
4.Would like to get back in status on L1 (My L1 visa and ITS I-94 are both valid till Nov 09 ).
5.Some people say that since L1 visa and its i-94 is valid, i can exit and re-enter the country with the L1 petition and that would put me back into status.
6.Continuing on point 6, once back on L1, i can file for H1 through a different company in future and i wont be counted against cap,is this true?
Would appreciate your responses as i am concerned that having been out of status since Oct1 would leave me with limited options.

Ans6. Ideally, to get back into status, you should apply for a NEW L-1 visa and come back into USA. There is a law on the books as far as I remember that says if you are ever out of status (which you are), all your visa stamps are "considered" canceled. This law, however, being next to impossible to implement is largely disregarded. Therefore, a lot of people in your situation just leave USA and come back with the same L-1 visa stamp. Theoretically, at least, that is not a perfect solution.

You will not be counted against the cap next time you apply for another H-1 as long as you have not been outside USA for one year.

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H-1 related I-94 issue

Detailed question:

I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94. I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ??? Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...

Answer:

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.

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Start-up applying for H-1 and AC21 for employees

Detailed question:

If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

Answer:

 H-1 by Start-up Companies

It can be really difficult for start up (or very small) companies to obtain H-1 visas. Doubly so, if people are being hired outside the U.S. Normally CIS asks you to prove:
1. You are capable of paying wages
2. You have sufficient amount of work
3. You are a reliable company with proper staff, offices and equipment.
4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1 holder will do and who will supervise them.
YOU MAY SUCCEED If you can:
- SHOW HOW YOU CAN PAY THE WAGES
LINE OF CREDIT
We have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $250,000 line of credit is a healthy number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $500,000 should be OK.

BUSINESS PLAN
Having a solid, detailed business plan can help. There is mush software out on the shelves that can help you put together a good business plan.
This will also help show how you have enough work for employees.
LETTER FROM/CONTRACTS WITH CLIENTS
If personnel are being outsourced, contracts from clients will help.

Start up Companies Doing AC21
There is no law on this issue. The current thinking of CIS appears to be that there is no problem in doing AC21 for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, CIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 (posted on my blog under AOS/485 section) shut that down stating that is not relevant.

Start up companies starting new green cards
This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.

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H-1 Quota issues for students

Detailed question:

Answer:

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?

Ans. The regulations seem not to address this situation. If I were to decide purely based upon the language of the regs, I would guess that you can work.

But, my GUESS also is, somewhere along the line, CIS will clarify that you cannot work under these circumstances. The new regs were put into place to eliminate gap in the employment that occurs when a student and their employer confront the gap in employment between expiration of the F-1 EAD and October 1st - start date of the H-1. This may not be applicable to universities who are quota exempt. In your case, you will be working for a private employer while the H-1 is pending through the university. Tough call as far as I can see.

Do note, I have not spent a lot of time thinking this issue through. So you should ask your employer's lawyers to give an opinion in writing.

Q. Also will it be possible for me to request the university to apply for a non-exempt visa for me? Is that an option?

Ans. This would be an option if you were actually not working for the university, but with an unaffiliated entity. I do not see how the university can apply for a non-exempt H-1.

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H-1 where there is no license in hand

Detailed question:

Answer:

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.

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H-1 - how to revert to old employer

Detailed question:

My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond. Couple of questions, Can I switch back to Company A. 1. Does he need to file with DOL (or) USCIS that I am switching back to company A 2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay? Other Question is, Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A??? If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.

Answer:

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.

Hypothetically speaking and for the information of those of you who have a similar issue: if Company A had not withdrawn his H-1, he could have gone outside USA, applied for a new H-1 visa based upon the approval of H-1 by Company A. The consulate may have told him his visa is still valid and he would not need another. I would advise that such an applicant will need to inform them that they had worked after filing an H-1 transfer but now wishes to go back to old employer. Under the circumstances, having been technically out of status, they may need a new visa stamp. If the consulate says he does not need a new stamp (in fact he does), then there is no problem in reentering USA on the old stamp and starting work with A.

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Laid off - Now what ???

Detailed question:

Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

Answer:

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Effect of Lay-off on H-1 and L-1
An H-1 or L-1 holder who gets laid off can be thought to be immediately out of status. There is NO grace period, not even one day. If, however, you continue to receive your salary, it can be argued that you are still in status. How valid or good that argument is remains to be tested.
Being “Out of Status” and Being “Unlawfully Present”
Bear in mind the very important distinction between being out of status and being unlawfully present. Unlawful presence of 180 days bars you from entering USA for 3 years and unlawful presence of one year raises that bar to 10 years. These bars are very difficult (if not impossible) to waive.
Most commonly, unlawful presence is triggered by expiration of I-94, revocation of H-1 by your employer or whenever CIS says your unlawful presence is now beginning.
Being merely out of status does not impose such drastic penalties automatically, but there are dangers here too. If discovered, you can be deported (removed). In that case, you cannot come back for (I believe) five years. Usually, being out of status for a few days or even months by itself may not be a major problem. But you MUST try not to fall out of status. I will provide one method below.

Option 1. Applying for Derivative Status
You can apply for derivative status if your spouse is in USA with his or her own status.

Option 2. Applying for B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a B-1 application could be an option.
- Get Form I-539 from CIS (NOTE: CONFIRM THE FILING FEES)
- Apply for a 6 months change of status to B-1/B-2 (business/visitors visa) which in my view is a catch-all visa/status for all stay in the U.S.
- Attach to the I-539 a letter explaining to the CIS that
1. You have been laid off unexpectedly and that you need to stay in USA to wind up your affairs and to look for a job, if possible;
2. You have the means to support yourself; and
3. You know you are not allowed to work on a B-1/B-2.

This should usually get you 6 months stay without falling out of status.

Note that in one of our cases back in June 1999, CIS seems to say that they may NOT issue B-1/B-2 to everyone. Note the following letter from INS:
"The B-1/B-2 classification is not a "catch all" classification available to all who wish to come to the United States temporarily for whatever purpose. Instead it encompasses a specific, defined class of alien. You must establish the following to be eligible for a B-1 nonimmigrant visa: As you are in the United States conducting business on behalf of a foreign entity, it is reasonable to expect that you are making frequent contact with this entity. Submit evidence of your contact with the foreign company by submitting your phone statements.......Submit a letter from your employer that describe the nature of your employment with them...."
I think CIS is wrong. B-1 specifically appears to me to be a catch-all visa. For example, when someone needs medical treatment, they apply for a B-1 visa. To be safe, we recommend you apply for B-1/B-2, casting even a wider net.

Here are some Follow up Questions from H-1 and L-1 Holders

Q1. What if your company has promised that they will not revoke your H-1/L-1; does that make a difference?
A1. It makes some difference. You are still out of status the day on which you stop working. But the dreaded 180 day period that results in the dreaded 3-10 bar would not apply to you until your I-94 expires or CIS catches on that you are out of status.

Q2. What if the company keeps you on their pay roll but without pay?
A2. CIS is unlikely to allow that as being "in status."" Also, I we were representing the company, we would never advise them to take this route. This is dangerous for the company.

Q3. What is the company has given you a severance package that includes your getting paid for 2 (or more, or less) months after they laid you off?
A3. Technically CIS would consider you out of status from the day you stop working. It does not matter if you are still getting paid. That is what they have said in one of their memos (which we find a rather strange interpretation of the law). But as a practical matter, CIS requires only pay stubs to prove that you were in status. So you may be able to take benefit of this CIS practice.

Q4. Should you apply for some other status?
A4. Probably yes. Some folks apply for a student status (F-1), some for H-4 or F-2 (if their spouses are on H-1 or F-1) and some for tourist (B-2) or business status (B-1). These options could all work to help you stay in status.

Q5. If you covert to another status, can you then convert back to H-1 if you find a new employer?
A5. Yes. We have applied for H-1 successfully in cases where the change to another status (F-1 or B-1 etc.) was still pending.

Q6.1. To protect my status in US, if I transfer from H1 to tourist or business visa, have I to apply for it before my current H1 visa gets expired?
A6.1. Yes.

Q6.2. Am I legal and "in status" if my current H1 is expired and still I am waiting for approval of tourist/business visa?
A6.2. You are authorized to stay in USA while waiting for a decision on a timely filed application.

Q6.3. How much time will it take between I start preparing for tourist/business visa and Your office files the petition for it? (i.e. in preparation of papers)?
A6.3. I do not believe a lawyer is needed, but you can call us to discuss your situation.

Q6.4. Can I hold Tourist and H1, both types of visas at the same time?
A6.4. No.

Q6.5. Do I need to have any specific eligibility for the Tourist visa?
A6.5. If you mean any specific degree or education, no.

Effect of Layoff on Green Card Process
I will address here the most common method of obtaining green card – through PERM. If your situation is different, go ahead and post a comment here. I will respond as well as I can

LAY OFF ANY TIME BEFORE I-140 APPROVAL
If you get laid off before I-140 approval, you can carry NOTHING forward to the next employer. You have to start your PERM all over again with the new employer. If, however, the I-140 gets approved even after the layoff, we can at least try to carry the priority date forward as we would in a ordinary 140 approval. See the discussion in the next point.

LAY OFF AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her. Under very limited circumstances (such as fraud) INS may revoke the I-140 thus causing a loss of priority date.
If such a person gets laid off, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
We recommend that an applicant must keep at least a copy of the I-140 approval notice.

LAY OFF AFTER I-140 APPROVAL AND I-485 PENDENCY OF 180 DAYS
Read this article. http://boards.immigration.com/blog.php?b=25
Chances are, you will be fine.

Further Questions 26 Nov 2008
My 485 AOS is pending and 140 is approved. If my current company does layoffs and I happen to loose my job.

A: Can I be without job for some time(small duration)? I mean till I get a new Job?
Ans.As long as your 485 is pending, you are not out of status even if you are not working. You need to find a "similar" job and file AC21 letter with CIS. If there is a gap in employments, that is not a major issue as per the May 2005 Yates memorandum. The only way we can get into trouble is if CIS sends an RFE asking for an employment letter (they usually give us several weeks to respond) and we are not able to provide such a letter showing a "similar" job.

B: Is my Green Card in trouble Immediately if I am out of Job? Is there any provision that I can use in this case?
Ans If your I-140 was not approved and AOS had not been pending 180 days, there would potential for trouble.

C: Will leaving the country and trying for job from India and then coming back in USA help?
Ans. No need.

02/27/09
Q. Hi Rajeev, In context for preserving the PD, is there a time limit on that. If the 140 is approved and I get laid off, can I leave US, return after (say) 2 years with a different H1/L1 and start the GC process with same PD.
Ans. Under the current law, there is no time limit. So, yes, you could.

 

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F-1 OPT - No Job

Detailed question:

I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT can not stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month. I am worried that is this mistake going to affect my new visa approval? Is there anyway I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.

Answer:

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.

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H-1 quota - the law

Detailed question:

Answer:

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.

The Law
_________________________________________

AC21
_______________________________
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:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.

Higher Education Act
_________________________________________
§ 1001. General definition of institution of higher education

(a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

(b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.

(c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
__________________

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H-1 transfer - what action is needed for H-4

Detailed question:

I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?

Answer:

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.

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E-3 Issue

Detailed question:

I am an Australian citizen currently on a B2 that expires in Oct. I lodged I-539 application for extension in Aug and received I-797 receipt Aug 25. I may have found an employer that will sponsor me on an E3 visa (Australians only). All I need is a letter of offer and a completed Labor Condition Application. To apply for the E3 visa though, I need to leave the USA and visit a US consulate. I do not have my original I94 any more (I submitted it with my I-539) but I do have a copy of it. Once I get a letter of offer, I will travel to either Toronto Canada or home to Sydney Australia to apply for the visa. Qo1. Can I still leave the USA without the original I94? Qo2. In the event my E3 visa is denied, will I be able to re-enter the USA from Canada without the original I94, provided my stay in Canada is less than 30 days? (And how would this work if I take the trip up there after the expiration date of the original I94? Remembering that my B2 extension is pending)

Answer:

 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.

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B visa while GC pending or similar situation

Detailed question:

After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

Answer:

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.

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H-1 Quota

Detailed question:

I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2. Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again? Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.

Answer:

Ans 1.  In my opinion, you will not be subject to the quota again.

Ans 2. You should not be subject to the quota.

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Using B visa with F-1

Detailed question:

I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

Answer:

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.

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Multiple H-1 approvals

Detailed question:

Answer:

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.

Qo2. As I have two approved H1B's with company-A and company-B, Can I easily switch from Company-A to Company-B later time then to company-A , etc . For this do I need to inform USCIS. Is there any negative consequences in that ?
Ans2. The law in this area is unsettled and unsettling. Not only is CIS inconsistent in its signals, USDOL has its own take on this situation. Bottom line advice – pick one company and stick with it.
As per CIS regs, theoretically, you can have multiple H-1 approvals and all of them stay valid unless withdrawn or revoked. But there are DOL regulations that point in other direction. In appropriate cases, I may advise otherwise, but in this case, you better off picking one.

Qo3. Can I apply SSN now using Company-A H1's approval then join in company-B from Oct 1st, 2008
Ans3. I know of no law that says you cannot do this. So, I think you can.

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How to get back to H-1 status?

Detailed question:

Answer:

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 ?
Ans1.  No problem. A few months (upto six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.

Qo2. Since he will be applying for L1 to F1 now, Will that automatically cancel the H1 I-94 (to be effective from Oct 1) or do we have to do something.
Ans2.  In my view, nothing else needs to be done if changes status to F-1 now. Make sure he applies from L-1 to F-1 and attaches a copy of the H-1 approval also.

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AOS Pending, Should H-1 be Renewed

Detailed question:

Should H-1 be renewed while the AOS is pending?

Answer:

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.

Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

All the above holds true, whether or not you intend to use AC21 portability.

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Filling DS 156

Detailed question:

Answer:

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.

Qo1. Question 30. Have you ever been Issued a US Visa - Yes, but for the second part it says When - Does this have to be the date when the first H4 was stamped or the date the second change of status H4 approval notification came through. My understanding is that is the visa date when it was stamped. Can you confirm?
Ans1. The answer requires response only to the issuance of a visa – the stamp given by the US consulate. It does not refer to change of status. In your wife’s case, she came to US on H-4 visa. That is what they are asking about. The fact the she later changed to F-1 and then back to H-4 status (but no other visas were obtained) is irrelevant.

Qo2. Also in the additional visa issuances section do we need to mention the change of status to F-1/H4 information (I would presume no since these were not visa stampings but change of status). Can you confirm?
Ans2. Change of status is not a visa.

Qo3. Question 36: Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf ? Yes since my wife's name was on the I-140 as per your previous post. For the Part where it says by ‘Who’ what should she enter - Spouses Company Name or Spouses name.
Ans3. I would answer your name.

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Does J-1 HRR Prohibit Issuance of F-1?

Detailed question:

If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?

Answer:

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.

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