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.
Using Obama's Immigration Action to Apply for AOS/EADDetailed question:
I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?Answer:
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status. You can't do from outside USA.
Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.Add new comment
Applying for Nonimmigrant Visa (B, E, F, G, H, J, L, O, P While Green Card is Pending - Dual Intent)Detailed question:
I am planning on sponsoring my brother under I-130. I have questions regarding this :<br> 1. Can he apply for a student visa (F-1) once the I-130 has been filled?<br> 2. Can he apply for H-1 or L-1?Answer:
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.Add new comment
Licensing of Foreign Persons Employed by a U.S. PersonDetailed 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
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Home Residency Requirement for Second VisaDetailed question:
I got a J-2 visa and my wife on J-1 recently in which we have never travelled to US yet. Now my employer is ready to apply a L-1B for me and my wife L-2. Is this possible? Or will I be subjected to 2 years home stay restriction which is applicable for J visa without travelling on J. Will it be a problem in US consulate when I appear for L-1 visa as me and my wife have J-2 and J-1?Answer:
If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.Add new comment
L-1 Blanket petitionDetailed 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.Add new comment
L-2 Visa without EADDetailed question:
I have come here with my husband who is on L-1 visa. I have L-2 visa. What work opportunities are there if I have no EAD. Second,I have gone to the office to get SSN. But the lady there told me that I don't require that and they refused to give me.What could be the reason I didn't get that. Can I apply for EAD if I don't have SSN? I'm here in US for 6 months. I want to work as I have done my MBA.Answer:
USCIS has to issue you an EAD (apply using Form I-765) and the SSA has to issue you an SSN. Once you have your EAD, you may work anywhere in USA at any job.Add new comment
Starting business on L-2 visaDetailed question:
I am on L-1 and my wife is L-2 with EAD. Can she do a home based business such as selling things on Ebay etc?Answer:
With an EAD, an L-2 can work anywhere including operating their own business and work as many jobs as they like.Add new comment
L-1 visa from an affiliateDetailed 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.Add new comment
Wife work permitDetailed 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.Add new comment
Parents B-2 VisaDetailed 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.Add new comment
L2 Visa holderDetailed question:
I am L2 visa holder and a physiotherapist from India. I also have SSN. Do I need to take the EAD or health care worker certificate to work in USA.Or simply credit evaluation and taking the licence is sufficient.Answer:
You need complete credentialing including a license.Add new comment
Moving to USA on L-1Detailed question:
I am a British citizen with Canadian permenant residency. The US office of my company (I work out of the canadian office) wants me to move to the USA to work on a L1. My wife (canadian) and 2 children (canadian/british) would move with me.I am concerned about 2 things, the first being what happens if I leave the company or get laid off? It's a huge issue since we would have uprooted a good life in canada. Secondly I am not completely sure about the company. Its a new employer and they seem to be pressuring me to make the move. I am worried that they could simply lay me off whenever they want which would cause turmoil if we had to move back and start again.Answer:
I am not sure it is worth the risk, either. You have no right to continue to live in USA if the company fails or lays you off. You can negotiate a large severance package, but that is all the protection you can get.Add new comment
Denial of an L-1ADetailed question:
I am going to India for my wedding, I plan to do my L1A stamping and get an L2 for my wife. Now suppose my L1A stamping is denied, what happenes to my existing L1b petition which is valid till 2011 Oct? Can I use that to file and L2 for my wife and return back to US?Answer:
Your current approval is not invalidated by denial of an L-1A. You can use it.Add new comment
H1 VisaDetailed question:
I have come to US through my company with my L1 Visa. I am currently working with my client. There is an agreement between my company and my client not to hire my company employees within 6 months after quitting. I cannot move to any other company here in US as i am on L1. My company is not willing to file H1 either. If I have to move to a different company I should have a H1 Visa filed. Recently my client offered me to join their company, but I don't have my H1 and i cannot join my client company even if i get my H1 because of the 6 months restriction. What are the different options to join my client.Answer:
This seems to be an issue of contract only. Immigration law does not stop you from changing.Add new comment
L1A to EB1 from outside USADetailed question:
I have completed 6.5 yrs in L1A in managerial role. Now the same employer wants me to stay outside of USA for few months. 1)Can we apply EB1 while being outside USA? 2)Do we have to apply for L1 A extn for remaining 6 months of 7 yrs while applying for EB1? 3)Can a new employer sponsor L1A and apply for EB1 while entering the country?Answer:
EB1 can be applied while you are outside USA. A new employer can sponsor only after you have worked for them for one year outside USA.Add new comment
Chances of L1A to EB1Detailed question:
What is the chance for a L1A visa holder of 7 years to qualify for a EB1 category. Catch here is the original company which provided the L1A visa will not apply for GC. If the person moves to another company on H1 Visa can the new company file for GC under EB1 based on the previous 7 years of L1A status .Answer:
No, sorry. The basis of an International Manager's or Executive's EB-1 filing is that you must have been employed abroad with a related company for one year. Since you will not be able to meet that criterion, I do not see how that type of EB-1 can be filed through a new company.Add new comment
L2 StatusDetailed question:
I came to USA as L2 with my spouse, after leaving my job. Now my parent company is asking me to take up their assignment based at USA. and also asking me to confirm the possibility of starting their office at States. Is these possible? at least working for them is possible. I have my EAD. Can I work and take salary from outside USA firm?Answer:
Once you have the EAD you can work for anyone in USA, including a company that is not in USA.Add new comment
L1B to H1Detailed 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.Add new comment
L2 EAD Renewal based on I -94Detailed question:
Below are the validity dates of my L2 Visa,I-94& EAD: L2 Visa Expiration Date: 18JUL2010 I-94 : 06MAY2011 EAD expiration date: 02OCT2010 I would like to apply for EAD renewal on June 4th, 2010 [120 days before EAD expiration] Since I & my husband have I-94 valid till May 2011, my husband's company is planning to extend L1/L2 visas next year. Will my EAD renewal process have an impact with L2validity? As per my understanding, since I would remain on valid L2 visa after 18 July,2010 for 7 months[till I-94 expiration] can I renew my EAD without necessarily extending my L2visa.Answer:
Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.Add new comment
L2 visa and EADDetailed question:
My husband's employer are busy with a L1 / L2 application for our family. My husband will go to the US (in June) on his L1 visa, 2 months before me and the children, since I have to wait for them to finish their school year in July. We will join him end of July. When he goes over in June ... Can he 1) apply for my SS number 2) hand in the forms for my EAD without me being in the country, or does that have to wait till August when I arrive?Answer:
As far as I know, you will have to be here. Nothing can be done before that.Add new comment
L1A visa and H-1Detailed 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.Add new comment
L1A Extension processing timeDetailed 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.Add new comment
F1 visa to business visa or H1/L1Detailed 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.Add new comment
In your knowledge, how long does it usually take to obtain a green card (through dual intent)with an L1B visa?Answer:
The time taken for L-1B holder who applies through PERM is the same as for anyone else from the country you were born in. No special case here, unless yo convert to L-1A and go through EB-1.Add new comment
I have 3 questions about the L1B visa I hope you can help me with: 1.Is it possible to work part time for another company than your sponsor under an L1B visa? (at the same time) 2.Is there a minimum amount of hours you have to be employed weekly under an L1B? Or can you just work part time for your sponsor company? 3.Lets say I want to apply under the "dual intent" law to permanent residence with an L1B visa, is it possible to do so by working only part time to my sponsor or do I have to be full time employed to be able to apply under the dual intent law ?Answer:
1. L-1B visas do not permit part time employment.
2. I think 35 hours each week (full time). Part time is not permitted.
3. Part time is not allowed under L-1B.
Request Info for L1 visa to do businessDetailed question:
My parents are in Kenya and do business there. I want to have them shift to the states and do business here. Can my parents start a subway franschise on an L1 visa? My father owns supermarkets and a mall in kenya. I was wondering if he could get an L1 visa and start business here. What options does he have? Can we start a fast food joint based on an L1 visa as well? Also, I would like to mention that my parents would like to keep the business in Kenya to continue and they would want to travel between the US and Kenya.Answer:
L-1 visas have progressively become more difficult for smaller companies. But I think it my be worth a try.Add new comment
L1 VisaDetailed question:
I have been with Company A for 2yrs 8 months and later shifted to Company B. Recently I have joined back Company A, with a time gap of 8 months. Can Company A apply for an L1 now?Answer:
Yes, looks like you can. The law only requires one year of employment out of the last three years.Add new comment
L-2 for FianceDetailed question:
I am currently in the U.S. on an L-1 visa. My fiance is Hungarian and currently visiting me on a tourist visa. My L-1 was issued in Tokyo, Japan. Can we get married in the U.S. and get her an L-2 visa without her having to leave.Answer:
You would be getting her an L-2 status, not visa, within USA. I usually discourage change of status from B visa, but it is possible to do this. Consult with your lawyers.Add new comment
Convert L1B Blanket VISA to H1BDetailed question:
I have an L1B VISA and want to convert to H1B in order to shift from my current employer to a permanent employer in US. I am aware that quota for H1B is full for the year 2009 but need the H1B VISA by 2010 Feb for my new employer. Is it anyway possible to get this done before Feb 2010 although the quota is full?Answer:
Once the quota is full (as it is now) you can get an H-1 only for a job that is quota exempt (not just an employer that is quota-exempt)Add new comment
L-2 as dependent turning 21Detailed question:
I have an L-2 dependent visa as a child and I am currently attending US College. However, I am turning 21 in December of 2010, does that mean I will no longer be eligible for an L-2 visa through my father's company? And do I have to change to F-1 status?Answer:
Correct. Once you are 21, you cannot be on L-2 status.Add new comment
L-2 to L-1 VisaDetailed question:
My husband and I work for a large MNC with big presence in US and India. His L1A application has some RFE which he is working on. In case it gets rejected can he move to L2 without leaving the country? Can I apply for his L2 now even though his L1A is under processing? If so how long will it take for it to get approved and come back?Answer:
Normally, you can apply for another status only while still in status. Once the existing L-1 term is over, getting a change of status within USA is difficult. You need to discuss your case with your lawyers.Add new comment
L-1A visa eligibility and time spent in USDetailed question:
If during the one year overseas employment period, the overseas company sends me to US on a B-1/B-2 visa for brief tenures several times in the year, does that period of stay in US on B1/B2 visa, how so ever short it may be, also count towards calculating the overseas employment tenure of at least one year in preceding three years prior to filing L-1A petition.Answer:
Your time in USA must be compensated with extra time outside USA. If the time in USA is just a few days in a year, you should be fine with that formula. But, if the time in USA is too much (several months), things get much more complicated.Add new comment
L1 visaDetailed question:
It seems that to qualify for an L1-A Visa, one has to be employed overseas by the same employer for a year on a full time basis. How would you define "full time"? Does a work schedule of 4 days a week qualify?Answer:
Generally speaking, 35 hours each week can be argued to be full time.Add new comment
L-1B applying for green cardDetailed question:
My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 monthsAnswer:
True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.Add new comment
Choices to work in USADetailed question:
I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .Answer:
The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!Add new comment
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:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
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.
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY
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.Add new comment
When to apply for L-2 extensionDetailed 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.Add new comment
L-2 EAD and H-1Detailed 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.Add new comment
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.Add new comment
L-1/H-1 COS IssuesDetailed 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.Add new comment
L-1 - H-1 COS issuesDetailed 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.
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.Add new comment
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?
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?
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.
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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