US Immigration Questions

  1. Tuesday, 20...
    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?

     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

  2. Tuesday, 20...
    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?

    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.

  3. Saturday,...

    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

    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.


  4. Friday, 9...

    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.

  5. Tuesday, 6...
    Question: Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case. I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of LPR time with minimal travel aborad. Now my questions are : 1.) Will I get deported or removed. 2.) Will I have problems while entering POE while travelling from overseas. 3.) Will my Citizenship be denied if I file after my probation gets over. Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life. Your earliest reply will highly appreciated.

    Let us look at the law for green cards and removal (deportation) first.

    Remember the following GENERAL elements of the law (there is more to it).

    1. Traffic violations that are not considered crimes under state law have no implications and create no problems for your green card.
    2. If you have only one conviction ever and it is a misdemeanor, you are AUTOMATICALLY protected by law and forgiven under a provision of law called "petty offense exception."
    3. If you have a conviction for a felony we have to look at the law very carefully, but not all felonies are necessarily a problem fro your green card

    For naturalization, even too many traffic tickets can become an issue, if CIS wants to make it so. Generally speaking they look at only the last five years from your application for you history, but there is no law prohibiting them from going back further in time.

    Any kind of crimes could become a problem for naturalization and you must get yourself a lawyer if you have a criminal history of any kind.

    Both traffic tickets and crimes go to the issue of "good moral character," a prerequisite to naturalization. 

  6. Monday, 5...
    Question: I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well. Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts. Now I have a part time job which is not related to the job that helped me get the green card. It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth. Please help advise if my worries are correct ? Is it better to apply for citizenship when the problems above are ended in courts ? Thank you very much for your help.

     I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

  7. Monday, 8...
    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 ...

    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.

  8. Friday, 28...
    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.

     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:
    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.

    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.
    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.

  9. Monday, 24...


    Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

    Ans. On an EAD, you can start a company and do everything that a green card holder can do including opening and owning your company as an active participant/owner. Your spouse has larger freedom than you do. You have to be in a job "similar" to your labor certification job. In the May 2005 Yates Memo (Posted under AOS discussions in my blog), Yates said you can port to your own company, but I recommend that only as the last option, because there are some troublesome issues that are still unsettled in self porting.


    Can I hire few more peoples on H1B ??

    Ans. Yes.

  10. Tuesday, 18...

    I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
    Q.a) Is the EB1A or EB1-B I-140 premium processed?

    Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

    Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.

    Ans.a) Currently, there is no premium processing for this type of cases.

    Ans.b) No. We should be able to use the same 485.

    Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.


  11. Tuesday, 18...

    I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
    Q.a) Is the EB1A or EB1-B I-140 premium processed?

    Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?;

    Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.

    Ans.a) Currently, there is no premium processing for this type of cases.

    Ans.b) No. We should be able to use the same 485.

    Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.


  12. Wednesday,...

    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.

  13. Tuesday, 4...
    Question: I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.


     I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

    Ans. If you do go on EAD, you can get back on H-1 provided you are willing to get a visa stamp from outside USA. There is no limit on the number of days.

    I also think you can try filing for an H-1 transfer and ask to be "forgiven" the 30 days gap in the H-1 transfer.

    Further, per Yates memo (posted above in another note on AC21), even if the employer revokes I-140, you still keep your right to AC21.


    If I move from VA to MD the prevailing wages is changing. So should we file for a new LC?

    Ans. No. That is the whole point of AC21. You should not have to file a new labor certification or green card as long as the job and salaries are similar.


    Within how many days should I file for AC21?

    Ans. No limit. But in my view, ASAP.

  14. Thursday,...
    Question: Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application. If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.

    Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

    Ans. That is not advisable. A promotion or change in job description during the pendency of a green card can jeopardize the green card process. The GC process is for a specific job, at a specific location, at a specific salary.

    Minor changes can be accommodated. But any substantial change would require starting all over again.

    Routine raises in accord with the industry practice should not create a problem. But any large salary hikes are likely to be a problem.

    To preserve your green card, we must be able to show that you are TEMPORARILY changing some items in your job description for now, the present time. For instance, the GC is for a job in NY, but you are temporarily working from California. When the GC is approved, you will be placed back in NY.

    If there is an irreversible and substantial change in your job description, we will have to start the entire green card process from the beginning. The only exception to this would be where the change is temporary.

  15. Tuesday, 21...

    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.

  16. Thursday,...
    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.

    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.

  17. Monday, 13...
    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.

    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 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 and formally declares that you are out of status.

    Q2. What if the company keeps you on their payroll but without pay?
    A2. CIS is unlikely to allow that as being "in status."" Also, if 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 convert to another status, can you then convert back to H-1 if you find a new employer?
    A5. Yes.
    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 status 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

    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.

    If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her, UNLESS the I-140 is revoked.

    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.

    Chances are, you will be fine. Read the material on our website on AC21 portability.  For instance:

    Further Questions 26 Nov 2008
    My 485 AOS is pending and 140 is approved. If my current company does layoffs and I happen to lose 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 should 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 Rajiv, 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. Bear in mind, this holds true only if the I-140 is not revoked.


  18. Thursday, 9...

    My husband and I have our N400 petition pending for almost 18 months. We passed our interview in July 2007 and had our 2nd fingerprinting 2 weeks ago. We were also informed that we have been cleared from background check. We have to leave for an international assignment in December and would like to understand the steps we need to take so it does not impact/disrupt our naturalization process, in case we do not get called for oath by then.

    My husband and I have our N400 petition pending for almost 18 months. We passed our interview in July 2007 and had our 2nd fingerprinting 2 weeks ago. We were also informed that we have been cleared from background check. We have to leave for an international assignment in December and would like to understand the steps we need to take so it does not impact/disrupt our naturalization process, in case we do not get called for oath by then.
    Ans. As far as I know, the two most important things are not to abandon your permanent residence in USA and to make sure you do go for the oath ceremony. You may want to approach your Congressman's office for an expedited resolution so you have taken the oath before you leave.

  19. Thursday, 9...
    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.

    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.

  20. Wednesday,...

    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

    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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