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H Visa Sample Cases

These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.

Case type: H-1 Approval after 5 Years of Unlawful Presence

Submitted by Rajiv S. Khanna on Oct 27th 2009, Modified on Oct 29th 2009
Category: H-1 Visa, Physicians
Status: Approved.

We were recently retained by an employer who had received very poor legal advice and representation from two different lawyers because of which their employee and her children fell out of H-1 status AND were unlawfully present in USA since 2004.  It appeared almost impossible that we will be able to get her back into status after a gap of over FIVE years, but it did work out.  Today, we have received H-1 approval as well as the coveted I-94 for all family members.  Comments from the client are here: http://www.immigration.com/guestbook/h-1-visa/guestbook-entry-bruce-a-trickel-united-states

Case type: H-1 Approvals Without Letter from the End-Client

Submitted by Rajiv S. Khanna on Jul 27th 2009, Modified on Aug 18th 2009
Category: H-1 Visa
Status: Case Approved

 We have been retained by several consulting companies to try to respond to their RFE's all of which require a letter from the end-client.  Many times, despite best efforts, such letters are not available.  So, as a test case, we filed an Request For Evidence is a a request from a government agency to provide further information on an issue before the government.

 We have been retained by several consulting companies to try to respond to their RFE's all of which require a letter from the end-client.  Many times, despite best efforts, such letters are not available.  So, as a test case, we filed an RFE response without an end-client letter.   As usual, USCIS wished for a confirmation of job duties, employer-employee relationship and duration of project.  We made several legal arguments including pointing out repeated misapplication of the law by USCIS.

So far, we have received two approvals of H-1 without letters from end-clients.

See also my article on this subject.  

Case type: Investigations

Submitted by Rajiv S. Khanna on May 18th 2009, Modified on May 18th 2009
Category: General Green Card, H Visa, Investigations, ICE, USCIS, DOJ, DOS

 As of May 2009, we have been involved with over 100 investigations from USDOL, ICE, USDOJ, DOS and FBI.  One theme that emerges quite clearly is this.  A governmental investigation is NOT the same thing as a normal litigation.  The investigators are all things rolled into one: police, prosecutor and judge.  I have seen so many investigations being mishandled because counsel failed to recognize this truth.  By the time we get called in, it gets difficult to mop up the mess.  I like to believe that all investigations that we have handled from the beginning have brought good results.  While the government has a lot of power, they are not omnipotent.  Some items have to be firmly and politely declined.  And of course, where necessary, we are willing to go to court over our stand.  Folks, investigations have become a way of life.  We just have to be prepared for them.  When we conduct preventative audits for clients, we point out the things in their files that need to be addressed and improved.  In my view, it is extremely important that audits of existing files and procedures be conducted.

Case type: H-1B2 - Specialty Occupations Related to DoD (Dept. of Defense) Cooperative Research and Development Projects or Coproduction projects

Submitted by Chief Editor on Mar 26th 2009, Modified on Mar 26th 2009
Category: H-1B2
Status: Changed to a H-1B2 status in order to be eligible for an additional four years stay.

We have provided consultation and completed some DoD H-1B cases. In one of these, the beneficiary was about to reach the six-year limit of his H-1B status, and changed to a H-1B2 in order to be eligible for an additional four years of stay.  It appears USCIS itself is unfamiliar with H-1B2 visas. We often end up educating CIS on even the most basic legal issues in this area.

Case type: H-2B Visa

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-2 Visa

We have won several cases where USCIS objected to the temporariness of the position.

Case type: H-4 Nunc Pro Tunc

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-4 Visa
Status: H-4 status approved.

Our firm has been successful in numerous H-4 (and H-4 nunc pro tunc) out of status cases (involving unlawful presence leading to a three-year to ten-year bar). Of particular note, one gentleman assumed if his H-1 was renewed, his dependant's H-4s were automatically renewed. Upon learning of the need to file for H-4 renewals, this gentleman consulted various attorneys and even took his case to Court. He was unsuccessful in bringing his dependants back into H-4 status. After nearly four years of having his dependant's out of status, he contacted our firm and we were able to renew the beneficiary's H-1 and bring his derivative beneficiaries back into status within 2 days time. Please do not assume this will happen in every case. But it did in this one.  

Case type: H-4 - Derivative Visa

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-4 Visa
Status: H-4 status approved

We filed a case against the USCIS where the H-1B visa holder attempted to maintain legal status for both him and his H-4 dependents.  The attorney at the time filed the application for the H-1 extension, but neglected to submit applications for the extension of the H-4 dependents status.  We submitted a request to USCIS for the extensions of the H-4 dependents' status with a detailed legal brief. USCIS granted the request for extension and the I-94's were attached to the approval notices. 

Case type: H-4 - Derivative Visa

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-4 Visa
Status: H-4 status approved

We filed a case with USCIS where the H-4 dependents of the H-1 visa holder were out of status since 2000.  They believed that they were in legal status as long as the H-1 visa holder maintained status in the US.  We filed a request for an extension of their H-4 status accompanied by a brief in support of the application.  USCIS granted the extension of stay and issued approval notices with the I-94's attached.

Case type: H-4 - Derivative Visa

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-4 Visa
Status: H-4 status approved retroactively .

We filed a case on behalf of our client against USCIS where the H-4 dependents' application for a change status was denied by USCIS because the application was not filed in a timely manner.  The dependents were Citizens of Canada who wanted to transfer from TN status to H-4 status.  Due to circumstances beyond their control they were found by USCIS to have lost their lawful status in the U.S.  We filed a Motion for Reconsideration with USCIS.  USCIS approved the application and the applicants were granted H-4 status retroactively. 

Case type: H-1B - Specialty Occupation

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-1 Visa
Status: H-1B extension approved.

We have filed no less than 200 cases where USCIS had denied the application or objected to an application based on the fact that the title and position did not require professional level employees.  So far, we have won almost all the cases we have filed on motions to reopen or as new filings.

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