Frequently Asked Questions - Status

H-1B portability without a visa stamp
I came to US on H-4, so I have only H-4 stamping in my passport. Got my H1b picked up in lottery two years back, and did COS to h1, and have approved i797A with I-94 and working with my current employer. Got an offer from another company, and they filed my H1b transfer, and got the i-797A approval with I-94. So my question here is, can I join the new company using the H1b transfer approval, even though I don’t have H1b stamp at all in my passport? Will this be a valid H1b transfer?, or should I go back to India to get my H1b stamping to join the new employer?
H-1B no notification of termination, 60 days grace period, etc.,
My employer ended my employment due to COVID reasons on May 31, 2020 but I never received an official termination letter. Calculating the grace period depending on the assumed termination date mentioned above, I have till July 30 to find a new job. Should my new employer give me an offer or start the H1B transfer application before July 30? What happens if they fail to do so in time? Can I extend the grace period on the basis of having an offer in hand or maybe because of the pandemic? My final interviews with potential employers are being withdrawn because of the time restriction.

Watch the Video on this FAQ:

H-1B no notification of termination, 60 days grace period, etc.

Video Transcript

File a complaint against the employer with the Wage and Hour Division of the U.S. Department of Labor by filling up the form WH-4. You can also call them. 

Covid Coronavirus Question from Employers about Payroll for H-1B and others L-1, E, etc. employees
We are looking at various measures of safety and expense control. First and foremost everyone is working from home for their on safety and wellness. For expense control one idea that we were discussing was a potential pay rate reduction for a short period of time.
H-1B Unpaid Leave or Time off
I am working on H-1B for Employer A. I want to switch jobs and need a study time for about 3-5 weeks full time. I was thinking if I could go an unpaid leave from my current job for 5 weeks, and use this time for my preparation? It gets tricky as I cannot tell my current employer the actual reason for my intended leave. How will my H-1B status get affected due to this? Can I be in the US during this time? If yes, under what conditions?
H-1B Joining Another Employer while a Transfer, Extension or Amendment is Pending
Situation: Resigned company A already and Got offer from employer B and applied H1B transfer(premium processing) but received RFE. But I have another offer from Employer C as well who is yet to file my h1b transfer Question: 1. If RFE is denied for employer B Can i join employer C with the receipt notice as Employer C has started H1B transfer by that time ? 2. How long one can stay in US without job/payroll having H1B ?
Status Expiring During the Pendency of an H-1B extension
1. I have approved I-140, on 7th yr of extension and my current H1B Visa and I-94 valid with emp A until dec 31,2018 based on my latest approval I received in Nov 1st week. I have another 1 month to apply for an extension and I am requesting my employer to apply in premium processing. 1)If my extension is applied in Premium before I-94 expiration but pending beyond my expiration date 12/31/2018, I will be 'out of status' even though 'authorized to stay' until decision is made. Is this correct that this may affect my future H1bs in case it is denied and attract NTA(notice to appear) in future because of my 'out of status' from date of expiration to date of denial or while leaving the country upon denial. 2. Is it better if I leave the country on the last day of my I-94 expiration(Dec 31, 2018) while my H1B extension is pending in order to avoid 'out of status' or 'unlawful presence' scenarios by staying here. If I leave the country while extension is pending in above scenario, is it possible for me to go for consular processing, get VISA stamped after it is approved and enter the US legally? or is h1b extension is considered as abandoned?
H-1B Petition Revocation During Visa Process/Reaffirmation
I had my H1 visa extension stamping appointment on Feb 21, 2018. Initially it was put under Administrative Processing and later on May 23rd my petition was send back for revocation. As per the inquiry with embassy they told me that "Based on the documents you submitted and the information elicited in your interview with a consular officer, you were determined ineligible for an H1B work visa. Your petition was returned to the Kentucky Consular Center (KCC) on May 24. Currently H1 status website shows KCC received the application on June 8. Once KCC receives a petition, it is returned to the approving USCIS office for review and possible revocation. At this point, USCIS can either reaffirm the petition or issue a notice of intent to revoke it. What are the options available with me now?
How Does One Change Status While Within The United States?
I am currently working on L1B with company A and I received my H1B I-797 last year from same company A, but didn’t do the conversion to it yet. I want to change to company B in regards to which I have the below questions: 1- What is the process of switching the visa, and does it need me to setup an interview appointment? 2- If yes, does this have to be out of USA and in my home country? 3- Do I need to get the stamping for H1B with company A before moving to company B? Or can I switch to company B without going for H1B stamping for company A?
Status of Off-site Placed STEM OPT Extension Students
USCIS now interprets the 24-month STEM OPT extension rule from 2016 to require a STEM OPT worker to be placed only at a worksite of the employer. In other words, the USCIS now says that any offsite placement, including at a third-party worksite, is prohibited. Will this affect the H1B petitions filed by employers for such opt students, where they are working at an end client location (not employer location) and the H1B petition was filed with end client details.
H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit
I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions: 1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit? 2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org? 3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?) b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1 c.applying for concurrent H1b d. Moving on to H4EAD and filing a H1b next April e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

Watch the Video on this FAQ: H-1B and green card transfer from a non-profit organization to for-profit

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

Can I Get H-4 Visa Stamping While the H-1 to H-4 Change of Status is Still Pending?
H1 to H4 COS pending from Jul 14 2017. I94 expired Nov 2nd. H4 to B2 applied on Oct 31 2017 as per our attorneys suggestion due to some delay with spouses visa. Spouse's H1 is now approved. I would like to get my H4 as soon as possible and apply for H4 EAD. Can I go to Canada/ any close by country and get my H4 stamping done while the petitions are pending or wait till H4 is approved? or going to India is my only option
H-1B or Other Status Denied - What is my Status?
My I-94 expired on Dec 13th last year. Company filed for extension but RFE….now i will be laid off on Feb 9th and my company will not file for RFE response. How many days do i have to leave the country? Do i need to leave immediately on Feb 9th or can i leave by Feb 13th or 14th ? Will 5 days of out of status impact my future applications ? Also another company has offered me a job. If they file for H1B do they have to do it after I leave the country or can they start it and i can leave in between and do Counselor processing?
When Does One Become H-1B Cap Exempt?
I have read that in some cases of H1B as follows "They had H1 petition and H1B visa was stamped in 2012 but they never traveled to the US on that. And when a new employer applied for a cap-exempt H1B petition in 2017 they got it approved with change of status to H1 in May 2017…Whereas in my case I also didn't use this H1B visa and I even didn't travel to US i.e. My employer filed H1B in 2016 which got approved in Sep 2016 and after my resignation, they revoked H1B in Nov 2016 (which is > OCt, 1 2016), but I got a Denial. When contacted few attorneys they said I may get "Approvals" Or "Deny" in such cases, nowadays its more of details saying I am NOT cap exempt?
Impact of Taking a Long Break While on H-1B
I'm an Indian citizen on an H1B Visa. I'm an engineer. My Green Card is being processed and my I-140 . Being an EB-2 category I"m assuming that it is going to take anywhere between 5-8 years before I get my green card. The Situation: I'm planning on taking a work break for about 6 months to 1 year and do a few things that I've wanted to do but have been pushing indefinitely (like volunteering with a non-profit, spending time with my family, exploring options to start my own startup etc). I'm assuming there are 2 scenarios here - 1. My company gives me a sabbatical leave - I can leave the country for a year and come back and rejoin them. 2. My company refuses a sabbatical and I have to quit - In this scenario, I'm not sure what I should do in order to be able to come back after my break and still be able to work for any company? I would really appreciate your insights on this situation and would be glad to accept any pointers from you to research this further.
What can be Done if an H-1B is Denied While in the USA?
In case of H1 transfer denied what other options one can have ? [provide that has 140 approved since many years] 1. Can new H1 transfer with new employer can be initiated ? 2. Can one can apply for B1 [Visitor Visa] and remain in USA for valid period ?
Status and Unlawful Presence Questions in the Form DS-160
Having plans to travel to India in last week of Sept 17 and with my visa stamp on passport expiring on 1st Sept 2017, need to go for visa interview & when I am filling my DS-160, came across the question : Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? Considering the above situation, could you please help with what to answer Yes/No. If Yes, what comments to be written in the EXPLAIN BOX .
H-1B Visa Denied and Petition Sent for Revocation
I went to the US in May 2014 on H1-B working for Employer A. In Feb 2016, I moved to work for Employer B (small US based company, on other offices) with H1-B transfer receipt. The new job was remote work, so I started working from home for Employer B. I received RFE in April 2016 and I went to India the same month. While I was in India, the transfer got approved in June 2016 and I came back to the US with the approval notice as proof. My visa was getting expired in Sep 2016, so extension was filed with Employer B. The extension also got approved after RFE and extended till Sep 2019. Current Situation: Now, I came to India in Jan 2017 for my marriage. I went for visa stamping in Delhi with my wife (for H4) in Feb 2017. The visa officer asked me about my Role, client, and other common questions which I answered correctly. VO then collected my documents (I-129, client letter etc) and handed me 221(g) letter saying that he needs some time to review the documents. We left the embassy and the wait started. In March 2017, I received an email from embassy asking for the latest LCA which I promptly provided. After that there was no response for a few months, and I started working from India in US hours. Since my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process. In July 2017 (after 5 months), I received a call to collect the passport. On collecting the passport, the stamping was not done and I received a letter stating that my stamping is being refused and visa is sent to consulate for revocation. This came as a shock. I notified my employer, they were disappointed and did not know what can be done about this case. When I enquired, they said they don't want to spend more resources on this case and are fine with me continue working from India (reduced salary). 1. Is it possible to have the case reconsidered and to know the exact reason for refusal? If yes, how would I go about it without the support of my employer? 2. If this is only for stamping, how long will my extended visa be valid? Can I try the stamping again with this employer or find a new employer from India and use the same visa with them? 3. What happens to my assets (personal stuff, bank accounts, etc) in US? 4. If I can legally work for the same employer, how does it affect my taxes? Do I now pay taxes in India and in US both? Since when I can be considered liable to pay tax in India (when I came to India or stamping refusal date etc)?
Applying For H-1B Visa When There Was A Status Violation
Recently I got Consular visa, that my I-797 was approved without I-94 so I need to step out of the country to get H-1B visa stamped. Got laid off from EMP A and took around 55 days for EMP B to file h-1 and now I’m with EMP C. Both I-797's from EMP B and EMP C, I got consular visa to step out for visa stamping. 1. Usually, how much time I have to step out of US for stamping, if I go little after 3-4 weeks what’s the valid reason that I can give to Visa officer at interview time. 2. How can I justify myself about the 55days of gap I have from EMP A to EMP B ( during the time I do not have H-1B status), my attorney suggested that I need to tell VO that “I was looking for a Job and my employer took time to file for H-1B “. I’m not sure whether I can say this. Can you suggest a valid reason to give VO. 3. MY GC Perm Labor has approved and EMP C has applied for I-140 recently and it's still in processing status, during this situation If I get a full-time opportunity can I move with a new employer? OR I have to stay with current one until I get I-140 approved and then transfer with a new employer.

Watch Video on this FAQ: Applying for H-1B visa when there was a status violation


Video Transcript

1. Go as quickly as you can. It isn't an emergency, but it is something you should not take lightly.

H-1B Laid Off Issues
I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017. 1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence? 2. My I-94 admission validity is until October 2016; with no employment, does this mean anything? 3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes? 4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B? 5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical? 6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems? 7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work? 8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption. 9. Can my employer continue to pay severance checks when I am on B-2 status? 10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records? 11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B? 12. What other words of wisdom do you have for me?

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

https://youtu.be/F0YZD8zWm88?t=1068 

FAQ Transcript:

If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.

Simultaneous filing of H-1 amendment and extension
Below are questions I have on the H-1B Amendment and H-1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H-1B Amendment is in light of the new H-1B regulation that has been mandated by USCIS when there is a significant change in the Job Location of the beneficiary from the address mentioned in the initial Petition from the employer which was approved initially. 1. Does the USCIS Last action rule apply in case of the below 2 being applied almost at the same time for the same beneficiary? a) H-1B Amendment with Current Employer b) H-1B Transfer to New employer while H1B Amendment is pending with Current Employer. 2. If the answer for the above is 'Yes', then incase the H-1B Amendment Approval comes after the H-1B Transfer would the H-1B transfer to the new employer that was approved earlier be automatically nullified? 3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H-1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H-1B amendment to dictate the latest H-1B for a given employer? (I believe we can request USCIS to withdraw/cancel the Amendment but is this something that the new employer/employee can do or only the existing employer who was filed for H-1B amendment has the authority to request any cancellation/withdrawal of the H-1B amendment?) 4. Also does the current suspension of H-1B premium processing apply even for the H-1B transfers (with a new extension for 3 Years) or is it only for new H-1B extensions of Petitions from the current employer?

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

https://youtu.be/PreNUXXW9KU

Can I Travel Back On F-1 Visa If My Reinstatement Is Denied?
Do I have to get a new visa stamp for my F-1 or can I travel back using the same F-1 visa stamp if my reinstatement is denied? I fell out of status because I registered for less than a full course load.

In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry.