General Nonimmigrant Visa

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

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

Tourist/Visitors visa for people with special needs or challenges

Detailed question:

Answer:

Watch the Video on this  FAQ: Tourist/Visitors visa for people

with special needs or challenges

 

Video Transcript:

Since Trump administration has proven to be extremely hostile to immigration, both legal and undocumented I cannot predict what the consulate is  going to ask. My advice would be to go ahead and apply for her like it is a normal application. Now I also want to add that any people with special needs or challenges as long as they don't pose a threat to the US people or their property they should not have any extraordinarily more difficult burden to carry than anybody else but medically they might have to prove that they can be taken care of. FAQ in detail...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Visas for same-sex partners from countries where such marriage is not allowed

Detailed question:

Answer:

Watch the Video on this FAQ: Visas for same-sex partners from

countries where such marriage is not allowed

Video Transcript:

In these cases B-2 visa can be extended as long as the J-1 holder is in the USA. FAQ in detail...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Does withdrawing a timely filed application/petition with the USCIS lead to unlawful presence?

Detailed question:

Answer:

Watch the Video on this FAQ:

Does withdrawing a timely filed application/petition

with the USCIS lead to unlawful presence?


Video Transcript

In amendment case there is no 240 day limit. You can keep working as long as the file is active. 240 days is only extensions without a change. If you want to withdraw and go out of the country and travel back on H-4 for  that is fine.There is no unlawful presence here and you should always respond to RFEs. Never walk away from a RFE. It red flags your case.  The government starts thinking you are trying to do sometime. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Consequences of losing my job on H-1B and revocation of I-140

Detailed question:

Answer:

Watch the Video on this FAQ:

Consequences of losing my job on H-1B and revocation of I-140

 

Video Transcript:

The moment the I-140 is revoked nobody can take away your priority date. The only time priority date can be taken away is if the I-140 was approved in error or through fraud. On the other hand, once the I-140 has been approved and stays approved for 180 days not only do you keep your priority date, you also keep the right to keep extending your H-1B beyond six years with any employer. So180 days is a great time to wait. These regulations changed on January 17th, 2017. Any cases that occurred after that date would have to go by these regulations. FAQ in detail...

 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Must we maintain H-1 or L-1 status while I-485 is pending?

Detailed question:

Answer:

Watch the Video on this FAQ:

Must we maintain H-1 or L-1 status while I-485 is pending?

Video Transcript:

Yes, you SHOULD maintain H-1 or L-1 status while I-485 is pending, because these days, especially the government can create odd problems with your I-485. FAQ in detail...

 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Variation in H-1B job approved and actually performed

Detailed question:

Answer:

Watch the Video on this FAQ:

Variation in H-1B job approved and actually performed

Video Transcript:

Minor variations in jobs are normal. But the key question is; is there a substantial change. Any substantial change in an H-1B job requires an amendment. Please stick with the truth. Be honest about what your job is and what is required is that you make a good faith estimate at the time you file the H-1B. If there are minor variations, the system will tolerate them, but if there is a substantial change file an H-1B amendment. Also, as long as you are qualified you can take any job for which you are qualified, without regard to what you did before. FAQ in detail...

 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How far ahead of job or petition start date can I apply for H-1B visa stamping?

Detailed question:

Answer:

Watch the Video on this FAQ:

How far ahead of job or petition start date

can I apply for H-1B visa stamping?

Video Transcript:

For H-1B the recommendation at the U.S. consulate in India is 90 days. You can apply 90 days ahead of time, but they do make exemptions and I have seen them do it as much as six months ahead of time. Always a good idea to check. My understanding is that their website says something like 90 days, so just keep that in mind. So if you are going to apply for an H-1B you can apply perhaps 90 days ahead of the start date or the petition approval date.  FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Travel During H-1B Amendment and Using Old Employer's Visa Stamp

Detailed question:

Answer:

Watch the Video on this FAQ:

Travel during H-1B amendment and using

old employer's visa stamp

Video Transcript:

You can travel out while your H-1B amendment is pending and you should be able to use the visa of the old employer. FAQ in detail....

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

Add new comment

What to Expect from H-4 EAD Revocation

Detailed question:

Answer:

Watch the Video on this FAQ:

What to expect from H-4 EAD revocation

Video Transcript

You can join Masters and you can get CPT but the government is now saying that CPT OPT combined can be only one year. So there is not a whole lot of options. Once we know the final regulations, we will be able to guide you better, but right now this is all we know. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Unpaid Leave or Time off

Detailed question:

Answer:

Watch the Video on this FAQ: H-1B unpaid leave or time off

Video Transcprit

If it can be avoided you should not leave the United States. It is legal for an employee to take unpaid time off. It is normal for an employee to take personal time off, but the employer for their own protection should be documenting this. I do not believe that you should give a specific reason. FAQ in detail...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Traveling While H-4 and EAD is Pending

Detailed question:

Answer:

Watch the Video on this FAQ:

Traveling while H-4 and EAD is pending

 

Video Transcript

If you have H-4 change of status and EAD both pending and you travel, come back and reapply for the EAD. You cannot use the old request. But if you are already on H-4 and EAD is pending you can travel and come back. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Issues Related to Tourist Visa/Business Visa (B-1-B-2) Extensions

Detailed question:

Answer:

Watch the Video on this FAQ:

Issues related to tourist visa/business visa (B-1-B-2) extensions


Video Transcript

As far as I know they often do require a return ticket. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.


Add new comment

Applying for Green Card while on Student (F-1) Visa

Detailed question:

Answer:

Watch the Video on this FAQ:

Applying for green card while on student (F-1) visa

Video Transcript

If you are India born then applying for a green card while as a student does not help you much because it's not going to get you a work authorisation nor is it going to get you a green card for another decade. So in theory this is available, but if you are India born maybe not such a good idea. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

What to do About Past Immigration Problems Causing a Current Visa Denial?

Detailed question:

Answer:

Watch the Video on this FAQ: What to about past immigration

problems causing a current visa denial?

Video Transcript

I think you should hire a lawyer. Your lawyer should first reach out to the consulate wherever the visa was denied and ask them the reason for denial. At the same time they should apply for Freedom of Information Act (FOIA) request. Get a copy of all the documents that the government has on you. It is a long, tedious process and it could take months or even years to get it straightened out.

If possible you should also look at 212(d)(3) waiver. These are available for non-immigrant visas such as a tourist visa even though you have a bar from entering the United States. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

When Does One Become H-1B Cap Exempt - Change of Status/Visa Stamp?

Detailed question:

Answer:

Watch the Video on this FAQ: When does one become

H-1B cap exempt - change of status/visa stamp?


Video Transcript

In your case if we counted from six years from August 2013 when your H-1B was approved, you are then okay or cap exempt till August 2019. But again, the policy has been that they count the six years from the date your H-1B expired which is 2014 not 2013. Policies can change overnight so I think you can apply for an H-1B exemption as an H-1B exempt worker. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Joining Another Employer while a Transfer, Extension or Amendment is Pending

Detailed question:

Answer:

FAQ: H-1B joining another employer while a transfer,

extension or amendment is pending

Video Transcript

1. The answer is yes. 

2. It depends. Normally 60 days grace period is available for unexpected cessation of employment. As long as your I-94 is valid. But let's say your I-94 is valid for only 45 days you will not get a 60 day grace period. You will get a 45 day grace period. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Impact on Current H-1B if Another H-1B is Denied

Detailed question:

Answer:

Watch the Video on this FAQ:

Impact on current H-1B if another H-1B is denied

Video Transcript

1. No, not if you are maintaining status. 

2. If the case was denied just for maintenance of status and you have the pay stubs that are required then there is a very high likelihood the case will be reopened. If the petition is denied, then you are still subject to the H-1B quota. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How to get H-1B approved for three years, not shorter duration

Detailed question:

Answer:

Watch the Video on this FAQ:

How to get H-1B approved for three years, not shorter duration

Video Transcript

1. Typically the only way you can get three year extension is if you can prove that the project will go on for three years. 

2. Typically a client letter.

3. Make sure your social media is not in any way in contravention or opposition to what you have been saying to the government.

4. Once you get married you are entitled to cross chargeability and you can be charged under Nepals category which is available right now. As soon as you get married you should have your lawyers write to the government and ask for cross chargeability. Probably within a few months you could be scheduled for an interview, which again depends upon how busy the local office is. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Options to Stay in the USA After Expiration of H-1B

Detailed question:

Answer:

Watch the Video on this FAQ:

Options to stay in the USA after expiration of H-1B

Video Transcript

1. I don't think you would get the tourist visa or tourist status but you can apply for it.

2. 60 days is the total time.

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Multiple Years of CPT

Detailed question:

Answer:

Watch the Video on this FAQ: Multiple years of CPT

Video Transcript

All in all I think changing to a consular processing is one of the ways you can go. It also depends upon how aggressive you want to be. But if you want to be more conservative, go ahead and change to consular processing. More...

 

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Employer Deducting Money From Salary

Detailed question:

Answer:

Watch the Video on this FAQ:

H-1B Employer deducting money from salary

Video Transcript

The answer is No. Absolutely not. Bring it up with the wage and hour division and do it quickly because I think they can go back only one year in time. If you are talking about 2016 it might already be too late for that and 2017 might be too late for that. But it does not hurt to at least to bring it up with the wage and hour division. Please discuss this with your lawyers. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

University of Farmington, Michigan issues

Detailed question:

Answer:

Listen to the Audio on this FAQ: University of Farmington, Michigan issues

Audio Transcript

Tourist visas itself is a visa that can be denied on so many grounds. It is difficult to predict. You can try. Just make sure you don't make any misrepresentations or active concealments of facts because that can lead to a permanent bar from entering the USA. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form

Add new comment

Is H-4 EAD Tied to an Employer of H-1 Holder or to an I-140?

Detailed question:

Answer:

Listen to the Audio on this FAQ:

Is H-4 EAD tied to an employer of H-1 holder or to an I-140?

Video Transcript

An H-4 EAD is neither tied to a particular employer nor to a revoked I-140, if the I-140 stayed approved for 180 days and any one of those 180 days fell on January 17, 2017. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

Add new comment

What to do When the 240 Days H-1B Work Authorization is Expiring?

Detailed question:

Answer:

Watch the Video on this FAQ:

What to do when the 240 days H-1B work authorization is expiring?

Video Transcript

1. You can stay in the United States. You just cannot work. So while your timely H-1B extension is pending you are not illegal, even after 240 days. The only thing is you will not have work authorization. You can also ask for an expedite at that point of time. It is worth trying. Even if the premium processing is not available expedited processing is still available.

2. You don't have to re apply for the extension. The pending case would work. The only thing is since you left while the case was pending you would require to get a visa stamping and come back again. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

I-94 expired -- Unlawful Presence

Detailed question:

Answer:

Watch the Video on this FAQ: I-94 expired -- Unlawful Presence

Video Transcript

Under the circumstances I would certainly look into 212(d)(3) waiver. 212(d)(3) waiver is given to those people where they have become subject to unlawful presence three year or ten year bar and there is no policy reason for the government to withhold their entry on a non immigrant visa. Please consult your lawyer regarding this matter. More....

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Status Expiring During the Pendency of an H-1B extension

Detailed question:

Answer:

Watch the Video on this FAQ:

Status expiring during the pendency of an H-1B extension

Video Transcript

1. No, and there is no NTA even if it gets denied. You can leave the United States within a short period. After the denial you won't get an NTA.

2. You don't have to do that. There is no question of unlawful presence or being out of status when timely filed extension amendment or transfer request is pending and if you choose to leave the USA for whatever reasons you can always get a visa and come back. Traveling outside the USA does not abandon your H-1request. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.



Add new comment

Continuing Employment-Based Green Card While Moving Outside the USA

Detailed question:

Answer:

Watch the Video on this FAQ:

Continuing employment-based green card

while moving outside the USA

 

Video Transcript

1. One is to go through the consular processing in Canada or second is to get an H-1B status approved. Since you are not subject to the quota for six years after approval you can come back on H-1B and file AOS.

2. An old H-1B certainly becomes a red flag issue for the CBP. It is definitely common for them to be concerned about this sort of a situation.

3. That depends if the job is in - house for eg: the company is a product development company and they intend to hire you in - house then a letter from the company should be good enough.

4. Pay stubs are not necessary, but if you are working for this employer from outside the United States you can certainly present pay stubs to prove that you were working for this employer. That is not directly relevant but it does show an ongoing relationship.

5. Definitely. You don't have to reenter the lottery for six years after the last H-1B approval. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Period of Maximum Stay Allowed for Tourist Visa Entrants

Detailed question:

Answer:

Watch the Video for this FAQ:

Period of maximum stay allowed for tourist visa entrants

Video Transcript

Preventative would be to stay less than six months each time you come or if you have stayed six months in a year then don't come back the following year. Wait another 12 months before you come back in. That would be prudent. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Effect of L-1A Denial on Approved I-140 Green Card

Detailed question:

Answer:

Watch the Video on this FAQ:

Effect of L-1A denial on approved I-140 green card


Video Transcription

If your L-1A is denied and not just the change of status, then we have to look at the reason for denial. Typically L-1A is denied if the government feels that you don't rise to the level of an executive or managerial employee for whatever reason, whether it is on the foreign country side or the US side. If you don't rise to that level government can deny your L-1A and if they are denying the L-1A on that basis and your EB-1C I-140 was approved also with the same or similar job description, then obviously there is a potential impact because the criteria used for determining your eligibility for L-1A and EB-1C are the same as far as qualifying as a manager is concerned.

So indirectly because you are using the same job description you could have a problem with the L-1A denial. Yet now, if it is a change of status which can happen because you file your application two days late then the green card  I-140 remains unaffected but then you have to worry about the unlawful presence problem. If you have been unlawfully present for 180 days you cannot come back for 3 years, except with a 212(d)(3) waiver and that's always a possibility in cases like these. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Citizenship for Employees of Consulting Companies who have Projects in Different Cities after Green Card

Detailed question:

Answer:

Watch the Video on this FAQ:

Citizenship for employees of consulting companies

who have projects in different cities after green card

Video Transcript

First of all, remember the laws has changed since 2017. Now supplement J has become an issue. Previously, when you did a AC21 shift of jobs, there were no filings required. So in older cases even if you don't join the employer, chances are that you are in a pretty good shape. Another thing that I always consider to be important and it often doesn't come up is your state of mind. Green card is based upon an intention of an employee to join an employer on a permanent full time basis either before or after the approval of the green card. I do want you to take a consultation and I want you to spend some time with a lawyer to go over your situation and make sure there's nothing else that's going to be bothersome. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Starting Business While on Student Visa

Detailed question:

Answer:

Watch the Video on this FAQ: Starting business while on student visa

Video Transcript

Doing a business while you are still on a F-1 status is illegal unless you get OPT. If you get OPT, the government has set a time or two as long as you are working in your own field. So if you are a software developer or you have a degree in computer science and you start a company where your primary role is software development or something akin to it you are allowed to do that as long as you have your OPT. You cannot do that in STEM OPT extension, but you can do it for the one - year OPT.  More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Filing Change of Address

Detailed question:

Answer:

Watch the Video on this FAQ: Filing change of address

Video Transcript

If you are on a nonimmigrant visa you have to notify the government about your address change. If you intend to live with your wife and you are working on a short term contract , I would  suggest you to give your wife's address as your permanent address. I think that's ok, especially if you are working on short term projects and moving from one place to another. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Traveling Abroad While H-4 EAD is Pending

Detailed question:

Answer:

Watch the Video on this FAQ: Traveling abroad while H4 EAD is pending

Video Transcript

You can travel if you are already on H-4 and just your EAD is pending. If you have a change of status as well as an EAD pending don't travel. If only EAD is pending and you are already on H-4 that is ok. Please talk to your lawyers. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Unlawful Presence for Minors

Detailed question:

Answer:

Watch the Video on this FAQ: Unlawful presence for minors

Video Transcript

For a child under the age of 18 until they hit 18 there is no unlawful presence. They are only out of status. More...

 



Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Impact of Unlawful Presence

Detailed question:

Answer:

Watch the Video on this FAQ: Impact of unlawful presence

Video Transcript:

In your case make sure she came in with an I-94DS because if she did not have DS, then she's been accumulating unlawful presence for a while and then the only solution is when you become a US citizen, you can then apply for her I-485 without having an issue with unlawful presence because she entered legally. Please spend some time with your lawyer, go over your wife's situation in detail, learn all the pros and cons of your situation. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Can I Join My Old Employer If The H-1B Transfer Is Denied?

Detailed question:

Answer:

Watch the Video on this FAQ: Can I join my old employer if the H-1B transfer is denied?

Video Transcript:

1. The answer is No. A prior approved H-1B is not overruled by a subsequent H-1B through another employer. If you have signed any contracts that's a different issue, but as far as immigration law is concerned, having one, two, three or even twenty subsequent H-1B approvals have no effect on a previously approved H-1B.

2. The answer is Yes. 

3. Not at all. As long as your employer A has not been revoked and employer B/A still maintains your status you are fine.

4. Any employer or any number of employers can file for your green card as there is no limit. The only issue is are you doing it in good faith. Is it an honest intention to join them upon approval of the green card. These are issues that you should discuss with your lawyers who are processing your green card. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-4 EAD Based Upon Prior Employers

Detailed question:

Answer:

 

Video Transcript:

1. Yes, you can apply both change to H-4 and H-4 EAD concurrently. Therefore even though you are working for employer B your wife can derive the same benefit as you would from the earlier I-140 approval.

2. No. Even though the I-140 was from the previous employer.

3. You can change employers as many times as you like and once your I-140 has been approved 180 days there is no limit to how many employers you can change and how long you can keep getting extensions of your H-1B as long as the dates are not current. If the dates become current then you can get only one year extension as far as I recall.

4. The answer is No. Both remain valid in their own right and you can derive the maximum benefit whichever is better for you out of the two. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

 

Add new comment

The Impact of the NTA Memo

Detailed question:

Answer:

Watch the Video on this FAQ: The impact of the NTA memo

Video Script

Green card renewals have been pretty much an administrative process. It is like renewing your drivers licence. If your green card is denied due to a minor administrative process can you be deported? Well, even under NTA if they put you in deportation your lawyers can walk over the evidence of the error to the court. Right now USCIS has postponed implementing its NTA policy until further notice. Even if it gets implemented chances are that as and when the NTA policy get implemented, it would be more reasonable than the way they had announced. More...

Visit the blog section to read more about this policy: https://www.immigration.com/blogs/deportation-and-denial-policy-2018-jul...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

 


Add new comment

Travel Outside The USA When A Case Is Pending

Detailed question:

Answer:

Watch the Video on this FAQ: Travel outside the USA when a case is pending

Video Transcript

1. Yes, you can travel.

2. I don't know the exact local rules, but you have to go for visa stamping.

3. You should not go until the amendment is actually approved. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

What Are Different Wage Levels For H-1B And Green Card Jobs?

Detailed question:

Answer:

Watch the Video on this FAQ: What are different wage levels for H-1B and green card jobs?

Video Transcript

The only difference between wage levels for H-1B and green cards in terms of logistics is, when we file for an H-1 we are using our best judgment to decide which level wage will be given. When we file a green card it is the government who decides what the wage should be. The wages are received in most cases from Foreign Labor Certification Data Center and there each occupation is based upon the county and the state in which the occupation is located and is covered under four different levels. What distinguishes the levels is the complexity of the job, the requirement that the employer has and how many years of experience, etc... Level 1 is usually for entry-level people right out of school doing formative chance, so they are still learning. Level 2 is people who are doing professional level jobs, but they are moderately complex at level 3 you become technically advanced. At level 4 you become more advanced but perhaps in terms of leadership. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Specific Issues In The Trump NTA Policy For Denials

Detailed question:

Answer:

Watch the Video on this FAQ: Specific issues in the Trump NTA policy for denials

Video Transcript

If the RFE looks like it is really difficult to win, maybe leave USA while it is pending and wait outside if the case gets approved, get a visa and come back, but there you could have a problem. The visa stamping can take a long time, but of course if you have an existing visa you can return on that but if you don't have an existing visa for eg: H-1B visa and you have to apply for a new one, then be prepared for delays and I would always prepare clients or employers to send the work to your home country wherever you are because it is perfectly legal to be working outside USA while you wait for the visa stamping. 

On the other hand the NTA does not say you cannot file appeal. Hence it is a really bad policy created by Trump. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Applying for H-4 Status While on Parole

Detailed question:

Answer:

Watch the Video on this FAQ: Applying for H-4 status while on parole

Video Transcript

You cannot really get a change of status because parole is not really status. It is just authorized stay which is legal, but not full status. So basically if you want to convert back to H-4 , it does not require any prior approval from the USCIS. You can just take the spouses H-1 approval and go outside USA get your visa stamped and come back. When you enter using your H-4 visa you are back on being on H-4 instead of being on parole and if the I-140 or I-485 etc., is still pending you can of course keep extending your advance parole. You can apply six months ahead of time before the expiration of the parole. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Applying For H-1B Transfer While An Extension Request Is Under RFE

Detailed question:

Answer:

Watch the Video on this FAQ: Applying for H-1B transfer while an extension request is under RFE

Video Transcript

Yes, but you probably will have to go outside USA unless the case is already decided in your favor when the transfer application is decided. Unless you have a genuine case you should not apply for political asylum and I am not sure that any kind of relief from deportation would apply to you just because you lived here for 11 plus years. I am not quite sure how in your case that the law would help you out. More...



Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How Many Days Can I Stay In The USA After H-1B Denial?

Detailed question:

Answer:

Watch the Video on this FAQ: How many days can I stay in the USA after H-1B denial a detailed discussion?

Video Transcript

The new regulations that became effective on Jan 17, 2017 now clearly says that if you were working for Employer A and Employer B filed your H-1B transfer and you joined Employer B using the receipt they got an RFE further along the line, the H-1B transfer got denied, government says you can go back and join Employer A as long as you never work without authorization and as long as the employer A has not revoked your H-1B and lastly the job that they had gotten approved for you is still in existence. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing Jobs While H-1B RFE Is Pending

Detailed question:

Answer:

Watch the Video on this FAQ: Changing jobs while H-1B RFE is pending

Video Transcript

A possible situation is that your original approved H-1B still has time left on it. So let's say you got the H-1B approval till December of this year and you have an RFE pending so technically you still have the old petition alive and well almost. If you file for a transfer, chances are as long as your pending filing was not inappropriate government will accommodate and will allow you to go on to employer B, C, D or E as you please even with the pending case. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Can An Employee Withdraw An H-1B Petition?

Detailed question:

Answer:

Watch the Video on this FAQ: Can an employee withdraw an H-1B petition?

Video Transcript

You should send a letter to the government in writing, certainly, even get it maybe notarized to assure the government that these are your signatures and say that you no longer wish to apply for a change of status and you are not going to take up that job. So you hereby withdraw from the change of status request under the H-1B. After you send a notarized letter give them a call as well and just tell them you have written and this is what you want to be noted and that you are not going to go through the change of status. There is no actual procedure for it, but this can be as secure as you can be to ensure that the government will not give you a change of status even though you don't want one. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Can A Green Card Be Filed For Me If I am On H-4 or L-2?

Detailed question:

Answer:

Watch the Video on this FAQ: Can a green card be filed for me if I am on H4 or L2 or F1 – – any status other than H-1B or L-1A?

Video Transcript

Yes. A green card can be filed while you are on any status. But while filing a green card for visas like F-1, F-2, J-1, J-2 can be complicated in some ways. Consult your lawyers.  Make sure you got every part covered. If you are born in countries like India or China or any other countries that are very backed up you will have to be very careful and make proper plans before you file for a green card directly from any of the other statuses but there is no law that says you cannot do that. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How Does One Change Status While Within The United States?

Detailed question:

Answer:

FAQ: How does one change status while within the United States?

Video Transcript

There are three types of situations I can think of. One is when you are changing status to one to another (H-1 to F-1 or H-1 to tourist visa) can be filed just by using form I-539. Then there are some where the change of status requires refiling of the entire paperwork for the petition. H-1 and L-1 are examples of that category and the third situation to change of status is when certain categories of people are not allowed to change status. An example would be if you are here on a visa waiver also calling ESTA program you cannot change status. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Status of Off-site Placed STEM OPT Extension Students

Detailed question:

Answer:

Watch the Video for this FAQ: Status of off-site placed STEM OPT extension students

Video Transcript

First of all to say that USCIS has changed its regulations and they do not allow off-site placements of STEM OPT extensions students is incorrect, because USCIS has said this from a very long time that they are not going to allow these placements. If you are in a situation, what can happen is you could be considered to be out of status for no fault of your own. So if you file an H-1B and if the government says well we think you're out of status hopefully that's all they can do, they can make you go outside the USA for a visa stamping. More...

 
 
 
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
Add new comment

Legal Stay to the Parent of US Citizen Child With Disability

Detailed question:

Answer:

Watch the Video on this FAQ: Is there any law to provide legal stay to the parent of US citizen child with disability?

Video Transcript

The answer is No. You can stay on a tourist visa. There are no special visas or green card for such situations.  More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Effect of I-140 Revocation on Priority Date, H-1B Extensions Through Any Employer, etc.

Detailed question:

Answer:

FAQ: Effect of I-140 revocation on priority date, H-1B extensions through any employer, etc.

Video Transcript:

Beginning January 17, 2017 the law is that if your I-140 has been approved and stays approved for 180 days and atleast one or two days past Janaury 17, 2017, because if it was revoked after 180 days but before Janaury 17, 2017 when the new regulations came in you would have to look at other things but not those regulations. These new regulations say first of all the moment your I-140 is approved your priority date is yours to keep. You can take it to any employer, you have to start the green card all over again, but you carry the priority date forward.

The second thing that it says is that if in addition your I-140 stays approved for 180 days you will retain the ability to extend your H-1B on three years any number of times as long as the priority dates are not current with any employer for any job. So once I-140 is approved and stays approved 180 days your rights to extend H-1 beyond six years with any employer are quite secure. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Child Turning 21, Immigration Consequences for Pending Green Card Cases

Detailed question:

Answer:

 

Video Transcript

Normally the children of people undergoing the green card process, convert to student visa if they are in school. If he gets covered by the CSPA (Child Status Protection Act) even though he has a student visa it doesn't change his green card status through you and again if he goes to India for a degree for four to five years his green card processing will still stay valid. There might be some technical details you have to attend to but that is certainly possible as long as he's not got a problem with aging out as he is covered by CSPA.  More...

Related Video on CSPA:

Rajiv Khanna discusses the impact of the CSPA (Child Status Protection Act) on Employment based Green Card delays on children turning 21.

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit

Detailed question:

Answer:

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.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

     b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

    c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

    d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

    e. Joining a Master's CPT and filing a cap yes, that's definitely an option.   

More....

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Leave Without Pay for H-1B / Status

Detailed question:

Answer:

Watch the Video on this FAQ: Leave without pay for H-1B / Status

Video Transcript

If you look at the Department of Labor regulations they allow employees for their convenience to take leave for things like tourism. So if you say you want to take 20 days off you could do that without losing your status, but if it is being used by the employer to bench you and them then you can be in trouble. If it is a medical leave of absence, then as long as you have a medical certificate and necessity and your leave is coextensive with the existence of that necessity I think that's ok as well. Hence couple of months are acceptable if the reasons are honest and not a pretext or an excuse to be off a project and be benched. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

180 Rule for Priority Dates/H-1B Extension

Detailed question:

Answer:

Watch the Video on this FAQ: The 180 rule for priority dates/H-1B extension

Video Transcript

Beginning January 17th  forward, some of that goes backward too, as soon as your I-140 is approved the priority date is yours even if the employer revokes the I-140 the second day or the same day so the priority date becomes yours the moment the I-140 is approved. If the I-140 gets approved and stays approved for 180 days and the employer then sends a letter to revoke the I-140 on the 181st day not only do you keep your priority date, you also maintain the right to keep extending your H-1 and I believe your wife's H-4 EAD as well even if the old employer revokes your I-140. The 180 days is the time for which the I-140 should stay unrevoked. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

 

Add new comment

Jobs that Qualify for an H-1B Visa

Detailed question:

Answer:

Watch the Video on this FAQ: Which jobs can qualify for an H-1B visa?

Video Transcript

In this scenario I can't say that your job requires the degree that you have. For instance, if you were a research assistant who basically worked on international political economy and development issues that would be an H-1B job. So it should be clear from the job and that you can't do this job without this kind of a degree.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Tranfer, AC21 and I-140 Process

Detailed question:

Answer:

Watch the Video on this FAQ: If H-1B transfer is denied, can I go back to my old employer? When does AC21 job portability

begin? Can H-1B be extended through a new employer while I-140 is in process?

Video Transcript

1. You can apply for an extension based upon two reasons either the first year anniversary of your green card filing that your PERM was filed a year ago or based upon I-140 approval. So, yes you can file for a one year extension if PERM was started a year ago.

2. The answer is yes, as long as one of the two things exist. Either the I-140 has not been revoked in that case you can use it for extensions or the I-140 was revoked by the old employer, but after 180 days of approval in both cases you can extend your H-1 through some other employer like employer B even while employer B's own I-140 is still in process. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-4 EAD Termination and Converting to H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: H-4 EAD termination and converting to H-1B

Video Transcript

If you have already completed six years you cannot go back to H-1 unless you leave the United States for at least one year or unless you start a green card. Then you would be able to apply for an H-1 extension based upon either the first year anniversary of the filing or I-140 approval, whichever comes first you have to fall under the 180 days. A mere change in jobs doesn't allow you to reset the period for yourself.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Change of Status to Student F-1 While Green Card is in Process

Detailed question:

Answer:

Watch the Video on this FAQ: Change of status to student F-1 while green card is in process

Video Transcript

Yes, obviously you can try. I think what happens is when you are going to a good school, chances are government will accommodate and they will allow you to go back on F-1 because it is definitely a promotion path a career progression for you. I can't predict if the government will be reasonable or not, but reasonableness would require that they allow you to convert to F-1. Under the Trump administration I do not know how things are going to work out, but as far as predicting your chances are concerned I think you certainly have a shot. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Parents Visa Denied Based on 214(b) Twice

Detailed question:

Answer:

Tourist visas are often denied based upon incomprehensible reasons. The most difficult reason to overcome is the 214B denial. Essentially, the consular officer says that your parents possess immigrant intent and that he is not convinced they will come back. You can ask for a supervisory review of that decision, but most of the times they don't work.

Add new comment

National Interest Waiver (NIW) Filing When Priority Date is Not Current

Detailed question:

Answer:

Watch the Video on this FAQ: National interest waiver (NIW) filing when priority date is not current

Video Transcript

1. No because the dates are not current. If your country of birth is India you cannot file them together.

2. No because you can't get I-485 filed.

3. Remember NIW is not bound to a particular job except for physicians. Doctors are different, but NIW for non physician employment is not tied to a particular position you can change jobs as many times as you like as long as you are still working in the area of 'intrinsic merit'  which is the basis of your filing. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

J-2 Status

Detailed question:

Answer:

Anyone who attempts to gain any immigration benefits, including visas, through perceived fraud or misrepresentation is permanently barred from entering the USA. In cases like this, you can try to revisit these findings with the consulate, but these are long, drawn out battles and difficult to win. Temporary visits may be possible with something called a 212 (d) (3) waiver.

Add new comment

H-4 EAD and H-1B Extensions Rules Change

Detailed question:

Answer:

Watch the Video on this FAQ: H-4 EAD rules change and H-1B extensions rules change

Video Transcript

1. What you could try doing is have your green card started and you can use that to extend your H-1. 

2. The problem is you don't have any time left on your H-1 because you have taken 6.9 years of L-1A. I think you can only do this if you start a green card process. More Questions and Answers

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Staying in the United States Based Upon Medical Need of Child, B-2 or Humanitarian Parole

Detailed question:

Answer:

Watch the Video on this FAQ: Staying in the United States based upon medical need of child, B-2 or humanitarian parole

Video Transcript

If you are outside USA and your B-2 Visa is denied you can try a humanitarian parole. For more information, you can visit the USCIS link -  https://my.uscis.gov/exploremyoptions/humanitarian_parole

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

Add new comment

Implications of Acohol-Related Convictions, such as DUI, on Immigration or H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: Implications of alcohol-related convictions, such as DUI, on immigration or H-1B

Video Transcript

The first thing you need to do is get an immigration lawyer involved somebody who does deportations and also try and get somebody local. As long as you are not convicted you are not guilty. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Effect of Salary Variations During L-1A Visa

Detailed question:

Answer:

Watch the Video on this FAQ: Effect of salary variations during L-1A visa

Video Transcript

Ideally, you should be paid what is indicated on the L-1 paperwork, but there's certainly no law that I can point to that mandates that result. It is just a general sense of uneasiness because it could go into eligibility. Also, if your payroll is run with salary plus bonus I think then you should be ok although I haven't researched this issue. Have your lawyers look into it. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing Jobs After I-140 Approval, Returning to the Old Job, etc.

Detailed question:

Answer:

Watch the Video on this FAQ: Changing jobs after I 140 approval, returning to the old job, etc.

Video Transcript

If you look at the situation academically this can be a problem and they should start the green card all over again why because the basic jurisprudence or the legal theory of a green card is that there must exist a job that continues to exist without interruption so when you leave the employer A with the intent not to come back or the employer no longer has the intent to hire you back it can be argued that the continuity of the intent of having a job that the employer wants to give you and that you want to accept has been interrupted. So I guess employer A can definitely start from where you left as long as there was an intention to keep the job open and for you to come back which I think is difficult to argue in your case. You should talk to your lawyers. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B RFE For Specialty Occupation

Detailed question:

Answer:

Watch the Video on this FAQ: H-1B RFE for specialty occupation

Video Transcript

Please get yourself a lawyer. Don't do it yourself. These are relatively complicated issues. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Revocation Of H-4 EAD Rules

Detailed question:

Answer:

Watch the Video on this FAQ: Revocation of H-4 EAD rules

Video Transcript

This whole thing is very uncertain I wish I could give you a better answer, but plan for contingencies, plan for what am I going to do if my H-4 EAD regulations go away. So, I think it is a little premature for me to give you a definitive answer. More ...

 

Also, visit this link on H-4 EAD and Other Immigration Regulations 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Porting Green Card To A Self-Owned Company Under AC21 Portability

Detailed question:

Answer:

Watch the Video on this FAQ: Porting green card to a self owned company under AC21 portability

Video Transcript

Yes. There are two hidden problems here that you need to be aware of and be careful. One it must be an employer, employee relationship. Second, your job should be same or similar. Talk to a lawyer. Make sure you have covered these two grounds very carefully. More...



Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Erroneously Given Longer Duration On H-1B Than Eligible

Detailed question:

Answer:

Watch the Video on this FAQ: Erroneously given longer duration on H-1B than eligible

Video Transcript

You are not allowed to take advantage of USCIS errors. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

TN Applying for Green Card

Detailed question:

Answer:

Watch the Video on this FAQ: TN applying for green card

Video Transcript:

Typically what happens is TN does not allow you to have the intention to file a green card, so if you are a TN visa holder or a TD visa holder and a green card is applied for you, you can have trouble reentering the USA after the application or applying for extensions of TN within the USA. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Filing EB-1C, International Managers or Executives Green Card

Detailed question:

Answer:

Watch the Video on this FAQ: Filing EB-1C, International Managers or Executives green card

Video Transcript

No, because EB-1C category depends upon the relationship between the companies the one that you used to work for outside the USA and the one that you are that is applying for you in the United States. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

When Does One Become H-1B Cap Exempt?

Detailed question:

Answer:

Watch the Video on this FAQ: When does one become H-1B cap exempt?

Video Transcript

The first principle is if you are in the United States and you do not get a change of status you are not exempt from the quota. The second principle is if you are outside the USA and you don't get a visa stamp you are not exempt from the quota. Now in both these cases whether you join the job or not is irrelevant. So the third principle is whether you are joining the job or not is irrelevant.

If you are in your home country you must get a visa stamp if you don't, you are not exempt from the quota. If you are in the USA you must get a change of status otherwise you are not exempt from the quota. Hence principal number four is that if your approved H-1 is revoked before October 1st then you are still subject to the quota and the last principle is if your H-1 is revoked for error or for fraud or misrepresentation you are still subject to the quota. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Impact of Taking a Long Break While on H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: Impact of taking a long break while on H-1B

Video Transcript

First of all, a leave that long would not maintain your H-1 status. Maybe a few weeks is ok. You can over the six years file for another H-1 without any quota issue and come right back to the US on that H-1 after getting a visa stamp. So I don't see any problem getting back on to H-1. If you want to remain in the USA you have a problem. But if you want to go outside the USA no issue. Worse case scenario, they can revoke your H-1, you can just reapply. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

What can be Done if an H-1B is Denied While in the USA?

Detailed question:

Answer:

Watch the Video on this FAQ: What can be done if an H-1B is denied while in the USA?

Video Transcript

You can always file another H-1. You can file for an H-1 renewal, you can file for an H-1 transfer, you can file for an H-1B amendment even if the H-1B is denied. While in the USA depends upon whether or not you have status. If you are maintaining status you can file for an extension and another amendment because one denial does not foreclose another application under the same category. 

But if you are not in status chances are you will have to go outside the USA for visa stamping before you can start working with a new approval, but a new application can always be filed. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Does H-1B Extension Denial Invalidate an Existing H-1B?

Detailed question:

Answer:

Watch the Video on this FAQ: Does H-1B extension denial invalidate an existing H-1B?

Video Transcript

1.Yes. The previously approved extension does not go away. The only way that can go away is if the government separately issues a notice of intent to revoke, gives you notice and a chance to respond and then denies.

2. It does not. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Doing Business on H-4 EAD

Detailed question:

Answer:

Watch the Video on this FAQ: Doing business on H-4 EAD

Video Transcript

Of course on H-4 EAD, she can do anything she likes, she can do online business, sell items on ebay amazon no problem at all. These items shipped from India is perfectly fine.

More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Denial of H-1B on Level 1 Wage Issue

Detailed question:

Answer:

Watch the Video on this FAQ: Denial of H-1B on Level 1 wage issue

Video Transcript

1. Now if somebody's H-1 gets denied for level 1 job the same employer can file for level 2. But there should be a good reason or explanation if the government asks questions like: why are we going to level 2, why did we not go with level 2 the first time around.

2. Yes, you can, but of course, if you have a quota H-1 then you have a bigger problem, but if it is a quota exempt H-1 or you are not subject to the quota then, of course, you can do a transfer to any employer at the same time if you wish. More 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Effect of Moving Abroad While Still on H-1B Visa

Detailed question:

Answer:

Watch the Video on this FAQ: Effect of moving abroad while still on H-1B visa

Video Transcript

1. Yes, I think you can keep that H-1B alive as long as that job is there.

2. Yes, as long as you have an H-1B approved in the last six years you can always transfer over to another employer and if your I-140 is approved for 180 days or more which in your case would be from June to December. So next year onwards you are entitled to have H-1 extensions through any employer as long as your I-140 remains unrevoked for 180 days. I don't see a problem you can have a transfer from India itself. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing Status from Tourist or Business Visa (B1 or B2) Within the United States

Detailed question:

Answer:

Watch the Video for this FAQ: Changing status from tourist or business visa (B1 or B2) within the United States

Video Transcript

1. You should go to your home country or a third country. You can go to Canada or Mexico. B-1 and B-2 are not complex if you qualify. L-1B's are very difficult to get. Specialized knowledge employee is very difficult to get but if you qualify not a problem. 

2. Regarding time frame you can always apply through premium processing and within a few weeks, you should get your adjudication done.  More 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Applying for Green Card while Holding H-4 Status; Applying for Green Card and Permanent Residence for Another Country Simultaneously

Detailed question:

Answer:

Watch the Video of this FAQ: Applying for green card while holding H-4 status; applying for green card and permanent

residence for another country simultaneously

Video Transcript:

1. You have to go through your lawyer or your employer. You won't have access to it, but definitely, there is a website.

2. Within 180 days of the labor approval.

3. Yes of course. 

4. It does not. 

5. I don't see any problem with it, I know that at the border the Customs and Border Protection (CBP) sees that you have got two permanent residence applications going on sometimes they can raise a stink about it but in my opinion that's completely unjustified. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Pros and Cons of Adjustment of Status and Consular Processing for Green Card

Detailed question:

Answer:

Watch the Video on this FAQ: Pros and cons of adjustment of status and consular processing for green card

Video Transcript:

You have got your I-485 filed and that's a good thing and you kept it alive by keeping your advance parole alive, but you need a job offer and you need to file Supplement J. So if you want to take advantage of AC21 you have to move over to a new employer get a new job offer and use Supplement J to indicate to the USCIS that you are going through another employer. You have two choices. You can split the green card. You going through adjustment of status, you enter the USA with your Advance Parole and you file form I-824 for your family to go through green card processing through consular processing in Canada. So you can either bring them all in on an H-1/H-4 type visa or you can do your adjustment of status and let them do their consular processing.You should not convert yourself to consular processing that could probably end in the loss of a green card. You are taking advantage of AC21 which as far as I know is available only in adjustment of status. It is not available in consular processing. Hence adjustment of status for you and consular processing for your family makes sense. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Immigration Consequences of a Denial of Entry at the Airport

Detailed question:

Answer:

Watch the Video on this FAQ: Immigration consequences of a denial of entry at the airport

Video Transcript:

1. You can file a Freedom of Information Act (FOIA) request with Department of Homeland Security (DHS) or U.S. Customs and Border Protection (CBP) and or USCIS and see what information they have on you and within a few months they should be able to give you a copy of your document everything that they have on you and this doesn't cost you anything.

2. Do remember tourist visa is not a guarantee. The consular officer could refuse you a tourist visa for many reasons, so even if the fact that you worked without authorization on a previous time is long gone the prior bad history could be used to deny you another tourist visa.

3. As long as you don't lie about anything, by all means, you can try.

4. You have to go through green card and it takes many, many years. So if you go to the visa bulletin there is a category for unmarried children of US citizens and it takes several years. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Status of H-4 EAD Litigation/Suit

Detailed question:

Answer:

Watch the Video on this FAQ: Status of H-4 EAD litigation/suit

Video Transcript:

Right now, according to the government, this lawsuit pertains to regulations that may not be relevant because the government may decide to overrule these regulations with some new regulations.

What would the new regulations state we don't know yet as the possibilities are several. The government could end up modifying the rule, narrowing it or could end up totally rescinding that rule and of course if you have to rescind a regulation I don't know of doing it other than going through the rulemaking process again.

So that would probably take a few months and my guess would be in order to keep the exit from the regulations if there is indeed an exit orderly the government will probably provide some months grace period for closure on the H-4 EAD's. So right now that's what we know. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Current Immigration/Visa Options for Entrepreneurs

Detailed question:

Answer:

Watch the Video on this FAQ: Current immigration/visa options for entrepreneurs

Video Transcript

A few options for Entrepreneurial Visas:

You could come in on E visa, H visa, O visa or TN visa and eventually get a green card based upon various other options including EB-1A if you are extraordinary qualified individual or EB-5 if you are making the required amount of investment and creating the jobs necessary under the rule. 

You can also come in through L-1A if you have a foreign company you have worked outside for that company for at least one year as an executive or managerial employee, you can start a company or buy a company in the United States and transfer yourself or your key managerial employees or employee to the USA. L-1 is the fastest way of getting a green card because L-1 is potentially processed within a few weeks because you can file premium processing and once you are in the USA you can file a EB-1 based green card which will get you seen through the process normally within a year, sometimes as little as three to five months. More ...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Status and Unlawful Presence Questions in the Form DS-160

Detailed question:

Answer:

Watch the Video on this FAQ: Status and unlawful presence questions in the form DS-160

Video Transcript

This is a very generic statement. Do not depend on this as the last word on the subject. Generally speaking, the following two or three rules should be kept in mind. First of all, if you are ever in doubt you are better off saying yes, I was out of status and yes, I was unlawfully present and let the consulate deal with that issue. If you are not in fact not out of status and you are not unlawfully present there is no issue, but if you were out of status or lawfully present and you don't reveal that it can be construed to be fraud or misrepresentation which then becomes a permanent bar from entering the United States. It is a very painful situation. If you tell the truth, no issue.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How Late Can a I-485 be Filed After Priority Dates Become Current

Detailed question:

Answer:

Watch Video on this FAQ: Are there any time limits on how late an I-485 can be filed after the priority dates become current?

Video Transcript:

There is no law that requires you to file the I-485 right away, but there could be some issues about H-1 extensions. You will certainly not be able to get three year H-1 visa extensions. Of course, you can work on EAD. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Visa Denied and Petition Sent for Revocation

Detailed question:

Answer:

Watch Video on this  FAQ: What are the options of an H-1B visa denied and a petition sent for revocation?

Video Transcript

1. Not until a notice of intent to revoke is sent.

2. This case is going back to USCIS. 

3. You can always get the assets back. You can try getting a tourist visa that's one way to do it. Second is to send somebody a power of attorney. You can get together with lawyers of the state where your assets are and get a proper power of attorney made out in the name of a friend. They can take care of it for you.

4. I guess in India the answer is yes. But you don't have to pay taxes both in India, as usual, there is a relief available for people in your situation, but I am not a tax expert, you need to talk to a Chartered Accountant in India.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B Visa Stamping in Canada or Mexico; Importance of I-94

Detailed question:

Answer:

Watch the Video on this FAQ: H-1B visa stamping in Canada or Mexico; importance of I-94

Video Transcript

1. You can get your visa stamped in any country which is called Third Country National (TCN) processing. It is a good idea to check with them beforehand. Sometimes if they have too much of a workload, especially in Mexico they might temporarily stop taking TCN's. 

2. I don't know because I don't know the rules for the drop box. If you read the rules and you qualify for them, then the answer is yes.

3. I-94 is important. Once you are inside the USA your status is governed by the I-94. You could have a visa good till 2020 but if your I-94 is expiring tomorrow then you are going to be out of status day after tomorrow and unlawfully present. If your I-94 is expiring you got to get that extended whether it is through an H-1 extension or if you already have an approval and you can go outside with the visa for a visa stamping. H-1 and L-1 visas require a prior approval from USCIS. H-4 and L-2 visas do not. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Is New H-1B Visa Stamping Needed if you Change Employers?

Detailed question:

Answer:

Watch the Video on this FAQ: Is new H-1B visa stamping needed if you change employers?

Video Transcript

I don't think you need to. Once again, I caution you that if you ask the consulate they might give you a different answer, but in the Foreign Affairs Manual in their standard operating procedures, I remember seeing there was no such requirement so you could travel on the old visa and the new approval. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Fastest Method of Getting Spouse of a Green Card into the USA and Reducing Wait

Detailed question:

Answer:

Watch the Video on this FAQ: Fastest method of getting spouse of a green card into the USA and reducing wait

Video Transcript

Normally if your husband is living in the United States, the consulate is not very easy going about giving visas because they suspect that once you enter your husband will apply for your green card. Hence getting a tourist visa itself is definitely questionable. Second is when you apply for a tourist visa any representations you make must be absolutely and meticulously truthful. You cannot make things up. Hence tourist visa is by no means guaranteed but certain visas like H-1, L-1, O-1 don't really care whether you have family living in the USA. So if she qualifies you could look at something like that. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Transfer from H-1 (with I-140 approved) to H-4 EAD

Detailed question:

Answer:

You can most definitely file H-4 and EAD together. Your green card process can continue even though you have changed your status.

Add new comment

Does H-4 Require a Prior USCIS Approval for Visa Stamping?

Detailed question:

Answer:

Watch Video on this FAQ: Does H-4 require a prior USCIS approval for visa stamping?

Video Transcription

You do not need to get an H-4 extension from USCIS when you have certain derivative visas like H-4 or L-2. Those visas are given based upon the approval of the H-1 holder and the L-1 holder. For the dropbox facility, you have to look at the local rules. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

I-94 Given for a Shorter Duration at the Airport than the Petition Approval Date

Detailed question:

Answer:

Watch Video on this FAQ: I-94 given for a shorter duration at the airport than the petition approval date

Video Transcript

No, the government wants you to look at only the most recently issued I-94. If it is a government error, then you can correct it through CBP otherwise apply for an H-1 extension like you normally would through USCIS or go outside the USA and come back using the approval that is good till 2018. They should be able to give you a new I-94. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

New Regulations, Effect on Layoff after I-140 Approval

Detailed question:

Answer:

Watch Video on this FAQ: New regulations, effect on layoff after I-140 approval

Video Transcript

1. Having an I-140 approval that stayed in existence for 180 days does not protect your current status by itself so with the new rule you've got that 60 day grace period to file for an H-1 or any other kind of change of status after the layoff so you have got that 60 day grace period you could try applying for a tourist visa if nothing else works out.

2. Yes. You can use Compelling Circumstances EAD. See my blog for more details.

More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Can a Green Card be Started on F-1 Status?

Detailed question:

Answer:

Watch Video on this FAQ: Can a green card be started on F-1 status?

Video Transcript

For people who are born in backed up countries where the priority dates are extremely backed up like India, China, Philippines, Mexico its dangerous to start a green card because F-1 status does not allow you to have immigrant intent whereas statuses like H-1, H-4, L-1, L-2, O-1 etc... allow you to have a dual intent. TN doesn't allow one to have a dual intent, so when you are in these kind of statuses where the dual intent is not permitted and you file a green card you run the risk of having trouble in getting any kinds of extensions, visa stamping or reentry into the U.S. But if you are born in a country like Saudi Arabia, Pakistan or Nepal or anywhere in Europe where these dates are not backed up then sometimes it is possible to get the whole green card wrapped in EB-1, EB-2 or EB-3 category within a year. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Evidence or Documents Created After the Filing of a Petition

Detailed question:

Answer:

Watch Video on this FAQ: Evidence or documents created after the filing of a petition

Video Transcript

1. As a general rule, USCIS takes the position that any documents or events that occur after you have filed a case are normally not going to be accepted as part of the case. Level 1 jobs are entry level jobs that are still being developed. If you submit a new LCA and say this is a level 2 position and the LCA is dated after the filing of this case that would be thrown out. You will have to refile the case. 

2. Well if you are not subject to the quota you can always refile the case. 

3. Yes, if you have earlier received a change of status or an H-1 visa. USCIS has been inconsistently telling us that they want us either to get a change of status or an H-1B visa stamping. Near approval is not enough. 

4. Yes, if you have earlier received a change of status or an H-1B visa stamping. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Protection of Section 245(k) for Employment-Based I-485

Detailed question:

Answer:

Audio FAQ: Protection of section 245 (K) for employment-based I-485

Audio Transcript

1. 245(k) says if you are an employment based applicant or spouse or child of an employment based applicant we will forgive you up to 180 days of being out of status or on authorized employment since the date of your last entry. Any period accumulated before last entry we can disregard. We only count from the date of the last entry. Hence it is a very strong permission to help you file I-485.

2. 245(k) is automatically given. The government actually applies for it themselves. You don't have to do anything special for it.

3. When you are in between statuses: H-1B extension pending or old I-94 expired you are not in status enough to apply for this kind of status. But if your status expired less than 180 days ago because of section 245(k) you can file Adjustment of Status. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Is a Copy of I-140 Approval Required to Extend H-1 B?

Detailed question:

Answer:

Audio FAQ On: Is a copy of I-140 approval required to extend H-1 B?

Audio Transcript

As long as the I-140 was not revoked before 180 days were over and it was good until January 17 you are fine. There is no need to provide the I-140 approval notice. More

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

Add new comment

60 Days Grace Period for H-1B

Detailed question:

Answer:

Audio FAQ: 60 days grace period for H-1B

Audio Transcript

1. Let's say your I-94 was not expiring for five or six months no doubt you could lay claim on the 60 day grace period and get another extension or change of status filed during that time. If you do anything during that 60 day period unless the grace period is denied for any other violation of status you are considered to be applying within the status.

2. As long as the difference between the last day of the 60 days and the period your F-1 begins is not more than 30 days you should be ok. More 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Applying For H-1B Visa When There Was A Status Violation

Detailed question:

Answer:

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.

2. It is not an issue. Even if you had a 179-day gap it is not at a ground of denial for a visa. Just make sure you reveal it. If they ask you if you were out of status which is a part of the form you will say yes. Be truthful.

3. When you want to move and a case is pending unless the pending case is decided you have to go outside for visa stamping. More

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

How to Reset H-1 Six Years

Detailed question:

Answer:

Watch Video on this FAQ: How to Reset H-1 Six Years

Video Transcript

You have to be physically outside the USA for at least one full year. If you visit the USA during that time that is if you are here for ten days you've got to stay outside for ten extra days. If you are here too long, for eg: if in that one year you are here for seven months you might have to start the one year all over again.  

Therefore:

1. you have to be physically outside the USA.

2. if you visit you must keep your visit short but then add in that time to the back end of your H-1 stay outside the USA.

3. don't be here too long. 

More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Applying for H-4 Status while H-1 is Pending

Detailed question:

Answer:

Watch Video on this FAQ: Applying for H-4 status while H-1 is pending

Video Transcript

Looks like you are basically in an authorized period of stay because your approval was only good till October 2015. They will not give it to you. You are better off going outside the USA for visa stamping. You should have your H-1 lawyers call the U.S. attorney's office and see if they can talk with the prosecuting attorney and get some kind of a letter or an email from them that that would make your approval possible because you have not committed anything wrong. You just happen to be caught in a case which is either being investigated or prosecuted. If it is being investigated there isn't much you can do, but if it is already being prosecuted and it's already in court you might be able to get around this problem because even if you go for H-4 visa stamping if there is a red flag on you, you might have trouble getting H-4 visa stamping. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Exemption from H-1 Quota and Visa Stamping

Detailed question:

Answer:

Watch the Video on this FAQ: Exemption from H-1 quota, Visa stamped, did not join employer

Video Transcript

I personally feel once your case is approved on October 1st, you should be exempt from the quota. If you are outside the USA and you do not get a visa stamp, the government takes the position that you are not yet exempted from the H-1 quota. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Query Regarding Impact on H-4 EAD During Job Change

Detailed question:

Answer:

1. The essence of your understanding is correct. You are safe against revocation.
2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
3. Again, no effect on H-4 EAD if your new green card is filed.1. The essence of your understanding is correct. You are safe against revocation. 2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status. 3. Again, no effect on H-4 EAD if your new green card is filed.

Add new comment

214(b) Expiration

Detailed question:

Answer:

Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.

Add new comment

Compelling Circumstances EAD

Detailed question:

Answer:

Watch the Video on this FAQ: Compelling circumstances EAD

Video Transcript

I have given a few examples on my blog please look at that.

Your surgery was a good four years ago I don't know if there is something particularly difficult about your medical situation, but normally people with bypass surgery resume their normal lives. In your case, like I said if there are any particular circumstances, you can certainly apply for compelling circumstances EAD and you can keep getting that renewed. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Current Trends in H-1B End Client Letters

Detailed question:

Answer:

Watch the Video on this FAQ: Current trends in H-1B end client letters

Video Transcript

Since 2005 it has become very difficult to get H-1B approvals without clarification from an entrant if you are in a consulting position. Unless the end client can verify what your job is and how much control your employer doing the H-1 has over you, USCIS is not going to give you an H-1B approval. It has become very difficult to get H-1B's without the end client participation and sometimes it can be difficult even with a letter from the end client. It's really very sad that we have to do business in this way that our approvals depend upon the mood and the education level or knowledge level of the USCIS officer whose adjudicating the case. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Regarding Impact On H-4 EAD During Job Change

Detailed question:

Answer:

1. The essence of your understanding is correct. You are safe against revocation.
2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
3. Again, no effect on H-4 EAD if your new green card is filed.

Add new comment

Rules for Counting 6 Years of H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: Rules for counting 6 years of H-1B

Video Transcript

Any time that you spend on H-1 and L-1 will be counted together. So if you spend two years on L-1B or L-1A you've got four years left on H-1. The second rule is if you go outside the USA for one year the entire period is reset so you could have six years of H-1 back. If you were here on L-1A for seven years, then you went back to your home country stayed there for one year, did not come to the USA and even if you did come for a brief visit and then you have to be out those extra days you came, for example: if you came for 10 days you have to be out for ten days for the clock to be reset. You got your six years of H-1 reset. One thing L-1 is counted towards your H-1 and second thing, if you are outside for one year the period is reset. The next thing you need to know is every day you are outside the USA on H-1 you can recapture every day that you are outside. If you are outside the USA more than six months you get the entire year back. More 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Rights and Obligations after Green Card

Detailed question:

Answer:

1. There is no such requirement that I am aware of at this point today (June 2017) that you have to notify any US government agency or Indian government just because you received your Green Card. However, what you should do is you should inform your employer that you have got your Green Card so they can update your Form I-9 which is an internal matter within the files of the employer. They don't have to update any government agencies.

 

2. Now, traveling has certain predicates or certain dependencies that should be calculated and that should be known. First of all, people have this idea that if I leave the USA for less than 6 months I won't lose my Green Card. Well, its little bit more complicated than that. Technically, if you leave the United States after you got the Green Card, you leave the United States with the intention to never come back even if you are gone for one day and the second day you change your mind and come back. If it could be proven that you left with the intention to never come back your Green Card is gone. So, the first thing very important - your intention. If you have to travel outside the USA where your intention is never to come back, your Green Card technically can be lifted.


3. No problem at all, especially when your home is in the USA, you live here, you work here, your children go to school here taking vacations for a month, two months even three -four months is not the problem. So, some of these factors are important. Sometimes what happens is, let’s say you are in the USA and decide to go to India and take the job over there for two or three months and that goes up to seven or eight months you could be in trouble because the government can say that it looks like you quit your job here. The job is important, where your children are going to school is important, your permanent home is important. These are not issues for most of the people who live in the USA but I am just pointing out these so when a situation arrives I want you to consult a lawyer before you make a plan.

An Intention is a state of mind, the state of mind cannot be directly looked at it can only be inferred from circumstances. So circumstantial evidence is important to prove your intention. For example, if you leave the USA with a one-way ticket and you don't come back for one year, chances are you lost your Green Card because if you are outside the USA for more than one year you will automatically lose your Green Card.

There is something called Reentry permit which allows you to go up to two years and the reentry permit is a definitive announcement by the US Green Card holders that I do not intend to give up my Green Card. It is not the full proof for saving your Green Card but it is quite effective, if you need to go away for two years you can file for a reentry permit.  

For reentry permit, you have to be in the United States to file for it. After you file it within a few weeks you will be scheduled for Biometrics. You have two choices whether you file and leave the USA, you have to be physically present when USCIS receives your application and then you can leave and come back for the Biometrics or you can stay here, do your Biometrics and then you go. The choices for receiving your reentry permit when it is approved are either to your lawyer or to the address in the United States or to the Consulate of your home country. If you go to live in Mumbai, you could pick up your reentry permit in Mumbai Consulate. 

If you face a very bad emergency when you are in India, you can always apply for reinstatement of Green card which is called Returning Resident Permit or SB-1 Visa, that is done through the US Consulate. You go to the Consulate, explain to them in writing through the form. Everything has a Form, that shows that your stay was unintentional, they can take time and reinstate your Green Card for you. There is another Form you need to fill in, that's called Form N-470. 

 

4. N-470 is a highly misunderstood Form. N-470 is helpful in naturalization only to the extent that normally, if you are gone for one year you have to start naturalization five years all over again. Normally, you can apply for Naturalization five years after you get your Green Card. If you need to stay away for one year you have to start your five years all over again. By filing N-470 you prevent that re-setting your five-year clock and there are very specific rule that covers N-470 including that there must be one year during which after getting the Green Card you must not have traveled outside the USA even for one day, this is one odd little rule but keep all these things in mind. So, N-470 is usually filed in conjunction with reentry permit application.

 

5. No, of course not.

Add new comment

Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Detailed question:

Answer:

Watch the Video on this FAQ: Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Video Transcript

First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.

There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. More 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Activities permitted under H-4 EAD

Detailed question:

Answer:

Watch the Video for this FAQ: Activities permitted under H-4 EAD

Video Transcript

1. With a H-4 EAD, you can do anything you like. You can work, you can choose not work, you can start your own business, you can work three hours a day, you can work ten hours a day, you can work eighteen hours a day. 

2. I am a little uncomfortable with that. Normally it should not be a problem as a volunteer activity, but there are two problems here.

a. the ice cream business is a for-profit business under the Fair Labor Standards Act, they cannot take free work.

b. this might be a violation of your status because it is giving you a benefit directly or indirectly. I think it is a difficult situation. She can do what she wants. You should not work for her. More

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Is it legal to work for a foreign based company in the USA?

Detailed question:

Answer:

Watch the Video on this FAQ: Is it legal to work for a foreign-based company in the USA?

Video Transcript:

In my view, if your wife has come here on L-2 visa and she wants to continue working I would wait till her EAD because I just don't like to have that grey area. I would not want her to continue getting her paychecks. I have had other colleagues of mine say if the business work for which she is working has nothing to do with the USA, they have no clients in the USA, they are receiving no money from the USA, they are not channeling any money through the USA that it is OK to work for this company in the USA while you are getting paid abroad. I have my doubts so my advice will be not to. More..


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B 60 days grace period explained

Detailed question:

Answer:

Watch the Video on this FAQ: H-1B 60 days grace period explained

Video Transcript

The 60 day grace period is not a right, it is something you ask the government for. If you got unexpectedly laid off or something of that nature happened beyond your control you can request the government when to file for an H-1 transfer even though you were out of status for 45 to 50 days. You should request the government to give you status without having to leave the USA.  Once you file the application and get a receipt you can start working. AC21 does protect you under this rule. More


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-4 EAD Status When Moved to Different Employer

Detailed question:

Answer:

1. The employer can revoke, but, USCIS says, after 180 days they will not revoke the H-4 EAD.

2. You will not need to change the H-4 EAD upon moving to any number of companies, as long as you maintain your H-1 status.

Add new comment

Travel while H-4 EAD is pending

Detailed question:

Answer:

Watch the Video on this FAQ: Travel while H-4 EAD is pending

Video Transcript

If somebody has applied from H-1 to H-4 or F-1 to H-4 and applied for EAD at the same time they should not travel until the F-1 or H-1 to H-4 status is approved because if you do then you have to go apply for a visa come back and then apply for EAD all over again. On the other hand, if your H-1 is approved or you already have it and EAD is pending you are allowed to travel. The government discourages it as it can cause delays in EAD processing but it is not illegal. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Getting unemployment payments on H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: Getting unemployment payments on H-1B

Video Transcript

Getting unemployment payments is not an issue because unemployment is private insurance, not really government funding. The problem is that it does not protect your status so don't think if you are getting unemployment payments you are in status. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1B title "Programmers" and USCIS site visits

Detailed question:

Answer:

Watch the Video on this FAQ: H-1B title "Programmers" and USCIS site visits

Video Transcript

1. Sure, if your job is indeed something other than a programmer. The problem is in the IT industry titles are very misleading you could have somebody called a programmer but they are doing software architecture. The job description is the most important thing. Titles matter only as pointers. Titles are not definitive.

2. Regarding site visits, they are going to target consulting companies and companies who are basically off-sitting their employees for site visits more than they would normally. Make sure you are working where you are supposed to be working, you are doing the job you are supposed to be doing at the level you are supposed to be doing. The job description should be the same as what you are actually doing and it should reflect the level of your seniority.

3. When you have a case pending it is OK to stay, it is called Authorized Period of Stay, but you don't have full status if your old I-94 is expired. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1 I-94 given at the airport for a duration shorter than the H-1 approval, how to extend I-94?

Detailed question:

Answer:

Watch the Video on this FAQ: H-1 I-94 given at the airport for a duration shorter than the H-1 approval, how to extend I-94?

Video Transcript

Let's say you have an H-1 which was good until August and you came to the airport in January and they gave you a I-94 good only till June because your passport was expiring in June. In that case, you have two options. If your passport is renewed and your visa is still good you can go outside and come back using the approval notice and the visa on your passport. You should be given the entire time remaining given in your petition plus 10 days. 

The second option is if you still have time on the I-94 that was given to you at the airport you can apply for an extension while you are within the USA. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Fraud or misrepresentation findings in visa or petition, what should you do?

Detailed question:

Answer:

Watch the Video on this FAQ: Fraud or misrepresentation findings in visa or petition, what should you do?

Video Transcript

1. Yes, if you can get a 212(d)(3) waiver for a limited time or limited purposes.

2. Make sure that this is not really an issue of fraud, get a lawyer don't expect immediate results. If you're lucky you might get this resolved in a few months, but it could take years. There is a waiver called 212(d)(3), you can look into that as well.

3. Basically, when you change passport, you just have to go get a new B-1/B-2 stamping done. It won't be a big issue. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing from H-1 to F-1 and back to H-1

Detailed question:

Answer:

Watch the Video on this FAQ: Changing from H-1 to F-1 and back to H-1

Video Transcript

1. Yes.

2. In order for you to reset the H-1clock converting to F-1 and staying within the United States is not good enough. You have to be physically outside the United States for one year otherwise the clock does not get reset. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Do jobs have to be same or similar when I port my priority date?

Detailed question:

Answer:

Watch the Video on this FAQ: Do jobs have to be same or similar when I port my priority date?

Video Transcript

1. When you port the whole job; I-485 is pending 180-days, jobs have to be same or similar. When you are just porting the Priority Date in the I-140, jobs can be completely different. You have to start the green card from the PERM process, but when you are just porting the Priority Date there is no problem.

2. The answer is No. As long as you are maintaining your H-1 status and she is maintaining her H-4 status. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Doing business in the USA on a B-1/B-2 visa

Detailed question:

Answer:

Watch the Video on this FAQ: Doing business in the USA on a B-1/B-2 visa


Video Transcript

1. B-1/B-2 are mixed used visas. You can do pretty much everything on these visas. <br>

2. They can ask you why you are in the USA. Remember, just because you have a visa does not mean that your entry into the USA is guaranteed. The government would still want to know why you are in the US.<br>

3. You do not have to renew your visa. It is good till 2026. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form

Add new comment

H-4 EAD changing back to H-1

Detailed question:

Answer:

Watch the Video on this FAQ: H-4 EAD changing back to H-1

Video Transcript

1. That's uncertain. If you are outside the USA and you got your H-1B but you didn't get it stamped, will consider you still subject to the quota. I personally think if they say you can't get an exemption from the quota and you got to get a visa stamping there is really no support in law for that viewpoint. So you can try that's all I can tell you.

2. You don't have to leave USA to get H-1B status if you are maintaining H-4 status.

3. If you got three years remaining on your H-1 or more you will get a three-year H-1 and if the project is for 3 years.

4. Many months.

5. If your EAD is valid until your H-4 is changed to H-1 you can continue working. Once you are exempt from the quota you don't have to go back to the same employer. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing employers after 6 years of H-1 are over

Detailed question:

Answer:

Watch the Video on this FAQ: Changing employers after 6 years of H-1 are over

Video Transcript

1.Yes you can file for an extension. That's all you need a copy of the approved I-140. It is safe to change companies. The law is once your I-140 is approved and stays approved for 180 days, even if your old employer revokes your I-140 you have the right to keep extending your H-1 through any employer.

2. I think you can apply 180 days. The new regulations allow you to file for EAD extension 180 days ahead of time. Have it double checked. It is not a guaranteed right but USCIS has said that they will accept that unless they post it differently on their website. So always double check the information. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
Add new comment

Filing two quota H-1 petitions simultaneously through different companies

Detailed question:

Answer:

Watch the Video on this FAQ: Filing two quota H-1 petitions simultaneously through different companies


Video Transcript

1. You can file two H-1B petitions simultaneously. When you are filling a quota H-1 more than one company can file, but the company shouldn't be related to each other. If the company is related you have the risk of being denied both applications. But if they are totally different companies you can have as many as three thousand H-1's filed and nobody cares.

2. Look at form I-129 and the supplement H. For sure the first company who has filed would not know and I don't think so any of the companies would find out about the other company. It depends entirely on the language of the questions on form I-129 and supplement H. You can double check this. They don't require to disclose pending filings only approved cases.

3. If both H-1B's are approved, you can join any company. One company's approval does not overrule the others. The only thing I would say is to be careful if you have signed some kind of a reimbursement agreement that you will reimburse them X dollars for liquidated damages if you don't join. You might have a legal issue from the contract side, but from the immigration side, I don't see a problem.

4. I don't think so unless they want to check if the companies are related that could certainly be a possibility. That's one way they could find out. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Does the H-1 60 days grace period apply when one quits a job?

Detailed question:

Answer:

Watch the Video on this FAQ: Does the H-1 60 days grace period apply when one quits a job?

Video Transcript

1. According to the regulations what my best guess is it was reserved for those circumstances where you had no choice but to be out of status, but if you quit voluntarily I don't think you can claim the 60 day grace period.

2. Apply for a B-1 or B-2 visa, change of status before you quit your current job. It takes them 4-5 months just to decide on that application and as long as that application is pending you are not illegal in the United States as you are in an authorized period of stay. Carry a copy of that application and the receipt always to make sure if ever that question comes up about your stay. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Carry Immigration Documents Every Day

Detailed question:

Answer:

You must carry the I-94 printout at all times. A photo ID is also important. The evidence of status COULD be in the forms of copies, I think. It is not required, but I recommend you do carry it.

For more on this issue watch this video.

 

Add new comment

How does H-1 60 day grace period work?

Detailed question:

Answer:

Watch the Video on this FAQ: How does H-1 60 day grace period work?

Video Transcript:

The 60 day grace period is available to you for each H-1 episode whether it is an extension, amendment or a transfer. When they proposed the regulation, it was supposed to be one time 60 day grace period, but then government relented and made it available for each H-1 incident.

For some extraordinary reasons like, you got laid off without any notice and you found a job in the next 40-45 days you can apply for a transfer. You cannot start working until you have applied for the transfer, using the AC21 you can start working until the decision is made and if the decision is made and they give you concession then you can get your H-1 within USA.

Hence the 60 day period is available for each episode of H-1, two it is not automatic, you have to ask for it and three you can start working once you apply for the H-1.More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

AC21, changing jobs, when to file Supplement J

Detailed question:

Answer:

Watch the Video on this FAQ: AC21, changing jobs and when to file Supplement J

Video Transcript:

There is a graph on this about when you must file Supplement J on our web site and what happens after you file. 

As for your question, the answer is No. You will have to file Supplement J when the case is still pending, it's optional if you want to file you can but if you change employers next time and if there is an RFE you must file a Supplement J. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Revoke H-4 EAD Regulation

Detailed question:

Answer:

Watch the Video on this FAQ: Revoke H-4 EAD regulation



Video Transcript:

The reason H-4 EAD regulations have come under a cloud is because there is a lawsuit pending. This all started about two years ago when an organization called Save Jobs USA sued USCIS for the regulations that created H-4 EAD and the basis was that these regulations were beyond the authority of the USCIS and they were hurting US workers. 

The major issue right now is, does Save Jobs USA have the right to file this lawsuit. If they win then this case goes back to the District Court. H-4 EAD regulations should not go away very quickly. One of the dangerous thing is that Save Jobs USA as a part of their appeal has asked the court to not only rule that they have standing to sue but also to rule that the Department of Homeland Security does not have the power to issue these regulations. I don't think the court of appeals is going to entertain that.

Rajiv in this video explains, discusses and answers questions on this issue.


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

F-1 Student Directly Filing for a Green Card

Detailed question:

Answer:

There is nothing in law that stops an F-1 student from directly filing for a green card. But, exhibiting immigrant intent while on an F-1 visa can raise some issues that should be discussed and planned for with your lawyers.

Add new comment

Legal Rights/Benefits of Green Card Compared to H-1B

Detailed question:

Answer:

Watch the Video on this FAQ: Legal rights/benefits of Green Card compared to H-1B

Video Transcript:

It is easier to define the rights of a GC holder in comparison to the rights of a U.S. citizen. You can pretty much do everything that the US citizen can do.

1. Of course, a US citizen can be on bench. no risk of green card revocation there.
2. Technically if you are gone for less than 6 months there shouldn't be too many questions.
3. Once you get your GC approval whether you get paid ten times more or less is irrelevant. 
4. You can be self-employed as a GC holder and you can do a 1099.
5. That's not a problem at all.
6. Yes, it is legal for a GC holder to be unemployed. More... 

 
 
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
Add new comment

Entering the USA on B-1/B-2 visa to get married

Detailed question:

Answer:

Watch the Video on this FAQ: Entering the USA on B-1/B-2 visa to get married

Video Transcript

It is a bad idea for a bunch of reasons. The better option would be where she can apply for an F-1 visa now, especially if she has been to the USA and gone back before. Her chances of getting an F-1 is good. If they have not been formally engaged then there is a question I think in the DS-160 during the student visa which asks: is your fiance is in the USA and I don't think if you are not engaged you can say yes to that question so I think she will be ok. Her chances of getting a student visa will be good because she has been to the USA before on a tourist visa. She must enter as a bona fide good faith student. She must want to go to school. After a semester or two, if they want to get married, I think that is ok. She can continue as a student while she waits out her GC category. That is the only smart scenario I see. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Can pending immigration applications be affected by changes in the law?

Detailed question:

Answer:

Watch the video on this FAQ: Can pending immigration applications be affected by changes in the law?

Video Transcript:

Pending immigration applications will not be affected by changes in the law. Some of these things cannot be changed by executive order they can only be changed by Congress. The idea is you cannot change the rules of the game for those who are already in the game you can change them for people in the future. That's all the more reason for anybody who has not filed their green card or anybody who is waiting to file any application, including naturalization go ahead and file them all as soon as possible, but don't get worried about pending applications they should go through under the old laws. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Should I travel outside the USA/H-1B visa stamping

Detailed question:

Answer:

Watch the Video on this FAQ: Should I travel outside the USA/H-1B visa stamping

Video Transcript:

If you are not on those list of seven countries, people are traveling and coming back. Overall, I think H-1B visa stamping was always complicated, especially when you work at the client's site instead of in-house so that is not becoming any easier. When you reenter the USA, the government does look at your paperwork. If you are approved to work in San Francisco and you are working in Akron, Ohio they are not going to let you enter. That was always the case. That law hasn't changed. Going to India will be risky. As a precautionary measure make sure your paperwork is reviewed by your lawyer. Make sure all the H-1 required conditions are being adequately met and you are not violating any conditions. But if the traveling is merely discretionary or optional then don't travel. Getting H-1 visa stamps was always a hassle and it certainly hasn't got any easier. More...

Add new comment

Issues regarding changing jobs while on H-1:-- Is there a minimum time gap necessary to transfer H-1 from one job to another, change jobs, timing of resigning and joining

Detailed question:

Answer:

FAQ: Issues regarding changing jobs while on H-1:-- Is there a minimum time gap necessary to transfer H-1 from one job to another, change jobs, timing of resigning and joining


Video Transcript:

1. The answer is of course not. There is no requirement that there must be a certain gap between when you went from one H-1 to another. So if you move from A to B and 10 days later decide to move from B to C that is not illegal. The law permits you to do it. 

2. If they don't cancel your H-1B they are considered to be still the employer and they can be required to pay your salary. As for the second part of the question, no, but you have to have a filed petition. This is important. You have to have your second case filed before the first case if revoked.

3. Yes, your I-140 which got approved through company B will still be valid and yes you can use it for future extensions of H-1B. If company B wants to keep your I-140 they can. You will have to start your green card all over again but you should be able to use your priority date with the old I-140 approval.

4. One of the ways you can get a copy of I-140 is through FOIA request which is I think the form G-639. When you file a 639 it is a free form without fees. Government then gives you a copy of your immigration paperwork.

5. There is no mandatory period that you have to work with a company after getting your I-140 approved. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

STEM OPT Extension for Consulting or Staffing companies

Detailed question:

Answer:

Watch Video: STEM OPT extension for consulting or staffing companies

Video Transcript: Basically what the government is saying is that if you have staffing arrangement or a consulting arrangement and you are not directly supervising the employee who is on OPT STEM extension on the site where they are working then you should not be filing for their STEM OPT extension. So far this is what we know of the USCIS comments. I have not heard anything different from USCIS so far. 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing Jobs After I-140 Approval

Detailed question:

Answer:

Watch Video: Changing jobs after I-140 approval

Video Transcript:  Under the current laws, if you change jobs after I-140 approval you keep your priority date, but you lose your right to H-1 extensions beyond what is given if your old employer revokes/withdraws the I-140.

Now answering your questions

Answer 1.No, you will get an H-1B extension for the time remaining and you can actually claim one year extra if your PERM was filed more than a year ago. But you will get only three years if the I-140 is approved. Not if it is pending. 

Answer 2. I don't recommend it. I think you should get your I-140 premiums, get it approved and then leave if you want to.

Answer 3. I don't think that is a major issue, but do talk to your lawyers. Hence it makes sense in my view not to change until the I-140 is approved. 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

I-94 Given for Duration Shorter than Entitled

Detailed question:

Answer:

Watch Video: I-94 given for duration shorter than entitled

Video Transcript: In this case there is one piece of information missing as in I do not know how long your I-94 was expired, how much is the difference between expiration of the old or the H-4/I-94 that was given to you during your last entry and the H-1 approval date beginning. So if that gap is more than 180 days you should consult with your lawyers or have a consultation with us if you like. But that needs to be evaluated very carefully because that has many ramifications. Remember errors made by CBP (Customs and Border Protection) can be corrected by just going back to the port or one of the many CBP offices all over the country. 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Changing Back to F-1 Student Status After Filing for Green Card

Detailed question:

Answer:

Watch Video: Changing back to F-1 student status after filing for green card


Video Transcript:
If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form. 

 

Add new comment

Name variation in diploma or degree, name change for immigration

Detailed question:

Answer:

Watch Video: Name variation in diploma or degree, name change for immigration


Video TranscriptOne of the easiest way to remedy is to actually get a decree from the local court. You can just contact the local court system and tell them you want to do a change of name. They will typically give you some paper work to fill out and then you advertise in the newspaper and then you can show it to USCIS but of course then you have to take care of your passport, social security number. It is a little bit of a hassle but needs to be done. 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Does H-4 EAD have to be applied again if H-1 changes jobs?

Detailed question:

Answer:

Watch Video: Does H-4 EAD have to be applied again if H-1 changes jobs?

Video Transcript: The answer is of course not. The only time you have to worry is if you fall out of status. As long as you are maintaining status every time you change jobs her H-4 and H-4 EAD is good until her H-4 and H-4 EAD is about to expire there is nothing else you got to do. She can continue working and she need not change H-4 every time you change H-1.

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

Travel while H-1 COS is pending

Detailed question:

Answer:

Watch Video: Travel while H-1 COS is pending

Video Transcipt: Whenever you are on one status and you apply for another status, like from F-1 to H-1, from H-1 to H-4 or from tourist visa to student visa, anytime you have a situation where you are going from one status to another your application with the government has two requests implicitly contained in your application. One request is find me eligible for the status I am asking for. When I go from H-4 to H-1 I tell the government (USCIS) can you please hold me to be eligible to receive H-1 and if they say yes then you go on to the next step.

Next step is actual change of status. So not only do I want to be held eligible for H-1, I want you to then change my status to H-1. So there are two applications within that one application when you file for going from one status to another. One is the determination and the other one is the change. When you travel outside USA generically speaking there can be exceptions. Generically and generally speaking your application for determination is not invalid but your change of status is invalid. So what does that do. Let's say I am on H-4 like the questionnaires wife is and they file for my H-1 change of status, I travel to India or Switzerland where ever I want to go and I come back. Government will give me my H-1 if it is approved, but they won't give me status change from H-4 to H-1. I am still on H-4, my H-1 is approved but only the determination has been issued that I am entitled to an H-1. Now I have two choices either I cannot apply for change of status from H-4 to H-1, because by traveling out I abandoned that part. I didn't abandon my determination request but I abandoned my change of status. The second option is to go to a consulate and get a visa stamping and come. So if she travels she has to do one of these two things when she comes back. She won't have to wait outside the USA if she doesn't want to. She can come back on H-4. 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

H-1 entering USA when visa is about to expire

Detailed question:

Answer:

Watch Video: H-1 entering USA when visa is about to expire

Video Transcript: You can enter the United States even if you have one day left on your visa. There could be questions as to how long you are going to stay, how are you going to stay, if the employer has already filed an extension and what is the process of filing the extension., and if these questions are answered brilliantly and completely you will not have a problem. Nevertheless you are allowed to enter the United States under the law even if you have one day remaining in the visa stamping.

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Add new comment

The Proposed I-140 EAD Rule - FAQ's

Detailed question:

Answer:

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

Add new comment

Birth certificate late registration and secondary evidence

Detailed question:

Answer:

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

https://youtu.be/1QbgUmUUJvc?t=1405

FAQ Transcript:

In many countries especially India, Pakistan, Bangladesh, it can happen that the birth occurred much earlier but the registration of the birth was done much later. Remember it was not the law that you have to register every birth, it was a voluntary action. So if a child was born in 1980 or 1970 you registered the birth in 2015 because that’s when you needed to get the green card. Now those are not acceptable registration. What you should do in those cases is get a letter from the municipal corporation, or local government, that says before this was registered there was no other registration. Like a non-availability before the registration. Along with that get two affidavits, from your parents or other people, who were alive when you were born, that will take care of it.

Secondary evidence becomes acceptable only when you can’t get non-availability from the municipal corporation and that’s a much more complicated area. I think you should get the non-availability.

Add new comment

Immigration implications of crime; petty offense exception; admissions and convictions; 212(d)(3) and other waivers

Detailed question:

Answer:

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

https://youtu.be/1QbgUmUUJvc?t=598

FAQ Transcript:

First of all, not every crime leads to serious consequences in USA. There are two kinds of crimes. Misdemeanours which are small crimes, punishment is typically less than a year and the other felonies where the punishment is a year or more, those are more serious crimes. In immigration law we look if the crime is of moral turpitude or not. If a crime is not of moral turpitude, I believe it has absolutely no consequences, unless it is a drug offence. Moral turpitude simply means that you are doing something, which reflects on your poor moral character.

The next step: is it misdemeanour or felony. If it is a felony, we almost certainly have a problem. It could lead to deportation, non-admission, and then you will need a waiver of some kind. Waivers are usually available for green card only for family based reasons. You cannot get a waiver just because you want to come to USA. So in an employment based case, and you have a felony conviction for moral turpitude crime you will not be able to come to USA.

Remember the rules are different for deportation, what is called removal and admission. So when you try to enter you could be subject to different laws, sometimes you think you are in USA and I am safe, because your lawyer told you are not going to be deported, but when you come back they won’t let you in and now you have to go back, the reason is the rules for admission are different. This is a very complex area of the law. 

Question: What if I am convicted of misdemeanour involving moral turpitude?

First, how many misdemeanour convictions do you have. If you have multiple convictions, then that itself is ground for deportation removal as well as no admission. But if you have only one offence, a misdemeanour, and the actual punishment imposed was less than six months you are covered by something called petty offence exception. Which says we forgive you entirely as long as it was just a single misdemeanour.

The rules under immigration law and the rules under criminal law for conviction are very different. Sometimes you have a criminal defence counsel. He will tell you this is not a conviction. It may not be a conviction under criminal law but is a conviction under immigration law. Any kind of plea bargain you set up with the government where you are admitting directly that you committed the crime would be considered in all probability to be a conviction. So be careful when you discuss this with your immigration lawyer as well as criminal counsel.

Question: What is 212(d)(3) waiver?

Say if you got the kind of conviction where you cannot come back we can let you in on a temporary basis for a non-immigrant visa. 212(d)(3) applies only to non-immigrant visa and the situation has been a little uncertain, especially for Canadians. I think there is a certain timeframe where you can get it or for one visit you can get it.

Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July.

Normally diversion means some kind of a plea bargaining has been made.

Question: When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behaviour. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US. So does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? 

That is correct because they denied it based upon their inability to verify that you will come back.

Question: I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?

Definitely that will make it a much stronger tie and you can try again. You might be covered by a petty offence exception.

Question: I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application? 

If you are covered by petty offence exception, then even J-1 is not affected but the 214(b) denial, affects your J-1. If you had a 214(b) denial, it will bar your entry for J-1, F-1, B-1, B-2.  It will not bar your entry for H-1 or L-1. I suspect the officer realised you were covered by petty offence exception.

Add new comment

H-1B Laid Off Issues

Detailed question:

Answer:

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.

Answer 1.  Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.

However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government.  I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.

Answer 2.  Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2  or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.

Answer 3.  No because you don’t have a job. If you use the same visa to come back in, that could be fraud.

Answer 4.  The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.

Answer 5.  That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer. 

Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.

Answer 7.  It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is  well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.

Answer 8.  B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.

Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US.  You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor. 

You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.

Answer 9.  Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working.  In order for employment to be unauthorized there must be a payment or remuneration as well as work.  If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.

Answer 11.  There is no consistency.  I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done  for two or three months. Most of the times they are not tolerant of this issue at all. 

Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.

Add new comment

H-4 EAD Expediting Possible?

Detailed question:

Answer:

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

https://youtu.be/y6RtaKhuoIY?t=864 

FAQ Transcript:

I do not know. But let me tell you this when you look at the expedite criteria for any government document they are basically the same. If you can show government error or economic necessity or emergency or some kind of humanitarian considerations - there is five or six criteria then apply. As general observation I think it should be possible to expedite H-4 EAD if you meet the requirements. Theoretically it is possible to expedite the H-4 EAD.

Add new comment

H-4 EAD - Starting business

Detailed question:

Answer:

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

https://youtu.be/3Heaadpk1Ik?t=933 

FAQ Transcript:

1. Yes you can.

2. You do not.

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

Add new comment

Denial based upon immigrant intent, 214(b)

Detailed question:

Answer:

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

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

FAQ Transcript

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

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

I don’t think the sponsorship is a problem.

Add new comment

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

Detailed question:

Answer:

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

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

FAQ Transcription

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

Add new comment

I-94 Admission Record

Detailed question:

Answer:

The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. In order to demonstrate eligibility for automatic revalidation, a traveler may be required to present a copy of the website printout to the air or sea carrier prior to boarding. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements. For more information about automatic revalidation go to http://www.cbp.gov/document/bulletins/automatic-revalidation-visas.

Add new comment

H-4 and I-140

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

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

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

Add new comment

Effect of Tourist Visa Denial on Student Visa

Detailed question:

Answer:

When the tourist visa denial is based upon a possible intent to immigrate (also known as INA Section 214(b) denial), it CAN be a problem for student visa.

Add new comment

K Visa for Spouse of Green Card Person

Detailed question:

Answer:

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

Add new comment

Sister Filed Petition

Detailed question:

Answer:

That category takes 13-14 years. During the time you are waiting for your priority date to be current, you cannot stay in the USA just because your green card is pending. You can, however, stay or come to the USA under a visa independent of the green card such as L-1, H-1. You can also apply for a green card in several categories simultaneously.

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

LCA for Singapore H-1B1

Detailed question:

Answer:

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

Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA. - See more at: http://www.immigration.com/comment/14777#comment-14777
Add new comment

Can I Travel Back On F-1 Visa If My Reinstatement Is Denied?

Detailed question:

Answer:

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

In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry. - See more at: http://www.immigration.com/comment/14631#comment-14631
Add new comment

Is CPT an Acceptable Way of Working?

Detailed question:

Answer:

This is tricky. Usually CPT in the first semester is looked upon with suspicion by USCIS, unless: 1. yours is a graduate program; 2. the practical training is integral to the academic program; and 3. the employer has signed a co-operative agreement with the school.

This is tricky. Usually CPT in the first semester is looked upon with suspicion by USCIS, unless: 1. yours is a graduate program; 2. the practical training is integral to the academic program; and 3. the employer has signed a co-operative agreement with the school. - See more at: http://www.immigration.com/comment/14458#comment-14458
Add new comment

Visa for Medical Treatment

Detailed question:

Answer:

Typically, medical treatment in the USA is undertaken on a B-1 ("Business" visa. Strange, huh?). But do not get confused. Consulates often mark visas as B-1/B-2 or even B-2 (visitors/tourist) for medical treatment. Once here, you can ask for extensions of stay if the circumstances so require. I remember extending the stay of a child and his parents for two years (in 6-monthly chunks), where the baby was being treated for ongoing medical problems.

Add new comment

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

Detailed question:

Answer:

This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration.  I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.

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

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

Add new comment

Visa Status (Void when out of status)

Detailed question:

Answer:

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

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

Add new comment

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

Detailed question:

Answer:

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

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

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

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

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

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

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

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

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

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

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

Add new comment

Social Security Number And Card

Detailed question:

Answer:

A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your number.If you are a noncitizen living in the United States, you also may need a Social Security number. For more information, see Social Security Numbers For Noncitizens (Publication No. 05-10096). If you are temporarily in the United States to work, see Foreign Workers and Social Security Numbers (Publication No. 05-10107).

How do I get a number and card?

To apply for a Social Security number and card:

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

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

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

—Age; and

—Identity.

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

Citizenship or immigration status: 

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

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

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

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

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

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

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

U.S. hospital record of your birth; or

Passport.

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

Employee ID card;

School ID card;

Health insurance card (not a Medicare card);

U.S. military ID card;

Adoption decree;

Life insurance policy; or

Marriage document (only in name change situations).

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

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

What does it cost?

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

Are there different types of cards?

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

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

—U.S. citizens; and

—People lawfully admitted to the 

United States on a permanent basis.

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

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

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

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

How do I get my child a Social Security number?

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

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

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

What if my name changed?

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

Delay your tax refund; and

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

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

Marriage document;

Divorce decree;

Certificate of Naturalization showing a new name; or

Court order for a name change.

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

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

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

How do I make sure my records are accurate?

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

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

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

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

What if my immigration status or citizenship changed?

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

What if my card is lost or stolen?

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

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

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

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

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

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

How can I protect my Social Security number?

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

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

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

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

Why your number is needed;

How your number will be used;

What happens if you refuse; and

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

Contacting Social Security

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

Add new comment

Employment Authorization Document (EAD)

Detailed question:

Answer:

What is an EAD?  

Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.  

Why does my new EAD look different than my prior one 

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

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

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

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

• If you are an asylee or refugee

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

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

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

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

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

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

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

How do I apply for an Employment Authorization Document?  

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

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

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

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

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

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

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

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

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

Initial EAD  

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

Renewal EAD  

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

 Replacement EAD  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

under category (c)(18) 

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

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

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

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

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

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

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

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

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

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

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

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

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

When am I eligible for an Interim EAD? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why is USCIS changing the validity period for some EADs?  

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

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

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

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

Will the new EAD affect my current valid EAD card?  

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

Why USCIS redesigned the Employment card?  

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

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

Add new comment

Administrative Processing

Detailed question:

Answer:

Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer. Applicants are advised of this requirement when they apply. Most administrative processing is resolved within 60 days of the visa interview. Learn more.

Add new comment

Information on Printing I-94

Detailed question:

Answer:

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

Add new comment

Applicant Accompanied by a Third Party for an Interview

Detailed question:

Answer:

The State Department says that on the Immigrant Visa side, the petitioner may accompany the beneficiary if a petitioner is in the Consulate city at the time of the interview.  The interviewing officer will speak to the petitioner only if he/she determines it is necessary to assess the case.  Applicants under 17 years old MUST be accompanied by a parent or legal guardian on the Nonimmigrant Visa side.  Other third parties are not permitted to accompany the Nonimmigrant Visa applicant.

 

Add new comment

Bangkok’s Local Policy on Issuing B Visas

Detailed question:

Answer:

1. Bangkok does not have any “policy” on evaluating B-1/B2 visa applications other than the approaches outlined in 9 FAM.  Each case is treated individually and is decided based on the personal interview.

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

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

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

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

Add new comment

Interview Protocol

Detailed question:

Answer:

The State Department says that on the Immigrant Visa side, the petitioner may accompany the beneficiary if the petitioner is in the Consulate city at the time of the interview.  The interviewing officer will speak to the petitioner only if he/she determines it is necessary to assess the case.  Applicants under 17 years old MUST be accompanied by a parent or legal guardian on the Nonimmigrant Visa side.  Other third parties are not permitted to accompany the Nonimmigrant Visa applicant.

Add new comment

B-1 in Lieu of H-1

Detailed question:

Answer:

No making up please, unless federal prison is a part of our career plan. B-1 in lieu of H-1 is uncertain, but you can keep trying extensions. If the new law for comprehensive immigration reform passes, things could change drastically.

Add new comment

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

Detailed question:

Answer:

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

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

Add new comment

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

Detailed question:

Answer:

You must be married to the F-1 holder in order to be eligible for F-2 status.  Fiances do not qualify for derivative status.

Add new comment

Grounds for Rejection for B and F Visa

Detailed question:

Answer:

The grounds for rejection for B and F visa are usually the "immigrant intent." If indeed that is the reason for your visa rejection, I do not see any difference between B and F applications.

Add new comment

Exploring Other Options During H-1 Transition

Detailed question:

Answer:

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

Add new comment

O-1B Extension and Authorized Period of Stay

Detailed question:

Answer:

As long as you had filed your extension application before expiration of the current status, you are not illegal as long as the case is pending. You are in authorized period of stay.

Add new comment

L-1A to EB-1

Detailed question:

Answer:

Since A and B are not related, H-1B is the only obvious option to join B. B can start your green card even before you join, but it will not be EB1 (international manager/exec.).

Add new comment

Evaluation Required for Non-U.S. Education Credentials

Detailed question:

Answer:

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

Add new comment

Export Control Regulations

Detailed question:

Answer:

DOC’s Bureau of Industry and Security (BIS) administers the Commerce Control List (CCL) and is responsible for issuing licenses under the EAR. Information about EAR and how to apply for a license from BIS can be found at www.bis.doc.gov. Specific information about EAR’s requirements pertaining to the release of controlled technology can be found at 
www.bis.doc.gov/deemedexports.

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

Add new comment

Form I-129 and Denial of Petition Based on License

Detailed question:

Answer:

No. USCIS will not deny the petition on the basis that a license is required but has not been obtained prior to the filing of the petition. However, the certification on Form I-129 includes a statement that the petitioner will prevent access to the controlled technology or technical data until and unless the petitioner has received the required license or other authorization to release it to the beneficiary. Failure to do so, where required under applicable law, may constitute a basis for revocation of the Form I-129 petition.

Add new comment

Form I-129 and Copy of the Export Control License

Detailed question:

Answer:

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

Add new comment

Supervisory CBP Officer initiated to have the cancellation reviewed

Detailed question:

Answer:

U.S. Customs and Border Patrol (CBP) indicates that, in instances in which an officer refuses to admit a visitor due to the period of time he/she was previously present in the U.S., the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place. Such refusal would definitely result in a visa cancellation taking place, in which case an inquiry with the Special Cases Office could be initiated in order to have the cancellation reviewed.

Add new comment

Electronic Immigration System Eligibility

Detailed question:

Answer:

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

Add new comment

O Visa Applicant Applying for Green Card

Detailed question:

Answer:

You may be able to apply for a Green Card if you meet the requirements of EB-1 (Aliens with Extraordinary Ability) based upon a job offer, or if a family-based possibility exists.

Add new comment

Prevailing Wage

Detailed question:

Answer:

Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

Add new comment

H-1B petition and Quota

Detailed question:

Answer:

If the employer is exempt from the quota, they may apply at any time. If they are subject to the quota, they can file the H-1B petition to reach USCIS no earlier than April 1, 2013, with a requested start date of employment no earlier than October 1, 2013.

Add new comment

F-2 to H-4 Visa

Detailed question:

Answer:

If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

Add new comment

Two-year home residency requirement

Detailed question:

Answer:

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

Add new comment

Nonimmigrant waiver

Detailed question:

Answer:

Look into a 212(d)(3) waiver, which should allow you an entry. Ask CBP at the border how much time they need to process the waiver (usually a few weeks).

Add new comment

L-2 visa and EAD processing

Detailed question:

Answer:

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

Add new comment

L-2 visa application for spouse

Detailed question:

Answer:

 Tell the truth. I see no reason why you need to worry. An L-2 is permission, not an obligation. She can come and leave as she pleases.

Add new comment

Multiple entries for UK Citizens

Detailed question:

Answer:

He can be denied entry. UK citizens have the same options to work in USA as the rest of the world; typically H-1, L-1, E-1 and E-2 visas.

Add new comment

I-94 Extension Time

Detailed question:

Answer:

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

Add new comment

L-1 Blanket petition

Detailed question:

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

Canadian with J-2 visa

Detailed question:

Answer:

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

Add new comment

Visa Stamp

Detailed question:

Answer:

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

Add new comment

J-2 holders and work authorization

Detailed question:

Answer:

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

Add new comment

Out of F-1 visa status

Detailed question:

Answer:

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

Add new comment

J-2 to TN

Detailed question:

Answer:

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

Add new comment

Stopping at USA

Detailed question:

Answer:

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

Add new comment

Visa for family to visit brother

Detailed question:

Answer:

Tourist visa seems to be appropriate. Times vary by consulate and are usually very short -- often visa is issued the same day an application is made. You can also get an appointment for emergent reasons.

Add new comment

Working Visa

Detailed question:

Answer:

It is possible if he has the relevant degrees and has a job in his field in USA. The most commonly used visa for professional workers is an H-1B visa.

Add new comment

H-4 Visa and Status Validity

Detailed question:

Answer:

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

Add new comment

Pharmacist visa for FPGEE

Detailed question:

Answer:

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

Add new comment

B-2 visa

Detailed question:

Answer:

I think if you wait till you have a steady job and roots in Canada, and then apply to visit USA, you should have a better chance.

Add new comment

H1B interview travel cost reimbursement

Detailed question:

Answer:

Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.

Add new comment

J-1 Waiver Pending

Detailed question:

Answer:

Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.

Add new comment

J-2 visa and I-275

Detailed question:

Answer:

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

Add new comment

H1-B to F-1

Detailed question:

Answer:

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

Add new comment

H1 Renewal Denial/I 94 expired

Detailed question:

Answer:

In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.

Add new comment

L-1 visa from an affiliate

Detailed question:

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

Can I petition my Fiancé

Detailed question:

Answer:

There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.

Add new comment

Wife work permit

Detailed question:

Answer:

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

Add new comment

B-2 to B-1

Detailed question:

Answer:

I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.

Add new comment

Parents B-2 Visa

Detailed question:

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

AOS applicants applying for H-1 visa

Detailed question:

Answer:

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

Add new comment

My wife filed for Skilled Worker

Detailed question:

Answer:

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

Add new comment

F-1 reinstatement

Detailed question:

Answer:

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

Add new comment

L1B - resignation in US

Detailed question:

Answer:

What you are asking me has nothing to do with US immigration laws. This is a matter for an employment lawyer in the state where you are working. Under US immigration laws, you can resign in USA any time.

Add new comment

Lost old EAD card for another OPT application

Detailed question:

Answer:

First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.

Add new comment

Student visa

Detailed question:

Answer:

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

Add new comment

Advise needed for replying visa

Detailed question:

Answer:

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

Add new comment

Where to file complain?

Detailed question:

Answer:

If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.

Add new comment

H1B Restamping

Detailed question:

Answer:

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

Add new comment

Travel during H4 processing

Detailed question:

Answer:

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

Add new comment

L1B to H1

Detailed question:

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

E3 visa

Detailed question:

Answer:

The employer should withdraw your application.

Add new comment

B-2 Visa Multiple destination

Detailed question:

Answer:

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

Add new comment

B-2 Visa

Detailed question:

Answer:

Getting a B-2 visa for a single person tends to be very difficult. If you meet him once, you can get him here on a Fiance (K-1) visa. That is much better if you want to get married.

Add new comment

B1/B2 Category

Detailed question:

Answer:

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

Add new comment

G-4 to H1B

Detailed question:

Answer:

If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

Add new comment

H1B- denial

Detailed question:

Answer:

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

Add new comment

Having a board test on B1/B2

Detailed question:

Answer:

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

Add new comment

L1A visa and H-1

Detailed question:

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 time

Detailed question:

Answer:

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

Add new comment

B1 rejected because I had applied for Green Card

Detailed question:

Answer:

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

Add new comment

Quickest way to get a GC

Detailed question:

Answer:

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

Add new comment

Visa for Mother in law

Detailed question:

Answer:

A B-1 visa is appropriate for medical treatment.

Add new comment

Business Visa

Detailed question:

Answer:

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

Add new comment

Return to America on a B-2 visa

Detailed question:

Answer:

I cannot give you a hard and fast rule, but generally speaking, CBP wants you to spend more time outside than inside USA each year.

Add new comment

H1B Pending

Detailed question:

Answer:

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

Add new comment

F1 visa to business visa or H1/L1

Detailed question:

Answer:

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

Add new comment

H-2B Visa

Detailed question:

Answer:

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

Add new comment

H1 working in University (non profit organization)

Detailed question:

Answer:

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

Add new comment

Transfer to a startup company H-1

Detailed question:

Answer:

These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.

Add new comment

H1 approval and stamping

Detailed question:

Answer:

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

Add new comment

H1 B question

Detailed question:

Answer:

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

Add new comment

Renewing O-1 visa

Detailed question:

Answer:

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

Add new comment

J1 overstayed by years, married to a greencard holder

Detailed question:

Answer:

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

Add new comment

Need information

Detailed question:

Answer:

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

Add new comment

E3 to H4

Detailed question:

Answer:

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

Add new comment

Out of Status

Detailed question:

Answer:

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Add new comment

H1B Status

Detailed question:

Answer:

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

Add new comment

Importance of having continuity of employment/pay stubs

Detailed question:

Answer:

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Add new comment

Visa for parents and niece

Detailed question:

Answer:

I see no reason why they cannot all apply. Separation should not raise a problem as far as I can see. But consulates may want some additional paperwork for a minor to travel with grandparents.

Add new comment

F1 visa to H1-b

Detailed question:

Answer:

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

Add new comment

Questions on AC21, EAD, losing job, etc.

Detailed question:

Answer:

1A.  Yes.

2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

3A. Correct. You are in authorized period of stay. That has been explained in my blog.

4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).

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


6A. No.

7A. No.

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

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

Add new comment

Time Frame for Green Card

Detailed question:

Answer:

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

Add new comment

How to apply for visitors visa?

Detailed question:

Answer:

She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.

Add new comment

H1B extension for pending labor

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Add new comment

Information regarding pharmacist immigration

Detailed question:

Answer:

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

Add new comment

Travel during 90 days of OPT without Job

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

A1. There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.


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


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


 


 

Add new comment

Divers Licenses, while H-1 extension pending

Detailed question:

Answer:

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

Add new comment

I-485 AOS Pending, Employer's Bankruptcy

Detailed question:

Answer:

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

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

3. In my view, AC21 port is easier.

Add new comment

Obtaining H-1 Extension beyond 6 years

Detailed question:

Answer:

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

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

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

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

Add new comment

Important questions on H-1, AP and Travel

Detailed question:

Answer:

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

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:

Answer:

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

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

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

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

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

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

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

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

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

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

Add new comment

H-1 visa denial and investigation

Detailed question:

Answer:

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Add new comment

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

Detailed question:

Answer:

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.

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

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

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

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

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

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

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

Add new comment

Compensation for H-1 lay off

Detailed question:

Answer:

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Add new comment

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

Detailed question:

Answer:

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Add new comment

Visa after B-1 to F-1 conversion

Detailed question:

Answer:

Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

Add new comment

F-1 visa stamp, H-4 pending

Detailed question:

Answer:

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

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

Add new comment

H-1 denial, appeal, MTR

Detailed question:

Answer:

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

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

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

Add new comment

K-3 visa when I-130 approved

Detailed question:

Answer:

In your case, a K-3 cannot be issued. You must wait for IV.

If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled.The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.

Add new comment

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

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
http://www.dol.gov/esa/whd/forms/wh-4.pdf

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

Add new comment

From H-4 to F-1

Detailed question:

Answer:

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

Add new comment

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

Detailed question:

Answer:

I think this is a timely question. I can give some pointers based upon my experience.

H-1 approvals are easier:
- for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and

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

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

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

Add new comment

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

Detailed question:

Answer:

The answer is it is unlikely, but not impossible, that they will be permitted entry if CBP finds out about the I-130. If it were my own parents, I would probably not take the chance.

Add new comment

Status, authorized period of stay and unlawful presence

Detailed question:

Answer:

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

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

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

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

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

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

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

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

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

In AOS (I-485) Context

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

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

In Change of Status Context
Updated 11 May 2009

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

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

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

Add new comment

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

Detailed question:

Answer:

New LCA Online System Beginning May 15th, 2009

Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/.

Our office will use the new iCERT Portal System (http://icert.doleta.gov/) to file LCAs online using the latest Form 9035.

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

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

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

Add new comment

When to apply for L-2 extension

Detailed question:

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

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

Detailed question:

Answer:

USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
 

USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at www.uscis.gov/h-1b_count.

Add new comment

H-1 extension denied - status

Detailed question:

Answer:

Quote: Hi Rajiv,
Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.

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

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

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

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

Ans. Yes, you can stay.

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

Ans. Yes.

Add new comment

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

Detailed question:

Answer:

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

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

Ans. No other way.
 

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

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

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

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

Add new comment

H-1 Quota still open

Detailed question:

Answer:

Here is the release from USCIS.

April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;
however, we continue to accept advanced degree petitions since experience has shown that not all
petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are
exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium
processing period began April 7. For cases filed for premium processing after the filing window, the
premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be
found on the USCIS’ Web site at www.uscis.gov/h-1b_count.
– USCIS –

Add new comment

PROPOSED Legislation to Reform H-1B Visa Program

Detailed question:

Answer:

Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009

[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

 

Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009

[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Add new comment

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

Detailed question:

Answer:


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

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

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

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

Add new comment

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

Detailed question:

Answer:

From USCIS:
Quote:

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count.

Add new comment

US employee working from India

Detailed question:

Answer:

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

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

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

Ans. Yes. That is fine.

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

Ans. Yes. Immigration laws require nothing more.

Add new comment

H-1 holder aplying for H-4 visa

Detailed question:

Answer:

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

Add new comment

New H-1 employee returning -- rights and issues

Detailed question:

Answer:

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

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

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

Add new comment

Effect of Bankruptcy on immigration

Detailed question:

Answer:

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

Add new comment

When is an H visa stamping required?

Detailed question:

Answer:

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

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

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

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

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

Add new comment

H-1 visa stamping -- is it difficult?

Detailed question:

Answer:

The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.

In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.

Add new comment

Unreasonable H-1 requests from CIS

Detailed question:

Answer:

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

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

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

Add new comment

Inviting parents to provide care during pregnancy or postnatal period

Detailed question:

Answer:

Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

A1.
I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.
 

Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

A1.
I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.

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

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

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

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

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

 

Add new comment

H-1 Quota Status

Detailed question:

Answer:

USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

 

USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

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

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

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

Add new comment

USCIS is continuing to accept H-1 filings

Detailed question:

Answer:

USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

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

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

Add new comment

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

Detailed question:

Answer:

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

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

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

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

 

Add new comment

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

Detailed question:

Answer:

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

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

Quote: Rajivji,

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

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

Add new comment

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

Detailed question:

Answer:

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

Add new comment

Employers and Employees -- H-1 or EAD?

Detailed question:

Answer:

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

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

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

Add new comment

H-1 and EAD

Detailed question:

Answer:

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

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

Follow up Qos/Ans

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

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

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

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

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

Further Questions 

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

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

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

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

Add new comment

H-1 Lottery for 2009

Detailed question:

Answer:

USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.

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

Add new comment

GC Compliance for Employers

Detailed question:

Answer:

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

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

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

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

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

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

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

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

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

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

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

Add new comment

When does CIS investigate fraud?

Detailed question:

Answer:

The attached document explains the criteria.

Add new comment

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

Detailed question:

Answer:

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

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

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

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

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

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

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

 

 

 

 

Add new comment

L-2 EAD and H-1

Detailed question:

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

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

Detailed question:

Answer:

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

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

Add new comment

Employers questions on H-1 compliance

Detailed question:

Answer:

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

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

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

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

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

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

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

Add new comment

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

Detailed question:

Answer:

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

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

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

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

Regards to all. Rajiv.

6 March 2009

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

Add new comment

H-1 Quota - what is acceptable evidence for degree

Detailed question:

Answer:

When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

USCIS has stated:
 

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

A final transcript; OR

A letter from the Registrar; OR

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

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

Add new comment

Can B visa holder convert to F or other status?

Detailed question:

Answer:

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

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

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

 

Add new comment

Can F/J holders apply for green card?

Detailed question:

Answer:

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

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

Add new comment

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

Detailed question:

Answer:

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

Add new comment

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

Detailed question:

Answer:

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Add new comment

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

Detailed question:

Answer:

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

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

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

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

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

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

Add new comment

Employers responsibility in H-1 process

Detailed question:

Answer:

Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

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

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

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

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

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

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

FAQ
 

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

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

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

Add new comment

Is salary reduction possible/legal?

Detailed question:

Answer:

Quote:

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

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

Quote:

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

Ans. Basically, yes.

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

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

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

Quote:

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

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

Quote:

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

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

 

Add new comment

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

Detailed question:

Answer:

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

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

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

Add new comment

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

Detailed question:

Answer:

Difficult to say what the chances are, but read on.

Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

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

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

Add new comment

Consequences of not using an H-1 visa

Detailed question:

Answer:

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine. But I am pretty sure there is such a question and you have to get that answered truthfully.

Add new comment

L-2 to L-1 COS or Visa?

Detailed question:

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

Employer not paying, may I tranfer H-1?

Detailed question:

Answer:

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.dol.gov/whd/forms/wh-4.pdf

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

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

Add new comment

L-1/H-1 COS Issues

Detailed question:

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

What to do if an I-140 gets rejected?

Detailed question:

Answer:

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

But here are some things to consider.

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

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

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

Add new comment

Do advanced degrees help in marriage-based green card?

Detailed question:

Answer:

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

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

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

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

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

Add new comment

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

Detailed question:

Answer:

Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

In my view, she will not be subject to quota unless she is outside USA for a year.

The companies are required by law to revoke her H-1. I see no issues there.

Add new comment

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

Detailed question:

Answer:

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

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

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

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

The Regulations

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

For the purpose of this part--

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

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

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

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

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

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

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

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

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

 

Add new comment

L-1 - H-1 COS issues

Detailed question:

Answer:

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

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

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

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

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

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

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

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

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

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

Add new comment

H-1 related I-94 issue

Detailed question:

Answer:

Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

Add new comment

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

Detailed question:

Answer:

 H-1 by Start-up Companies

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

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

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

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

Add new comment

H-1 Quota issues for students

Detailed question:

Answer:

Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

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

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

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

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

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

Add new comment

H-1 where there is no license in hand

Detailed question:

Answer:

In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

Add new comment

H-1 - how to revert to old employer

Detailed question:

Answer:

In my view, he cannot go back to company A without taking some additional steps.

Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

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

Add new comment

F-1 OPT - No Job

Detailed question:

Answer:

Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.

Add new comment

H-1 quota - the law

Detailed question:

Answer:

People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

The Law
_________________________________________

AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.

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

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

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

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

Add new comment

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

Detailed question:

Answer:

If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

Add new comment

E-3 Issue

Detailed question:

Answer:

 Ans1. Yes. You should not need an original I-94 to travel out.

Ans2.  You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).

They way I see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and reentry not assured.

Add new comment

B visa while GC pending or similar situation

Detailed question:

Answer:

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Add new comment

H-1 Quota

Detailed question:

Answer:

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

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

Add new comment

Using B visa with F-1

Detailed question:

Answer:

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

Add new comment

Multiple H-1 approvals

Detailed question:

Answer:

I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions

Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Ans1. Yes. I usually recommend that all I-94’s be surrendered.

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

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

Add new comment

How to get back to H-1 status?

Detailed question:

Answer:

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?
Ans1.  No problem. A few months (upto six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.

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

Add new comment

AOS Pending, Should H-1 be Renewed

Detailed question:

Answer:

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

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

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

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

Add new comment

Filling DS 156

Detailed question:

Answer:

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

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

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

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

Add new comment

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

Detailed question:

Answer:

The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.

Add new comment