US Immigration Questions

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form. This answer is for information purposes only and does not create an attorney-client relationship.

Holding two full-time IT jobs on H-4 EAD

Question details

Can one do two full-time jobs in IT/Software development when on H4 EAD? Is there any downside to it on any kind of future approvals by USCIS?

 

ANSWER
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FAQ Transcript

As an H-4 EAD visa holder, you have the flexibility to hold multiple full-time IT jobs or work in any field without constraints on location, offering more rights compared to an H-1B holder. H-4 EAD visa holders can also start their businesses, hire employees, and have the freedom to choose when or if they want to work.

 

Converting from B visa to any other status such as H-1B, etc.

Question details

I have a valid B-1 visa and have traveled to the US recently in April 2023. Now my H1B petition has been approved, and I am eligible for Dropbox. My employer is telling me that if my case does not get approved in Dropbox, he is asking me to travel on B1 and then get the status converted to H1B. In my I-129, it was mentioned as a change of status, as my I-94 was valid when my H1B was approved. I wanted to know if there will be any issues with coming to the US on B1 and changing the status if they call me for an interview in Dropbox. Also, I want to know if it is possible to switch employers with an approved H1B petition before getting my visa stamped. If I change the employer, will it have any issues?

 

ANSWER
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FAQ Transcript

I strongly recommend against attempting to convert B-1 status to H-1B without approval. Additionally, changing employers without visa stamping may pose challenges according to government guidelines. However, we have a successful track record of handling such cases in practice. Always consult a lawyer.

 

Converting from B visa to any other status such as H-1B, etc.

Question details

I have a valid B-1 visa and have traveled to the US recently in April 2023. Now my H1B petition has been approved, and I am eligible for Dropbox. My employer is telling me that if my case does not get approved in Dropbox, he is asking me to travel on B1 and then get the status converted to H1B. In my I-129, it was mentioned as a change of status, as my I-94 was valid when my H1B was approved. I wanted to know if there will be any issues with coming to the US on B1 and changing the status if they call me for an interview in Dropbox. Also, I want to know if it is possible to switch employers with an approved H1B petition before getting my visa stamped. If I change the employer, will it have any issues?

 

ANSWER
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FAQ Transcript

I strongly recommend against attempting to convert B-1 status to H-1B without approval. Additionally, changing employers without visa stamping may pose challenges according to government guidelines. However, we have a successful track record of handling such cases in practice. Always consult a lawyer.

 

Employee paying for green card and H-1B premium costs and Using an old H-1B visa stamp of a different employer

Question details

Question 1

1. Is it legal for an employee to pay all the expenses of a green card (eb2 / eb3), such as cost of attorney, pwd, recruitment, perm, I140 premium, I485, etc.?

2. Is it legal for employee to pay the cost of h1b premium transfer?

Question 2

My question is related to H1B stamping.

I have a stamped visa till April 2024 from my previous company.

I have a new I-797 from my current company.

Do I still have to go for Visa Stamping if I visit India in December 2023.

 

ANSWER
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FAQ Transcript

Answer 1: Employees cannot legally pay for green card expenses, H-1B fees, or premium processing associated with PERM. For the green card process, the employer must cover all costs. In the case of the I-140 stage, the employer should pay, especially if the employee is on H-1B. However, for the I-485 stage, the employee can pay.

Regarding H-1B, the employer should generally cover all expenses, except for premium processing. If premium processing is for the employee's benefit and the employer opts not to pay, the employee can choose to cover the cost. If premium processing is for the employer's convenience, the employer must pay.

In summary:

Green Card (PERM): Employer must pay; employee cannot.

I-140 stage: Employer should pay, especially for H-1B holders.

I-485 stage: Employee can pay.

H-1B expenses: Employer should pay, except for premium processing.

Premium processing: Employee can pay if for their benefit; otherwise, employer must pay.

Answer 2: Additionally, an employee with an old H-1B stamp from a previous employer can use it for a different employer. There's no need for new visa stamping if there's a new approval notice. Traveling on the old stamp with the new approval is permissible.

 

Nonimmigrant Visas

H-1B visa transfer before arrival into the USA

Question details

This is regarding the H-1B transfer from India before working for Employer.

I have the H-1B visa stamped with employer A, but now I want to transfer the H-1B to Employer B. I have not yet entered the USA and I have not started working for employer A.

Can I transfer the H-1B visa to new Employer B, and what are the mandatory documents that are required?

Also, I wanted to know if the pay slips are mandatorily required for H-1B Transfer as I don't have any. Looking for more details about pay slip requirements.

If I can transfer my H-1B to Employer B, then should I travel to the USA and then start the process or should I do it from India?

 

ANSWER
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FAQ Transcript

Yes, you can transfer your H-1B visa from employer A to employer B even if you have the visa stamped with employer A and haven't entered the US. Pay stubs are not mandatory for this transfer, and you can travel on the old visa stamp with the new employer's H-1B approval. However, it's advisable to consult with H-1B lawyers before traveling. Ensure you obtain the H-1B approval from the new employer before entering the U.S.

 

Handling a temporary break on the H-1B visa: Transitioning from work to school and back

Question details

I am working on an H-1B visa, and I want to leave my job and join full-time school for a couple of years. I want to start working again using my same H-1B visa when my studies are completed. So, how can I do that by staying within the U.S.?

 

ANSWER
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FAQ Transcript

If you have been through the lottery once, you're exempt for the next 6 years. You can go back and resume H-1B without worrying about the lottery. H-1B eligibility is based on your qualifications and job requirements, irrespective of your specific job role.

 

Working outside the United States on H-1B visa and the implications for remote employees

Question details

Is there any legal limit on how many days a H-1B employee can work outside the  United States? A quick search around forums, I came across 30 workdays to 60 workdays being the limit BUT it was a comment from someone and hence unreliable.

My workplace in the USA is my home, I am fully remote and LCA filing has Place of Employment Information as my home address in the USA. I got picked on H1B just this year and I have been outside of the States since the 23rd of September. My H1B obviously started on Oct 1st and I have a situation here at my home and only planning to return in the middle of December. I had/have some days of leave/vacation in October and November. So, won't be fully working. I counted the days that I will work till mid-December, and it summed up to about 42.

 

ANSWER
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FAQ Transcript

If your salaries are consistently paid, you can work outside the U.S. without any issue. This time spent abroad doesn't count toward the six-year H-1B limit. There's no legal limit on the number of days for remote work. Your fully remote status is supported by the LCA designating your home as your workplace. If you've been outside the U.S. since September 23rd and have specific concerns, please see an immigration lawyer’s assistance.

What is a 212(a)(6)(c)(1) refusal of visa?

Question details

My entry into the United States was denied a few months back, and my H1B visa was canceled saying that I need to re-apply for a new visa and I agreed to that. A few days back I attended an interview on H4, but the interviewer was asking about the canceled visa and gave me a refusal worksheet Section 212(a)(6)(c)(1). I'm wondering what's happening here, could you please help me with this?

 

ANSWER
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FAQ Transcript

Having a 212(a)(6)(i) denial, which is related to fraud or misrepresentation in obtaining an immigration benefit, is a severe issue because it results in a permanent ban from entering the United States. This can occur in various situations, such as visa applications, petitions, or misrepresentation at the airport, involving both written and oral misrepresentations.

The problem lies in the fact that this ban is permanent, and obtaining a waiver is complex and challenging. The availability of waivers is limited, making these cases extremely difficult to resolve once you're caught in a 212(a)(6)(i) situation.

 

Immigration Law

EB-2 vs. EB-3 visa filing: Pros, cons, and priority date considerations

Question details

My perm got approved on Oct 5, 2023. I am an Indian citizen with a priority date from my previous employer filing as March 28, 2012. As per the Oct 2023 visa bulletin, I am current under the “Dates for Filing” chart for EB2 and the “Final Action Date” chart for EB3. My employer's immigration firm insists on filing my I140, I485, I765, I131, and I693 under EB2 instead of EB3 for my case. So two questions:

1) Can you please explain the pros and cons of filing under EB2 and the pros and cons of filing under EB3?

2) As the EB3 “Final Action Date” chart is current for my priority date. Wouldn’t it be better for my case to be filed under EB3 instead of EB2, ensuring my 485 will get decided faster if filed under EB3 instead of EB2? Isn’t it?

 

ANSWER
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FAQ Transcript

According to law it is evident that even with an approved EB-2 case, you have the option to file the I-140 under EB-3 – that's a choice open to you, and no one can dispute it. However, this doesn't mean that your I-140 and PERM are permanently tied to EB-3. What is typically done is filing the I-140 under the category that offers a more advantageous date. For instance, if you are in the EB-2 category and the EB-2 date is more favorable, you would file under EB-2. Conversely, if EB-3 is more beneficial, you would choose that option.

It's important to note that you cannot upgrade from an EB-3 PERM to an EB-2 I-140, but you can downgrade from an EB-2 I-140 to an EB-3 I-140 – or the other way around, downgrading from an EB-2 PERM to an EB-3 I-140.

So, when you have an EB-2 PERM, you have the flexibility to file under either EB-3, EB-2, or both. Importantly, this filing of the I-140 does not terminate your case or prevent you from returning to EB-2 in the future. Thus, there's no compelling reason not to consider filing under EB-3. As for whether it's better to file your case under EB-3 or EB-2, my recommendation would be to file I-140s for both categories – EB-3 I-140 and EB-2 I-140. However, for the I-485, it's advisable to file with EB-3 – that's likely the most suitable course of action.

 

Delays in marriage-based immigrant visa processing: Expedite options and travel issues

Question details

My son-in-law was interviewed at the US Consulate in Frankfurt in May 2023 for a marriage-based immigrant visa. They have requested his CV with traveling details for further processing. His case has been in Administrative processing for well over 90 days. I have two questions:

1. Is anything can be done to expedite the process?

2. He has traveled to the US on a B1/B2 visa four times prior to his interview from Germany. Is there any problem with him traveling to the USA to visit his wife while his case is in Administrative processing?

 

ANSWER
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FAQ Transcript

Regarding his previous B1/B2 travel history to the U.S., there shouldn't be an issue with further travel while his case is in administrative processing. Although there's a slight possibility of being turned away at the airport, Customs and Border Protection usually treats spouses of U.S. citizens with consideration.

To avoid potential travel hassles, your son-in-law can clear U.S. immigration at Dublin Airport, which offers a more convenient option.

 

Nonimmigrant Visas

Agency

Immigration Law