H-1 FAQs

Out of Status

Authored on: Wed, 02/10/2010 - 02:36

Question

How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?

I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock )

(Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

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'

H1B Status

Authored on: Wed, 02/10/2010 - 02:32

Question

My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

Answer

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Importance of having continuity of employment/pay stubs

Authored on: Mon, 02/01/2010 - 05:50

Question

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

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.

H-1 visa denial and investigation

Authored on: Tue, 08/25/2009 - 03:50

Question

1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn.

Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it."

Please let me know what does it mean and does it mean something serious to take care of.

2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

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.

Compensation for H-1 lay off

Authored on: Mon, 08/03/2009 - 15:05

Question

My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension.
If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

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.

Status, authorized period of stay and unlawful presence

Authored on: Mon, 05/11/2009 - 02:56

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.

H-1 without specific job/GC continuation without H-1

Authored on: Thu, 04/23/2009 - 01:00

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.

US employee working from India

Authored on: Tue, 04/21/2009 - 01:00

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.

New H-1 employee returning -- rights and issues

Authored on: Wed, 04/15/2009 - 01:00

Question

Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating:

Q. What is the law regarding the benching of H-1 holding employees?
A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench.
i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS.
ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA.

If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

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.

Effect of Bankruptcy on immigration

Authored on: Tue, 04/14/2009 - 01:00

Question

I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

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.