H-1 Visa FAQs

Nuances of changing employers during the green card process

Authored on: Wed, 10/13/2021 - 09:06

Question

My question is related to green card filing. My green card was filed with Employer A. I have an approved I-140. I moved to Employer B, working on an H-1B valid until April 2023. They have not filed the labor for me yet. My priority date is February 2012. As per the latest visa bulletin I can file for EAD but the final date is September 2011. Currently I am not in the U.S. so I can't file for EAD. I hope to be in the U.S. in the next 4-5 months. Do I need to join Employer A for processing my green card? What would be the best option for me to get the green card without wasting time when I reach the U.S?

Answer

Video URL

Continuing to use H-1B when I return on Advance Parole

Authored on: Wed, 10/13/2021 - 07:58

Question

I have an approved EAD/AP with my current employer. I also have an H-1B approved until 2024 with the same employer. I have plans to visit India, my home country, in the near future. I am planning to utilize AP to come back to the U.S. and would like to work on the H-1B with the same employer. Is that possible? Also if I do not receive my green card until 2024, can I  extend my H-1B with the same employer.

Answer

Video URL

Intermittent H-1B employment

Authored on: Tue, 09/21/2021 - 06:05

Question

I recently transferred from the U.S. to the UAE office since I was not selected in the H-1B lottery in March. I was then selected in the second lottery and my company has started the H-1B process. Can I do short-term 1-2 week visits on H-1B every few months instead of B-1? Do I need to be employed to enter the U.S. using H-1b?

Answer

While intermittent H-1B employment is permitted, it is only for the job for which you have an H-1B approval. You cannot use an H-1B visa to travel to the US intermittently without that job.

 

H-1B visa expired - Travel to the U.S. based on daughter's U.S. passport

Authored on: Tue, 09/21/2021 - 05:56

Question

We are currently in India, and one of my daughters is a U.S. citizen by birth. However, our H-1B visa expired a few years ago. So now we do not have any valid U.S. visas. Can we travel to the U.S. now based on my daughter's U.S. passport? Please advise as we heard many such parents are traveling like this, Are there any options for us?

 

Answer

You cannot reenter the USA without a visa.  Having a US citizen child exempts you from the travel ban, but not from the visa requirements.

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

 

H-1B visa and applying for National Interest Exception

Authored on: Tue, 09/21/2021 - 05:42

Question

I am presently in the U.S. and will be visiting India to get my H-1B Visa stamped.  As there are travel restrictions for passengers from India to the US, will I be allowed to enter the U.S. on an H-1B visa? Presently I am staying in the U.S. on OPT.

Answer

Unless you are covered by an exemption, you will have to apply for a national interest exception. Also, getting appointments for visa stamping is not particularly easy at the moment.

 

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

H-1B Visa and seeking emergency visa appointment

Authored on: Tue, 09/21/2021 - 05:39

Question

We are the parents of a minor (5 months) old U.S.Citizen daughter who is currently in India. We need to take our daughter to the U.S. for her 6-month vaccination doses. My H-1B visa and my spouse's H-4 visa need to be renewed, but unfortunately, there are no dropbox appointments available in any city. Is there a way an exemption can be made for our travel? I am a civil engineer who has built commercial facilities and will be building more commercial facilities in California, USA.

Answer

You can try seeking an emergency visa appointment based on medical reasons applicable to your daughter.

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…

H-1B Visa - Change of Status

Authored on: Tue, 09/21/2021 - 05:35

Question

I have an approved H-1B petition. Right now, I am in India. However, my spouse also holds an H-1B. Can I apply for an H-4 visa and travel to the USA with my spouse and apply for a change of status in the USA from consular processing and use my H-1B there. Will it affect my H-1B in any way?

 

Answer

Technically, the USCIS can object to applying for a change of status within 90 days after entry, if the change results in activities that are inconsistent with the original visa used for entry, the H-4 visa. The key question is whether applying for H-1B soon after entry into the USA is inconsistent with H-4, a visa that allows work authorization. Perhaps not, but you should speak with your lawyers to make sure all your options are discussed.

 

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

 

Retaining valid H-1B status while AOS is pending and when to file Supplement J

Authored on: Wed, 08/25/2021 - 06:36

Question

1) Most attorneys don't recommend to abandon H1B status while AOS is pending.
What are the chances of AOS denial for someone who has had a clean history and is a law abiding alien living in the US waiting for AOS?
2) What are your thoughts about the timing of filing I-485 J? Upon job change, should it be filed proactively or wait for RFE Won't it delay the AOS adjudication if it's not filed proactively?

Answer

Video URL

What Happens if H-1B Employer Revokes a Quota H-1B Before October 1?

Authored on: Wed, 08/11/2021 - 02:18

Question

I am on Initial OPT which expires on November 30, 2021. A company filed H1-B lottery for me this year (2021) which got picked and approved but I was laid off in May and immediately the company filed H1-B withdrawal and sent to USCIS on June 1st, 2021.

1) I have joined a big MNC company few days back who’s willing to sponsor me. I have approval and LCA Notice. What are my options now to get H1-B back?

2) If I can’t do anything with My H1-B. What’s the time frame generally it takes to withdraw my H1-Status? My Status still shows H1-B approved in the portal.

Answer

Video URL

H-1B Extension beyond 6 Years; Stay Outside One year; Remainder Option

Authored on: Mon, 06/14/2021 - 05:46

Question

I stayed in US on H1b from 2013-18, almost 5 years and went back to India. In 2020(after 1 year of cooling period), my employer has filed new application for H1B and lottery got selected in 2020.
I got my visa stamped in April 2021 with a validity till 2023.Because of new location & salary mismatch, I had to file the amendment and this time I got the approval for next 9 months only till March 2022.
On further enquiry with my employer's immigration team, I came to know that USCIS has used the remaining 9 months on the first H1B. My queries are:
1. Does it mean I will be allowed around 7 consecutive years of stay in US( 9 months on older visa plus 6 years on new visa) or I need to come back to India and serve 1 year of cooling period after spending 9 months ?
2. Will my new visa be applicable once I spend 9 months of time in US?
3. Is there a way I can opt to take approval duration on the current visa only?

Answer

Video URL

Cap-exempt to cap-subject H-1

Authored on: Fri, 03/26/2021 - 10:20

Question

Situation: I am on a cap exempt H1 with an approved I-140 more than 180 days and I found an employer who can file my cap subject H1 this April.

1. If the cap subject H1 is approved before oct 1st, will my new employment start date be earlier than October 1st?
2. Should I have to leave my current employer as soon as the other H1 is approved?
3. What if I don’t join the new employer until I find a project with them? Meaning, can I wait until after oct 1st until I find a project with them?
4. From your previous calls, I understood that if the new H1 is not revoked until oct 1st, I don’t have to go under cap anymore. Is that still accurate? Also, can you explain about getting a new I-94?
5. Should I have to go thru the GC filing all over again? 
6. Can I start working with new employer while continuing my current employment?
 

Answer

Video URL

H-1B revoked by the USCIS - impact on Quota/lottery exemption

Authored on: Thu, 03/25/2021 - 06:48

Question

I have question to related to H1B revocation and Cap exemption.

I am based in India and have never traveled to the US. Back in 2014, Employer A filed H1B for me. It got picked in the lottery, got approved for 3 years till August 2017. When I went for Visa stamping at Chennai consulate, I was given 221g and the case was sent back to USCIS and it got revoked in August 2017. ( about 3 years later of my H1B Approval)

Now I have an employer B who is ready to sponsor H1B. Am I eligible for cap exempt or should i go through the regular CAP quota? Earlier H1B can be used and transferred to my new employer?
 

Answer

Video URL

F-1 to H-1B lottery - How to transfer and change jobs from employer A to employer B?

Authored on: Wed, 03/24/2021 - 08:21

Question

1. I am a F-1 student graduating in May 2021. An employer "X" wants to e-register me for the H1B lottery and I am hoping for a better offer from employer "Y". Suppose I got selected in the H1B lottery filed by "X". Can I start working for employer "Y"? What are my options to work for employer "Y"?

2. Can employer "Y" file my H1B petition even though I was registered in the lottery by "X"?

3. Can I ask "X" to not file an H1B petition after winning the lottery and use F1-opt as work authorization?

4. I am also applying for F1-OPT. Can I use my F1-opt to work till September for "Y" and then use H1B in October to work for "Y" while it was filed by employer "X"? I believe "X" would send an H1B petition with change of status.

 

Answer

Video URL

DUI and I-485 approval

Authored on: Wed, 03/24/2021 - 07:53

Question

I'm currently on H1-B visa. I applied for I-485 in October 2020 and I got my EAD/AP card approved. I'm in EB2 category with priority date of March 2011.

I was convicted for DUI in November 2011 and consulted Rajeev Khanna Sir in 2012 through 15 minutes telephone consultation. As Rajeev sir advised, I got the certified copy of court disposition and a letter from criminal lawyer explaining that this is a misdemeanor -- quoting the statute.

So with the first time DUI arrest (in 2011 been 10 years) , I have 2 questions:
1) I would like to know if first time DUI affects my chances of getting I-485 approval?
2) I'm planning to convert from my H1-B status and start using EAD, will it be wise to do that considering the DUI arrest.
 

Answer

Video URL

Will Duration of CPT Violate Status and Impact H-1B?

Authored on: Fri, 03/12/2021 - 10:05

Question

I am pursuing my PhD from a well established accredited university in the USA for over 5 years. My PhD is likely to get over by Feb/March 2021. My PhD has a provision of doing day 1 CPT and I have been on CPT since my first semester ( Fall 2015) to date. My CPT is related to my area of PhD. My DSO has been regularly, updating every semester and endorsing my I-20 with my CPT details.
My questions are as follows:
1. Am I violating my status by doing this CPT?
2. Will this CPT for such a prolonged period impact my chances for an H-1B visa?

Answer

Answer 1. In my opinion, you are not violating your status. The USCIS interpretation of CPT is flawed. In my opinion, CPT should be available as long as the course requires. That is true even if the CPT goes on for several years.

Answer 2. In the worst-case scenario, if the government continues in their illegal interpretation of the CPT rules, they can make you go outside the United States for H-1B visa stamping. I do not see how the consulate can deny a visa on the grounds of using CPT. You have done everything by the book.

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485

Authored on: Wed, 02/10/2021 - 08:08

Question

I am currently on H1-B visa (valid until Dec 2021) and my Priority date is May 15, 2010, in EB2. I am working for employer A and I have recently applied for I-485/AOS in Oct 2020. Both EAD/AP are not approved yet and haven't received biometrics notice yet from USCIS. Kindly see below questions and advise.<br>

1) If I change to employer B after 180 days of filing I-485, how would USCIS know that I changed my employer if I do not file new I-485 J that's given by employer B?
<br>
2 After getting EAD, can I stay without working for a few months? Is there a regulation that says that employment based I-485 applicant needs to work continuously after obtaining EAD?
<br>
3) I am working for a consultancy company and recently changed my client who is not within 50-mile radius of the existing MSA. My current employer A is not planning to file H1-B amendment. In this case, if there is a site visit by USCIS officer and if they revoke H1-B, then am I still considered to be in legal status because I already applied for I-485 in Oct 2020? Am I safe to stay legally in USA in this scenario even though I did not receive EAD based on AOS?
<br>
4) If H1B amendment/extension of an employee gets denied after filing AOS/I-485, is the employee still considered as in-status because of pending I-485?

Answer

Watch the Video on this FAQ:

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485


Video Transcript

1. Usually if you do an H-1B transfer or if the I-140 is revoked that becomes their source of knowledge.

2. Absolutely, the regulations only require that when asked, you should be able to produce an offer of employment for the same or similar job and file Supplement J. This is only when asked.

3. If you have a I-485 pending you are always allowed to stay in the United States, but make sure that you have an EAD.

4. Normally an H-1B denial has no effect on the Adjustment of Status 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.

I-485 AOS filed - Maintaining H-1B status after getting EAD/Changing jobs after I-485/Being unemployed/Start own business, etc. (Filed for I-485, EAD, AP along with EB-2 to EB-3 I-140 downgrade)

Authored on: Fri, 01/29/2021 - 08:47

Question

I have filed for I-485,EAD,AP along with EB2 to EB3 I-140 downgrade in October 2020. Got the receipt notices.
1)After 6 months of I-140 approval & I-485 pending with USCIS. Once if I switch job to new employer and use my EAD,AP. Should I have to ever come back to my employer (who sponsored my green card)before I receive green card or after I receive green card for any duration of time anytime?
2)What happens if I stay unemployed after using EAD for some days before I receive the green card? Is my I-485 automatically denied?
3)Is it possible for me to go back to EB2 line with same employer if I start using EAD and AP based on EB3 downgrade I receive?
4)Is it possible to start a company on my own using my EAD and work for my own company till I receive green card? If yes, then say I am working project to project basis consulting do I need to file any other documentation?
5)Why do people maintain H1B status even after getting EAD. Only risk I understand is I-485 denial. But if everything is clean and clear with respect to I-485 why do candidate needs to keep maintaining H1-B visa.
6)What are the risks for EAD and AP renewal. Does the candidate need to prove anything related to job/salary etc any time for renewing EAD and AP each time till I get green card.

Delay litigation/Mandamus

Authored on: Wed, 01/06/2021 - 07:03

Question

I am on H1B and we applied H1B renewal and H4 and H4 EAD for my wife which is pending , my wife company is ready to apply H1 (she already used her H1 before from 2013 to 2016) , just wondering what will happen to her H4/H4 EAD application which is pending to USCIS right now ? I am hearing lot about litigation for H4 , are you filing litigation if needed ? If so what is success rate ?

Answer

Watch the Video on this FAQ: Delay litigation/Mandamus

Video Transcript

Delay litigations are highly useful, but not in all cases. 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.

Loss of H-1B Job and Opting for B-2 Visa

Authored on: Wed, 01/06/2021 - 06:52

Question

1) I lost my job almost 6 months ago. I was on H1B with I-140 approved. I filed for a change of status to B2 (not approved yet). Now I have to extend again since I wasn't able to find a job and cannot move out of the USA right now.
How long/many times can one extend a B2 under the given circumstances?<br>

2) If for whatever reason say the original B2 petition filed in July gets denied do I get illegal presence for all these months from July? How long(days/weeks) does a person has to leave the country in this case?
<br>
3) Any suggestion on what steps to take if USCIS does not approve COS from B2 (pending) to H1b but processes as consular processing. I am a Canadian resident but I heard only emergency visa appointments are available.

Answer

Watch the Video on this FAQ: Loss of H-1B Job and Opting for B-2 Visa

Video Transcript

1. Until the B-2 is denied you could try to keep getting it extended.

2. No, as long as a timely filed B-2 was pending you have no unlawful presence.

Well, technically you have no grace period to leave, but the 180 days begin to be counted from the date of the B-2 denial, not from the date of the 60 days expiration of the H-1B.

3. At this point you should talk to a lawyer.  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.

Supplement J timing and joining previous Employer

Authored on: Wed, 01/06/2021 - 05:59

Question

I was working with employer A for 7 years on H1 B and they have filed Labor and I-140 with Priority Date 2014. Now I am on H4 EAD since 2019 and working for employer B for same role .
My Priority date was in filing date chart and my ex employer A agreed and filed my I-485 with form J on November 2020. Do I have to join my old Employer A now or it's fine if I join them after I-485 is Approved? If I don't join them now , will there be any problems in the 485 interview if I intent to join after I-485 approval ? Is it possible that employer B can file form J form after 180 days of I-485 receipt date without joining my old employer A considering my Priority date will be on the final action date after 4, 5 years .

Answer

Watch the Video on this FAQ: Supplement J timing and joining previous Employer


Video Transcript

You have to discuss your case with your lawyers.  I would recommend having your lawyers review your honest intentions make sure that everything is all right and then if you file the I-485 under whatever circumstances, Supplement J can be used after 180 days. 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.

Priority date and original I-140 approval notice

Authored on: Tue, 12/15/2020 - 10:54

Question

I am currently on H1B visa (3rd year) and a few days back I got my I-140 approved in EB-2 category. I want to know if I can change my employer and retain my priority date.

Priority date and original I-140 approval notice

Authored on: Thu, 10/01/2020 - 07:29

Question

I am currently on H1B visa(3rd year) and few days back I got my I-140 approved in EB-2 category. I want to know if I can change my employer and retain my priority date.

Answer

Watch the Video on this FAQ:

Priority date and original I-140 approval notice

Video Transcript

So once again the priority date is yours the moment the I-140 is approved whether it is revoked the very next day, but if it stays unrevoked for 180 days whether or not you're with the same employer you also carry forward the right to extend your H-1B. 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.

Changing Status During a Pending Application - Authorized Period of Stay

Authored on: Fri, 09/25/2020 - 10:56

Question

Currently, I am On My H1B, filled H1 extension on time, before I -94 expiry, ( Perm, I-140 Approved ). When H1 extension pending in normal process can I apply for a change of status to F1 by using the H1 receipt number? While I am on F1 if my Priority date is current, can I Adjust my status / file (i-485) when I am on an F1 visa? Will it be an issue If I am F1 visa to Adjust my status if priority date is current?

Answer

Watch the Video on this FAQ:

Changing status during a pending application - authorized period of stay


Video Transcript

There is an assumption if old status has expired and you have an application pending you are just in authorized period of state. And by the way, if you have an employment based green card going on and your dates become current you can file a I-485 that is if you are protected by section 245(k). 245(k) says we will forgive you being out of status or unofficially employed for up to 180 days if you are an employment based applicant or their derivative so if your old status expired, F-1 is pending, but the old status expired less than 180 days ago you can file 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.

Unstamped H-1B Quota Exemption

Authored on: Fri, 09/25/2020 - 09:17

Question

I had an H1B from my previous employer that was valid from Dec 2016-Dec2017. I never got the visa stamped and it has complete 6 years unused on it. The question I need your help with is if an employer files H1B for me, would it be eligible for Cap-Exempt processing or not?

Answer

Watch the Video on this FAQ: Unstamped H-1B quota exemption

Video Transcript

The government may be pushy on this issue, but they do maintain that if you have not received a change of status for example from F-1 to H-1 or an H-1B visa stamp. If you are outside the USA you are still subject to the quota. I think they are legally wrong. So the bottom line is you should try to go ahead and give it a shot and I don't think the government is in a legally defensible position.

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.

Owning or Doing Business on H-1B

Authored on: Fri, 09/25/2020 - 08:05

Question

Is there any legal issues with starting a LLC for a software product on H1B based on below scenarios.
Scenario 1: Start a LLC in partnership with a US Citizen. For example say I would be 90 % stockholder and the other person would be 10 %. My partner would run the company and do all the work that is needed to sell the software product. I would be a passive owner and not involved in any active duties.

Scenario 2: Start a LLC as 100 percent stockholder and employ a GC holder or US Citizen as a manager to run the company. I would be a passive owner and the manager would do all the active duties. Is there any restrictions around how much salary i should pay the manager of my company? How about if i offer him/her 10 % of the stocks as a compensation instead of salary or offer him/her commission based salary?

Answer

Watch the Video on this FAQ: Owning or doing business on H-1B

Video Transcript

1. I do not see any problem with that.

2. I think that's fine, but a little bit more complicated. There is no restriction on the salary to be paid to the manager and you can pay them in stocks 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.

H-1B portability without a visa stamp

Authored on: Tue, 09/15/2020 - 08:00

Question

I came to US on H-4, so I have only H-4 stamping in my passport. Got my H1b picked up in lottery two years back, and did COS to h1, and have approved i797A with I-94 and working with my current employer.

Got an offer from another company, and they filed my H1b transfer, and got the i-797A approval with I-94.

So my question here is, can I join the new company using the H1b transfer approval, even though I don’t have H1b stamp at all in my passport? Will this be a valid H1b transfer?, or should I go back to India to get my H1b stamping to join the new employer?

Answer

Watch the Video on this FAQ: H-1B portability without a visa stamp

Video Transcript

When you have an H-4 visa stamp and you came to the United States and you got selected in the lottery that means you got your H-1B and you got your change of status. If you change employers you can start working as soon as your change of employer paperwork is delivered to the USCIS. You do not need any H-1B visa stamp for that purpose. 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.

Changing jobs while I-140 pending and change in job title

Authored on: Wed, 08/26/2020 - 07:14

Question

I have my PERM approved from my current employer A recently this month, can I still use my PD when I transfer my H1B to a new employer B, before I-140 approval or when I-140 is in progress with the old employer A?. If my job title is changed (from 'Software Engineer' to 'Business systems analyst')with changing job to the new employer B, can I still use the approved perm from employer A for the PD or to extend my H1B max stay beyond 6 years?

Answer

Watch the Video on this FAQ:

Changing jobs while I-140 pending and change in job title


Video Transcript

No problem at all with the job titles and the only requirement is on the date the I-140 is filed there is an intention to continue with the job. 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.

Deadline to join new employer after H-1B transfer is approved

Authored on: Thu, 08/20/2020 - 01:58

Question

After H-1B transfer is approved with the new employer, how long do I have to decide if I can to join the new employer? Can I join after 90 days of H-1B transfer approval? Is there a deadline?

Answer

Watch the Video on this FAQ:

Deadline to join new employer after H-1B transfer is approved

Video Transcript

The answer is there is no deadline... 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.

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

Authored on: Tue, 08/18/2020 - 05:44

Question

My employer ended my employment due to COVID reasons on May 31, 2020 but I never received an official termination letter. Calculating the grace period depending on the assumed termination date mentioned above, I have till July 30 to find a new job. Should my new employer give me an offer or start the H1B transfer application before July 30? What happens if they fail to do so in time? Can I extend the grace period on the basis of having an offer in hand or maybe because of the pandemic? My final interviews with potential employers are being withdrawn because of the time restriction.

Answer

Watch the Video on this FAQ:

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

Video Transcript

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

The 60 day grace period works like this. The new employer must make sure that your H-1B transfer application is received by the USCIS within 60 days. So the LCA should be done, the package prepared and USCIS should receive your H-1B transfer within 60 days, otherwise you will be out of status and you will have to go outside the USA for visa stamping pandemic or no pandemic, also remember there is a proclamation that will stop you from coming back at least before December. Make sure you remain in status or at least file a B-2. 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.

H-4 EAD Issues

Authored on: Thu, 08/13/2020 - 04:21

Question

I am having H4-EAD,Can I start any business?

Answer

Watch the Video on this FAQ: H-4 EAD issues

Video Transcript

You can start a business, any business and 10 businesses if you want. The only issue is what if there is a gap in your EAD. You will not be able to run that business, somebody else should be able to do that for you. That's the only practical difficulty. Legally, there is no problem. You can do whatever you like. 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.

Working from Canada on or off H-1B

Authored on: Tue, 07/28/2020 - 03:38

Question

Questions,
1. Can I stay in Vancouver while I commute to Seattle for work once a month for a day?
Is there any restriction on the amount of time I need to spend inside the US on H1B?
Is there any restriction to how frequently I can go in/out of the US on H1B?
<br>
2. Since my work location would be changing to Seattle from California for me to be able to do this. I am suspecting my PERM will need to be refiled. But given that my H1B is expiring next year and the PERM, I140 process takes almost 1-1.5 years. Can my current company use an older existing approved I-140 petition to help me get my H1B Visa extended? My older I-140 had been approved for more than an year before I left the employer.
<br>
3. Will doing this have any impact on my H1B Renewal? I would need to go for re-stamping next year in September.

Answer

Watch the Video on this FAQ:

Working from Canada on or off H-1B

Video Transcript

1. Sure and there are no restrictions on time.

2. No, not really. Depends on how the PERM was filed. You should talk to your lawyers. Regarding I-140 yes of course as long as at least one day of that approval period was on or after January 17, 2017.

3. No impact on your H-1B renewal.

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.

 

Covid-19/Coronavirus applying for B-2 status

Authored on: Tue, 07/28/2020 - 03:07

Question

I came to the US on H1b in 2010. My i140 got approved in Dec 2013. I joined a new employer on 21 Feb 2020. My H1B got approved till 20 Feb 2023, But I did not receive any receipt notice for my wife and my elder son H4. My employer told me that he applied for an H4 visa for my dependents.

Unfortunately, I got laid off due to COVID-19 and my employer notified USCIS on 8th June 2020 to revoke my visa. My priority is to find a new job. But in case I do not find any job I would like to move out of the USA, I do not want to accrue unlawful days. But, due to the COVID-19 situation in India, I am scared to travel to India.

My wife called USCIS and was asked to email USCIS on lockboxSupport@uscis.dhs.gov to notify her of the receipt number of my wife and son. But she has not received any response.
I want to stay in the USA until the COVID-19 situation becomes normal. As per the Document COVID Coronavirus Converting to B-1 B-2 status.pdf on your website, I can apply for a change of status to B1/B2?

Answer

Watch the Video on this FAQ:

Covid-19/Coronavirus applying for B-2 status

Video Transcript

Reach out to your lawyers and explain to them what is happening and tell them to make sure you get copies of everything. File for your family's B-2 if your H-1 is not filed within that 60 day I-94 time. If it is filed go ahead and file another H-4 application with them. For applying for EAD under certain circumstances please click here

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.

 

 

Students aging out of H-4

Authored on: Wed, 07/08/2020 - 07:09

Question

1. My son is currently a student studying engineering at a 4 year public college in Illinois. I am working in the US on H1B, and my son is on H4. The issue is that he turns 21 next year before he would finish his final year in college, and since would age out of the H4 So what are the options he has left to continue his study Can he change to F1?<br>

2. What are the caveats to this? Can he do the adjustment of status in the US, or does he need to travel out of the country? I've heard that F1 visa processing takes a long time to process, and there is no determinate time - he has about 14 months for him to become 21 years as of now. When inquired the college said they are not processing the I-20s for Fall 2021 now, only for Spring 2021, and have asked him to wait, what are the consequences of this ?

Answer

Watch the Video on this FAQ: Students aging out of H-4

Video Transcript

1. He can change to F-1

2. You are likely to get the H-4 to F-1 conversion and he should be able to do it within the United States. You can check with them about I-20s. File as early as you can and that's the best you can do. He might be able to travel to Canada or Mexico to get his F-1 visa stamp in done. 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.

Covid Coronavirus Converting to B-1 B-2 status

Authored on: Tue, 06/09/2020 - 06:32

Question

My employer has applied for my H1 B extinction and got an RFE ,based on RFE responded but I got denial USCIS site 03-20-2020. But my employer still did not received denial notice. How many days I can stay in the USA after denial. (my I-94 has expired Jan-25-2020)

Answer

 

Watch the Video on this FAQ:
Covid Coronavirus Converting to B-1 B-2 status and 
Covid Coronavirus H-1B denial

Video Transcript


A lot of you who have been laid off can use this information to maintain status. Lets say you got laid off in your H-1B. The way the 60 day grace period works is, you are given either the time remaining on your I-94 or 60 days whichever is less. So if you have only 45 days on your I-94 you have got a 45 day period not a 60 day period. 

As long as you file a B-1/B-2 application with the government within those 60 days or 45 days depending upon your situation I think you are going to be quite OK. But here is what you need to understand. When you file B-1/B-2 you will use the form I-539. You will prepare a cover letter to the government telling them the truth that you have been laid off unexpectedly in the times of coronavirus. You cannot travel outside the USA, finding another job is getting difficult, you have enough money to support yourself, you will not work illegally and you are asking for a six month stay on a B-1/B-2 status and that as soon as you are back on H-1B you will not start working until the H-1B is approved. So make these points with the government.

You can file the application online. While this application is pending you are not accruing unlawful presence. You are in an authorized period of stay. But here is one big point to remember. If you ask for six months your application is probably not going to be decided till about nine months. The last three months you would be accruing unlawful presence. So what you need to do is before the requested six month period is over if you have not found a job, apply for another extension even though the first one is still pending. Keep applying for further extensions until you need them no more.

But B-1/B-2 is a great way to maintain your status. Nobody can travel during this time, so obviously you have something pending with the government even if you are out of status. These are extraordinary circumstances the government should forgive you for being out of status and at some point either at the point of the fist B-1/B-2 or at the point of the second B-1/B-2 approve your B-1/B-2 therefore take away all your unlawful presence issues and if they don't that’s what the good lord made the courts for. Apply for a B-1/B-2. It is a very important way to do things.

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.

Implications of the 240 days grace period

Authored on: Wed, 05/06/2020 - 11:34

Question

I am on H1-B with approved I140. My I94 expired on 10th October and my H1 extension was filed in time. After 7 months of processing time I got RFE even though my employer has filed two service requests requesting to expedite the process. Regardless now that I have got the RFE there is a very high probability that I wont get a response before 240 days which is on 6th June. As far as my understanding goes I am allowed to stay even after 240 days of H1 extension waiting for the decision but not authorized to work. Is that understanding right?

Answer

Watch the Video on this FAQ:

 

Implications of the 240 days grace period


Video Transcript


When you file your petition timely you have a 240 days grace period to continue working even after your current status expires. That is a very big advantage, but the problem is what if the government takes more than 240 days to adjudicate. While the case is pending you can work for only 240 days, but you can stay an unlimited amount of time in the United States as long as the case is pending.

In the context of an H-1B if you have filed for an extension to change you can continue working as long as the case is pending, but if you have filed for an extension without change, you have got 240 days. 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.

Covid Coronavirus Question from Employers about Payroll for H-1B and others L-1, E, etc. employees

Authored on: Thu, 04/30/2020 - 01:39

Question

We are looking at various measures of safety and expense control. First and foremost everyone is working from home for their on safety and wellness. For expense control one idea that we were discussing was a potential pay rate reduction for a short period of time.

Answer

Watch the Video on this FAQ: Covid Coronavirus Question from

 Employers about Payroll for H-1B and others L-1, E, etc. employees


Video Transcript

If you look at the Department of Labor regulations they say that the employer cannot stop paying a salary or the right amount of salary for anything that the employer does. So if you don’t have a project that's your problem. If by law or by local order you cannot open offices and you cannot work, would you as an employer be allowed to pay a lesser salary and that might be something to look at because rather than laying off all the people that your concerned about I would have you to think about other alternatives. 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.

Covid Coronavirus changing H-1B home office location

Authored on: Thu, 04/30/2020 - 01:39

Question

I recently got approval for Work From Home, from my client. So my work location will be my home. My H1B Amendment is filed. Because of situation, I have to change my home i.e work location, within same MSA. Also, if we can change the house, just updating AR-11 will suffice?

Answer

 

Watch the Video on this FAQ:

 

Covid Coronavirus changing H-1B home office location


Video Transcript

Changing location of work within the same geographical area is not a problem. Do remember to file your AR-11. 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.


Covid Coronavirus H-1B employee furlough's impact on green card and H-1B

Authored on: Tue, 04/28/2020 - 01:39

Question

I currently have an approved I-140 with my former employer which is past 180 days. I'm on my H1b (exp May 2021) with my current employer, now my current employer has furloughed me for 90 days and asked to return to work after the furlough period. During this time I'll be paid 20% of my salary or could use my PTO (200 Hours). What options do I have to maintain my status during the furlough period? Can I take paid/unpaid leave and go back towork for the same employer or do I need to find a new job?

Answer

Watch the Video on this FAQ:

Covid Coronavirus H-1B employee furlough's

 impact on green card and H-1B


 

Video Transcript:


First of all you haven’t lost status in my opinion because you can always claim with the government that you are maintaining status and the non-payment of the full salary is no fault of yours. I don't think you can do much during the coronavirus times. Don't worry about status. You have not done anything wrong and definitely you are not accruing unlawful presence. At the termination of this coronavirus period you can continue the same employment, but I would rather have you change employers and get another H-1 then file a complaint against the employer because they have to pay you a hundred percent of your wages. They cannot just pay you twenty percent. That’s illegal. 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.

Loss of job/laid off during Covid/Coronavirus times

Authored on: Sun, 04/26/2020 - 01:39

Question

I lost job and my last date of employment with the employer is March 20, 2020. This employer sponsored H1B and also had ported GC AOS in 2018.:

1. After my last date of employment (March 20, 2020), how much time do I have to transfer H1B and I-487 to a new employer?

2. Will losing the job affect the EAD renewal in processing?

3. How would it affect I-487 application, which can become current any time soon?

Answer

Watch the Video on this FAQ:

Loss of job/laid off during Covid/coronavirus times

 

Video Transcript:

 

First of all you are in a good situation because if you have a I-485 pending then you can continue to stay even if you lose your H-1B or L-1 or any status because I-485 allows you to stay here. EAD that comes with I-485 allows you to work here and advance parole that comes with the I-485 allows you to travel. Keep in mind that all these are additional benefits to being able to stay.

1. You have 60 days or the time remaing in on I-94 whichever is sorted so in this case probably 60 days.

2. It will not.

3. By the time you are ready to deal with the I-485 you should get another employment or at least an employment offer. 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.

H-1B visa holders during COVID

Authored on: Tue, 04/21/2020 - 01:39

Question

1. Is H-1B visa holder eligible for unemployment only if laid off or even furloughed? if yes, how do we know that we are eligible?

2. Where can I check my i-94 expiration date?

3. If I now have to change from H1 to B2 due to furlough, and if I have to return back to work later with the same employer, should i have to go out of the country to change back to H1?

4. What are the effects to my H1b if I have to chose using PTO or unpaid leave or combination of both, or if I have to work just 20hrs/week?

5. If I have to apply for a H4 and an EAD, do both of them get approved at the same time? I am asking this because I wanted to know if there could be a gap in my employment after I switch from H1 to H4 waiting for EAD.

Answer

Watch the Video on this FAQ: H1B visa holders during COVID

Video Transcript:

 

1. You can definitely take the state unemployment insurance if the state law allows. 

2. I-94 expiration date is in one of the two places. If your most recent I-94 was issued upon international travel you can go online and print out a copy but if your most recent I-94 was issued within USA as a change of status  you will need to get a copy of the approval notice at the bottom of which the I-94 is attached. Your lawyer should cut it out and give it to you. They are required by law to give it to you.

3. You cannot do that.

4. Reducing the number of hours is less objectionable. 

5. They are taking a long time and they don't necessarily have to get approved the same time. Yes, there is likely to be a gap. 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.

Transfer of H-1B while extension is pending

Authored on: Sat, 03/21/2020 - 01:39

Question

Can H-1B transfer happen in such case from company B? If yes then if this transfer is approved but previous H1b extension is not approved which is from company B will it impact my status in US? Can I work for company B still? Will there be any chance that I have to go to India and come back with stamped visa ?

Answer

Watch the Video on this FAQ:

Transfer of H-1B while extension is pending

Video Transcript:

Yes you can. You can join company B but if the case is denied you will have to go outside the USA for visa stamping. 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.

What to do after an H-1B (or L-1) denial

Authored on: Sun, 03/15/2020 - 01:39

Question

I got my H-1B denial on 02/20/2020. H1B expired date : 1/31/2020. I-94 expired date: 2/10/2020. H1B extension denial date: 02/20/2020. H1B filed date: 12/07/2019. H1B RFE date: 12/27/2019. H1B RFE replied date: 02/02/2020. How long can I stay ?

Answer

Watch the Video on this FAQ:

What to do after an H-1B (or L-1) denial

Video Transcript:

  

The fact is that you are accruing unlawful presence beginning February 20th. So if you stay in the US 180 days after that you will be barred from entering the USA for 3 years. 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.

Work duration and damages contracts under H-1B

Authored on: Fri, 03/13/2020 - 01:39

Question

In my offer letter, they have mentioned if they sponsor H1b I need to work with them for 5 years. What happens if I change the company by down the road within these 5 years?

Answer

Watch the Video on this FAQ:

Work duration and damages contracts under H-1B

Video Transcript:

Please check on the state laws about whether these contracts are even legal or enforceable. You can also visit this link on my article on :  

Liquidated damages clauses In H-1B visa holders’ employment contracts



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.

Risk for green card process in joining a small company, unfamiliar with immigration

Authored on: Sat, 02/15/2020 - 00:39

Question

I have an approved I-140 with priority date of June 2013 from Employer "A". I moved to employer "B" in 2018 and extended my H1-B till June 2021. He is currently processing my labor for new application. Meanwhile, I got offers from "C" and "D". "C" is an established firm and is well aware of the immigration process. "D" is a small business enterprise started about 2 years ago and haven't sponsored any employee yet.

Answer

Watch the Video on this FAQ: Risk for green card process

in joining a small company, unfamiliar with immigration

Video Transcript

If the company is willing and able to support your application by all means join a big or small company, it does not matter. 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.

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

Authored on: Wed, 02/12/2020 - 00:39

Question

1. Can I just withdraw the whole petition? and go out of the country and travel back on H4
2. Will withdrawing the "Extension+Amendment" petition without responding to the RFE make my presence UNLawful for the last 11 months. (I-94 Expired Dec 2018 last year) because I worked on the client on their new address without an approved amendment?

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.

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

Authored on: Tue, 01/28/2020 - 00:59

Question

I am on H1-B and I lost my job 7 days back. I have I-140 approved with Priority date 2015
Do I need to inform USCIS that I lost my job and I am searching for job ? if yes how and where ?
How many days I stay in USA and search Job ?
My I-140 was approved 8 months ago and now my employer said that he will revoke it , what will be impact on me after he will revoke it I-140 ?
Am I able to extend my H1-B, once he revoke my I-140 ? ( my H1-B 6 years are completed)
If I will go back to India and search job from India, can consulting companies transfer my H1-B in this particular situation ? or I will face complication ?

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.

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

Authored on: Thu, 01/23/2020 - 04:55

Question

Is it mandatory to maintain non-immigrant status (H1B) until the I-485 application is approved (a green card is issued)? I am not sure whether USCIS will send an RFE and/or call for an interview when my PD becomes current.

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.

Variation in H-1B job approved and actually performed

Authored on: Thu, 01/16/2020 - 01:53

Question

I am getting new job as a developers right now.

My new employer is fine to give me offer letter as a Senior Technical Project Manager and keep my job profile as a Senior Technical Project Manager but he wants me to start work as a developer at client place.

What all important things I will take care so that I will not face problem with my green card please guide me ?

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.

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

Authored on: Thu, 01/16/2020 - 01:27

Question

My H1B got approved for just 11 months started this October 2019. My H1b is expiring on August 15 2020 and I-94 on August 25 2020. My company will be filing for an extension under premium after February 15th which will be 6 months before my H1B expires. Thinking that I will get my H1B approval notice by end of Feburary 2020 under premium. Can I travel to India during the March 2020 and get my H1B stamping done based on my new approval of H1B given my old H1B is only expiring on August 15 2020. Want to avoid H1B stamping twice if I wanna travel in future after August 25 2020.

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.

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

Authored on: Thu, 09/26/2019 - 06:18

Question

I had to travel to INDIA because of my Father's serious health condition on FMLA. Currently my H1-B amendment is in process, so I am looking for my options to travel back to US. Below are complete details.<br>
I have moved to my current employer in April 2019 and I have approved H1-B for 3years.<br>
Now because I am changing client and location, they have filed amendment and it is currently under process.<br>
I don't have STAMPING with my current employer but I have STAMPING with my previous employer until end of 2019.<br>
During Job change from my previous employer I have applied for H4 and also change of employer. Both got approved and I revoked my H4 application.

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.

 

Effect of H-1B Approval on H-4 EAD

Authored on: Tue, 09/24/2019 - 06:40

Question

My wife currently working on H4 EAD which is valid till October 2020. Her company filed for H1B this year and she got approval for 3 years starting 10/01/2019.
However, She would like to stay on H4 EAD. Does law permits her to work on H4EAD even after her H1B approved? or naturally her work visa status will convert to H1B effecting 10/01/2019?

Answer

Watch the Video on this FAQ: Effect of H-1B approval on H-4 EAD

Video Transcript:

The practical solution would be to have your lawyers contact USCIS and explain to them the problem, and if you are willing to take a risk go ahead and have the H-1 revoked. Also make sure that it gets done over the phone as well as in writing. So if a change of status does not take effect I think you would continue to be in the old status which is H-4 EAD. So act quickly before October 1st to revoke or withdraw your wife's H -1. 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.

What to Expect from H-4 EAD Revocation

Authored on: Wed, 07/31/2019 - 02:23

Question

I am on H4 EAD working in a full time job .Now as their are news coming to revoke H4 EAD, if the H4 EAD rule revokes, what might be the other options for me to continue my job? If I join masters, will I get the CPT if I change to F1 visa in the final semester. Is it valid like that?

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.

H-1B Unpaid Leave or Time off

Authored on: Wed, 07/31/2019 - 02:10

Question

I am working on H-1B for Employer A. I want to switch jobs and need a study time for about 3-5 weeks full time. I was thinking if I could go an unpaid leave from my current job for 5 weeks, and use this time for my preparation? It gets tricky as I cannot tell my current employer the actual reason for my intended leave. How will my H-1B status get affected due to this? Can I be in the US during this time? If yes, under what conditions?

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.

Traveling While H-4 and EAD is Pending

Authored on: Tue, 07/30/2019 - 03:23

Question

Wife's H4 change of status application (I-539) and EAD (I-765) filed concurrently and in process. Can she travel outside country, get H4 visa stamping done and reapply separate EAD (I-765) again?

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.

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

Authored on: Tue, 07/02/2019 - 03:06

Question

At present I am working in OPT ( expires in June 2020). I have an unused stamped H1B visa which I got in August’ 2013 and my visa stamped in my passport on August,2014. However I never traveled/ worked with this H1B visa and expired in October’2016 without using or entry. I came to USA in January’2016 in F1 Visa. My question is can I use this unused stamped visa for cap exempt as transfer of employer from F1 visa to H1B visa now? or do I need to apply in Master’s cap next year.

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.

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

Authored on: Mon, 06/24/2019 - 03:39

Question

Situation:
Resigned company A already and Got offer from employer B and applied H1B transfer(premium processing) but received RFE. But I have another offer from Employer C as well who is yet to file my h1b transfer
Question:<br>
1. If RFE is denied for employer B Can i join employer C with the receipt notice as Employer C has started H1B transfer by that time ?<br>
2. How long one can stay in US without job/payroll having H1B ?

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.

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

Authored on: Mon, 06/24/2019 - 03:21

Question

I am already on a cap-exempt H1b working for a non-profit full time. Another employer filed my H1b petition on the cap-subject quota on april 2018 and got an RFE april 2019 and was denied with a reason for maintaining of status. They asked my paystubs from my current employer. My questions are:<br>
1. will there be any impact to my current H-1B?<br>
2. If they only ask for paystubs, can I submit them and initiate motion to reopen the case? what are the possibilities of success.

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.

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

Authored on: Tue, 05/28/2019 - 07:58

Question

1. I got my H1b approved for a period of one year only and expires on Oct 27th, 2019. I work through a consultancy. Any precautions I can take in the future which can help me getting the H1b approved for 3 years in the upcoming H1B extension after Oct 27th, 2019. <br>
2. Any particular documents needed for getting the H1b approved for 3 years?<br>
3. If I go for stamping, do I need to be careful with social media at the port of entry? Any tips or recommendations you can give with reference to social media during port of entry? <br>
4. My EB2 priority date is Feb 4th, 2015 and I'm planning to marry a girl who is a Nepal citizen and she's on OPT right now. Can I move my priority date to EB2 Nepal category after marriage? If yes, what would be my next steps - how soon can I file for I-485 interview?

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.

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

Authored on: Wed, 05/15/2019 - 06:31

Question

1. I am currently in H1-B more than 10 years in the USA and I have approved I-140 priority date Mar 2011 - EB2. My current employment is getting over in 3 weeks. And my current H1-B and I-94 expires in mid-August 2019. My question is if I am not able to find another job within my H1-B and I-94 expires on Mid August 2019. What are the options available for me to legally stay in the USA after my H1-B and I-94 expires? I have own house. Is there an exceptional case we can file GC EAD? <br>

2. Without a job how many days i can stay in USA before my I-94 expires using I-140?

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.

H-1B furlough or temporary lay off

Authored on: Tue, 05/07/2019 - 04:39

Question

1. I am a dentist practicing in California, was working for FQHC ON H1 since 2017. I got temp layoff. As per HR they said placed on unpaid leave. My present status OK or am I on my 60 day grace period?
2. H1 Visa expires JULY, I was told they cant renew my visa until I return to work . How soon or late I have time to apply.

Answer

Watch the Video on this FAQ: H-1B furlough or temporary lay off


Video Transcript


1. First of all the 60-day grace period only begins if you have been terminated from employment. More important for your purposes is that they have to tell you (doesn't have to be in writing) that they are terminating your employment. If they don't tell you they have failed to terminate your employment, so there's no question of a 60-day grace period. You can file a complaint with the Wage and Hour Division (WHD) - US Department of Labor. They will get the money for you. 

2. In order to continue working and be in status your H-1B must be received by the USCIS before your current H-1B expires so your deadline is to get the  physical filing over to the USCIS before your current status expires. 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.

Multiple Years of CPT

Authored on: Thu, 04/25/2019 - 01:35

Question

My employer has filed my h1 and asked for a change of status with H1 filing and got an RFE(As i am filing from CPT-F1 to H1) relating to
--Maintenance of Status<br>
--CPT Related<br>
--Multiple years of CPT at the same Education level<br>

The lawyer is asking me to change from Change of status to Consular Processing and go to India and stamped and come back.

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.

Filing Employment Based Green Card While Living Outside USA

Authored on: Tue, 04/02/2019 - 10:44

Question

I am currently located in India and working as a Technical Architect in software MNC. I had a prior H1B valid from Feb 2008 till Dec 2014 which was sponsored by my previous company and has about 17 days left in it to complete a total of 6 years. After this I have joined a new firm, so wish to know if my current company or a new company can file for a Green Card while I am still in India. If yes , what is the way forward?

Answer

Watch the Video on this FAQ:

Filing employment based green card while living outside USA

Video Transcript

The answer is Yes. Any company as long as it is done in good faith to hire and to be hired, they can file your green card while you are living 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.

 

 

Getting H-1B Extensions Based on of I-140 Approval of Spouse

Authored on: Tue, 03/26/2019 - 05:11

Question

My wife's I-140 was approved and I was also on her I-140. My non-profit employer also filed my PERM and is pending with USICS. If I have to switch employers before my I-140 approval and pending 180 days, I am assuming that my new employer would have to file my GC all over again. Given that I was on my wife's I-140, will I be eligible for H1 extensions after my 6yr period if I don't have my own I-140?
Also, can I change employers and my job roles once I have my I-140 approved and pending for 180 days?

Answer

Watch the Video on this FAQ: Getting H-1B extensions based on of I-140 approval of spouse

Video Transcript

The answer is Yes. If you leave before the I-140 is up, before the PERM is approved, you will not get anything out of that process. If you leave after I-140 approval you will still have to start your green card all over again, but you definitely carry with you, your priority date. On top of that you may also be able to carry in the right to extend H-1B with any employer as long as the I-140 was approved and stayed approved for 180 days. After that, even if it is revoked by the old employer your rights are not disturbed. 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.

 

Travel While Change of Status Request is Pending - H-1B Related

Authored on: Fri, 03/22/2019 - 02:05

Question

I was planning on going to India for vacation (after I graduate, before I start work) and I had some questions about whether that would be alright from an immigration stand point. My lawyers are filing my H1B visa application this April; would there be any potential issues with the application if I was to leave the US in May/June?

Answer

There are multiple issues involved in traveling.

First, if someone travels while a change of status request is pending, they will have to obtain a visa stamping or reapply for an H-1B for change of status to activate the H-1B on or after October 1.

Second, getting visa stamping is by itself a highly uncertain process that could take from days to months. The consulates reopen and dissect the entire H-1B case from the ground up and try to find any reason they can to deny the case.

H-1B Employer Deducting Money From Salary

Authored on: Thu, 03/14/2019 - 03:48

Question

My previous employer deducted half of my monthly salary and put deduction under loan in salary sleep. I never took any loan from him or never signed any document. Previously he asked me to pay all H1b expenses in email which i refused and seems like he has deducted amount as retaliation of my resignation. Can he take bonus back as loan(deduction he mentioned in salary slip as loan) from my salary which was given to me in 2016 and 2017? if he can then I don't have anything to claim.What are my legal options considering I never took any loans? is it worth fighting him considering my H1b status and can he harm me with my status or application (which he intend to do as he said in 1 to 1 meeting) ?

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.

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

Authored on: Mon, 02/25/2019 - 03:52

Question

I had an approved i140 from employer A for over a year. And my wife has her H4 and EAD approved recently (employer A).
In between, I switched to a new employer B and they have filed her H4 and EAD together with my H1b application. Currently her H4 & EAD is pending from employer B, but my H1b from employer B is approved. my i140 with employer B is not started yet but previous employer i140 was approved for more than 180 days. In this scneario, can the H4EAD approved with my previous employer A's i140 can still be used/valid?

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.

 

 

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

Authored on: Fri, 01/18/2019 - 08:18

Question

My H1 Extension is in progress since Apr 2018. My 240 day work authorization period is expiring on Jan 15th. My employer will put me on Loss of Pay after that. My questions are :<br>

1). If I plan to wait for a decision on H1 extension, will I go out of status after Jan 15th and be staying illegally ?<br>
2). I have approved I140. Can I go back to India and apply H1 extension from there (in case this extn gets rejected), will this be considered cap exempt ?

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.

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

Authored on: Tue, 01/08/2019 - 03:51

Question

1. I have approved I-140, on 7th yr of extension and my current H1B Visa and I-94 valid with emp A until dec 31,2018 based on my latest approval I received in Nov 1st week.
I have another 1 month to apply for an extension and I am requesting my employer to apply in premium processing.

1)If my extension is applied in Premium before I-94 expiration but pending beyond my expiration date 12/31/2018,
I will be 'out of status' even though 'authorized to stay' until decision is made. Is this correct that this may affect my future H1bs in case it is denied
and attract NTA(notice to appear) in future because of my 'out of status' from date of expiration to date of denial or while leaving the country upon denial.<br>
2. Is it better if I leave the country on the last day of my I-94 expiration(Dec 31, 2018) while my H1B extension is pending in order to avoid 'out of status' or 'unlawful presence' scenarios by staying here.
If I leave the country while extension is pending in above scenario, is it possible for me to go for consular processing, get VISA stamped after it is approved and enter the US legally?
or
is h1b extension is considered as abandoned?

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.



Continuing Employment-Based Green Card While Moving Outside the USA

Authored on: Mon, 01/07/2019 - 03:58

Question

I am exploring an option to move to Canada temporarily in order to save my Canadian PR. My PD date is March 2012 and have an approved I140. Currently my H1B extension based on approved I140 is in process and hopefully it shall come soon and will be good till Feb 2022. Plan is to move to Canada after H1B approval and H1B visa stamping from India. <br>
Questions<br>
1. If Priority date becomes current during my stay in Canada then what are my options.<br>
2. If Priority date does not become current and I tried to enter US after staying for more than year outside US. Two situation could occur H1B extension (I797) is still valid (before Feb 2022). Will I be challenged at port of entry whether i am going to perform the same duties as mentioned in I-129.<br>
3. To convince them on job responsibilities will the letter from employer be sufficient Or need something else?<br>
4. Recent pay stubs shall also be helpful to prove my continue employment with my same employer ?
5. H-1B extension (I-797) is expired (after Feb 2022) OR because of some reason I have to file new H-1B extension to enter Can i use my approved I-140 to file new H-1B extension(or claim the H-1B period) and that will be cap exempt ? OR I have to file new H-1B petition and re-enter the lottery.

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.

The New Restriction on 12 Months of CPT OPT Combined – – Consequences of H-1B Denial on OPT

Authored on: Tue, 12/04/2018 - 03:18

Question

I am currently on F1 visa and working on CPT. My H1 petition was picked in the lottery this year and status changed to RFE 2 weeks ago. I wanted to know if August 9 unlawful presence rule applies in my case i.e; if I get a response for RFE after Feb 4 2019, that completes 180 days.

Answer

Watch the Video on this FAQ:

The new restriction on 12 months of CPT OPT combined – –

consequences of H-1B denial on OPT

Video Transcript

In my view you are still on OPT and to activate your H-1 you have to either refile for change of status or go outside the USA 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.

Traveling Abroad While H-4 EAD is Pending

Authored on: Wed, 11/21/2018 - 10:33

Question

I changed my job from company A to Company B. H1,H4,H4 EAD is approved for company A. I moved to company B and my H1 change of employer is approved. While H4 is pending with company B. Can my wife travel to India and apply for H4 visa stamping in India?

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.

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

Authored on: Tue, 09/18/2018 - 03:20

Question

I have an H-1B visa stamped from employer A and the employer B has filed my H-1B (Transfer visa) based on the H-1B petition visa from employer A. Now, my H-1B visa filed by employer B is on RFE and my employer A wants to file the GC based on my previously approved i-140 from employer C. Below are my questions: <br>

1. Can I reject the offer from employer B and still continue to work with employer A on current Visa if my H-1B from employer B is approved?<br>
2. Can I reject the offer from employer B and still continue to work with employer A on current Visa if my H-1B from employer B is denied?<br>
3. In case my visa from employer B is rejected do I need to leave the country and come on the stamped visa which I have now?<br>
4. Can I ask employer A to file my Green Card even if my H-1B from employer B is rejected or approved without any issues or do I need to provide any visa documentation to employer A on my petition from employer B being approved or rejected?
Can I immediately file the Green Card with employer B (after joining the employer B office) if my visa from employer B is approved?

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.

H-4 EAD Based Upon Prior Employers

Authored on: Mon, 09/10/2018 - 05:15

Question

I am currently working with employer A on H-1B visa with I-140 approved for over 180 days. My wife is on F-1 EAD. I am planning to move her visa status from F-1 to H-4 EAD AFTER I join Employer B next month based on my approved I-140 from my employer A. <br>

My questions are:<br>
1. Once I join employer B, will I be able to apply for my wife's H4 EAD based on approved I140 which I have from employer A? Can I apply both visa status change (F1 to H4) and application for H4 EAD concurrently?<br>
2. In other words, will changing my employer impact my wife's eligibility to get H-4 EAD based on my approved I-140 from previous employer?<br>
3. Can I change multiple employer based on I-140 approved from employer A? If yes, what if employer B has already started green card process (PERM)?<br>
4. If I get I-140 approved from employer B also then what will happen to I-140 approved with employer A?

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.

 

 

 

The Impact of the NTA Memo

Authored on: Tue, 08/21/2018 - 23:47

Question

Under new deportation and denial policy 2018, I have following questions if I want to renew green card after 10 years. Can green card renewal I 90 be denied because of some common errors like forgot to submit copy of old green card, or any court document ( removal proceedings canceled without prejudice). Will I get deported if GC is denied due to minor administrative error?

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-ju…

 

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.

 

 

 


Travel Outside The USA When A Case Is Pending

Authored on: Thu, 08/16/2018 - 08:26

Question

1. I moved from client A to client B in June. My employer filed an amendment for me now. I have my current H-1B till September 2020 when I'm with client A but my visa stamping expired last year. Can I travel while my H-1B amendment is pending?<br>
2. As my visa got expired, I have to get it stamped again. For that, should I have to go for interview again or can I do it by Dropbox?<br>
3. What will be the case if my amendment is still pending. What will be the case If my amendment is approved by then​.

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.

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

Authored on: Tue, 08/14/2018 - 08:54

Question

I am currently on my CPT(masters student) & working as full time employee in Cincinnati, OH. I would be converting to OPT in Dec,2018. My employer is fine to file H1B for the next year. My current pay is b/w 60k-65k/annum. I heard that min wage should be 65K for H1B. And even if H1B is picked, there could be chances of rejection at the time of RFE. Will the wage between 60k-65K is ok or should it be more than 65K? I have gone through couple of other websites to explore on this. According to FLCDataCenter.com, I gave Ohio, Cincinnati(Hamilton county) and occupation as software developers, applications--it displayed 4 different wage levels. My current pay falls close to Wage Level 1 but above 60K. would it still cause any issue for H1B? Could you throw some light on this.

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.

Specific Issues In The Trump NTA Policy For Denials

Authored on: Tue, 08/07/2018 - 05:54

Question

I am in USA on work visa (11+ years with same company), I-140 approved from Feb 2011. My current H1 is valid till 8/20/2018, my company already applied for extension on 04/12/2018 under normal processing. If Extension denied after 8/20/2018, in how many days we have to leave USA? In how many days they will send NTA notice?

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.

Applying for H-4 Status While on Parole

Authored on: Tue, 07/31/2018 - 06:40

Question

I have I-140 and I-485 pending. H-1B ended on May 2018 and applied for extension which is pending.
Spouse entered US under parole status and is valid till December 2018, H4 visa has expired in May 2018
Can spouse apply for H-4 extension after approval of H-1B extension? If so can it be done from USA or have to travel abroad for H-4 visa stamping?

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.

H-1B Petition Revocation During Visa Process/Reaffirmation

Authored on: Fri, 07/27/2018 - 04:37

Question

I had my H1 visa extension stamping appointment on Feb 21, 2018. Initially it was put under Administrative Processing and later on May 23rd my petition was send back for revocation. As per the inquiry with embassy they told me that "Based on the documents you submitted and the information elicited in your interview with a consular officer, you were determined ineligible for an H1B work visa. Your petition was returned to the Kentucky Consular Center (KCC) on May 24. Currently H1 status website shows KCC received the application on June 8. Once KCC receives a petition, it is returned to the approving USCIS office for review and possible revocation. At this point, USCIS can either reaffirm the petition or issue a notice of intent to revoke it. What are the options available with me now?

Answer

Watch the Video on this FAQ: H-1B petition revocation during visa process/reaffirmation

Video Transcript

In a case where you got your H-1B approval but you have travelled outside the USA and you need a visa, you go to the US consulate for visa stamping. They put you in administrative processing and discover something which often is unjustified frankly and sometimes can be justified, gives them some reason to send the case back to the USCIS saying that the case needs to be revoked and that can take a few months (5-6 months). Then USCIS will issue a notice of intent to revoke which would be sent to your lawyers as well as to your employer that says we found out this information through the consulate and it looks like this case needs to be revoked. You have 33 days to respond to USCIS and justify why they shouldn't revoke it. Once the employer responds to it and if USCIS finds out that the case is really approvable and the consulate is mistaken, they reaffirm the case and send it back to the consulate. This whole thing can take months and even a year.

The option would be to file another H-1 through another employer or with the same company  that is if this was not a quota H-1 and there is no fraud, etc., involved. 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.

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

Authored on: Fri, 07/20/2018 - 00:47

Question

I am in USA on my work visa from June 2007. My Current H-1B is valid till 08/20/2018, I have applied for Extension on 04/10/2018 (I-140 valid from February 2011). I have one US citizen kid and one H4. For any reason if I got RFE after 08/20/2018, can I apply for H- B transfer with other employer? If yes, do I need to go outside of Country and re-enter on new H-1B with visa stamp?
<br>
Since I am leaving in USA legally from 11+ years, for any reason if H-1 extension denied. Can I apply for Asylum or another category where I can continue stay in USA (I am talking about apply for “Relief from Deportation under new Supreme Court Decision.)

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.

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

Authored on: Tue, 07/17/2018 - 22:45

Question

I was moved from Company A to Company B on Sep 2017 on the basis of receipt notice but now on may 14 2018 i got denial notice for Company B & they immediately told me to stop working. My H1B got denied because of specialty occupation. My Company B again refile my H1B on premium but on 18th June 2018 again there is RFE on Specialty occupation..my company is planning to reply RFE but I don't know how much time they will take. So now my question is if my this new petition also got deny due to Specialty occupation then how many days i will get to leave from USA

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.

Changing Jobs While H-1B RFE Is Pending

Authored on: Thu, 07/12/2018 - 07:09

Question

I have question for H1 transfer. I am working in USA from 2006 and changed 2 employers till now. My current H1B petition is valid till June 27,2018. I have my labor and I 140 approved with EB2 priority date of April 2010.I am working as contractor to the client in Bay area, California and employer is based in Ashburn Virginia. I joined this client as contractor in April this year so my employee filed H1B extension and amendment together in April. We moved this case to premium in early May and USCIS sent RFE on my case. My company attorney is working on the documents i submit for RFE response. My contract is only till August and I received client letter which states the same end date with further possibly of extension.

This client wants to hire me as their full time employee. I have offer from another Healthcare client , however I am not sure if I can transfer my H1 to the new employer/client when RFE with the current employer is in process.

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.

Can An Employee Withdraw An H-1B Petition?

Authored on: Wed, 07/04/2018 - 03:36

Question

I'm working on H-4 EAD with company A. Company B filed for H-1B for this year and it was picked in lottery but no decision made yet, now I don't want H-1B and asked company B to withdraw the H-1B and he agreed to it and shared the H-1B withdrawal letter along with the I-129C notice. Just to make sure that the petition is withdrawn without any issues, can I also post the same letter again to USCIS with company's from address on it?

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.

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

Authored on: Wed, 07/04/2018 - 02:21

Question

I am currently on L-2 EAD (since Jun 2017) and work for Employer A. Can my current employer (Employer A) file for my Green Card ?

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.

Changing Jobs After I-140 Approval

Authored on: Wed, 06/27/2018 - 04:26

Question

I have the following questions<br>
Can employer A revoke my current I-140 after I change my employment?<br>
Can I keep getting my visa renewed with Employer B based on my current I-140 with Employer A until Employer B initiates my GC processing?<br>
Does the hike in pay and change in roles in any way affect any of my future GC filings with Employer B?

Answer

Watch the Video on this FAQ: Changing jobs after I-140 approval

Video Transcript

When your I-140 is approved your priority date is yours to keep even if you leave that employer the very next day and go and join a totally different job. It does not matter if the job gives you a higher salary or a lower salary or has a completely different job profile because all you are carrying forward is your priority date. So when you want to carry forward your priority date what you do is you take your I-140 with you. In addition to that once the I-140 is approved and stays approved for 180 days not only you carry on your priority date, you also carry the right to extend your H-1 through any employer and there is no limitation on 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.

Legal Stay to the Parent of US Citizen Child With Disability

Authored on: Thu, 05/24/2018 - 03:54

Question

My spouse and me are staying in USA since last 10 years on work visa H-1B. We have our second daughter born in 2016 who is facing neurological disability which requires long term care and constant therapies. Current scenario is my husband's H-1B has denied and couldn't get back to USA. I am here in USA with my both kids on B2 Visa. My both kids are US Citizens. Is there any legislation which can provide legal stay to the parent of child with disability in the USA?

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.

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

Authored on: Tue, 05/22/2018 - 08:11

Question

I have my I-140 approved in 2015 and its beyond 180 days now with Employer A.
<br>
If I move to Employer B
a) Consider that Employer A revoked my I-140<br>
b) Please help to confirm will it possible to get multiple extension with previous 180 approved.<br>
c) Even if Employer B doesn't file a Green Card (Labor then I-140)... Can I get multiple extension with Employer A approved I-140

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.

Child Turning 21, Immigration Consequences for Pending Green Card Cases

Authored on: Wed, 05/16/2018 - 10:20

Question

I am on H-1 Visa and my son is on H-4 visa. He is 17 years(studying 11th grade). I wanted to know whether i need to change the visa status at the age of 21. If so, the green card processed by my employer for him will still be valid or not. Also, if he goes to India for studying his degree for like 4 or 5 years, will the green card processing for him will be valid.

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.

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

Authored on: Thu, 05/03/2018 - 13:09

Question

I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions:<br>
1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit?<br>
2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org?<br>
3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs<br>

a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?)<br>

b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1<br>

c.applying for concurrent H1b<br>

d. Moving on to H4EAD and filing a H1b next April<br>

e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

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.

Leave Without Pay for H-1B / Status

Authored on: Thu, 04/05/2018 - 08:49

Question

I wanted to know if an H-1B employee can go on Leave Without Pay (LWOP) for lets two months and still maintain a valid status? Further to the question, under what circumstances/situations can a employee working on H-1B visa take Leave of Absence for couple of months, stay in United States and not have his immigration status affected?

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.

180 Rule for Priority Dates/H-1B Extension

Authored on: Thu, 03/29/2018 - 05:21

Question

I have quick question about the mystery behind 180 days staying with the Employer with whom my I-140 is approved. So my I-140 is been approved with priority date as Dec 2014 and the Notice date is Nov 2017. Do I have to wait for 180 days/ 6 Months from the Notice date of Nov 2017 so I will not loos the Priority date when I move with new employer?

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.

 

 

 

Jobs that Qualify for an H-1B Visa

Authored on: Thu, 03/22/2018 - 09:52

Question

I am an international student and recently working for an organization. Please let me know what job title, position, salary, and other requirements I need to get for applying for working visa. Since my organization is really willing to help me and is ready to adjust with my position title and other things. Education: M.A Global Development and Peace, specialization - International Political Economy and Development

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.

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

Authored on: Tue, 03/20/2018 - 03:26

Question

1. While I am moving my H-1 New Employer B, What if something goes wrong during H-1 transfer or after that in GC processing with new employer like RFEs etc comes up, can I move back to employer A if employer A is willing to take me back. Does AC 21 portability rule applied to my case also? Since I have not filed I-485 yet, as per my understanding this rule does not apply to me. While my GC is in process with new Employer B and I am in waiting mode for I-140 approval with new employer, What will happen if my time to extend H-1 petition comes up.
<br>
2. Can I still extend my H-1 with new Employer even if I-140 with new employer is in process and not yet approved. Can I use my old Employers approved I-140 to extend my H-1 in this situation.

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.

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

Authored on: Tue, 03/20/2018 - 02:42

Question

I was on H1 before completed all 6 years on it and converted to H4 and working on H4 EAD now. With latest court update, USCIS may decide to end H4 EAD program or stop new applications in next few months( we still do not know the final outcome). My EAD expires in November 2018 which leaves me no option of applying renewal before May 2018 ( 180 days clock). If this EAD goes away will I be able to file fresh H1 in April 2019 ? If in next couple of months, my spouse decides to switch Job based on his approved I-140 then my H4 will also need to transfer/extend. At the same time, will I able to extend my EAD at that time or I still have to wait to fall under 180 days expiry clock based on my current November 2018 EAD expiration date.

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.

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

Authored on: Thu, 02/22/2018 - 02:27

Question

I am a staff in University of Pittsburgh and still have 3 more years to complete 6 yrs of my H1B. H1B sponsorship is an issue for me getting a new job.<br>

1) When I apply for a NIW -EB2, can I simultaneously apply for I140, EAD, 485 simultaneously?
<br>
2) Although the green card date for Indians with EB2 is not current, can USCIS approve my EAD much earlier ( may be within a year) compared to approving 485 which might take several years?
<br>
3) Further can I use that approved EAD to change jobs by bypassing H1B sponsorship?

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.

Can I Get H-4 Visa Stamping While the H-1 to H-4 Change of Status is Still Pending?

Authored on: Mon, 02/19/2018 - 03:41

Question

H1 to H4 COS pending from Jul 14 2017. I94 expired Nov 2nd. H4 to B2 applied on Oct 31 2017 as per our attorneys suggestion due to some delay with spouses visa. Spouse's H1 is now approved. I would like to get my H4 as soon as possible and apply for H4 EAD. Can I go to Canada/ any close by country and get my H4 stamping done while the petitions are pending or wait till H4 is approved? or going to India is my only option

Answer

Watch the Video for this FAQ: Can I get H4 visa stamping while the H1 to H4 change of status is still pending?

Video Transcript:

Absolutely no problem at all. You can go to any country of your choice, no harm done. Remember for H-4 stamping a prior approval from the USCIS is not needed. You walk in with your spouses H-1 approval and that's how you get your H-4. 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.

H-1B or Other Status Denied - What is my Status?

Authored on: Wed, 02/14/2018 - 11:26

Question

My I-94 expired on Dec 13th last year. Company filed for extension but RFE....now i will be laid off on Feb 9th and my company will not file for RFE response. How many days do i have to leave the country? Do i need to leave immediately on Feb 9th or can i leave by Feb 13th or 14th ? Will 5 days of out of status impact my future applications ? Also another company has offered me a job. If they file for H1B do they have to do it after I leave the country or can they start it and i can leave in between and do Counselor processing?

Answer

Watch the Video on this FAQ: H-1B or other status denied - what is my status?

Video Transcript

Basic Concepts to be in Status

To be in Status means you got the right kind of I-94. For example, if you are on H-1B and you have got an H-1B and I-94 which is unexpired and a proper approval from the USCIS to work for that employer at that location and you get paid and you are doing the work that you are supposed to be doing. So Status is a combination of immigration permissions as well as the work you do in the context of H-1B. In the context of F-1 it is the study that you do, so you could have an F-1 approval on paper, but you are not attending school, you are out of status or you could have an H-1B approval with an unexpired I-94 but you are not approved to work at the location you are working.

Therefore, it is a mixture of immigration permissions and the activity which is permissible and expected under the immigration permissions.

Then comes unlawfully present. This is a very complicated concept. Unlawful presence is dangerous because 180 days of unlawful presence will make you ineligible to enter the United States for three years. One year of unlawful presence will make you ineligible for 10 years. Now typically the unlawful presence begins with I-94 expiration or a finding by the USCIS or by an immigration court if you are in proceedings in deportation etc... that you are out of status and unlawfully present. That's the date your unlawful presence will kick in. This is a very complicated concept.

So when you are not doing the activity or don't have the proper legal permissions you could be out of status and unlawfully present that's the third concept and the fourth concept is authorized period of stay. This is in between status. You are allowed to stay in the United States, but you cannot convert from one status to another, from authorized period of stay to status. An example: lets say you were on H-1 and you filed for I-485 Adjustment of Status you let the H-1B expire you working on EAD you are in an authorized period of stay. If you want to go back to H-1 you cannot do a conversion or a change of status from Adjustment of Status to H-1. You can get an H-1B approval, but to get this status you have to leave USA get a visa stamp and come back because authorized period of stay is not status. 

These are very important. Please share them with as many people as you can especially in today's environment when Trump administration is in my opinion illegally denying a lot of cases. More...

 

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Transferring H-1B While an RFE is Pending

Authored on: Tue, 01/23/2018 - 01:22

Question

I am working as a consultant for big client. My employer applied for my H1b extension and received an RFE, they have recently replied for my RFE and now waiting for the decision. Now my client offered me job and ready for transfer my H-1. My questions is : is it possible to transfer H-1 during RFE?

Answer

Watch the Video on this FAQ: Transferring H-1B while an RFE is pending

Video Transcript

Yes of course, but in a situation where your company applied for your extension, let's say six months ahead of time and in the second month they got a RFE, its pending now, but you still have four months on your original H-1 still left during that time you can transfer there is no question. But what if your status has expired and the extension is pending you can still transfer, but you may have to go outside for visa stamping if on the date your transfer is approved or extension is not already approved. More...


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

Authored on: Mon, 01/22/2018 - 23:29

Question

1. I have completed 6.9 years on L1A and move to H4-EAD based on my wife’s approve I-140. Now H4 EAD may go away. What option do I have to stay here and continue working (even after gap of a few months if needed) or I need to go out of US for at least 1 year and come back? <br>

2. I have already completed my 6.9 years. Can company apply H1B for me in April 2018 and I can come back to US after spending 1 year outside. I believe H1B can be applied only 6 months prior to joining that job. But I can’t start working from Oct 1st as I already completed 7 years without pending GC labor/ I-140. In that case I can apply H1B only in April 2019 and start working from October 2019?

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

 

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

Authored on: Wed, 01/10/2018 - 08:29

Question

I am on H1B visa and was charged with DUI(1st off, no injuries, no aggravating factors) on October 29th,2017 at 2:30 AM in Harrisburg,PA. Took breathalyzer test and also the eye test was taken. After that I was taken to the booking center for bio-metrics and blood test. After 3 hours I was allowed to go home.
I have been charged with the following:
Gen Imp/Inc of Driving Safely - 1st Off 10/24/2017
DUI: High Rte of Alc (Bac.10 - <.16) 1st Off 10/24/2017
Obedience to traffic control devices - hazardous condition 10/24/2017
What should be the next steps to be taken. Also how and what can be done to reduce the charges?

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...


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

Authored on: Tue, 01/09/2018 - 08:20

Question

I am on H1B visa in US from 2008 with employer A, and i have I-140 approved in 2011 from Employer A, Now in 2017 i am planning to change my employer to Employer B.
My question: Scenario 1 : If say Employer B doesn't sponsor/start my GC/I-140 in 3 years, can my employer B use Employer A's I-140 to renew n number of times ?
Scenario 2: If I didn't like employer B in future and they have not sponsored or started my GC/I-140, can i switch to Employer C ,using Employer A's I-140.
Scenario 3:If I didn't like employer B in future and they have not sponsored or started my GC/I-140, then I switch to Employer A ,using Employer A's I-140 .. now do employer A again has to restart GC/I-140 ?.
Scenario 4: How much of over lap of dates of employment can happen b/w Employer A and Employer B.

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...

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H-1B RFE For Specialty Occupation

Authored on: Tue, 12/19/2017 - 06:55

Question

I have received a specialty Occupation RFE. As part of the RFE I am asked to provide:<br>
1." Industry letter from other similar companies as yours" - Can you please suggest what is expected here, is a letter required from my manager or a client or some other company.<br>
2. Percentage of time spent on each duty" - I work on multiple projects and also on some internal projects. I work as a full-time employee and work in client locations as required during conducting workshops, training etc. I do not work out of client locations.How do I split the tasks?<br>
3. "level of responsibility" - what is expected here

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...

 

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Erroneously Given Longer Duration On H-1B Than Eligible

Authored on: Tue, 12/19/2017 - 06:13

Question

I'm completing 6 years on H1B on 14-Jan-2018 and I have a visa stamped with the same date from my previous employer on my passport. When I changed job on 24-Jan-2017 I received an approved I-797 with an expiry date of 14-Mar-2019. I'm not sure if there was an error from the employer or attorney while filing or while approving the application. Now I have an approved I-797 with an additional year which would mean 7 years on H1B at a stretch. I'm planning to visit India with my wife (on H4 visa) next month for a couple of weeks and return back before the visa expires on my passport. Also, I'm thinking of not getting the new visa stamped on my passport and just show the approved I-797 to the officer while entering the US. Do you see any problem or issues if I do this?

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...

 

 

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

Authored on: Thu, 12/14/2017 - 02:55

Question

I entered the US in 2014 on L1A, then changed employer mid-2015 on H1(previously held petition). In 2017 again changed employer in a role equivalent to International Manager. Can my current employer file my Green Card under EB1 category?

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...

 

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When Does One Become H-1B Cap Exempt?

Authored on: Wed, 12/13/2017 - 02:56

Question

I have read that in some cases of H1B as follows "They had H1 petition and H1B visa was stamped in 2012 but they never traveled to the US on that. And when a new employer applied for a cap-exempt H1B petition in 2017 they got it approved with change of status to H1 in May 2017...Whereas in my case I also didn't use this H1B visa and I even didn't travel to US i.e. My employer filed H1B in 2016 which got approved in Sep 2016 and after my resignation, they revoked H1B in Nov 2016 (which is > OCt, 1 2016), but I got a Denial. When contacted few attorneys they said I may get "Approvals" Or "Deny" in such cases, nowadays its more of details saying I am NOT cap exempt?

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...


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

Authored on: Mon, 12/11/2017 - 04:06

Question

I'm an Indian citizen on an H1B Visa. I'm an engineer. My Green Card is being processed and my I-140 . Being an EB-2 category I"m assuming that it is going to take anywhere between 5-8 years before I get my green card. The Situation: I'm planning on taking a work break for about 6 months to 1 year and do a few things that I've wanted to do but have been pushing indefinitely (like volunteering with a non-profit, spending time with my family, exploring options to start my own startup etc). I'm assuming there are 2 scenarios here - 1. My company gives me a sabbatical leave - I can leave the country for a year and come back and rejoin them. 2. My company refuses a sabbatical and I have to quit - In this scenario, I'm not sure what I should do in order to be able to come back after my break and still be able to work for any company? I would really appreciate your insights on this situation and would be glad to accept any pointers from you to research this further.

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...

 

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

Authored on: Mon, 12/04/2017 - 07:42

Question

In case of H1 transfer denied what other options one can have ? [provide that has 140 approved since many years]<br>
1. Can new H1 transfer with new employer can be initiated ? 2. Can one can apply for B1 [Visitor Visa] and remain in USA for valid period ?

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...


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

Authored on: Mon, 12/04/2017 - 07:23

Question

1. My H1B is valid until 23-Aug'18. I am planning to submit visa extension request on Mar'18. let's assume if USCIS reject my extension request in Apr'18, then, in that case, can I stay till 23-Aug'18 as per initial approval or rejection will supersede and I have to level immediately (within 60 days of time from denial date)<br>
2. Does H-1B extension denial invalidate an existing H-1B?

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...

 

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Doing Business on H-4 EAD

Authored on: Thu, 11/09/2017 - 06:47

Question

I am on H-1B and my spouse is on H-4 EAD. She got her EAD last year. She would like to do online business where she will sell items online on eCommerce website like ebay, amazon, etsy. These items will be shipped from India. I would like to know if she can do such online business where the items are going to be shipped from India.

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...

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Denial of H-1B on Level 1 Wage Issue

Authored on: Thu, 11/09/2017 - 06:36

Question

1. I have joined a company based on H1b transfer receipt and have got RFE of LCA wage level 1. If, by any chance, the petition gets denied then can the same employer file for new h1b transfer with LCA wage level 2, right after the denial? <br>

2. Is it advisable to find another employer and start a new h1b transfer processing while the current one is still under RFE received/response status?

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 

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

Authored on: Thu, 11/09/2017 - 06:19

Question

I am staying here in the US from last 4 years 10 months and have I-140 approved (Received approval Jun '17). To fulfill personal commitments, I am going back to India in Dec '17 for some time however my H1B extension is still in progress (Filed in Aug '17). I am not sure whether the result will be out before my travel.
My question is -<br>
1. If I change the employer in India, is there any way I can come back? What all options I will have?<br>
2. Can my new employer eligible to transfer my H1B from India in case current extension gets approved or RFE or Denial?

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...

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

Authored on: Fri, 10/27/2017 - 05:05

Question

I was on H-4 visa from Feb 2014 till Dec 2015. I was on H-1 visa from Dec 2015 to April 2017. In April my H-1B transfer got denied. Hence I applied for change of status from here (April 15 2017) and now my H-4 application is under process. In Dec 2016 (while I was on H-1B visa), I had applied for GC in EB2 category with my employer. My employer told me that my labor has been approved.<br>
1: Is there a website where we can check the status of labor if it has been approved?<br>
2: When can I file for I-140? Is it true that it has to be filed within 180 days of labor approval?<br>
3: Can my GC application continue whilst being on H-4 visa? <br>
4. Does the GC process, at any stage, require the applicant to be on H-1 visa?<br>
5: I am planning to start Canada PR procedure. Will my GC application interfere with Canada PR at any point?

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...

 

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

Authored on: Wed, 10/25/2017 - 03:34

Question

My H1B (6 years) was from 10/1/2004 - 9/30/2010 from 5 different companies.
Company A - PD(EB3) - Jun 19, 2007, I-140 applied on July 9, 2007, I-485 filed July 17, 2007 - got laid off Oct 31, 2008. - I-140 approved on Dec 29, 2008.
Moved to Canada in July 2012 and became Canadian Citizen in Apr 2017. I have been keeping Advance Parole active by visiting the USA every year.
Now I want to add my family in Canada(wife(Indian Citizen with USA visitors visa) and kid(Canadian Citizen)). Do you recommend AOS for myself and Consular Processing for my family?

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...

 

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Current Immigration/Visa Options for Entrepreneurs

Authored on: Thu, 10/12/2017 - 08:31

Question

What are the requirements to get a visa and green card as an international entrepreneur? Is the start-up visa effective?

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 ...


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

Authored on: Tue, 09/19/2017 - 01:32

Question

Example Scenario: H1-B EB3. Candidate is in US for 10 years and extending his H1-B using approved I-140.<br>
If a Candidate’s Priority Date is Current can the Candidate file I-485 after 4 years of the Priority Date being Current? Is it allowed without problems?
Is there any specific limitation on the timing of filing (like I-485 should be filed within a specific time period after the priority date becoming current)

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...

 

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H-1B Visa Denied and Petition Sent for Revocation

Authored on: Wed, 09/13/2017 - 08:12

Question

I went to the US in May 2014 on H1-B working for Employer A. In Feb 2016, I moved to work for Employer B (small US based company, on other offices) with H1-B transfer receipt.
The new job was remote work, so I started working from home for Employer B. I received RFE in April 2016 and I went to India the same month. While I was in India, the transfer got approved in June 2016 and I came back to the US with the approval notice as proof. My visa was getting expired in Sep 2016, so extension was filed with Employer B. The extension also got approved after RFE and extended till Sep 2019. <br>
Current Situation:<br>
Now, I came to India in Jan 2017 for my marriage. I went for visa stamping in Delhi with my wife (for H4) in Feb 2017. The visa officer asked me about my Role, client, and other common questions which I answered correctly. VO then collected my documents (I-129, client letter etc) and handed me 221(g) letter saying that he needs some time to review the documents. We left the embassy and the wait started.
In March 2017, I received an email from embassy asking for the latest LCA which I promptly provided.
After that there was no response for a few months, and I started working from India in US hours. Since my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process.
In July 2017 (after 5 months), I received a call to collect the passport. On collecting the passport, the stamping was not done and I received a letter stating that my stamping is being refused and visa is sent to consulate for revocation.
This came as a shock. I notified my employer, they were disappointed and did not know what can be done about this case. When I enquired, they said they don't want to spend more resources on this case and are fine with me continue working from India (reduced salary).
<br>1. Is it possible to have the case reconsidered and to know the exact reason for refusal? If yes, how would I go about it without the support of my employer?<br>
2. If this is only for stamping, how long will my extended visa be valid? Can I try the stamping again with this employer or find a new employer from India and use the same visa with them?<br>
3. What happens to my assets (personal stuff, bank accounts, etc) in US?<br>
4. If I can legally work for the same employer, how does it affect my taxes? Do I now pay taxes in India and in US both? Since when I can be considered liable to pay tax in India (when I came to India or stamping refusal date etc)?

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...

 

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

Authored on: Tue, 09/05/2017 - 07:35

Question

I am currently working on H1B visa, My current visa stamping is via my previous employer (Employer A) and valid till September 2017 and my I-797 is via my current employer (Employer B) ,its valid till August 2018.
I have few queries regarding my new H1B visa stamping and I-94. <br>
1. Can I get my visa stamped in CANADA or any other country nearby to USA without revisiting INDIA.<br>

2. Am I eligible for drop box option for my new stamping as my current stamping is via my previous employer.
<br>
3. I can see also my I-94 expiring is September 2017. Do I need to reach out to USCIS to update it, in order to maintain my status.

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.

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

Authored on: Fri, 09/01/2017 - 01:29

Question

I have a question on H1B stamping. I am currently working with employer A. I have visa stamping till Nov 2018 and it shows the name of my previous employer, employer B. I am planning to visit India in the coming month of November 2017. Should I go to visa stamping and get a new visa showing a new employer, employer A? In the past, I have encountered a similar situation and I came back successfully with out getting a new stamp. I am not aware of current immigration law. Have there been any changes in this aspect?

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.

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

Authored on: Fri, 08/25/2017 - 04:05

Question

I have approved I-140 with company A and my wife has her I-140 approved or over 2 years. I'm planning to move to H4 EAD. Can I file for H4 and H4 EAD concurrently? What would happen to my earlier I-140 and also to the GC process if I am on H4?

Answer

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

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

Authored on: Thu, 08/10/2017 - 04:43

Question

My dependents visa stamp on passport expires on Sept 1st 2017 and have valid I-94 till Sept 1st 2017 and this was with the previous employer A I worked for. I moved to a different employer B a year back and haven't filed H4 for dependents with employer B as it was not necessary. Now if my dependents travel to India prior to Sept 1st 2017, do I still need to file for H4 extension or is it good if they attend the interview at consulate in India and get visa stamped on passport without H4 extension using my approved I-797 (till 2019) with employer B.

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.

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

Authored on: Thu, 07/27/2017 - 06:36

Question

I have an approved I-797A with company B valid till 2018 May (attached i94 with same dates). My Visa with Company A valid till 23 Aug 2017 (old passport). I got a new passport in 2015 Dec, which I have applied after moved to company B. I traveled to India in June 2016 and comeback, CBP officer gave me I-94 till 23 Aug 2017 with new passport entry, because of new passport I-94 number changed. My question is I-94 (May 2018) is on my I-797 is still valid or it will valid only till 23 Aug 2017? If valid only till 23 Aug 2017, How to solve this issue with out going out of the country.

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.

New Regulations, Effect on Layoff after I-140 Approval

Authored on: Thu, 07/27/2017 - 05:56

Question

1. I have I-140 approved and its more than 6 months over. My priority date is March 2011 under EB2. At this situation, if my current employer lay me off from work, what immediate step I need to do, in order to legally stay in the USA. ( Do I need to contact my lawyer to change my H1B visa status and my family status to Tourist visa or Can I change my status online or what is the option?). <br>
2) With the new I-140 EAD regulations effective Jan 17th 2017 in place, am I eligible to apply for EAD using "Compelling circumstances EAD", if my company laid me off? As of July dates for filing for EB2 visa application is 01FEB09 , which is more than 2 years wait time for my dates to be current.

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.

Evidence or Documents Created After the Filing of a Petition

Authored on: Thu, 07/27/2017 - 03:21

Question

1. I had my H-1B approved in Feb 2017. I moved to the US after H-1B petition is submitted. My employer filed for COS from H4 to H1 through premium processing in March 2017. Got RFE on COS petition for proffered position and employee and employer relationship. which they have replied to .. And now got a second RFE asking for a combination of following or similar types of evidence: Letter explaining how the Level 1 wage designation LCA that you have provided corresponds to the proffered position. Document to support that the level 1 wage designation on the LCA supports the proffered position.
<br>
2. What are the other options if my COS petition is is denied?
<br>
3. Am I eligible for transfer if I get an offer from the new company?
<br>
4.Is my approved H-1B still valid and cap exempt, whatever is the outcome of COS petition decision?

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.

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

Authored on: Wed, 07/26/2017 - 04:24

Question

Will there be any issue with my I-485 approval? If it gets denied, will my unlawful presence/out of status be counted from the time my I-94 expired? What should be my next steps?

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.

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

Authored on: Tue, 07/25/2017 - 01:30

Question

If I change my employer, given the recent changes to I-140 rules for revocation/withdrawal, can my H1-B be extended again for 3 years, with me providing only the LIN number (which can be verified for an approved I-140 on the USCIS website) towards H1-B transfer to my new employer? Do I strictly need to provide the I-140 approval notice to extend/transfer my H1-B to a new employer?

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.

 

60 Days Grace Period for H-1B

Authored on: Mon, 07/24/2017 - 04:09

Question

My Project with My Client will end soon and my employer doesn't have any further projects and asking me to go back to my home country (India) by end of this month. My Visa is valid till Aug 2017 with extension filed. So I am considering to resign on last day of the assignment. ( no new employer found yet).<br>
1) as per new Rule would I be getting the grace period till my I 94 expires i.e till Aug 2017? Is this correct? ( 60 days grace period rule) Also during this Grace period Can I apply for a Change of Status to another non immigrant Visa - F1? (change to a different nonimmigrant classification.) if yes and F1 filed after termination of employment, will this not be considered as timely filed which can result in problems in the future?<br>
2) if F1 is filed Should I start my classes before I94 expiry date or can I Start in September or should I wait till F1 is approved ( after 90 days from date of filing F1)?

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.

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

Authored on: Wed, 07/19/2017 - 07:16

Question

Recently I got Consular visa, that my I-797 was approved without I-94 so I need to step out of the country to get H-1B visa stamped.
Got laid off from EMP A and took around 55 days for EMP B to file h-1 and now I’m with EMP C. Both I-797's from EMP B and EMP C, I got consular visa to step out for visa stamping.<br>
1. Usually, how much time I have to step out of US for stamping, if I go little after 3-4 weeks what’s the valid reason that I can give to Visa officer at interview time.<br>

2. How can I justify myself about the 55days of gap I have from EMP A to EMP B ( during the time I do not have H-1B status), my attorney suggested that I need to tell VO that “I was looking for a Job and my employer took time to file for H-1B “. I’m not sure whether I can say this. Can you suggest a valid reason to give VO.<br>

3. MY GC Perm Labor has approved and EMP C has applied for I-140 recently and it's still in processing status, during this situation If I get a full-time opportunity can I move with a new employer? OR I have to stay with current one until I get I-140 approved and then transfer with a new employer.

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.

How to Reset H-1 Six Years

Authored on: Fri, 07/14/2017 - 11:45

Question

I have a question regarding the 6-year stay on H1B if someone was in the US on L1B & later H1B. When does the clock gets reset, does it has to be 1-year stay out of USA at the time of H1B application filing OR 1 year stay out of USA between exit & re-entry in the USA?

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.

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

Authored on: Fri, 07/14/2017 - 10:43

Question

I got H1B approval from company 'A' till Oct 2015, filed H1B extension in May 2015. As there were no updates, changed extension regular case to premium and got RFE in 2016.Before responding to RFE got to know that company 'A' has some issues and no one was responding from company 'A'. So before 240 days completion of I-94 got visa transfer with company 'B' in a premium process. Now my H1b is in security check with company B. My Both H1b cases/receipts are still in pending status. I applied for H4 visa now within the USA and if any of my H1B cases get declined. Can I stay on my H4 visa receipt?

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.

Effect of Revocation of PERM on an Already Approved H-1 Extension

Authored on: Wed, 07/12/2017 - 06:49

Question

On 10-Mar-2017 I completed my 5th year on H-1B visa. I changed my job and joined my current employer on 01-Feb-2017 (after receiving the H-1B receipt number) while my H1B petition was being processed at USCIS.In the meantime, my employer filed my GC PERM application on 01-Mar-2017 while my H1B was still in process at USCIS.I got a RFE on my H1B application and while responding to the RFE my employer requested for 2 years of H-1B visa instead of 1 year i.e. 1 year for the 6th year on H1B and another year extension as my PERM application was filed and pending.

Answer

Watch Video on this FAQ: Effect of revocation of PERM on an already approved H-1 extension

Video Transcript

Once they give you an H-1 extension, if later on the PERM is revoked, which was the basis for the extension they will not take away your H-1 extension. So, supposing the date I filed my H-1 and the date my application was decided, my PERM was the basis for my H-1 extension, once the extension is given the PERM goes away and I should be able to keep my 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.

Exemption from H-1 Quota and Visa Stamping

Authored on: Tue, 07/11/2017 - 08:13

Question

In 2014, My wife was working with employer "A" on L2 EAD and the employer "A" filed H1B petition in April-2014. She got approval notice in May-2014 but due to some family reasons we have to go back to India and she continues working for the same employer from India since then. Her approved H1B petition with the same employer "A" is valid till Aug-2017 and H1B visa is stamped in Dec-2016 for the same employer "A". She never traveled to the USA on that H1B visa as her employer does not have any opportunity there. Since she never traveled to the USA on her H1B visa ever, does that mean she has never granted status as an H1B Non-immigrant?

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.

Query Regarding Impact on H-4 EAD During Job Change

Authored on: Fri, 07/07/2017 - 05:11

Question

1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct? <br>

2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way?
<br>
3. Now assuming that answer to first question is Yes, but I believe that in-order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?

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.

Current Trends in H-1B End Client Letters

Authored on: Wed, 07/05/2017 - 07:12

Question

This is my second year on H1B and my H1b visa is valid till Aug 2017 with Valid 194. My Extension was filed on Oct 2016 normal processing and now I got an RFE on 22 May 2017. for the RFE I received last time ( Dec 2016 for amendment), I had submitted all documents like SOW, MSA, Client letter etc. and got an approval. However now due to some organizational changes, my Client is no longer providing us the Client letter. Due to recent changes and scrutinizing of H1b applications these days, is there any risk involved NOT providing the Client letter? are there any changes of getting a decline?

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.

Regarding Impact On H-4 EAD During Job Change

Authored on: Fri, 06/30/2017 - 11:32

Question

1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct?<br>

2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way?
<br>
3. Now assuming that answer to the first question is Yes, but I believe that in order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?

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.

Rules for Counting 6 Years of H-1B

Authored on: Tue, 06/27/2017 - 04:28

Question

I got H-1B approval in August 2013 valid from Oct 2013 to Sept 2016. After this, I traveled to the US in August 2014 on H-1B & I am here till now. My question is, till what time I can stay in the USA. I know for H-1B we get 6 years. But will this count my earlier stay on L-1B? For more than 2 years, I didn't enter to the US.

Will it be until August 2020 or ( August 2020 minus the L1B stay ) ?

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.

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

Authored on: Fri, 06/09/2017 - 02:51

Question

Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?

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.

Extending H-1/H-4EAD; working while extension pending

Authored on: Tue, 06/06/2017 - 00:08

Question

I am on H1 Visa, my H1, wife's H4 and H4 EAD expires on 7/18/2017. I will be completing my 6 years by 7/18/2017. My I-140 is approved. I have a question<br>
1. Should I file for H4 EAD extension along with my H1 and H4 extension<br>
2. Can my spouse (H4-EAD) work while her extension in progress?

Answer

Watch the Video on this FAQ: Extending H-1/H-4EAD; working while extension pending

Video Transcript

1. Yes, you should. 

2. No. Once the current H-4 expires and EAD expires and you are waiting for the new EAD to arrive she has to stop working. 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.


Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

Authored on: Fri, 05/19/2017 - 23:00

Question

Do the 3 years spent in residency training in an HPSA/MUA area be counted towards the five years required for NIW? The residency training (3 years) and subsequent job (2 years) were on H1B visa in two different HPSA/MUA areas but not processed through NIW route. Can the NIW petition be filed now retrospectively for those years already worked in underserved areas? My current GC sponsoring job is in a University teaching hospital (job designation Assistant Professor) but obviously also involves treating patients. The PERM prevailing wage category was teacher/ Professor but job description included patient care. Can the job be changed to that involving only patient care (no teaching) and still be considered same/ similar? How about a job (with patient care only & no teaching) in a private practice (as opposed to hospital employee)?

Answer

Watch the Video on this FAQ: Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

Video Transcription

Under the current regulations beginning January 17, you can actually ask for a predetermination before you change jobs. You can send your Supplement J and wait, for they got to decide it before you join the new employer. They will readjudicate the case so you will know if you are safe when you move instead of just jumping. 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.

H-1B 60 days grace period explained

Authored on: Tue, 05/09/2017 - 04:50

Question

Lost job recently. Was working on H1B. I am trying to understand how much time I have effectively to find another job and have the H1B filed by next employer. Is it necessary that the H1B “start date” in the I-129 petition be within the 60-day mark ( the grace period) from the last day of job in order for USCIS to grant H1B approval after a layoff?

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.

H-4 EAD Status When Moved to Different Employer

Authored on: Mon, 05/08/2017 - 23:44

Question

1. I have approved I-140 with company A and my wife got H-4 EAD. I am planning to move to company B. Can my current employer (Company A) revoke I-140? (I-140 has been approved for more than 6 months). If he can't revoke I-140, can my wife work on the H-4 EAD that she got based on company A's I-140?<br>
2. If my H-1 and my wife's H-4 transferred to Company B, do I need to apply for new H-4 EAD or can she continue working on H-4 EAD from company A (that H-4 EAD still has validity)?

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.

Travel while H-4 EAD is pending

Authored on: Thu, 05/04/2017 - 06:10

Question

Can my wife travel to India and then back to the USA for a period of 12 days while her H4 EAD application is pending? Based on current estimates of processing times we do not estimate that her H4 EAD will come before the first week of July. We will be back to the USA in the first week of May.

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.

Getting unemployment payments on H-1B

Authored on: Thu, 05/04/2017 - 05:48

Question

I lost my job recently. I was working on H1B. I am staying in the US until my grace period ends or until I find a new job. Can I apply for the Unemployment Insurance in my state? I believe that is paid by the employer.

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.

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

Authored on: Wed, 05/03/2017 - 05:34

Question

Brief history - 7th year on H1, 140 approved.<br>

1. Per recent USCIS memo 'H-1B for Programmers - 2017 Guidance'.... if the designation in my current LCA has 'Programmer' word, should I be changing the designation to a different one when I apply for H1 ?renewal?<br>

2. Also in the same memo, it said: "USCIS will now target employers petitioning for H-1B workers who work off-site at another company or organization’s location."
........what does that mean......between my employer and the end client there is middle vendor...is that in any way related to what's stated above?
<br>
3. My most recent H1 is via COS from H4 and is valid until March -18. I will be applying for H1 renewal 6 months before but just in case the renewal doesn't go through, can I apply for a change of status to H4 while I'm here .

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.

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

Authored on: Fri, 04/21/2017 - 10:59

Question

I have my H-1 extension till 2020. I recently visited India and got visa stamped 2020 as well but while coming back as my passport validity was till Feb 2018 - I got the I94 till Feb 2018. How do I extend my I-94?

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.

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

Authored on: Fri, 04/21/2017 - 10:36

Question

1. I am on H-1B visa valid till sep 2018 , I came to India in November 2016 and applied for stamping of my visa here in New Delhi consulate , they kept my passport and some documents and told me it's in admin processing and will contact the client, as I was not working for that client during that time so they have rejected my visa after 3 months in January 2017 , the section they given for rejection is 212 (a) (6)(c)(i) which prohibits the issuance of visa for for fraud or willfully misinterpretation of fact. I check My USCIS online status of my H-1B says that my visa has been sent to the department of state. Will I be ever able to enter the USA ?<br>
2.How to remove this Fraud charges on me?<br>
3. I have a B1-B2 for 10 years in the year 2011, but that passport got lost in the USA, I got new passport from Indian consulate there and then I was traveling in H1-B mostly,
So never bothered to inform and re-stamp my b1b2 visa from the consulate in India. How can I get my duplicate B-1/B-2 re-issued

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.

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

Authored on: Mon, 04/17/2017 - 07:45

Question

1. My H-1B is going to end in 2019. Is it legal to change my H-1B to F-1 after that?<br>
2. In case I get admission to a college, and finish my studies within 12-16 months, can I again start with a new H-1B and how many years will I get on that?

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.

If H-1 transfer is denied, can I rejoin my old employer?

Authored on: Thu, 04/13/2017 - 03:12

Question

I received my 3-year extension post 6 years based on approved I-140 (sponsored by employer A). I am in the 7th year of H1B and have a valid visa until 2019. I have an offer from employer B. I am told by employer B that they are going to do H1B portability and extension using my approved I-140 from my previous employer. Since the premium processing of H1B is going to be suspended starting April 3rd, my new employer B wants me to join them based on the receipt notice of the H1B transfer. I am also told that the risk I have in case of denial is I would have to leave the US and re-apply for an H1B petition from my home country. From my understanding, one can always go back to their previous employer in case of rejection of H1 transfer?

Answer

Watch the Video on this FAQ: If H-1 transfer is denied, can I rejoin my old employer?

Video Transcript

According, to USCIS, when you are working under AC21 you are not out of status, you are in fact working according to the law and hence you should be able to join 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.

Can a revoked I-140 help for H-4 EAD?

Authored on: Mon, 04/10/2017 - 06:12

Question

Do we have any more clarity whether the revoked I-140 can also be used to apply for new H-4 EAD? My I-140 was approved in 2015 but I recently changed job (after Jan 18) and was looking to apply for my wife's H4 EAD based on old I-140.

Answer

Watch the Video on this FAQ: Can a revoked I-140 help for H-4 EAD?


Video Transcript

In a situation where an I-140 was revoked on or after January 17, 2017, and it stayed approved for 180 days, that revoked I-140 can be used to get or extend an H-4 EAD. The government has said they will extend the benefit of H-4 EAD extension to those types of I-140s even if they are revoked, extension or a new H-4 EAD. One more thing to consider is for an H-4 EAD to apply or extended it is not necessary that you must have a particular I-140. You can use any I-140's. 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.

Consequences of I-140 revocation

Authored on: Fri, 04/07/2017 - 00:39

Question

1. Consequences if revoked (I-140) within 180 days. Benefits, if unrevoked(I-140) for 180 days and end date at work still be May 15th (or, should I ask my employer to EXTEND my end date until end-of-June so I complete my 180 days of I-140). <br>
2. How question (1) above will impact H4-EAD which is under processing. if approved before May-15th H4-EAD is still valid and can be used ?<br>
3. Does it mean after May-15th (last day at work) I have 60 days grace period to look for a new employer who sponsors my H1-B?

Answer

Watch the Video on this FAQ: Consequences of I-140 revocation

Video Transcript

1. If I-140 is revoked within 180 days of its approval you only get to keep your Priority Date. You do not get to keep your right to extend your H-1.

2. H-4 is completely dependent on the H-1, as long as you maintain your status I don't see any reason why the H-4 EAD cannot be used.

3. The 16 day period is not automatic. If you were laid off due to circumstances beyond your control you can ask the government to give you the 60 day grace period. If you find a job and file H-1 within that time. 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.

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

Authored on: Wed, 04/05/2017 - 11:40

Question

1. I'm on H-1 visa and on my 8 th year ...visa is getting extended based on I-140 approved. I'm getting an offer to join different company end client(currently I'm with the consulting company) designation not decided yet. In my current employer, I am manager and wondering if I get a different position in other company like Director or solution architect or Sr Manager...and if I join that company what effect that will make on my current approved I 140 or GC process. Is this safe to jump? I heard job category needs to be same or similar in various forums for PERM but I don't have clarity or understanding what that rule is and....how that thing impact my situation.<br>
2. I have not filed I-485 yet since my priority date is back in 2013 in EB2. Also, my wife has H-4 EAD does that impact as well?

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.

H-4 EAD changing back to H-1

Authored on: Tue, 04/04/2017 - 02:52

Question

1. Had H-1B petition approved in 2015 through consular processing while residing outside the USA? But did not get stamped for H-1 but came to the USA on H4 visa. Currently working as an employee on H-4-EAD. Can I change my status to H-1B from H-4, If Yes - Will it be treated outside H-1B Cap?<br>
2. Do I have to leave the country and get stamped and re-enter with H-1B status?<br>
3. Will I get a new I-94 with latest 1 yr or 3 yrs approval? <br>
4. How many days will the process take to change status?<br>
5. Can I continue working while the COS is in progress or pending with USICS as I would like to continue working without a break? Also, do I have to go back to the same petitioner who applied for H-1B visa or can I transfer it to a different employer?

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.

Changing employers after 6 years of H-1 are over

Authored on: Tue, 04/04/2017 - 02:22

Question

1. With my approved I-140 from Company B can Company C use that to file my extension for 3 years. I have a copy of approved I-140. Is it safe to change companies in the 6th year. <br>
2. Using the approved I-140, I have filed H4-EAD for my spouse in Feb 2017 and is yet to receive the EAD approval. If I get it will be only valid till Nov 2017 based on current I-797 validity. So, if H1-B is approved for Company C, can I file extension of H4-EAD 120 days before validity based on that approval. If EAD is provided, it is going to expire on Nov 2017 based on the H1-B's current I-797.<br>

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.

Filing two quota H-1 petitions simultaneously through different companies

Authored on: Fri, 03/31/2017 - 04:59

Question

1. Is there any legal restriction to have two H-1B petitions from totally unrelated employers in the lottery to double my chances of getting H-1B?<br>

2. I do not intend to inform both the companies. Will they ever know that another company has also filed H1B on my behalf?<br>

3. What will happen in case both my H-1B petitions are approved (chances are rare). Can I join any company?
<br>
4. I also want to ask, is there any possibility USCIS can trigger RFE or NOID in case both H-1B petitions get approved?

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.

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

Authored on: Thu, 03/30/2017 - 03:34

Question

1. Does the new 60 day grace period for H-1Bs apply to one after quitting their job ? Or is it only applied to situations only in the cases where the employer terminates the job?<br>

2. I am on H-1B and plan to quit my job and move back to India, I would need 3-4 weeks to wrap up things here after quitting the job. I am trying to see if I can use this 60 day grace period.

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.

Compelling circumstances EAD

Authored on: Tue, 03/21/2017 - 15:53

Question

I have approved I-140 from 2010. I read that if I apply for I-140 EAD (due to compelling circumstances ) it will revoke my H1B status and then I would not be able to adjust the status through I-485 without going outside the country and getting back on H1 which is extremely risky. The other option is Consular Processing which is also waiting outside US. Is that right? What status would a person be in US if on I-140 EAD due to a compelling circumstance? Is there a way to switch to H-1B so as to continue with Green Card through Adjustment of Status ( with same priority date) while within US?

Answer

Watch the Video on this FAQ: Compelling circumstances EAD

Video Transcript

If you use a compelling circumstance EAD you are in authorized period of stay. If you want to file I-485 or want to convert back to H-1B you got to go outside the USA and come back on a H-1B visa. There is no way around 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.

How does H-1 60 day grace period work?

Authored on: Mon, 03/20/2017 - 09:31

Question

I am working on H-1B. The job will end in a few weeks. What are the implications of the "60 day grace period" rule that has been created recently?

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.

Physician FMG applying for Cap H-1 through a cap exempt employer

Authored on: Mon, 03/20/2017 - 02:48

Question

1. For a resident who is completing residency on Jun 30 on cap-exempt H-1B visa and has a job offer from a hospital that is cap-exempt because it is non-profit and has affiliation with a medical school for training, can the employer be requested to first apply for a cap-subject H-1B visa on April 1? <br>
2. If the lottery does not come through, can hospital apply subsequently for cap-exempt? Are there any risks with this approach?<br>

3. Is a start date of July 1 possible with cap-subject?

Answer

Watch the Video on this FAQ: Physician FMG applying for Cap H-1 through a cap exempt employer

Video Transcript:

1. My guess is they can. You can also have the employers' lawyers look into it or your lawyers look into it including making a phone call to the USCIS. Document what they have to say and if they say yes, then there is no problem, but if they say no it can be followed up further.

2. They can, later on, do a cap exemption. If you don't go through the lottery their right to do a cap exempt is already there.

3. No, it is October.

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.

AC21, changing jobs, when to file Supplement J

Authored on: Fri, 03/17/2017 - 03:49

Question

My EB2 priority date is June 2009. I filed for my I 485 in 2012 and since 2013 I have EAD and have been maintaining H1b status.
In 2014 I changed my job from the original employer who started my GC process (with whom I have I 140).
I sent AC21 when in 2016 I got the standard RFE to produce medical records and employment proof (since then the priority date had retrogressed again), and also have H-1B with my new employer. I have not started the new GC file with a new employer.
Should I file supplement J now, proactively, or should I wait for another RFE from USCIS when my priority date becomes current in the future, to file for supplement J?

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.

Impact of the new I-140 regulations

Authored on: Thu, 03/16/2017 - 07:18

Question

My I-140 approved (India/EB2) from Employer A in June 2015, I joined Employer B in Oct 2016. Employer A sent revocation of my I-140, on USCIS website today is showing below status: "On December 7, 2016, we received your correspondence for Form I-140 ..." Will I still be eligible for 3 years of multiple H-1 extension with my approved I-140 from employer A without filing new I-140?

Answer

Watch the Video on this FAQ: Impact of the new I-140 regulations

Video Transcript:

Your revocation of the I-140 is occurring from December 7 which is before January 17 where you would have been protected. I am worried that in your case if there was a revocation you will not be allowed for multiple H-1 extensions based upon an I-140 that has been revoked. If the revocation was from January 17 onwards you would be fine, but if it is before January 17 you will no longer have the right to keep getting H-1 extensions if the employer revokes your I-140. That was the old 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.

Revoke H-4 EAD Regulation

Authored on: Tue, 03/14/2017 - 08:30

Question

If Trump administration tries to revoke H-4 EAD through rulemaking /congressional Act, is there some way for the H-4 community to fight for it in the court to retain the H-4 EAD? What are the least possible ways to fight for it?

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.

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

Authored on: Thu, 03/09/2017 - 05:54

Question

After getting GC (emp based):<br>
1. If an employee is working for an end client (employer - vendor - end client): while employed with GC sponsor, can a person be on bench (no pay) for some time? or like H-1B, it's considered as out of status, risk of GC revocation? <br>
2. Would like to travel to visit family abroad- At of POE, any questions by the officer ? Even though still employed, but not on a project at end client?<br>
3. While applying for citizenship later, if W2 < LC salary for any given year, negative impact during interview?<br>

4. Also, as a green card holder, can a person be self-employed(sole owner of LLC - and do 1099 contracting for US clients) ?<br>
5. In above scenario, is it legal if you(LLC) did not make any revenue in between contracts?<br>
6. Is it legal for GC holder to be unemployed, or like H-1B, if you are on bench or not getting paid by employer - you are out of status - hence risk of losing GC?<br>

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.

Will H-4 EAD Rule be revoked?

Authored on: Thu, 03/02/2017 - 00:34

Question

1) Is it true H-4 EAD rule will be revoked by the government? <br>
2) My H-1B visa is going to expire in 14-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).<br>
a) If my PERM is not approved before my current H-1B visa expires. Can I change to H-4 EAD at that time?<br>
b) If my PERM approved after change to H-4 EAD, Can I change back to H-1B?<br>
c) Is it possible to convert from H-1 to H-4 EAD without taking a break in employment?<br>
d) If my PERM gets approved after my current H-1B expires can my employer file for H-1B extension?<br>
3) I would like to move to H-4 EAD but I would like to come back to H-1B anytime in future, in that situation what is the best status for H-1B?<br>
4) If I apply for new H-1B is it comes under H-1 quota (After 6 years completes.)?

Answer

Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

Video Transcript:

1. I don't think it will be revoked.

2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

2b. Yes, you can change back to H-1B.

2c. I cannot predict this question as it is a question of logistics. 

2d. Most definitely.

3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

4. It does not.

More...

J-1 Physician applying for following to join after waiver

Authored on: Wed, 03/01/2017 - 23:20

Question

I am a physician currently in H-1B undergoing 3 years of J-1 waiver program which is set to be completed on July end of this year. My husband got his greencard through E-B2 category (rest of the world) in early 2013 When I was still in J-1. My name was included in I-140 but could not file I-485 due to my J-1 visa. I have been married since 2006 and came to the US initially on H-4 visa before getting residency in J-1 visa. Is there a possibility of filing my I-485 directly without waiting for the long I-130 approval process? Or is there any exceptions for a situation like mine such that spouse happened to be in J1 and could not apply for a change of status at the time primary applicant applied for I-485?

Answer

Watch Video on this FAQ: J-1 Physician applying for following to join after waiver

Video Transcript:

Yes, if you are in the USA in legal status and his priority date through which he got his green card is still current you should be able to file your I-485 directly. 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.

The new regulations, withdrawal of I-140, H-1 extensions

Authored on: Tue, 02/28/2017 - 07:04

Question

I have an approved I-140 with priority date 2013 from employer A and my employer A is withdrawing it. I am going to apply I-140 with employer B now in regular processing and also porting the date. I will complete my 6 years of H-1 end of the year. Will I still be eligible for 3 years of H-1 extension with my approved I-140 from employer A?

Answer

Watch Video on this view FAQ: The new regulations, withdrawal of I-140, H-1 extensions

Video Transcript:

The moment your I-140 is approved the date is yours, the moment it stays unrevoked for 180 days your right to extend your H-1 with any employer remains safe even if the 1-I40 is revoked. But the caution that I was pointing out to be is sometimes USCIS can go back and revoke an already approved I-140. But they have raised the bar on that too. They will not be able to take away your rights merely because they made an error. The error has to be something I call error plus, basically which means there were some certain facts that were not in evidence when they approved 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.

Changing Employers With An Approved I-140 After January 17 2017

Authored on: Tue, 02/28/2017 - 02:18

Question

I have approved 140, Green card EAD/AP card in EB2 from company-A and passed more that 180 days. I have maintained H-1B status since last 9 years instead of using EAD/AP as the need to go India for marriage so my future wife gets H-4 easily. Just transferred my H-1B to company-B. Company-A will revoke my I-140 in March 2017 due to company policy. I have following questions to ask you.<br>
1. Shall I get H-1B extension (beyond 6 yr) in future with company-B after I-140 revoke from my previous employer?<br>
2. I have EAD/AP card from my previous employer. Is it required to start GC process like labor and I-140 application again with company-B if my previous employer revokes my I-140?

Answer

You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:

1. Your I-140 is approved;

2. Your I-485 has been pending for 180 days or more;

3. You will take an employment same as or similar to your green card job; and

4. You file Supplement J.

When is an H-1B amendment required?

Authored on: Mon, 02/27/2017 - 07:38

Question

I am on H-1B visa and my 9th year H-1B approval will expire on 09/01/2017. This approval is when I was working at client A and from 09/19/2016 , I am working at client B but my employer checked with Lawyer and she is saying no need to file amendment as it is in same MSA. Is that ok? and my wife she on H-4 with EAD she wants to travel to india and She has to go for stamping so since my H-1B amendment is not filed do you see any issues for her H-4 stamping ? Is it safe to travel ?

Answer

Watch Video on this FAQ: When is an H-1B amendment required?

Video Transcript:

USCIS has given us a relatively an incomplete memorandum that currently says this: if an employee relocates within the same geographical area,  which is a normal commuting distance of an approved location they do not have to file a H-1B amendment. This is not a complete story. The memorandum is misleading and we have been advising our clients to work according to my suggestions and not depend on the memorandum. 

First of all, even if you go by the language of the memorandum, remember USCIS and the Department of Labor have different regulations so just because the memo talks about the USCIS regulations does not mean you have complied with the Department of Labor regulations for change of job locations. Department of Labor says, any new location even if it is in the same building you must post the LCA notice there, at the very least. So even if you are moving within the same area LCA notice should be posted.

The second way this memorandum is misleading is: what if I change jobs next door, but my job description changes completely? You will have to file H-1B amendment even though it is the same neighborhood.

What if my client changes and what if my project changes. I think in all those situations, the conservative thing to do is to file an H-1B amendment. 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.

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

Authored on: Fri, 02/24/2017 - 06:21

Question

I am on H1-B and my H1-B is validating till 2019 and priority date is 2014 and I recently changed my job. I-94 is expired in 2014. Due to new trump gov. Do you think that it will very risky to go to India and do stamping ? do you find people are facing issues in stamping? What should we do if we go for stamping and face the problem? What precautions should we take? Should we go for stamping or not

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...

Extension of H-1 beyond six years, gap in H-1, late in filing PERM, etc.

Authored on: Thu, 02/23/2017 - 02:27

Question

My H-1B visa is going to expire in 01-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).<br>

1) If my PERM gets approved before my current H-1B visa expires (i.e. before 01-Jan-2018).<br>
Would I be eligible for a H1B extension for 1 year since my PERM was approved before the current H-1B expiration?<br>

2) If my PERM gets approved after my current H-1B expires can my employer file for H1B extension of 1 year since my PERM is approved now.<br>

3) If my PERM is not approved before my current H-1B visa expires.<br>
Would I need to go back to India?<br>

4) I spent about 2 months (on vacation) in India. Can these 2 months be added back to my current H-1B visa? or this can only be added if my current employer files for my green card?

Answer

Watch Video on this FAQ: Extension of H-1 beyond six years, gap, in H-1, late in filing PERM, etc.


Video Transcript:

Under the current rules, there are two ways you can get H-1 extension beyond six years: one is based upon the time you're green card has been going on and the other one is based upon the stage you are at and we don't care what time the green card was started. Time-based and stage based. Time-based works like this. The day of the first anniversary of your perm filing is reached you are entitled to a one-year extension of your H-1 on a year to year basis. Stage-based green card, the day your I-140 is approved, you are entitled to three-year extensions. So those are the only two ways.  

What if you are late? What if you have only eight months left on your H-1 when your PERM is filed? 

Well, if there is a four-month gap or a two or three-month gap you would either have to convert to another status or leave the USA and then you come when you're one year time is matured or stage based green card is activated because you're 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.



Regarding H-1B Extensions

Authored on: Thu, 01/05/2017 - 01:48

Question

I heard your community conference call for 1st December, you mentioned that even though the approved I-140 is withdrawn by a previous employer after 180 days of approval we should still eligible for H1 extensions with a new employer.

My question here: is it required that new employer need to file labor and I-140 in order to apply for extensions or can I just keep on applying for H1B extensions based on my first I-140 approval?

Answer

You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

Change of Status to H-4 - effect on priority date; maternity leave on H-1

Authored on: Tue, 12/20/2016 - 10:26

Question

1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months.
2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave?
If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?

Answer

Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1  and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.

And the second part of the question was can I take maternity leave on H-1?

Yes, absolutely. How much you can take that depends upon the State law, so the Federal law and the state law combined that's the best way to decide. So the maternity leave definitely allowed and sometimes if in addition to maternity leave if some have medical necessity and you need to take more time off , you should be able to do as well and you would be considered to be on H-1 and you don't need to convert to H-4   for maternity leave reasons but you can do that also and you can convert back to H-1 later on.  

What is new regulations for H-1 grace period, revocation of I-140 ?

Authored on: Tue, 12/20/2016 - 10:12

Question

My I 140 is approved in 2013 and H1-B 5 year and 3 months are completed.
I have important question , after 17 Jan 2016 , my any chance I loose my job and my employer revoke my H1-B and I 140.
1. Will I get some time to find new job and new employee to transfer my H1-B ?
2. after my employer revoke my H1-B what is time line I can still transfer my H1-B visa with new employer?

Answer

Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

Converting from another work status (such as H-1) to H-4 EAD

Authored on: Tue, 11/15/2016 - 02:34

Question

My spouse is currently working on F-1 OPT or H-1 status. How can he/she change to H-4 status and obtain H-4 EAD without a gap in the ability to work?

Answer

We have received several requests about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

 

The short answer, as of now (November 2016) is that here is no way to guarantee that there will not be any gap in a spouse’s ability to work.  The problems arise from the fact that there can be a gap between change of status to H-4 and receipt of EAD.  The law requires that EAD must be approved and the EAD card must be in hand for the H4 holder to work. 

 

To illustrate some of the scenarios we have been asked to comment upon:


Question: My spouse is currently working on F1 OPT or H1 status.  How can he/she change to H4 status and obtain H4 EAD without a gap in the ability to work?

 

Answer: There is no way to ensure there will be no gap between the current employment authorization and the H4 EAD approval.  The H4 and H4 EAD petitions can be filed concurrently, but USCIS has not been adjudicating them at the same time.  First, USCIS adjudicates the H4 petition, after which they start working on the H4 EAD petition.  As the H4 EAD generally takes about 90 days to be adjudicated, it is best to anticipate H4 EAD approval about 90 days after the H4 approval.

 

It is possible to request a future start date for the H4 status.  The hope would be that by the time the H4 status becomes effective, the H4 EAD is also approved.  But again, there is no way to guarantee the time frame. 

 

Question: My spouse entered the US on H4 status.  How soon can the H4 EAD be filed and how long will it take before he/she can work?

 

Answer: The H4 EAD can be filed as soon as the spouse has arrived in the US on H4 status.  Because, the USCIS is taking about 90 days to adjudicate the H4 EAD petition, your spouse is likely to be able to start working in about 3 months after the EAD petition is filed. 

 

Question: We need to renew my H1 and my spouse’s H4 and H4 EAD.  Would it help the EAD to be issued faster if we file the H1 petition through Premium Processing?

 

Answer: Possibly.  There is no Premium Processing option for H4 or H4 EAD, but as a courtesy, the USCIS often tries to adjudicate H4 and H4 EAD petitions at the same time as the Premium Processing H1 petition.  There is no guarantee that the USCIS will adjudicate the H1, H4 and H4 EAD at the same time.  It is possible that only the H1 will be adjudicated under Premium Processing, and the H4 and H4 EAD will be adjudicated in the normal queue.

 

Question:  My H1 does not need to be extended, but my spouse’s H4 and/or H4 EAD do need to be renewed.  How can the petitions be filed so there is no gap in the H4 EAD authorization to work? 

Answer: It is critical to file these petitions early.  The H4 renewal can be filed 6 months before the current H4 expires, and the H4 EAD can be filed 120 days before the current H4 EAD expires.  While it is not a guarantee that there will be no interruption in the work, early filing is the best option to provide the USCIS with enough time to process the petitions.

 Click here for Rajiv's blog entry on H-4 EAD Rule

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

Authored on: Wed, 10/12/2016 - 06:09

Question

I recently moved from Company A to B on July-2016 as a contractor while on i was on my 6th year H-1B visa. Company B did my H-1B transfer and I-140 got approved through them as well. Now working at End client location placed through Company B. Now End client wants to hire me as Full Time employee.<br>
1. Given I recently joined Company B will my jumping to Company C cause any issue to my H-1B visa? <br>
2. Can company B cancel my H1B petition?If Yes, Do i have to have a approved H-1B petition from Company C before informing Company B about the offer?<br>
3. Will my I 140 which got approved thru company B still be valid? Can i use it for future extensions of H-1B?<br>
4. Company B did not provide I-140 copy, how to obtain the same from USCIS?<br>
5. Is there any mandatory period to serve in one company who has sponsored my GC as I recently got my I-140 approved in August-2016?

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.

Am I Exempt From H-1 Quota If Visa Was Not Stamped

Authored on: Mon, 09/12/2016 - 00:58

Question

My query is that whether my name which was sponsored by an IT company and come under quota (in 2008) could still be considered to remain as 'VALID' and 'UNUTILISED' under the year 2008 quota (and initial period 2008-2011). As no stamping of H1B took place in 2008, then can this be UTILIZED by any new employer/sponsor (under the 2008 quota) but with the validity starting from the date of stamping (e.g. 2016) and till subsequent years (as applicable). Can we say that this would be a case of stamping based upon PREVIOUS quota/approval and any new sponsor would NOT require to file a fresh H1B petition. So, only some MODIFICATION of the 2008 petition documents would required to be made by any new employer/sponsor.

Answer

Watch Video : Am I exempt from H-1 quota if visa was not stamped

Video Transcript:

Rightly or wrongly USCIS has been saying that if you are outside the USA and you do not get your visa stamped we do not consider you to be exempt from the quota. Chances are they are going to make you file for fresh 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.

H-4 EAD Employer Change

Authored on: Fri, 06/24/2016 - 05:32

Question

I have an approved I-140 with PD 2013. My wife works on H-4 EAD based on my I-140. If I join another company with my I-140(say I get H-1, my wife's H-4 and EAD for 3 years), Would it be fine if she continues to work on that EAD even if my I-140 gets revoked/withdrawn after H-1 approval.

Answer

USCIS has said if an I-140 is revoked, they reserve the right to revoke the H-4 EAD. So far, they have not been revoking.

Changing Jobs After I-140 Approval

Authored on: Mon, 05/30/2016 - 08:39

Question

I have PERM approved and I-140 filed in regular processing by my current employer "A". I have got an opportunity from employer "B" and then told they will process my GC as fresh application. I have 17 months left on my H-1B visa. <br>
1. In pending approval of I-140. will I get the extension of 3 years from USCIS when employer "B" initiate the transfer ? OR Will I get the H-1B transfer extension till max out ?<br>
2. Is it recommendable to switch now in between of pending approval process of I-140?<br>
3. Will leaving in between of pending process impact me in future when employer "B" files my GC once again ?

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.

I-94 Given for Duration Shorter than Entitled

Authored on: Fri, 05/27/2016 - 05:27

Question

On December 18th 2015 I came back to USA on H-4, at that time my old passport was expiring on September 19th 2015 so the Immigration Officer approved my I-94 until September 19. Later I applied for H-1 and it got approved on Feb 2nd 2016 and my H-1 is valid until Ending Validity Date: 12/19/18 with I-94 number in it. I renewed my passport now and I have validity until 2026.
Question: Do I have to go for stamping again to extend my I-94 validity? Or since I got new I-94 with my H-1B is that good enough.

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.

Name variation in diploma or degree, name change for immigration

Authored on: Tue, 04/19/2016 - 04:48

Question

I have BSc., [Maths] – 3 yrs degree + MSc., [Computer Science] – 2 yrs degree in India Grade A Universities and 11 years exp in IT industry applied I-140 under EB2 category. Last week I got the RFE like below. I can provide my legal name change evidence. Please see the RFE description and labor certification details below. <br>
"Is USCIS not certain that I have met the educational requirements of the labor certification position"? I can see only one statement that "USCIS is unable to determine if the beneficiary has met the educational requirements "Once I have documentation that NEW NAME and OLD NAME are the same person, will USCIS accept my educational documents?

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.

Gap in Status

Authored on: Tue, 04/19/2016 - 03:35

Question

A couple of questions on Gap in status:<br>

1. I am on H-1B and my project/job is going to end on April 29,2016 (Friday). I have my H-4 approved effective May 2, 2016. I will get salary slip from 1 April to 30 April. Do I need to have salary slip for May 1, 2016 (which is a Sunday) to maintain H-1B/ legal status (considering that I won't be getting May 1 to May 31 salary slip).<br>

2. I am currently on H-1B and have an approved H-4 Effective 15 July 2016. As part of my H-4 application (which I had filed along with my spouse extension) , I had requested USCIS to give me H-4 effective date of 13 May 2016 as my project was going to end on 13 May 2016. But, the request was not honoured and USCIS responded citing the reason "Since the beneficiary of the I-539 and I-765 will change status, we cannot give an earlier start date than what is shown on the I-129 approval notice." If my project ends on 13 May 2016 , should I leave the country as my H-4 effective start date is 15 July 2016 to maintain legal status ?

Answer

Watch Video: Gap in Status


Video Transcript:

Answer 1: These kinds of de minimis small gaps are sometimes  even a product of the way the government works. In your case I don't think it is going to be a problem. Technically yes even for one day being out of status the government can say you are out of status, but when they have already approved your status I don't think this is going to be a major issue. 

Answer 2: I personally think it is still not a big issue because  if you got the H-4 already with an I-94 attached I doubt if the government is going to make an issue out of it. But you can do another thing. You can file a tourist visa to cover you for those two months but make sure it does not go beyond July 14. Other wise your status will be changed to B. So you could do a stop gap kind of arrangement or you could leave USA for a couple of months. But even if you stayed I doubt whether it is going to be an 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.

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

Authored on: Wed, 04/06/2016 - 02:04

Question

I am currently on H-1B(Valid till Sep 2018) with approved I-140 for Company A and spouse has H-4 EAD (valid till Sep 2018). My question is, if I switch my job to a company B. Can my spouse continue working with the current H-4 EAD (which is valid till sep 2018)?Will it cause any issue during next H-4/EAD extension?

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.

Travel while H-1 COS is pending

Authored on: Tue, 04/05/2016 - 02:37

Question

My Spouse is on H-4 and has a Valid H-4 stamped till Jan 16 2017. I am planning to apply H-1 for my Spouse through an Employer this year. Is it advisable to travel to India while her H-1B is in Process? What will be the implications if she travels to India?

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.

H-1 entering USA when visa is about to expire

Authored on: Tue, 04/05/2016 - 00:40

Question

My amendment has been filed by my company in Aug15 but not approved yet. Now I want to travel to India in month of April & get back in same month . after coming back H1B extension will be filed by company.
My question is can they create any problem on my return since my visa is about to expire in June 2016 & amendment is not approved yet.

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.

I-140 approved - H-1B renewal

Authored on: Thu, 03/03/2016 - 06:12

Question

Using an existing approved I-140, can a H-1B be renewed any number of times, with new/multiple different employers, even without restarting any paperwork for GC with the new employer?

Answer

Yes, as long as the I-140 is not revoked.

H-4 and EAD

Authored on: Thu, 03/03/2016 - 06:04

Question

My wife has H-4 plus EAD. If my job details changes, will my wife's EAD will be affected?

Answer

As long as appropriate H-1 amendments are filed and you maintain status, the change in your job description has no effect on the H-4 EAD. 

Is percentage arrangement acceptable as salary (H-1 and PERM)

Authored on: Tue, 01/26/2016 - 04:52

Question

The physician group I'm talking with are looking to hire me on to work alongside them, and they would not actually pay me a direct salary. I would bill insurance for each patient seen, and the practice would take a certain percentage and give me the rest. Would this be allowed? Or do I have to actually receive a salary from the future employer? My understanding is that as long as the potential employer can show the ability to pay the prevailing wage via a business income tax return, that is all that is needed. Whether or not I actually get paid and how much I get paid once the green card is approved, is irrelevant, correct?

Answer

First of all generally speaking, for H-1 and for green card your salary cannot include terms that are variable. So for instance if you get a yearly bonus, but the bonus changes from year to year you cannot include that as a part of your salary. Salary cannot include per diem. A lot of companies and a lot of employees get stuck with a lot of problems because per diem is set up as part of the salary. Per diem is not salary. Benefits are not salary. So all three of these items are big problems when you talk about H-1 and green card salaries. You cannot include benefits, You cannot include per diem and you cannot include variable amounts such as bonuses. if the bonus is guaranteed, in terms of the amount then you can include it otherwise but this is not salary.   

But how about a percentage?... In PERM for sure you cannot have this arrangement because this is not a fixed amount. Green card is a job in the future and what if you have a different set up now and another set up when you actually get the green card, I think that's ok but the  problem is if you are in H-1 this actually offends H-1 as well.  


Watch Video from Rajiv S. Khanna's conference call that addresses this issue


 


 Note: The answer 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.

The Proposed I-140 EAD Rule - FAQ's

Authored on: Mon, 01/11/2016 - 07:23

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. 

H-1 status and FMLA

Authored on: Tue, 12/22/2015 - 05:29

Question

My wife is on H-1B visa working for a consulting firm. We are expecting baby in Feb 2016. What could be the maximum allowed time period on FMLA. Can my wife continue on H-1 status without pay checks on FMLA period?

Answer

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

https://youtu.be/1QbgUmUUJvc?t=1746

FAQ Transcript:

If she considers to be in H-1 status FMLA (Family and Medical Leave Act) allows up to 12 weeks of guaranteed employment leave in 12-month period. It can be more or less also depending on the state law and remember if there is a medical need, for e.g. if the doctor says you have some medical issues you need to stay extra 6 weeks you will still be in status.

Pros and cons of H-4 EAD

Authored on: Thu, 12/10/2015 - 15:21

Question

My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD.

Answer

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

https://youtu.be/H_VV9kV_lOg?t=1345

FAQ Transcript:

Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD. Can we file H-1-H-4 transfer and EAD concurrently?

Let's take the situation where you are filing H-1, for you yes I do not see any problem with it. If you are doing H-1 transfer, you can do her H-4 and EAD concurrently. However, if you are trying to do H-1 transfer for her along with H-4 EAD simultaneously, that can become little complicated. But I don't know what exactly you are trying to accomplish. If you are trying to cover both basis I would recommend to do an H-1 premium processing and then file an H-4. Let one status accomplish before you apply for the next status. If you want to do both simultaneously make H-1 premium.

Question: Do companies hire full time on H-4 EAD?

That depends upon the company. EAD holders has all rights almost equivalent to the Green card holder. So if the employer knows what this EAD is or they have good legal advice they should be able to hire full time on H-4 EAD.

Question: What are the benefits of H-4 EAD over H-1?

Some really big benefits. One benefit is there is no requirement of a particular salary. Number two is there is no requirement of specific job location. An H-4 EAD holder can work 3 hours in one job, 5 hours in another job location or 10 hours and then keep switching from job to job if they want. There is no limit on how they work. They can even start their own business. So those are some of the big advantages of H-4 EAD.

The biggest disadvantage is because the status depends upon the H-1 holder, something goes wrong with the H-1 status; they get laid off or they fall out of the status then the H-4 status is also in doubt.

Question: Do I recommend to convert to H-4 EAD?

That depends upon the case.

Question: What are the risks associated with the conversion?

From H-1 to H-4 not much risk that I can see.

Question: What is the typical timeline?

That is very tricky. We had a tweet exchange couple of weeks ago with the community member who said that; his wife's EAD got approved in couple of weeks. My office was reporting that H-4 EAD combine can take months. A few months ago they were only taking a couple of months. So few months is not an extraordinary for H-4 EAD combo. If you are doing EAD alone, already your wife is on H-4, it might be quick. Technically there is 90 days’ deadline on the government to decide these cases of EADs. How far they follow it I don't know.

New company filing H-1

Authored on: Wed, 12/09/2015 - 06:36

Question

We have started a company recently and wanted to sponsor H-1B for experienced employees and place them with our clients. What is the criteria and can a new company sponsor H-1B?

Answer

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

https://youtu.be/H_VV9kV_lOg?t=530 

FAQ Transcript:

Answer is of course. I am yet to see a major negative effect just because the company is small. What is more important is that you have specific projects that are clearly defined and you can define how long the project is, what the project description is, what the relationship of the employee being placed is with their employer, which is the new company and usually that is done through a letter from the end client or very comprehensive work order or job order kind of thing. 

So if you can prove those things, duration of the projects etc. then filing an H-1 is not an issue but if you do not yet have a clear project in mind I would strongly advice you not to file H-1’s, because there is a trend in criminal indictment these days when companies get criminally indicted, two things government is bringing up time and again. The government is bringing up the fact that company applied for H-1’s without the specific projects and two if they kept employees on the bench. 

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Authored on: Wed, 12/09/2015 - 06:12

Question

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br>

My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br>

2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B.
<br>
What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer

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

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

Physician filing green card

Authored on: Thu, 11/19/2015 - 07:19

Question

1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer.
For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br>
2. In your experience, is 1 year enough time to complete the EB-2 process?

Answer

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

https://youtu.be/H_VV9kV_lOg?t=1852

FAQ Transcript:

Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

Answer 2.  It may or may not be, very difficult to say.


H-1B Laid Off Issues

Authored on: Thu, 11/12/2015 - 09:15

Question

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

Answer

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

https://youtu.be/F0YZD8zWm88?t=1068&nbsp;

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.

Investment property while on H-1 (Buying and renting out a house)

Authored on: Mon, 11/09/2015 - 04:01

Question

I am on H-1B visa and in green card process (waiting for I-485 date to become current). I would like to know if I buy and rent houses on my own name (without forming an LLC) and actively manage the activities (finding a renter, maintenance etc) and make profit out of those rentals, then would it violate my status?

Answer

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

https://youtu.be/F0YZD8zWm88?t=694

FAQ Transcript:

First of all in my view on passive investment where you are just putting in money and have no control over what happens to the investment it is ok to do that on H-1.   So if you buy stock in IBM that’s OK because you don’t get to manage or run IBM just because you bought 200 dollars worth a stock. So passive investments were you don’t actually control the investment or the business activity they are ok for H-1.

But when you buy and rent out a house I think that would be objectionable. I think that could be considered to be a violation of your status. What if you invested money in a small company like say a two person company when you own 100 percent  stock but you are not managing and somebody else is managing I think that would be ok (in fact closer to be ok). But the question, can you start your own IT company...well if you did in a partnership and if you were a passive investor and if you want to work for that company you would have to have a true employer-employee  relationship with the company. That means somebody should be able to file you and then a H-1 concurrent, H-1 for your own company. So the decision tree is:  Is my investment active or passive. If it is passive no problem I can invest even if  I am on H-1. If it is active I would have to do an H-1B for my own company and make sure I have an employee employer relationship.

I am finding that government is very much more understanding or flexible when it comes to radical practices, dental practices, were you own your company but you have somebody who can fire you whether  it is board of directors or president where you could be fired as long as that is there having a company on H-1 is possible.

Correcting dates on I-94

Authored on: Mon, 10/26/2015 - 05:04

Question

My current visa H-4 VISA is valid till Nov 25 2016.<br>
- I had applied for an change of status/extension of stay (I539) for H-4 status to July 4 2018 (through underlying H-1 extension).<br>
- I had to travel to India while it was pending. USCIS issued an I-797 - Approval for the extension of stay without abandoning it.<br>
- At the port of entry, the I-94 expiry was marked as Dec 25 2016.<br>
- The expiry date does not jive with the original VISA expiry date Nov 25, 2016 that was presented at the time of arrival. Nor does it reflect the I-539 extended date of July 4 2018 (that was not presented at port of entry).<br>

Please advise -<br>
a) What action would I required to correct I-94 expiry date? Who do I contact to correct it?<br>
b) I am filing for a I-485 adjustment as a spouse of EB-3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

Answer

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

https://youtu.be/ZvUVIGTM-Kk?t=705

FAQ Transcript:

This is a recurring issue, so first of all I want to address the problem and the possible solutions or the lack of solutions. Often times we have a case, we have a case working on right now actually. This lady entered the US on H-4 visa which was good for let’s say till 2017 but her passport was expiring in 2016 or 2015 She comes in and Customs and Border Protection gives her  I-94 only till the date of her passport approval. And sometimes they do that; they will give it to the extent of visa approval, which is incorrect. Your visa could be expiring earlier than your approval. They should still give you the I-94 all the way to your approval not till your visa. In this case they gave it  only till 2015 and she is been here over a year now in unlawful presence not realizing that she has been given less stay than 2017.

So, this is a very complicated issue or problematic issue. They will correct the mistakes they have made.  If they have made a mistake giving you a wrong date or giving you the date till visa not the approval date, you can actually go back to the CBP at the airport or any of their offices or nearby posts. They have lists of them at www.cbp.gov website and you can ask your I-94 to be corrected.

But there are certain things they don't consider them as errors, such as approval till the passport expiration that cannot be corrected. Then the question is what do you do then?

You have two choices; either you can do the extension of status or current status by filing the form I- 539 or I-129, if you are H-1, L-1 holder. For H-1, L-1 they do it all over again as new case. For H-4 it’s less complicated or simple or you can step outside USA, showing your visa and comeback  and receive your I-94 approval. But if your I-94 is already expired, you must speak with your lawyer before you leave. You could very well subject to the bar which comes from the unlawfully present.

So, in this case what happened is the person who has the above question traveled to India while change of status for H-1 to H-4 was pending.

Now USCIS should have declined change of status because they left US, came back received I-94 good till December 2016. The visa expiration date is November 2016, which is what I gave at the airport he says. 

What action would I required to correct I-94 expiration date?

Look you can go back to the CBP, make your case that you have made an error, I don’t see the error. If anything they have given you is more time not less and because you traveled abroad while your change of status was pending , that approval is really not  worth anything. That’s the mistaken approval.

I am filing for a I-485 adjustment as a spouse of EB3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

I would use the date which they have given you in I - 94 and I would attach an explanation saying that this date maybe incorrect but you don't know. According to your calculation it should have been November 2016.

I always like to make full disclosure to the government, so that they don't come back and create a problem with the discrepancy. 

For PERM is formal certificate required or completion of degree is enough

Authored on: Mon, 10/26/2015 - 04:48

Question

1. I am on H-1B with my I-140 approved in EB-3 with priority date is Sep 2013. I have 12+ years experience in the field. I am getting an opportunity from a company. They are ready to start my green card process.
I have just completed my master degree(MCA) from India. Waiting for my degree certificate, which would take a month or two.
<br>2. Can my new employer do the H-1B transfer now based on my BSc degree (Computer Science) and once I get the master degree certificate, can they start the green card process in EB-2? Or do I need to wait for my master degree certificate before the H-1B transfer?

Answer

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

https://youtu.be/ZvUVIGTM-Kk?t=602


FAQ Transcipt:

That is not required. If you can get the school to give you a letter that says  you have finished all your degree requirements and you are waiting for  formal  confirmation of diploma or degree, that's good enough. But you can't be in a situation where you have taken the examination but results has not come yet, who knows you may not be able to pass.

So, if you have completed all requirements that is research or credits, whatever it is. If you have done those and you are nearly waiting for formal certificate, that is no problem. You can go ahead as you have got your degree already.

Regarding Question 2 the answer largely depends upon the lawyers. Have them review it. There could be potential legal issue. But if your degree requirements are completed and they induct you , employer inducts you or a job requires the masters degree or equivalent, you should be able to use that degree certificate when it comes or even started now. This is an issue which needs to be discussed with your lawyers in detail.

Maternity leave on H-1, FMLA and status

Authored on: Thu, 10/22/2015 - 04:32

Question

My wife is on H-1B visa and went on Maternity Leave (normal delivery) starting 8-Sep-2015 and will be completing 6 weeks of allowed vacation on 16-Oct-2015 (We have 6 Weeks letter from doctor). However, she would like to extend the leave till 15-Dec-2015 ( Total Duration 3 Months 10 Days) as we do not have the required support for the baby. Her Employer is willing to provide her with a leave/vacation letter and she can continue to work with the same employer post her vacation. Pay stubs ($0) will not be provided by the employer.<br>

Also, we are trying to have the pediatrician provide a letter suggesting 4 months of leave but not sure if we can get the same or will it be helpful?
<br>
State - New Jersey<br>
Visa Type - H-1B<br>

Question 1 - Will a $0 pay stub from employer be helpful to keep her in status while on leave?<br>
Question 2 - Will letter from pediatrician suggesting 4 months of leave be helpful to keep her in status while on leave?<br>
Question 3 - Request you to suggest if she will be in valid status if she continues to be on leave till Dec-15 and have a vacation letter from the employer without pay stubs ?<br>

We do have an option of moving her to H4 starting 30 Oct but would like to avoid the same.
<br>
If she changes her status to H-4, <br>
Question 4 - Will her current employer have to file a new H1B or a simple COS from H-4-H-1B would be required once she is ready to work?<br>
Question 5 - Can COS from H-4 to H-1B be filed in premium processing ? If not, what are the timeline for processing of the same.

Answer

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

https://youtu.be/ZvUVIGTM-Kk?t=2334

 

FAQ Transcript:

 If you go to this website - http://www.dol.gov/whd/fmla/&nbsp;on Family and Medical Leave Act the website explains a lot to you that you can go 12 weeks easily and USCIS will honor that and they will still consider you to be in status. So even if you don’t get paid for that time and you don’t get a pay stub that’s fine. Now if there is a medical reason for eg: a pediatrician saying she needs to have x number of months of leave. I think she will be in status. We had a case were one of our friends had to be hospitalized for extended period of time and then she was out of work on H-1 for almost a year but we were able to convert her to H-4 because the government realized she was not out of work because she didn’t have a job it was because she had a medical necessity.

As for the question if she changes her status to H4, and file premium processing, she is not subject to the quota if she changes into H-4. But the employer will have to file H-1B change of status which is almost like doing a new H-1.  Also COS from H-4 to H-1B be filed in premium processing can be done.

Changing employers - what immigration documents should I keep

Authored on: Tue, 10/20/2015 - 09:05

Question

Currently on my H-1B post 6-year based on approval of PERM and I 140 under EB - 2. Would be In the process of switching jobs for some personal / professional reasons very soon.<br>

1) What documents would I need to have with myself - corresponding to PERM and I-140 - so that I can retain my priority date and start another green card process with a potential new employer ?
<br>
2) For the documents above - would I need to have the originals or the photocopies ?

Answer

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

https://youtu.be/ZvUVIGTM-Kk?t=1937

FAQ Transcript:

I think it is always a smart idea to have a complete copy of your file so that you know what has been filed on your behalf. If you can’t do that at the very least have copies of all your approval notices and at least a copy of your labor certification if you have filed the PERM. Copy of H-1 approval, copy of I-140 approval and copy of your PERM. That is what I would recommend.

Travel while H-1 extension pending – change in I-94 number

Authored on: Tue, 10/20/2015 - 08:19

Question

I had applied for H-1B extension on May 15, 2015 with I-94 card expiring on Aug 29,2015. Due to some emergency, I traveled to India in June and returned in July with new I-94 card expiring on Nov 2015. Now, it's been 6 months that I applied for extension, no response from USCIS. Will there be any problem since I filed my H-1B extension with old I-94. Do we need to amend my case with new I-94 card?

Answer

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

https://youtu.be/ZvUVIGTM-Kk?t=1245

FAQ Transcript:

If you file for your H-1extension you are allowed to travel. You are allowed to travel even when your H-1 transfer is pending. A few things to keep in mind when you do - is are you maintaining status etc etc., but travel while transfer or extension of  H-1 is pending is allowed. The question is when you come back your I-94 changes and that is not a problem. That should not cause any delay and I don't see any need for any amendment. The fact that your H-1 is taking so long is most probably not related to this issue. But if you want you can double check with the USCIS customer service. I always advice that. 

H4 - EAD validation if H-1B holder moved to another company

Authored on: Thu, 10/15/2015 - 03:51

Question

I have a question on EAD validity for the below scenario. <p>
H-1B holder got I140 with Employer A and applied EAD for H-4. H-4 is valid until MM-DD-YYYY 10-29-2018. Now H-1B holder moved to Another Employer B, then at this point he doesn't have Approved I-140. Will EAD which received using Employer A valid until MM-DD-YYYY 10-29-2018? I knew for renewal of current EAD after 10-29-2018, we need approved I-140, but not sure exiting EAD is valid until 10-29-2018 if H-1B holder moved to Employer B.

Answer

USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.

H-4 visa extension approved. Can I travel now?

Authored on: Mon, 10/05/2015 - 08:01

Question

My H-4 visa extension has been approved, I mean the USCIS has sent me an approval notice with the I-94 record card. Now it clearly says, this is not a visa. What do I need to do in order to travel to India, do I have to go to a US consulate here, to get a visa stamped in my passport, because in order to travel through Europe we need a valid US Visa or travel through Dubai , which doesn't require any visa, and then get stamped in the US consulate while coming back? I am confused and do not know what is the next step after approval notice. By the way my spouse H-1B visa was also extended while in US by the Employer. But, my spouse hasn't gone out for visa stamping yet, will this effect my visa stamping?

Answer

When you travel abroad, in order to return to the USA, you must first obtain a visa stamp from a US consulate in (any) country that you are visiting. Check the consulate web site to make an appointment and what documents you should bring for H-4 visa stamping. H-1B visa stamp is usually not a precondition to H-4 visa. 

H-1B Employee, telecommuting/working from home

Authored on: Wed, 08/05/2015 - 06:29

Question

I entered US on Jan 2011 on F-1 Visa, completed my Masters and am now working for a reputed US organization since May 2012(OPT start date: May 2012, H-1B start date:Oct 2012. H-1B till: Oct 2017). My work does not require me to go to office, so I work from Home. Now I am planning to visit India next year and get my Visa stamped.<br>
My Questions are<br>
1. Can telecommuting job cause any issue during Visa stamping? I heard someone was asked "if you can work from home, why can’t you work from India?” The organization I am working for has offices in India.<br>
2. Do I need any extra evidence to prove that I am telecommuting, therefore not within commuting distance from my office?<br>
3. I am married. Would you suggest going alone to India for Visa stamping and in case of rejection comeback on H-4 or will it be good to go as a family. My husband is also on H-1B

Answer

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

https://youtu.be/tSRYmjhoEzA?t=437 

FAQ Transcript:

1. The answer is it can. When you have a telecommuting job in most cases what we do is we actually get an LCA for that location. I think that is the proper method to do things. So make sure you have LCA for your home location. You can always come back on H-4 if the H-1 is denied and your husband does not have to go with you. It is not necessary to go as a family but the option of coming back on H-4 is always there. 

2. We always get LCA for home location. So if your employers have not obtained LCA for you I think they might need to do an H-1B amendment depending upon the facts of your case. So before you go for visa stamping it would be a good idea to discuss it with your lawyers. In my view the safest thing is to have an LCA and that location specifically approved under the H-1 process.

H-4 Visa Delay

Authored on: Tue, 07/21/2015 - 10:35

Question

I am currently on H-1B visa and I applied for my spouse, H-4 visa (Dallas Texas service center) on They received it on March 4th and Receipt Date March 6th. Now 4.5 months completed. I heard that usually visa processing time is 3 months, but no idea what happened. Like to know what are my options available to expedite it, due to this we could not visit India.

Answer

Open a Service Request by calling USCIS customer service. By the way, you do NOT need an H-4 approval from USCIS to obtain a visa. In this respect, H-4 is different from H-1.

H-4 Visa Approval

Authored on: Tue, 07/21/2015 - 10:32

Question

I received my H-1 approval & other documents yesterday. I am worried because the I-129 document I received yesterday states no dependents are filed with my petition (Page 4, Part 4). I had sent all my spouse details/ marriage certificate etc. while attaching supporting documents in March. What is the process for H4 visa approval as my spouse would be accompanying me.

Answer

H-4 visas do NOT require a USCIS approval for a spouse who is going to the consulate for visa stamping.

H-1 employer not paying

Authored on: Tue, 07/07/2015 - 06:32

Question

My employer did not run my payroll. He told me that we are going to get the project money after 2 months from client. Can I do something for that? If they do not run payroll can it create any problem?

Answer

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

https://youtu.be/PreNUXXW9KU?t=696

FAQ Transcript 

The employer will be in a lot of trouble. The law is employers cannot bench or reduce the salaries of the employees just because they are in between projects. They are required to pay the full salary. If they don’t you can file a complaint with the Wage and Hour Division (United States Department of Labor) within a year when the wages were not paid. The form is WH-4. Once you file the complaint, Department of Labor investigates it. You have to do nothing. It does not involve any expense at your part for H-1 holders.  Department of Labor will recover the money and will get the cheques that are due. Secondly if the employer has the practice of doing this in a routine basis then the company can be in a lot of trouble. Please do not get involved in a situation where the employer runs the payroll and you return the cash to them. If that is the situation anybody invites you to that is a party to a fraud. Fraud and misrepresentation can result in criminal prosecution and also can result in a permanent bar from entering the United States.

Simultaneous filing of H-1 amendment and extension

Authored on: Mon, 06/29/2015 - 08:33

Question

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

Answer

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

https://youtu.be/PreNUXXW9KU

FAQ Transcript: 

Filing for two benefits for eg: H-4 and F-2 or F-1 or even H-1 becomes problamatic when there is a change of status involved. So if you are applying for two different statuses at the same time that becomes problematic. If on the other hand your status is H-1 - the same status one is in the amendment mode, the other one is in the extension mode I don’t see it as a problem. Whether your amendment gets done first or your extension gets done later or the other way round I do not see how that makes a difference as long as your statuses is being maintained.  I do not see any problem with having simultaneous filing of H-1 amendment and extension. There is no question of the application of the last action rule really doesn’t matter. If the amendment comes before the extension or transfer comes before the extension it is your choice you can stick with the same employer and join the new employer later when the approval comes. Last action rule has little bearing on this. 

Regarding question four what the government has said is we will not do premium processing where you request an extension whether the extension is with the same employer or with a new employer. So extension cases will not be processed in premium processing until the government says otherwise.

H-4 EAD filing based upon I-140

Authored on: Tue, 06/02/2015 - 10:07

Question

My husband got his I-140 approved from his previous employer. Then he changed his employer and has filed his LC which has NOT been approved yet. His previous employer has WITHDRAWN the I-140.He is in his 11th year of H-1. Couple of questions.<br>
1) Can I file for H-4 EAD?<br>
2) My husband currently has no I-140 approved. While checking my application, will they look into his application and cause any issues to his present H-1 extension?

Answer

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

https://youtu.be/8N82R3qAiJo?t=569

FAQ Transcript:

Did he get his H-1 approval for one year or three years? If he got it for one year then you might be still able to get H-4 EAD filed. But if he got a three year approval or more than one year approval based upon the I-140 rather than the perm application you may not qualify and in fact the government has said if you are basing your H-4 EAD filing upon the I-140 then the I-140 is withdrawn you are no longer eligible to file the application and somebody asked a question what if my EAD is approved then the I-140 is withdrawn the government has said even then we reserve the right to revoke your H-4. So you cannot file unless you qualify under one of the two grounds. I-140 or one year extension based upon labor certification.

Can I travel while my H-4 EAD is pending?

Authored on: Tue, 06/02/2015 - 08:54

Question

First of all thank you for all your blogs and videos on immigration. They are very informative and knowledgeable. I follow your views and suggestions on all my immigration work. I also recommend your suggestions to lot of my friends and colleagues. I appreciate your help towards the community.<br>
I have a situation:<br>
I am in my 3rd year of my H-1B status, my I-140 is approved and need to file for my spouse H-4EAD on May 26, but she needs to travel to India for family reasons in August this year.<br>
Questions:<br>
1) Will that be a Ok for her to travel to India while her H-4 EAD petition is pending?<br>
2) How long will the petition will take to come to a decision (~estimate)?<br>
3) What happens if her H-4 EAD petition gets approved and she is in India? Does she have to go to the US Embassy again?<br>
4) (Being positive but need to think the other sides of a same coin) what happens if her H-4 EAD petition gets denied? Will she be able to retain her H-4 status? Will she able to enter US without any issues?<br>
5) What would you suggest? Will that be ok for her to visit (or) to wait till the decision is made on her H-4 EAD petition?

Answer

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

https://youtu.be/8N82R3qAiJo?t=123

FAQ Transcript:

Answer 1. There are two possible situations. If you are already in H-4 status USCIS says you can travel, of course you will need a visa to enter. And if you’re I-765, EAD is approved while you are outside USA no problem but we advice is not to travel is because this can cause you delay. The reason they give for delays is what if they issue an RFE. That is not a problem if you have a lawyer or somebody else helping you they can take care of the RFE or the notice of intent to deny. Or if they schedule you for fingerprinting etc., in an application support center you can always be informed and you can come back. So it looks like if you are already in H-4 status traveling while the I-765 is pending is not a problem. However if you are applying for  H-4  status the old law was and still remains if you travel when your change of status application is pending then you are out of luck. Your application is deemed to be abandoned and they will also deny the I-765.

Answer 2. There can be no estimate. What the government has said is if you file for H-4 and EAD at the same time we have by regulations 90 days to adjudicate the I-765 but we will begin the time to run until the H-4 is decided. That’s probably the approach they will take. 

Answer 3. That’s not a problem. Visa has nothing to do with the H-4 EAD. She need not go to the embassy.

 Answer 4. Absolutely. If the H-4 for some reason is violated or denied EAD has no way of existing. The status can stand by itself or the visa can stand by itself and the EAD denial does not affect it.  

Answer 5. I think it is ok to travel. It is up to you if you can avoid travel avoid it by all means if you must travel go ahead and travel.

In which country must I apply for a US visa?

Authored on: Tue, 05/26/2015 - 21:09

Question

My name is Harendra having H-1B and an Indian national , I want to file H-4 for my wife who is a Srilankan national with Srilankan passport , living in India legally with my parents after marriage for the past three months. Can she apply her H-4 from India or she needs to go back to her native country to apply ?
Is there any rule for spouse applying visa from primary applicant's country of residence?

Answer

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

https://youtu.be/3Heaadpk1Ik?t=396

FAQ Transcript:

Answer is yes. This is the requirement for visa stamping from US. If you want to apply for a US visa, you can actually go to pretty much any country. They are not obliged in that country to take your application but you should. US Consulates don't turn people away no matter you are from which country. They can if they can't verify degrees, for example H-1 visas or they can't verify your family ties in case of tourist and student visas. They can ask you to go to your home country. But there is no harm in asking for an apply. As of right where do you have right to apply, where do you live on the long term basis. Let’s say you are on student visa in Australia, you have right to apply for the US visa from the Australia, in the US Consulate in Australia . Or where you are a citizen, if you are resident in one place and citizen of other you can apply from both places, that's your right.   

Everything else is called third country national processing TCM. In TCM  almost always Consulate will entertain your application but they may not be able to verify your degrees or your family ties, F-1 visa, H-1 visa, tourist visa this become problematic but you can certainly try.  There is no harm in trying. The only time TCM does not work when you are out of status. If you are out of status even for one day, under the law TCM option is taken away, Third country nationals will not be entertained unless you are in extra ordinary circumstances. In practice, however I have seen Consulates don't really make a big deal of out of status; of course unlawful presence is other thing.

So for you Harendra there is absolutely no doubt your wife who is Srilankan citizen but living in India with your parents legally can apply for a visa to the United States, H-4 visa from India. 

Requirements for Extension of H-1 beyond 6 years

Authored on: Tue, 05/26/2015 - 20:59

Question

I am looking for opportunities using the remainder option of my H-1B. I have a year and half remaining out of six years.

Now, most of the companies do not want to start the GC process immediately; they want to start after 6-12 months.
I have the following two questions:
1. What stage do I need to reach on my GC process when the remaining time on H-1B ends.
2. If my company doesn't want to start GC process immediately, can I begin this on my own using my personal fund?

Answer

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

 https://youtu.be/3Heaadpk1Ik?t=273

FAQ Transcript:

There are only two ways to extend your H-1B beyond six years. One is that you have I-140 approved. So PERM is approved, your  I-140 is approved   and if you are an EB-1 person then your I-140 is approved (NIW EB-1). So if your I-140 is approved, we don't care when your Green Card started, whether its PERM based or direct filing of EB-1, you are entitled to your H-1 extension.

The other method is your PERM was filed a year ago or your I-140 and NIW.  In the case of first anniversary you will be entitled to 1 year H-1 extension, in case of I-140 approval you will be entitled to 3 year H-1 extension

 

H-4 EAD - Documents needed; name issues; processing times, etc.

Authored on: Thu, 05/07/2015 - 08:07

Question

Q1. Among the documents needed for filing H-4, what are the ones we really need to make sure, we have them. I mean few like Date of Birth Certificate from Indian Municipal/Registration office..... is that needed even for H-4 EAD. What if the name on the Birth Certificate from Registration office is different from name on Passport? What should be done here? Any other documents etc. we need to be careful about and should be working to get ready now. (Education certificates and marriage certificate etc. we already have)<br>
Q2. Would it again be first come -first served in terms of filing H-4 EAD? I mean people who file on May 26-27 --would their applications be processed earlier than the ones who file little later.<br>
Q3. Approximately how much time it’s expected for EAD to arrive, everything going well<br>
Q4. One last question, if I happen to change my employer at this time, and if my GC process is re-initiated would my wife be still eligible for filing H-4 EAD or NOT ( in a situation if old employer revokes I-140 )

Answer

 

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

FAQ Transcript: 

A1. So far it appears to me and again we don’t have the details yet. The very least you will need is proof of marriage and birth certificate. I don’t think that is the normal requirement but I believe proof of relationship should be acquired and kept. Then the question what if the names on the birth certificate and passport are different.... we still don’t know lot about these issues I would say an affidavit explaining the discrepancy and probably making efforts to remove the discrepancy whether you want to have the passport issued under the correct name or whether you want to have a Indian court give a declaratory judgment of some kind that the name X and Y are the same person. Something like that would be a good idea. But it is not going to stop you H-4 EAD application at least in my mind. I think even education certificates are irrelevant because the h H-4 EAD is not given based upon what degrees you have it is given based upon your relationship with the H-1  holder who is at a certain level of maturity in the green card process. I am not worried about the laminated original document. That doesn’t bother me. 

A2. First of all USCIS just roughly follows the first in first out rule. They are not always bound by that rule because there are so many variations within processing times if it is given to a particular officer which depends on what is their case load is and what if they have to take a couple of days off. It’s not always predictable that you will always be first in and first out. 

A3. Under the regulations USCIS should adjudicate EADs within 90 days. But in case you don’t know they are finding it very difficult to keep to that time, I do not know when they get hundreds and thousands of applications are they going to keep that to that time, do they have the resources for that, I will be surprised if they are able to keep to the 90 days process but if it is merely administrative process and there is not a whole lot of investigation involved then I don’t see why not but I really don’t know. 

A4. The government has said as long as you have one I-140 that remains unrevoked they will give us the H-4 EAD. But if the I-140 is revoked then H-4 EAD will not be given.

H-4 EAD - Converting from H-1 to H-4 EAD - good idea or not?

Authored on: Wed, 05/06/2015 - 03:47

Question

My I-140 was approved on Sept 2011. I came to US on 2008 beginning on L-1 visa and then my employer converted to H-1 visa. On February'15 I got an extension on my H-1 visa based on I-140 approval but I didn't get it for 3 years from Feb'15 rather I got it till Nov'16 (about 1 year 10 months). I am thinking to join another company now. What should I consider before I transfer my H-1 to employer B from employer A on my situation? My wife is on H-1 and it’s valid till 2018. I am also thinking my wife to apply H-4 EAD rather continuing on H-1. Is that going to be a better option?

Answer

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

https://youtu.be/y6RtaKhuoIY

FAQ Transcript:

I would say that I think you should hold off. Don’t give up H-1 to go to H-4 EAD. There are couple of issues here. We don’t really know how far the government is going to go into investigating these cases - are they going to go to details of the H-1 status, if not it could be a simple matter to get H-4 EAD. If they start getting into status issues we could be looking at a protracted battle over the EAD issues.

People who are thinking of going to H-1 to H-4 EAD I would suggest hold off for a couple of months and let’s see how the government is dealing with the EADs and if they are asking for too much information you may not want to convert from H-1 to H-4 EAD.   

Exempt from the H-1B Quota

Authored on: Sat, 05/02/2015 - 11:44

Question

I got my H-1B petition approved last year, it got extended as well. I have never used any of these visas to work in the U.S. though I have travelled few times to U.S. but on B-1 visa for meetings with the customers. So the question is when do I become exempt from the H-1 quota?

Answer

In your situation when you are outside the USA, you become  exempt from the H-1 quota  when you get your visa stamped. So I think USCIS interpretation of law is faulty and  incorrect, because in my view as soon as H-1 is approved you should be exempt from the quota but USCIS has taken the position that unless you get the visa stamped from the consulate we will not consider you exempt if you are outside the USA. So it appears to me that  you should be exempt from the quota.

H-4 EAD Filing

Authored on: Sat, 05/02/2015 - 11:24

Question

My spouse is on H-1 visa and his former employer filed I-140 and then my spouse changed his employment to another employer and transferred his H-1, the I-140 has not been revoked by former employer. So my H-4 is with the former employer valid for three years, and current employer for my spouse has not filed H-1 for me. Is the H-4 from the former employer valid for file EAD or do I have to apply for H-4 again and what would be the documents that would I need to file H-4 EAD ?

Answer

Every time the H-1 holder changes  job, the H-4 holder does not need to re -apply for H-4. Your H-4 is good.  You don't have to have different H-4 for the employer. Of course,  every time the H-1 holders change their job they have apply for new H-1 but as long as you never violated status and H-1  holder has  never violated status that H-4 continued to be good from job to job to job, you are good.

Your  second question was what document need to file H-4 EAD?

Answer is we don't  know yet. When the instructions for the new form I- 765 come out along with the form I-765 they will tell you exactly what you need to submit . I suspect probably marriage certificate along with evidence of  couple of last  pay stubs of your husband's, copy of H-1 receipt and a copy of your H-4 receipt or approval or visa stamped. That typically they should be looking for. But I don't have any basis for saying, this is just my guess.

H-4 EAD COS pending; File green card while on H-4

Authored on: Thu, 04/23/2015 - 05:13

Question

1. Can I apply for H-4-EAD on May 26 2015 even if my H-4 COS is still pending ? Or I will have to wait till it get approved ?<br>
2. My employer already filed my PERM and they are OK to come back with them on H-4 EAD. Can I apply for I-140 after H-4 EAD is approved ?
Is it ok if I will stay on H-4 EAD to continue processing of my GC ?

Answer

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

https://youtu.be/3Heaadpk1Ik?t=809

FAQ Transcript:

1. You can apply while your status is pending. but in my opinion an EAD can be applied on or after May 26th even if change of status to H-1 is pending.  

2. Yes there is no law that stops you from applying a green card. you can start your green card , continue your green card or even finalize your green card while you are on your H-4. 

H-1 Receiving Payments for Past Work/Bonus (1099)

Authored on: Thu, 04/16/2015 - 10:15

Question

I worked for ABC Company for last 3 years. They extended my H-1B at the end of 3rd year. But during my 4th year (this year) I changed my employer and updated my H-1B too. At the same year, ABC Company was sold to another company. ABC Company decided to give bonus to its current and formal employees. I got a bonus

check from ABC Company. Since, I was not on their payroll they issued me a 1099

misc form for tax purposes for this tax year. My understanding is H-1B employee

can file only W-2 form with current employee. If I file my tax with this 1099 misc

form from ABC Company? Am I violating the H-1B rules?

Answer

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


FAQ Transcript:
I don't see any problem. The reason being, that payment even though they are paying you after you left the company is not the violation of your status. It is reflective of the amount already earned.  While you have H-1 with these folks you earned these amounts. Now, 1099 usually a bad idea but in your circumstances I don't see it as problem. Usually you can only do W-2 but in this particular case I am not quite sure how USCIS is going to look at it. What questions  they are going to ask you.
 
But I can tell you this  in the ultimate analysis  after you have responded and made clear that , the money given as part of a bonus which  was earned  by you , you had a H-1 with that company . So it's not a new work. I don't think you will have any problem. So, legally you are in good position.

H-4 EAD Rule FAQ's

Authored on: Wed, 04/01/2015 - 05:30

Question

1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently?

3. I am currently on OPT ( from F-1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140
Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD ?

4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140.
My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ?
5. Can H-4 EAD can do business ?
6. I am in USA on H1B and running my 5th year. but recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse?

7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back?
b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped?

8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status?
2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously. Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?
b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?
c. If YES, how long is this ‘grace period’ for OPT cap-gap extension?
- If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

Answer

1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

Answer: The H-4 EAD, like the EAD under AOS/I-485 is an opportunity, not an obligation. You can choose to get get an EAD and then not work at all. The EAD remains valid.

 

2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently? 

Answer: I-539, change of status has to be filed only if the derivative spouse is in a status other than H-4. If your spouse is already in H-4 status, you will file the I-765 only. If they are in a status other than H-4, such as F-1, you will file for change of status to H-4 using I-539 and you can concurrently file the I-765.

 

3. I am currently on OPT (from -F1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140 Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD?

Answer: I think we have plenty of clarity at this time. You can apply concurrently for H-4 COS and EAD on or after 26 May. You can also apply for H-4 COS now and EAD later. 

 

4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140. My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ? 

Answer: Good points. But H-4 EAD will still be good for people with no I-140 who are in 7th plus year H-1 extension. As to whether or not this is an easy task, depends upon whether they do it by memo (real easy) or regulation (time consuming). 

 

5. Can H-4 EAD can do business ?

Answer: H-4 EAD holders CAN do business.

 

6. I am in USA on H1B and running my 5th year. But recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse? 

Answer: Since you have received extension beyond 6 years of your H-1, I see no problem in your spouse obtaining her EAD.

As to whether we can represent you, is more problematic.  Since we do not know the depth to which USCIS will examine the supporting documentation that goes with the H-4 EAD petition, we have no good way to decide what to charge. For instance, if USCIS starts asking questions about the status of H-1 holder, it could involve hours of our time.  But if they do not, it would be just a simple filing.  There is no fair method to assess the issues that can be raised.  One of the options you have is to file the Form I-765 with supporting documentation yourself, and then retain us only if an RFE is issued.  That way, in reviewing the RFE, we can assess how much work is needed and charge accordingly.

 

7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back? 

b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped? 

Answer: a. In my view it is no, she does not need to go  for visa stamping if she already has a visa. Not working after getting her  EAD is  her right. Therefore, it is not a violation of her H-4 status if she decides not to work, work part time, or own a business, etc.

b. No. She will need a visa. The H-4 EAD does not operate like an Advance Parole.

 

8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status? 

2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

Answer: 1. I see no issue with changing employers as long as your eligibility is otherwise maintained (status/I-140 etc.)

2. Yes you can. I have discussed this in the video on my blog.

 

9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

Answer: USCIS's position is that casual trips that are brief are permitted. If your husband leaves for a long time, you are not permitted to stay in the USA.

 

10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously.  Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?

b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?

c. If YES, how long is this ‘grace period’ for OPT cap-gap extension? If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

Answer: a. I see no reason why you must seek the help of your wife's employers.

b. You will not get any new rights other than an H-4 EAD. 

c. A timely filed H-4 petition will give you the right to stay in the USA awaiting outcome.

Considerations for AC21 job portability

Authored on: Mon, 03/30/2015 - 00:12

Question

My I-485 (based on EB-1) is pending more than 180 days. If I decide to change jobs under AC 21 rule -<br>
(1) Does the new job description should be same as by definition of EB-1 or should it match my current job description based on which I applied for GC in EB-1B?<br>
(2) Do you advise to change using EAD or transferring H-1B? <br>
(3) Based on your experience, will you advise to change jobs under AC 21 or stay in the present job until GC is approved?

Answer

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

https://youtu.be/GtOqgqgEG6I?t=242

FAQ Transcript

Very important issue is Job portability. Today the way it works is an AC 21 portability was basically enacted by Congress back in October 2000 under a law called American Competitiveness in the 21st Century Act, the kind of abbreviation or acronym for AC21. What does it mean? If you’re I-140 is approved and your I-485 is pending whether it was filed with the I-140 or after I-140 approval. If it has been pending 180 days, you may change employers to any same or similar job anywhere in the United States and you will not have to do your Green Card again. So basically you can port your job over as long as it is same or similar. Tricky problem, what is same or similar? No one knows. If you are a software engineer and you remain as software engineer in the next job then same or similar. If you are a software engineer and you become IT manager in next job then not sure same or similar job.

This is where Obama steps in and he says look I will make it clear for the record that natural progression in a job does not take away from being a job same or similar that's the first thing President Obama wants to do and hopefully they will implement really quickly. So, natural progression is considered to be same or similar. Second thing President Obama wants to do is to let you file I-485 without the priority date becoming current. So that means you will earn a right for AC-21 almost a year- year and half, two years into your Green Card process which is very good. Right now if you are India born or China born you could have to wait minimum years to earn that right. So that's in a nut shell what AC-21 is.

Further down somebody was asking a question today: Do we have to inform USCIS?

Interesting thing is that there really is no formal process for implementing in AC-21 transfer over, job portability. Basically, you are not required to file a letter but we usually have employees, people, individual in that situation, file a letter and inform USCIS. Because USCIS is prone to making mistakes, sometimes if the old employer revokes your I-140, if you are an AC-21 eligible individual it does not make any difference if the employer revokes the I-140 as long as you cross the 180 days deadline. Even if they revoke you are entitled to AC-21. But the problem is USCIS sometimes is not aware of the new laws especially the less trained officers. They could revoke your I-485 and send you notice. Next thing is you are running around and trying to solve this problem and if the AC-21 is revoked you are immediately unlawfully present, you cannot work and work is debatable. Let’s just say you are unlawfully present, it’s just a whole lot of mess that should be avoided and that's why I also advice people to keep their H-1 active. So AC-21 letter should be sent.

Another question asked is should I hire a lawyer?

Please do not do this yourself, many things I OK with people doing by themselves you may be ok and you may be get through it. But this is not worth taking chance as downside is too terrible so get a lawyer don't do it by yourself.

Now the question before me

My I-485 (based on EB-1B) is pending more than 180 days. If I decide to change jobs under AC 21 rule -

1. Does the new job description be same as by definition of Eb-1B or should it match my current job description based on which I applied for GC in EB-1B?

Answer:  Current job description. If you are trying to take advantage of EB-1 portability or AC-21 portability your job description should be same or similar in relation to job description is already being filed.

2. Do you advise to change using EAD or transferring H1-B?

Answer:  I told you H-1 is better; keep your H-1B alive.

3. Based on your experience, will you advise to change jobs under AC 21 or stay in the present job until GC is approved?

Answer:  Yes if you have good opportunity. We have done thousands of AC-21 in last few years and we never had an issue as long as job is same or similar you should be fine.

 

 

 

Green card through two employers and future employer

Authored on: Mon, 03/16/2015 - 11:32

Question

I am in a very difficult/complex situation, the situation is as below:<br>
Have been on H-1 for 3 + 3 + 3 + 1 years (last 4 years extended based on approved I140). Have approved I-140 with priority date of June 2010 in EB-2 category. H-1 extension was denied last year hence had to leave employer A, now I am on H-4 and will be soon filing H-1 with employer B. I have following questions on which I am requesting your opinion. <br><br>

Q1. When my priority date becomes current and if I am still with employer B, can employer A still file my I-485 and that way I can then get the EAD and join him on EAD? :<br>
Q2. Further, do I have to be working with employer A on an active H-1 visa to be eligible to file EAD when my priority date becomes current? :<br>
Q3. If question 1 approach works, can I then continue to work with employer B and employer A can process my green card in parallel. :<br>
Q4. What are the risks in working for employer B when my I140 is with employer A. Note that employer A is willing to preserve my I-140 and process green card eventually without me working for him, because he is unable to find me any projects? :<br>
Q5. I do plan to file for a new GC with employer B but worry is the priority date is likely to become current before I complete GC process with B. :<br>
Q6. Do I need to be with employer A for my wife to apply H-4 EAD based on my I-140 with A (note that currently I am with employer B).

Answer

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

https://www.youtube.com/watch?v=baprYGs8IzQ&t=893 

 

FAQ Transcript

Answer to Q1. In other words you have the intention to join both of them but you haven’t chosen yet and I think that’s quite OK as long as that intention remains and the employer’s intention remains to hire you at the present date or future date you can file a green card or even an I- 485 that’s perfectly permissible. Actually you don’t have to join them on EAD you can join them after the green card is approved as long as you have the intention to join them the green card can go forward. 

Answer to Q2. No you do not. 

Answer to Q 3. The answer is yes 

Answer to Q 4. The problem is USCIS can always question this arrangement from a common sense perspective. This type of situation has not been questioned very frequently. In my entire twenty plus years of practice of immigration law I have had only one instance out of Chicago where this issue was raised and questioned. We get a kick back from USCIS saying well you know if he wants to work permanently for this employer why is he working for the other one why did he leave and we had a very good answer. In fact being paranoid we had prepared for that and made sure we knew what the reason was and it was genuine. This company was specialized in JD Edwards ERP and JD Edwards had lost a lot of market share so the individual in question the green card employee was a senior technical person and he went to get experience in other types of ERP. He looked at SAP and he was doing work in oracle finances and applications. He was learning all these technologies and the idea was he would be able to bring it back to the employer and they would be able to expand their ERP offerings and we were able to get that green card approved without any problem. So even though he was working for another employer the prior employer got his green card approved and once the green card was approved he joined. By the way under AC21 once the I-485 has been pending 180 days you can file an AC21 without joining the prior employer. The intent to join has to remain active in your own mind till 180 days or I-485 pendency has passed.

Answer to Q 5. I think that’s OK. 

Answer to Q 6. No because the government has made it clear we just want one active I-140 we don’t care which employer it has been approved with.

How Does H-1 Visa Quota System Work?

Authored on: Tue, 03/10/2015 - 09:03

Question

I am an Indian and have been living in London for the last 6 years and currently in the process of getting British Citizenship, which I am hoping to get by April and subsequently British Passport by June. I work for a leading international bank in London.<br>

My girlfriend is currently doing Masters in Illinois, USA, so, I am looking to move to US, but understand the H-1B visa is a bit complicated.
<br>
My question is, how does the quota system work for H-1-B visa and when does the new quota start, and what's the best period to apply for one? So, If I am looking to move there in October 2015, when do I have to get an employer to apply for H-1B for me (provided an employer agrees to sponsor me)? or, is there a particularly good time to apply for H-1B visa?
<br>
Also, is it easier to get the visa if I am there physically in the US or it doesn't matter?

Answer

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

https://www.youtube.com/watch?v=baprYGs8IzQ&t=138

FAQ Transcript:

Well you don’t have any time to lose. Apply right away. The way it works is your H-1 application must reach the USCIS on April 1st no earlier and usually no later. Sometimes they give us three to four days but normally April 1st is the day the quota opens and that’s pretty much the quota closes as well and there are usually more applications received by the government than they have visas almost two to one ratio maybe more sometimes and then there is a lottery held and if you get selected in the lottery then your H-1B gets approved. You go for a visa stamping and you can enter USA no earlier than 10 days before October 1st when your H-1B visa period starts.

What is this thing about October 1st?

The US government fiscal year begins on October 1st so all the quotas including green card and H-1’s they get reset on October 1st.  H-1 you can apply six months ahead of the start date  which is April 1st  so that’s why you file on April 1st  and you begin working on October 1st  but you can enter USA ten days ahead of October 1st.

When do I become exempt from H-1 quota

Authored on: Tue, 02/17/2015 - 01:57

Question

I got my H-1B petition approved in 2008 and again got it extended in 2008 unto Jan 2011. Now, I have never used both these visa's to work in US. Though, I have traveled few times to US but on B-1 visa for meetings with customer. Today, one of my friend told me that I am eligible for cap exempt H-1B application if I get job in US. Also, what will be the processing time for this cap exempt H-1B. Can this be done in premium processing in 15 days ?

Answer

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

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=518

FAQ Transcript:

It is a very odd situation. I think the USCIS interpretation of when you become exempt from the quota is incorrect. But this is their current thinking at least as of last week. With them you never know. They felt if you are outside USA and you get an H-1B approval never go for visa stamping. You are not exempt from the quota. So if you never get visa stamped we don’t consider you to be exempt. If you’re in the United States and you get your H-1 approval but the employer who got the approval revokes your H-1 before October 1st you are not exempt from the quota. I think both the interpretations are incorrect. I would encourage you to try and take a chance and see if you can consider being quota exempt. Anyway if I were you I would certainly file a quota application in April just to preserve all my rights and if it does not get selected in the lottery file again and ask for quota exemption because of the reason that you have an H-1 from before.

 

Can I postpone H-1 status

Authored on: Tue, 02/17/2015 - 01:44

Question

Currently I'm on L-1A status and it expires in *** hence my employer is planning to file new H-1B this April not change of status. Here are my questions...<br>
1) If I get H-1B this April, is it mandatory to work on H-1B from Oct 01, 2015?<br>
2) Shall I continue with L-1A status until it expires and then can I change to H-1B?

Answer

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

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=441

FAQ Transcript:

The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

Changing Jobs During Green Card

Authored on: Thu, 01/15/2015 - 15:59

Question

I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?

Answer

 

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

https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


FAQ Transcript

In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

Work for Old Employer When New H-1 Transfer Approved

Authored on: Fri, 12/05/2014 - 18:36

Question

I have a question on H-1B. I have an approved I-140 from company B and I'm currently working for company A on H-1B( valid till February 2015). Company B applied for H-1B transfer and also 3 year extension based on approved I-140.
I'm expecting H-1B transfer process to be over by 10th Dec 2014( as it was a filed under premium processing ) but I would like to join them only after Jan 1st 2015. In the meantime I would like to continue to work for company B till Dec 31st 2014. My question is how long can I continue to work for company A after successful transfer of visa (H-1B) to company B ?

Answer

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

https://www.youtube.com/watch?v=3YV-qIlAEpI#t=2372


FAQ Transcript

The Answer to the question that is often asked: I am working for an employer on H-1B, my transfer to another employer, let's call other employer 'Y' gets approved. I am working for 'X', 'Y' gets approved and can I continue working for 'X'. The answer is 'Yes'.

Under immigration law, approval of the second case does not over rule your previous H-1 approved. If you choose not to join them or join them 6 months later, I think it is OK. However, if you have signed any contract with employer 'B' or employer 'Y' in this case. Just make sure you are not violating any contract issue.

Under immigration law, I don't see any problem for you to continue working for employer 'A'. How long that's very difficult question to answer.  I would say commercially reasonable period of time. Technically, under the law there is no limit to how long you can continue. If you have joined after 6 months, 7 months, 4 months or 5 months, USCIS can raise an objection, as to if the second employer really had the job through. Don't continue too long, there is no legal limit here established.

Error by USCIS Giving Time Beyond 6 Years on H-1

Authored on: Fri, 12/05/2014 - 17:06

Question

Error in last H-1B extension- now I-140 approved and I have been working on H-1B since 2005. In between, I changed to -F1 and also spent time outside USA. Cumulatively, I would have completed six years of working on H-1B by March 30 2015, after excluding stays in USA on non-H-1B status and stays out of USA.I changed my job in Feb 2014 and have been working with this employer since then. At the time of change, the current employer filed for a H-1B petition and requested an extension for three years – from Jan-2014 until Jan 2017, even though, if I added up all the time of work on H-1B visa in USA, I would have completed six years by March 30 2015.
My I-140 has been approved this month. Now I do not know whether my employer should file for an extension of H-1B (assuming that without the I-140 approval, I was allowed to work until I completed six years of H-1B in USA) or not file for H-1B extension, because, the last extension is valid until Jan 2017.

Answer

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

https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1831

 

FAQ Transcript

What happens is sometimes, USCIS by mistake gives you more time than you are entitled soon for your H-1. Let's say your 6 years is getting over in one year and they give you 2 or 3 years by mistake.

Can you use that time?

And the answer is, that is very risky, don't do that because USCIS could say that you are deliberately misusing an error made by them. They can consider it to be a deport-able offense. It can be a mess. You should assume you have to go through whatever the correct date. You can even call USCIS, make notes of date and time of call etc. Ask them what they want you to do. This is something that your lawyer should be able to resolve. Have them talk with USCIS, protect yourself. Don't assume that because USCIS made an error and gave you more time, you can use it.

Obama's Immigration Action EAD At I-140 Stage

Authored on: Mon, 11/24/2014 - 00:52

Question

I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.

Answer

I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

Unpaid Leave On H-1

Authored on: Mon, 11/24/2014 - 00:08

Question

I have a question on the unpaid leaves when outside USA while on H-1. I am on H-1 and recently went to India for stamping which was completed without any problem. I had paid vacation of 2 weeks, which I had already used and stayed in India for a month which is not going to be paid. My employer is saying these will be unpaid leaves and won't be running paychecks for these leaves and is mentioning that this won't be a problem in future as this is legal. I want to take legal opinion from you regarding what the law says in the above situation. <p>
1. If I am out of US on unpaid leaves and won't get paid, will there be any issues on my H-1 status in future for transfer or GC? <br>
2. If due to unpaid leave, W2 is less than the LCA, will it be a problem? If yes, what documentation we can show to USCIS to clarify to them why it’s less?

Answer

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

https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1516

 

FAQ Transcript

If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status? 

Answer is NO. Unpaid leave is not a device to maintain status. However in this scenario  you have gone to gone to India and  got the stamping done and you got the paid vacation of 2 weeks , but you want few more weeks of unpaid leave and is this legal? 

And the answer is YES. It’s when the employer gives you leave unscheduled, normally unpaid based upon your request not because you don't have a project, then for them not to pay you there is no problem. And for them not to pay you especially when you are outside the USA is absolutely no issue. 

The only problem is, make sure for the green card purposes the employer is generating enough money to meet the ability to pay wages issue. This is something you have to talk to your lawyers about it. Just tell them make sure if I am unpaid for few weeks it does not affect my green card, ability to pay wages issue. H-1 is no problem but if W-2 is less than the LCA because you are outside USA  there is good explanation. 

What documentation can you show? The facts that you are outside the U.S.A; so your boarding passes, any other evidences you have been outside the USA any email from you, something inviting or requesting that unpaid leave of absence for personal reason.

Cross-Chargeability

Authored on: Mon, 11/24/2014 - 00:00

Question

I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br>
1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br>
2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br>
3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br>
4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
https://www.youtube.com/watch?v=ujMQ79pgzX8

FAQ Transcript

Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.

H-4 and I-140

Authored on: Tue, 11/18/2014 - 00:06

Question

Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?

Answer

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

H-1B Visa stamping in general and in third countries like Canada

Authored on: Mon, 11/10/2014 - 18:12

Question

My H1B petition got approved through my existing employer and became effective 10/01/14 (I was on F1 OPT before). Where am I eligible to go to for doing first time H1B stamping, other than my home country (Russia) – can it be done in Canada, Mexico, or other countries? I have Masters from an American university, and over a year of working experience in the US. Also I’ve heard that starting June Canada has suspended doing first time H1B stamping, can you please provide any clarification, and also could you please advise what all options are available to me?

Answer

Sister Filed Petition

Authored on: Fri, 10/03/2014 - 07:29

Question

My sister filed petition for me last year maybe I-130. I am an Indian and my wife is Italian, I am in California nowadays since last week. Can we stay here permanently under I-485 or AOS whatever?

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

Writ of Mandamus for Govt. Delays

Authored on: Thu, 10/02/2014 - 13:49

Question

Hello Rajiv Ji,
Thanks for your time and responses (over the email). I have below questions.

1) I am an EB-2, with Priority date Jun-2008. Applied i-485 in Jan-2012. Cut-off date became current in July-2014. Through congressperson / infopass found that my application is in background checks.
1.a) I have given fingerprints 2.5 years ago and background checks are not cleared yet. so what are my options in expediting it?
1.b) My worry is the checks may not be cleared before next time dates become current, and I may be in the same situation again.
1.b) Can I use Writ of Mandamus? Does my case (485 pending for 2.5 years, current for 2.5 months, but background checks are not completed yet) have enough reasons to claim "unreasonable delay"?

2) I am using my EAD. My labor says "Senior Analyst" as my job title.
2.a) Can I accept a promotion with a director/managerial job title ?
2.b) or does it cause a problem / RFE in future? Duties are more or less similar and work on same software technology, but will have few direct reports and need to manage projects.

3) Can I switch to H1-B as a safe measure?
3.a) Does switching mean I am abandoning my GC?
3.b) Do I need to go out of the country for stamping or can I continue to work without going out?
3.b) what are the risks involved?

Answer

See the marked clip below from Rajiv's video recording for the answer to this question.

https://www.youtube.com/watch?feature=player_detailpage&list=UUm4s1qwOS…

Can An Associate Degree Qualify For RN Based H-1?

Authored on: Fri, 09/12/2014 - 01:49

Question

Can I qualify for RN based H-1 if I have only an Associate degree in nursing?

Answer

The simple answer is, no, unless you also have 6 years of professional experience. Also note, not all RN's can qualify for an H-1.

Is CPT an Acceptable Way of Working?

Authored on: Thu, 08/28/2014 - 06:27

Question

My H-1 6 years are about to be over. No way to extend per lawyers. Can I move to CPT?

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

I-140 for H-1B Extension

Authored on: Thu, 07/10/2014 - 02:38

Question

I have a approved I-140 with on H-1B for more than six years working for company A. If I change to company B I will get 3 years of extension for new employer B. If I leave employer B before my PERM or I-140 is approved with employer B and join employer C. How many years of H-1 extension I will get ? Can I get 3 years of H-1 extension using approved I-140 with employer A.

Answer

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers.

Unless and until the I-140 is revoked, your first approved I-140 can continue to be used for H-1 extensions for any number of employers. - See more at: http://www.immigration.com/comment/13726#comment-13726

I-140 Pending Approval

Authored on: Mon, 05/05/2014 - 07:17

Question

I am currently on second year of my H-1B. My PERM is approved with a priority date of March 2013; I-140 is filed and pending approval. I am hoping this would be approved in July 2014. My question is I am planning to switch employer. Can I carry over my priority date with new employer? If so, are there any conditions like minimum period to wait after I-140 is approved to carry over the Priority dates to new employer?

Answer

The priority date is yours the moment the I-140 is approved. There is no "cooling off" period. 

USCIS Updated Questions &Answers on the H-1B Employer-Employee Relationship

Authored on: Mon, 04/14/2014 - 06:03

Question

Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

Answer

No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

  • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
  • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
  • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

See more at: http://www.immigration.com/news/h-1-visa/uscis-updated-questions-answer…



Retaining PD

Authored on: Wed, 03/26/2014 - 05:16

Question

Approved I-140 having PD December 2012 with company A. Currently on 6 year H-1B. Will be transferred to company B. I guess I will be getting three year extension with approved I-140. Can I retain old PD once GC process is started by company B, even if company A withdraw I-140 ?.

Answer

Employees retain PD even if the old employer withdraws the approved I-140. PD is lost only if USCIS revokes I-140 for fraud/misrepresentation. Do remember, however, there is no right to H-1 extensions based upon a withdrawn I-140. 

Cap Gap Extension Rules

Authored on: Wed, 02/19/2014 - 08:16

Question

I am on F-1/OPT extension which expires on March 2014. Is there any grace period so that my employer can file my H-1 visa. Do I loose my status after March or is there any grace period. If I come under current status when can I file my H-1?

Answer

When your application for H-1 is filed within 60 days of OPT expiring and within the time for the H-1 quota, you are protected by cap gap extension rules. See: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specia... 

H-1 Through Multiple Employers

Authored on: Mon, 01/20/2014 - 02:43

Question

I am planning to apply for H-1 through multiple employers. What are the precautions I need to take. I have my project end date in August, one of my employer will be representing with my current job. Will it be a problem later if the client details does not match ?

Answer

If you are a quota applicant, you can apply through as many unrelated companies as you like. Do not be a party to any misrepresentation. 

Maternity Leave and Pay Stubs

Authored on: Thu, 01/02/2014 - 02:53

Question

I am on H-1B & my wife also on H-1B. After three months pregnancy leave my wife is planning not to work and to transfer from H-1B to H-4. She will not have last paychecks copy for three months so will it be an issue during transfer? Will she need to start the job again to get three paychecks copy ?

Answer

Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.

I-140 Withdrawal vs NOIR in AC21 Context

Authored on: Tue, 12/10/2013 - 04:22

Question

A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my EAD/AC21:
a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140?
b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases?

What are the measures I need to take in either case?

Answer

a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

b. Oh yes.

You can just make sure the employer vigorously responds to an NOIR, if needed.

Grace Period - Using Tourist Visa After Quitting A Job

Authored on: Wed, 11/27/2013 - 22:30

Question

I am here on an H-1B and I am looking at quitting my job very soon to leave the country. I am aware there is no grace period for quitting on an H-1B and I don't have a choice but to work till the last day. I do however have a tourist visa that is valid until 2016. Can I quit my job earlier and still stay a week on the account of the tourist visa to pack up and leave; or would the tourist visa have to be activated only be re-entering?

Answer

It has to be "activated." Note that under the circumstances reentry and hence "reactivation" is likely to be difficult.

OPT to H-1B

Authored on: Mon, 10/07/2013 - 06:40

Question

I am currently on my Post-completion OPT. I was recently hired as an IT by a company which agreed to sponsor my H-1B. My OPT expires on January 2013. I've done my Associate Degree in Computer Science. Also, I have BS in Computer Science but from foreign country. Seven year experience in IT.I had my BS evaluated recently. It is equivalent to US Bachelors Degree in Computer Science Computer Technology.

Q1: I will have a gap of 3 months before April 1. How to maintain my status?

Q2: I am under STEM not with my US AAS but with my foreign BS degree. Can I extend my OPT with my evaluated diploma?

Answer

A1. You can consider going back to school or B-1/B-2 status. There is information on our blog on B-1/B-2 to maintain status.


A2. STEM OPT extension is only for US bachelor's or above. Foreign degree does not help in that.

Government Shutdown – Impact on Immigration Matters

Authored on: Fri, 10/04/2013 - 02:43

Question

1. Our employees are deployed at government sites. Are we still obliged to pay the H-1 wage?

2. Can we ask such employees to use their paid leave?

Answer

A1. Yes. In my view, that obligation continues unabated.

A2. No. If the employees voluntarily wish to do so for their convenience, I feel that would be legal. But the employer may not force employees to do so.

H-1 Transfer

Authored on: Wed, 08/07/2013 - 06:09

Question

I have an H-1B Approval Notice that is valid until next year.I have been working with my present employer for two years, but have found a position with a different company. Can my H-1B approval be transferred to this new company?

Answer

It is possible to apply for an H-1 transfer with USCIS, provided the H-1 holder is maintaining legal status and fulfills all the requirements.

H-1B Amendment

Authored on: Thu, 07/25/2013 - 04:35

Question

My work location had changed and my employer had filed an H-1B amendment. Now I am moving back to the original location, which was filed in the first H-1B petition. Is there anything that needs to be done?

Answer

All H-1Bs are employment, employer and location specific.  Therefore, it is necessary that an H-1B amendment be filed with USCIS if there is any change of location.

H-1 to H-4

Authored on: Wed, 07/24/2013 - 08:31

Question

My spouse and I work for the same IT company. My spouse who is on H-1B visa is already in the US and my H-1B is under process, hoping to get it stamped latest by October 13th. I plan to quit my current job after stamping is over(may be in Oct13) and join my spouse on dependent visa (H-4).

1) When I apply for H-4, will my H-1B be valid or my company will cancel my H-1B?

2) Assuming H-1B still remains valid after my H-4, can I apply for change of status to H-1 later and search for jobs while on H-4?

3) How long does it take for change of status from H-4 to H-1?

Answer

1. H-1 cancellation (revocation) is not automatic, but the company would have to be extremely ill-informed not to revoke the H-1. They must.
2. You can revert back to H-1 from H-4. You will not be subject to quota.
3. The same time as a new H-1. Apply premium if in a hurry.

Request to Upgrade to Premium Processing

Authored on: Wed, 07/17/2013 - 04:00

Question

My employer filed my H-1B petition during the Quota using regular processing. Now we have received an RFE. Is it possible to change to premium processing now in order to receive an earlier decision from USCIS?

Answer

When the RFE response is submitted to USCIS, a request to upgrade the petition to premium processing can be submitted along with the response.  In order to upgrade to premium processing, a new Form G-28 and a Form I-907 will need to be prepared and sent to the employer for signature to be submitted to USCIS with the request to upgrade to premium processing.

H-1 Transfer and Stamping

Authored on: Tue, 07/09/2013 - 04:26

Question

I have stamped visa from Company A and I entered into USA from that company itself. Now my visa has been transferred to Company B. I am going back to India to bring my family. Will I have to go for stamping again? Will it make any difference at POE if Company A revoked/cancelled my H1B?

Answer

If you came in and actually worked for company A for a while, and you have never been out of status, you should not require a new visa stamp. This would be true even if employer A revokes your H-1.

H-1B Quota and the "Reminder Option"

Authored on: Wed, 06/19/2013 - 03:57

Question

I have H-1B stamped valid till March 2014 and I am in India right now. My current employer laid me off and cancelled my petition.I have got a call from a consultant that they can file a new petition in premium category against my exiting stamped visa under cap exempt category even if my current petition is already cancelled. Can I use my H-1B in this way even if my petition is cancelled by my earlier employer and me being available in India .

Answer

There are two parts to your question. Are you subject to H-1 quota? The answer is no, not until you have been physically outside USA for a year. Even after that, you may have the "remainder option." Second, can you use the same visa stamp to travel? The answer is after your H-1 approval, consulates want you to come in for stamping again.

B-1 in Lieu of H-1

Authored on: Thu, 06/06/2013 - 06:47

Question

I came with B-1 to work until I obtain H-1B (this is B-1 in lieu of H-1 clause that authorize me to work). I was not selected at 2013 H-1B lottery. How long can I stay on B-1: 6 months + one renewal, would the second renewal be granted,I am looking at L-1B as an alternative but I did not complete the one continuous year before coming to US with my employer. Can the company "make up" some months of work abroad to complete the 12 months? How deep are they digging into for L-1B?

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.

Receipt Notice for H-1B Petition

Authored on: Mon, 06/03/2013 - 01:56

Question

How long will it take to get a receipt notice for my H-1B petition that was not filed with premium processing?

Answer

According to USCIS, "Usually, customers can expect to receive their receipt notice within 30 days of delivery confirmation. However, due to an unexpectedly high volume of I-129 petitions, it may be an additional two to four weeks before customers receive a receipt notice."

Filing H-1B Quota Cases Next Year

Authored on: Mon, 06/03/2013 - 01:37

Question

Can you let me know when we can start filing H-1B cases again for this year?

Answer

If the beneficiary is not subject to the quota, you can file an H-1B for them at any time.  If the beneficiary is subject to the quota, the new H-1B cannot be submitted to USCIS  before April 1, 2014, with an effective date of October 1, 2014.  We will start working on next year’s quota cases in January 2014.

Applying for Spouse after H-1B Approval

Authored on: Tue, 05/14/2013 - 04:00

Question

I am planning to come to the U.S. to work. The company that is going to file the H-1 petition for me tells me that they will not need to file any petition for my wife. I want her to accompany me to the U.S. What do we need to do?

Answer

The company will file your H-1B petition and, after you receive your H-1B approval, your wife should accompany you to the consulate to apply for her H-4 stamping in order to come with you to the U.S. as your dependent.

Sufficient Evidence of an Employer-Employee Relationship

Authored on: Tue, 05/14/2013 - 03:52

Question

We are filing an H-1B petition for a three-year period for a potential employee. However, they will be assigned to work at a client site and the contract we have with this client is not for the full three-year period. Will the petition be denied on this basis? We would still want this individual to work for us for the full three years.

Answer

If you do not initially provide sufficient evidence of an employer-employee relationship and the availability of sufficient specialty-level work for the duration of the requested validity period, you may be given an opportunity to correct the deficiency through response to a Request for Evidence (RFE).  Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period, as long as all other requirements are met.  However, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Filing H-1B Petition while Passport Expires in Six Months

Authored on: Tue, 05/14/2013 - 03:40

Question

How can I file an H-1B petition if I have less than six months before my passport will expire?

Answer

You can submit evidence that you have applied for an extension of your passport along with the H-1B petition.  Such evidence may include copies of any documentation sent for the passport renewal.

Change of Visa From H-1B to F-2

Authored on: Mon, 05/06/2013 - 03:00

Question

I am currently on H-1B visa. Is there a way I can change the visa to F-2 without going back to India? My fiancé is here on F-1 visa and this visa is valid till Sep 2014.

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.

H-1 After Marriage to a U.S. Immigrant

Authored on: Mon, 05/06/2013 - 02:55

Question

After getting married to a green card holder & applying for a spouse visa is it possible to apply for H-1 visa?

Answer

Yes you can apply for H-1 even if you get married to a U.S. immigrant or U.S. citizen.

Validation Instrument for Business Enterprises (VIBE) System

Authored on: Fri, 04/19/2013 - 15:44

Question

USCIS sent an RFE for my H-1B petition and indicated that they have attempted to validate the company or organization in its Validation Instrument for Business Enterprises (VIBE) system. What is this?

Answer

USCIS has indicated that VIBE allows USCIS to electronically receive commercially available information from an Immigrant Investor Program (IIP), currently Dun and Bradstreet (D&B), about apetitioning company or organization.  This information includes:
•    Business activities, such as type of business (North American IndustryClassification Systemcode), trade payment information, and status (active or inactive)
•    Financial standing, including sales volume and credit standing
•    Number of employees, both on-site and globally
•    Relationships with other entities, including foreign affiliates
•    Type of office (for example, single entities, branches, subsidiaries and headquarters)
•    Type of legal entity (for example, LLC, partnership or corporation)
•    Company executives
•    Date of establishment as a business entity
•    Current physical address

Tracking H-1B Petition During Quota

Authored on: Mon, 04/15/2013 - 04:22

Question

How will I know if my H-1B petition has been accepted in the quota?

Answer

For cases filed with Premium processing, USCIS will issue a receipt notice via e-mail.  Cases filed with regular processing will have to wait until either the receipt notice is sent via USPS (U.S. Postal Service ) or the case is returned by USCIS.

Exploring Other Options During H-1 Transition

Authored on: Fri, 04/05/2013 - 09:03

Question

As my husband's H-1 expires, we are moving back to India around August/September. I am exploring options to quit my job (also on H1) in the last 2-3 months, but since this is a short period, I'm looking for the most convenient and economical transition. Can you please advise:
- Convert to H4: What is the expense incurred and how much in advance would I have to apply for this?
- I have a tourist visa that is valid till 2016- can I take advantage of this?
- Is there a grace period after leaving a job here (giving up your H1) that I can take advantage of if I time it properly?

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.

Fresh H-1B After 6 Years

Authored on: Thu, 03/28/2013 - 07:52

Question

I possess a US Master's Degree in Computer Science and also worked in the US for 7 yrs, 6 of them on H-1 which expired on May 31, 2012. I have since been in India and will complete 12 months of physical presence outside the US in early June 2013. I do have an employer ready to petition on my behalf on April 1st but could you please help shed some light on:

1. Given my past H-1 stay in US, am I subject to either cap of 65,000 or 20,000? If neither, can petition be filed anytime of year after 4/1? Since 12 mos. of physical stay in India will complete in June, can petition be filed on April 1st?

2. Does 12 month rule of physical stay outside the US apply if my current employer were to petition an L-1?

Answer

1. You will be subject to quota and USCIS will not accept the filing until one year is over.

2. Being outside for one year does give a fresh start on the L-1 times as well. And, L-1 are not subject to quota.

Evaluation Required for Non-U.S. Education Credentials

Authored on: Wed, 01/23/2013 - 02:38

Question

What kind of evaluation do I need for my non-U.S. education credentials?

Answer

The evaluation should be done by a professor in the related field of employment.

Export Control Regulations

Authored on: Wed, 01/23/2013 - 02:36

Question

Where can I obtain additional information about the export control regulations?

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.

Form I-129 and Denial of Petition Based on License

Authored on: Wed, 01/23/2013 - 02:33

Question

Will a petition be denied if an export control license is required but has not been obtained prior to filing the petition?

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.

Form I-129 and Copy of the Export Control License

Authored on: Wed, 01/23/2013 - 02:27

Question

Regarding Part 6 of Form I-129, does USCIS require a copy of the export control license if one is necessary?

Answer

No. At this time, USCIS does not require a copy of the export control license as part of the nonimmigrant visa petition process.

H-4 Dependent Visa

Authored on: Wed, 01/23/2013 - 02:20

Question

Is it possible for an H-1B holder to apply for H-4 dependent visas for a fiancée and/or parents?

Answer

For an H-4 dependent visa, qualifying family members include only the spouse and unmarried children under 21 years old.

Maintaining H-1B Status While Changing Employers

Authored on: Tue, 01/08/2013 - 06:59

Question

I am working for my employer in H-1B status, but another company has offered me a better position. Can I just transfer to the new company with my H-1B approval?

Answer

When an H-1B foreign worker would like to change employers and continue to maintain his or her current H-1B status, an I-129 petition must be submitted to USCIS by the new employer or its representative. The forms in this case will be treated as a new petition and will require the appropriate filing fees.

H-1B Transfer from Cap-Exempt Employment to Cap Employment

Authored on: Fri, 01/04/2013 - 03:59

Question

Is a transfer possible from a cap-exempt to cap H-1B?

Answer

It is possible. You will have to follow the April-October time frame, except where you apply for concurrent cap employment to run together with your cap-exempt employment.

Timely Filing of H-1B Extension

Authored on: Wed, 01/02/2013 - 05:03

Question

My H-1B status will expire the last week of January 2013. I cannot file my petition for an extension until after January 1, 2013. Will that be too late to file an extension?

Answer

A petition is considered to be timely filed as long as it reaches USCIS prior to the expiration of your current H-1B status.

H-4 to H-1 status

Authored on: Wed, 12/19/2012 - 03:06

Question

I was in H-1B status for three years, then changed to H-4 status. If I want to change back to H-1, will I need to wait to file under the new quota?

Answer

If your previous H-1B petition was counted against the cap, you should not be subject to the quota and should be able to file an H-1B petition at any time. However, if your prior H-1B employer was cap-exempt, you will be subject to the quota.

Performing services in more than one work location

Authored on: Mon, 12/17/2012 - 01:53

Question

The employer who is going to sponsor my petition has told me that I will be working in more than one work location. Will USCIS see this as a problem?

Answer

The petitioner (your prospective employer) will need to submit a complete itinerary of services or engagements if you will be performing services in more than one work location. Furthermore, the petitioner must comply with Department of Labor regulations requiring that an LCA is filed specific to each work location for the beneficiary.

H-1 Concurrent Employment

Authored on: Thu, 12/06/2012 - 01:40

Question

If I am applying for concurrent employment on H-1, can I extend my status based on my new employment, or can it only be for the time I am already approved for?

Answer

You can extend your time, assuming that you would be otherwise eligible for an extension of status.

Adjustment of Status from H-4 to H-1

Authored on: Wed, 11/28/2012 - 06:31

Question

I may be travelling US on H-1B next year with my spouse on H-4. Is there any possibility to find a job in US for my husband through H-1B sponsor by some consultants and how much risk is involved in this?

Answer

As long as there is quota remaining on the H-1B, the law permits change of status from H-4 to H-1. And, if the H-1 is denied, that does not affect the existing H-4. So, no legal risk that I can see.

Subject to the Quota

Authored on: Mon, 11/19/2012 - 10:36

Question

An employer applied for an H-1B for me two years ago under the quota and it was approved, but then I was unable to come to the U.S. to start the job. Can another employer apply for an H-1 for me now, or will I be subject to the quota again?

Answer

You should not be subject to the quota, because you were granted an H-1B approval before.

H-1 and Out of Status

Authored on: Tue, 11/13/2012 - 06:21

Question

My project is going to end soon and my employer does not know if he will have another client with a project for me. How long do I have to find a new employer before I am out of status? What should I do if my current employer withdraws my H-1B?

Answer

There is no grace period when you are laid off. You will be out of status from the date your current employment ends. It is advisable to apply for a change of status to, for example, B1/B2, F-1, or H-4.

Petition to extend H-1B Visa

Authored on: Tue, 11/13/2012 - 06:15

Question

My H-1B approval notice is valid for four more months. When can I begin the process to extend my H-1?

Answer

A petition to extend your H-1B can be submitted for receipt by USCIS no sooner than six months prior to the expiration of your current H-1B, so you could begin the process at any time now.

Employer Sponsoring for H-1 Visa

Authored on: Tue, 11/13/2012 - 06:05

Question

I have completed all of my studies in college for my Bachelor’s Degree but have not received my diploma from the university. How can I show my prospective employer that I have the education necessary for him to sponsor me for an H-1 position?

Answer

You must submit evidence of the beneficiary’s educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted: (1) A copy of the beneficiary’s final transcript; or (2) A letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).

Traveling outside USA while H-1B petition pending

Authored on: Tue, 11/13/2012 - 05:59

Question

I am in the US in another status. Can I travel outside the US while my H-1B petition is pending?

Answer

While it is possible to travel out of the US while the petition is pending, there are significant complications that may arise. You should consult with your lawyers before doing so.

H-1B petition and Quota

Authored on: Tue, 11/13/2012 - 01:28

Question

I am in the US in F-1 status. I just received a job offer and the company is ready to sponsor my H-1B. When can we apply for my H-1B visa?

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.

2014 H-1B Quota

Authored on: Mon, 10/29/2012 - 05:40

Question

I will be completing my Bachelor's Degree in August 2013. Am I eligible to apply to submit my petition on April 1, 2013, for the 2014 H-1B quota?

Answer

All requirements towards the Bachelor’s Degree must have been met at the time of submitting the H-1B petition to USCIS.

Time Frame for H-1B petition

Authored on: Mon, 10/29/2012 - 05:37

Question

If I do not file my petition using premium processing, how long will it be before I receive a decision from USCIS?

Answer

For an H-1B petition filed not using premium processing, it can take from two to six months before a decision is received from USCIS.

H-4 TO H-1B

Authored on: Wed, 09/12/2012 - 01:45

Question

I have H-1B visa and my husband has H-4 visa. If my husband is going to file H-1B from US, will it be a COS. If so, is there a timeline before he has to come to India to get his Visa stamped? I heard many H-4 to H-1B petitions are getting denied. Is that true?

Answer

It can be a COS. If a successful COS is obtained, there is no deadline on getting a visa stamp. H-1 petition denial rate is higher if the documentation is insufficient.

H-1B petition returned to USCIS

Authored on: Tue, 06/05/2012 - 04:44

Question

I work under the EC (Employer-Client) model. I went for visa stamping at Hyderabad, India and my case was put under 221(g) administrative processing. On April 18th, I got an e-mail from Consulate stating that based on the information provided during visa interview my nonimmigrant visa case has been refused and the petition has been returned to USCIS for re-evaluation. The consulate would wait for the judgment from USCIS on weather or not the petition should be reaffirmed. Is there anything I could do to ensure that my case gets reaffirmed and expedite the process from USCIS?

Answer

You will need to wait (or start another H-1). The employer will receive from USCIS an intent to revoke. They will then have 30 days to respond. Based upon the response, USCIS will affirm or revoke. This process can easily take 3-6 months.

Change of status from L-2 to H-4

Authored on: Tue, 11/22/2011 - 04:37

Question

I was on L-2 visa till present. I got my EAD few months back, which expires in April 2013. But I had to Adjust my Status to H-4 as my spouse's visa got changed to H-1.Can I work with my EAD as it has got validity till 2013? Is there any other way that I can work in this country?

Answer

H-4 holders can not use the EAD they received while on L-2. If you can, change to H-1.

Visa Stamp

Authored on: Wed, 10/12/2011 - 05:13

Question

I am planning to go home (outside US) for a month vacation this coming Dec. I have a visa stamp from my PREVIOUS employer that will expire on March 15, 2012.
1. Do I still need to go to the US embassy in my home country (where I am going for a vacation) since I have a new employer?
2. Could I use the visa stamp from my previous employer and present it to my point of entry?
3. Let's say I did not move to another employer, is there a time line when I can still use the visa stamp when I leave&go back to US(like for example, mine is nearing the expiration)?

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.

Options for H-1 extension

Authored on: Wed, 10/12/2011 - 05:01

Question

I already completed 6 years of H-1, approved I-140. if I get laid off and change my status to H-4 can I change my status to H-1 after 1 year and still use my previous priority date and in that situation will I get H-1 approval for 3years? If I decide to pursue my further studies and change my status to F-1, and after my graduation or during my study, if I find a new employer can I get h1 approval with my old I-140 since I already completed 6years of H-1 and didn't leave country physically for 1 year. Will it be an issue?

Answer

In order for you to reset the 6-year clock on H-1, you have to be physically outside USA for one year. You can, however, get H-1 extensions continually for any employer if your I-140 is not revoked by the old employer or by USCIS.

H-1 transfer during pending extension

Authored on: Mon, 10/03/2011 - 23:23

Question

My H-1 extension with the current employer is applied and is pending. My current H1 expires on 25th. If I apply for a transfer to another employer after 25th Sept., then is it necessary to have approved both extension and transfer in order to work with new employer, because I file transfer after my expiration of current H1?

Answer

If, by the time your second H-1 is approved, the first H-1 is not, USCIS can approve the second H-1 only without an I-94.

J-2 to TN

Authored on: Tue, 09/13/2011 - 06:01

Question

I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

Answer

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

H-1B to B-2

Authored on: Tue, 07/05/2011 - 05:20

Question

I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?

Answer

You can and should apply for B2 for both.

Working Visa

Authored on: Wed, 06/29/2011 - 01:27

Question

My fiance is from Pakistan, currently working in Kenya.He has done IT and Web-design. He is willing to work in the United States, Is it possible to get the visa?

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.

H-1B transfer when 221g pending

Authored on: Mon, 05/30/2011 - 23:26

Question

I was working on a EVVC model till Dec in the US, when I came to India for my stamping, I got a 221g which is now pending at the Chennai consulate. I am now trying to transfer my visa to the primary vendor to work for the same client. Is there any issue with this? Can I also respond to the 221g when I am doing the transfer?

Answer

I do not see any major issue with this as long as 221g was related to your employer, not you.

OPT - H4 - H1

Authored on: Mon, 04/18/2011 - 15:48

Question

I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions:
1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4?
2) How difficult it is for an employer file for H1 from H1 and what is the process?
3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

Answer

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

Business in the US, on H1B visa

Authored on: Tue, 04/12/2011 - 09:09

Question

Fact "H1Bs cannot do their own business in US". So checking the legal limit with below scenarios.
1. Can a H1b, while working for H1 employer, work for non US employer using options like work from home or other internet technologies and earn in their local currency without further documentation?
2. Does anything changes if the non US employer has clients in US and the person in above position actually work with those clients under the payroll of non US based organization?
3. Does it cross the legal H1B limit if we assume the H1b person in scenario 1 and 2 is also the owner of non US company and earns in local currency not USD?

Answer

1. In my view, no.
2. No. The critical thing is that the work is being performed on US soil.
3. I believe this too would be illegal under immigration laws.

Concurrent H-1B

Authored on: Wed, 04/06/2011 - 15:30

Question

I am currently on H-1B with a university (cap exempt), working full time (40-hrs/week). An opportunity has come to work part-time for another For-profit institution (not cap exempt), may be for 20 hours or so per week. So my questions are:
Can I apply for a concurrent H1 (For-profit; not cap exempt) whose work load will be additional to my current H1?
Is there a restriction on where the concurrent H-1 sponsor is located in the US?
Does 'Concurrent H-1B' need to go through the yearly quota since it is 'not cap-exempt' in my case?

Answer

The last time I checked into this issue, you could apply for a concurrent quota H-1 even though you are currently holding an exempt H-1. Location of the employer is not important, location of the job is.

H-1B after CPT

Authored on: Wed, 04/06/2011 - 15:12

Question

I do not qualify to apply for OPT. I have used my CPT completely by working for my current employer for past 1.5 yrs. They started my H-1B process. My current job (QA Analyst) minimum requirement is Associates degree or 0+ yrs experience. Lawyer came back saying job description should be changed to minimum bachelors or equivalent. I have 16 yrs education from India + MBA from here (April 2011) + 1.5 yrs experience. My employer is not willing to change the job description. Can they ask the lawyer to continue the process with the current job description?

Answer

An H-1 can be requested for a job that requires minimally a bachelor's degree. Note that the employer MUST TRUTHFULLY require a degree. If not, you cannot process an H-1.

PERM Audit and H-1 Expired

Authored on: Tue, 03/08/2011 - 03:32

Question

What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.

Answer

While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.

H-1B Stamping

Authored on: Fri, 01/28/2011 - 02:54

Question

I got my H1B approval on 31 Dec 2010, thus my visa status changed from F1 to H1B (I am currently going to grad school and graduating in April 2011). My company wants me to get my visa stamped. I have heard various stories about problems faced in Canada for first time stamping. Is this really an issue? Is there any law which prevents us to get first time stamping done in stamping done in Canada?

Answer

H-1B stamping has been made difficult by consulates. There is nothing stopping you from applying in Canada, but your lawyers need to help you decide what is best.

H-1 Extension

Authored on: Tue, 01/11/2011 - 05:59

Question

I have filed for an Extension in the month of August'2010 as my Visa expires on Sep1'2010. I have not received anything yet. The Status is still in initial review. I have plans to go to India on Jan28. Should I convert to Premium now or shall I wait. My Case is with California?

Answer

Personally, I have seen no correlation between premium processing and increased RFE's.

H1-B Visa Transfer

Authored on: Fri, 01/07/2011 - 07:58

Question

I worked in US till August 2010 through my H1-B visa in some company. I had to come to India due to some problems. Now I am in India. My question is, can my visa be transferred when I am in India by some other US company so that I can again go back and work in US. My H1-B visa expires on 2013.

Answer

The H-1 can be "transferred" - yes.

H1B interview travel cost reimbursement

Authored on: Thu, 12/16/2010 - 02:28

Question

I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?

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.

Marriage in India or in US

Authored on: Wed, 12/01/2010 - 00:25

Question

I am in US on a H1B and I am having my wedding in India (with a US citizen) in the last week of Dec. I have to go for my stamping when I am in India. Since there is a lot of apprehensions about H1B stamping these days, could you please suggest what is the best way to go here. Would doing a court wedding in US before I go to India(and showing my marital status as married with US citizen)help in anyway - for getting H1B or for GC processing (if I have to do it from India in the worst case)? If my H1B gets rejected, can I go for H1B stamping using the approval notice from another company?

Answer

Having a US citizen spouse should neither hurt nor help your H-1 visa app. H-1B rejection does not mean you cannot apply for H-1 through another company.

Employer/Employee Relationship while H1B transfer

Authored on: Wed, 11/17/2010 - 03:09

Question

I am currently working for company A as a contractor via a preferred vendor Company B, and my employer is Company C. Now my client company (Company A)has offered me a permanent position with them, thus would there be any hassles while doing an H1B transfer to my client company(Company A) from my employer(Company C) due to the employer/employee relationship memo?

Answer

Working directly for the end-client eliminates the employer-employee issue usually.

H1B renewal

Authored on: Mon, 10/11/2010 - 08:13

Question

I am a foreign dentist with US degree MHA, employed with a dental company as dental tech (DT) under H1B. In 5 months I was moved internally to a Clinical reserach coordinator position. However, my visa was still DT position even after 3 yrs but doing a totally different job. It is time to renew my H1B visa and again they have renewed H1b as DT since the company lawyer said it is risky to renew the H1B under another title as this may be subject to approval. Can this cause any problem for me? I want to apply for my greencard, but because of the title I am still under DT I fall under EB-3.

Answer

You have no choice. When the job changes substantially, you are REQUIRED by law to file an H-1 amendment. Any lawyer/employer who advises you differently is breaking the law.

H-4 visa to H-1B

Authored on: Mon, 06/07/2010 - 07:21

Question

My Wife is on H4 visa.How can she convert her status to H1B Visa.What are the various ways out to attain work visa.

Answer

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

There is a limiation of 100 H-1B2 visas

Authored on: Tue, 06/01/2010 - 14:10

Question

There is a limiation of 100 H-1B2 visas, how do you know if there are any available? I have tried to contact USCIS and NVC but no help.

Answer

I am not sure of a separate quota, but remember there is also no bar to also applying for an H-1B as a specialty occupation worker. That quota is still open.

Employer change in 6th year before I-140

Authored on: Mon, 03/01/2010 - 06:43

Question

My H1 is expiring (6th yr) in Sep 2010 and did not get labour approval till now (filed in Sep 2009) , Can I transfer H1 before Sep 2010 and before I-140 approval?

Answer

Yes you can. But discuss the details with your H-1 lawyers.

H-1 extension while PERM pending

Authored on: Wed, 01/27/2010 - 04:50

Question

My PERM application was filed last june 2009. My H1B expire last Sept 2009. Can I still renew my H1B? I got 2 extensions of H1B already.

Answer

You can keep applying for H-1 extensions indefinitely while the PERM is pending (filed a year ago).

When to file for 7th year extension (Timing)?

Authored on: Tue, 01/26/2010 - 09:21

Question

My 6th year is expiring in Oct2010 and my employer is planning to file PERM in Feb 2010. My questions is
1.Will I be able to file for the 7th yr extension before my 6th yr expires, say in Sep/Oct 2010 (even if my Labor is pending and it hasn't been 365 days yet)?Meaning,can they just go ahead & file for the extension but request for the 7th year to start from Feb 2011 (i.e. 365 day point from the PERMfiling)?Or do I have to actually wait until Feb 2011 to even file for the 7th year extension?
2.If I have to wait til Feb 2011,what start date can my employer request? Oct2010-11 or Feb2010-11?

Answer

They can file 6 months ahead of the contemplated start date - as long as one year of PERM filing is over by that date. But you might have some gap where you cannot live or work in USA.

H1B-H4-H1B

Authored on: Tue, 01/26/2010 - 05:03

Question

Recently (2009), I changed my status from H1B to H4. My Employer cancelled the H1B after I changed the status to H4 Visa. I have H1B petition document(I-797) with me.

1)Now Can I use existing H1B with the new employer?
2)Do I fall under quota or I need to file new H1B in this Year quota?

Answer

You will be exempt from the quota (assuming your previous employer was a private employer - NOT exempt from quota). The new employer will need to apply for an H-1 again.

H1B layoff, H1B transfer-RFE raised, New H1B approved

Authored on: Fri, 01/22/2010 - 04:18

Question

I was laid off by Company A on August 14th. I found a job with company B on October 14th. A transfer of H1B was filed by company B, but an RFE was raised asking me to prove that I had maintained my status. Since, I had no way of proving that I had maintained my status, a new H1B was filed by company B. The new H1B was approved. I have my stamping interview in 3 days. What kind of questions should I be prepared to answer? I am concerned that they might not approve my case. Please help!!

Answer

Merely being out of status is no ground for visa denial in your circumstances. Tell the truth. You should be ok on the status issue.

H-1b visa stamping in Toronto

Authored on: Fri, 01/22/2010 - 04:06

Question

I work for IBM and have my appointment for H1 visa stamping at Toronto , my prior stamp h1b was also from Toronto , I just recd a call from US embassy stating that since I am not getting my visa stamped in my home country and if there is any administrative processing on my case determined by the visa officer i would be required to stay in Canada till the time the visa officer is not satisfied or gets the results of the administrative processing .... I wanted to ask have any other client of yours also got any similar message ?

Answer

Yes, we did get this information.

PERM and H-1 extension

Authored on: Mon, 11/30/2009 - 03:42

Question

My company filed my perm application in march 2009 and We did`nt heard any thing from uscis. My H1 is expiring(Max-6 years) in March 2010. My question is when I can file for H1 extension?

Answer

You can apply for H-1 extension 6 months ahead. But the start date cannot be earlier than March 2010 (when the one year pendency/filing of PERM is reached). You can also get an H-1 extension when your I-140 is approved (if your priority date is not current).

H4 to H-1

Authored on: Thu, 11/26/2009 - 04:58

Question

I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

Answer

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

When is the starting date to work on H-1B?

Authored on: Thu, 11/26/2009 - 04:52

Question

Regarding USCIS Updates H-1B Cap Count 10/30/09, if the employer files my H1B petition immediately, (1)how long the H-1B approval takes and (2)when is the starting date to work on H-1B? As far as I'm concerned, the H-1B petition quota had usually been reached on APR 1 and the starting work date is Oct 1. But this year is different since the quota has not yet been reached. My employer would like me to work ASAP, so I would like to know if they file my H-1B petition now, can I get approved and work before Oct 1, 2010? (I have a Master's Degree from USA.)

Answer

I believe the quota for this year is still available. If so, you can start work as soon as as the H-1 approval says you can (usually immediately upon approval). You need not wait till 2010. File through premium processing if you are in a hurry.

H1B extension for pending labor

Authored on: Fri, 11/06/2009 - 00:55

Question

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

Answer

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

H1B Visa

Authored on: Fri, 11/06/2009 - 00:45

Question

Isn't it interesting that this year (2009) there are still 20,000 H-1B left that no companies have applied for 4 months after the dead line were they usually all are taken?
This is because the recession has made it impossible for banks and other TARP precipitants to hire people from abroad for a job that an American can fill and it is quite a stretch in this economy to argue that you can not find a qualified IT worker in the US.

Answer

True. But, TARP alone is not the real issue. I think the economy has been hard on all jobs including H-1. TARP is a factor. And there has been a disproportionately high rate of H-1 denials.

H1 6th Yr - Labor Approved - NO I-140

Authored on: Fri, 11/06/2009 - 00:26

Question

My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140.
Is there any option left for me?

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).

Filing H1B

Authored on: Wed, 10/28/2009 - 08:07

Question

I am working in Company A with L1 status. I filed for an H1 (FY-2010) with Company B and got it approved. Now Company A as of date wants to file for my H1 (FY-2010).
My questions are:
a) Can the already approved H1 get cancelled because of A's application?
b) Can I loose both H1's (A and B both cancelled)
c) Is there any way to retain at least one (A or B)?

Answer

You do not "lose" an existing H-1 by filing of a new one.

RFE H-1 without a client letter

Authored on: Fri, 10/23/2009 - 09:12

Question

I applied for a H1 Transfer in May 09 as my client required me to be an employee of the preferred vendor.In aug 09 I received an RFE asking for a client letter.Could you please let me know if there is anyway to get the approval without the client letter or any other supporting document will serve the purpose. Please do the need full.

Answer

Read my blog and my article on this issue.

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.

When is an H visa stamping required?

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

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.

H-1 visa stamping -- is it difficult?

Authored on: Mon, 04/13/2009 - 01:00

Question

My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions.
Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India.
What is the procedure.

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.

H-1 Quota Status

Authored on: Thu, 04/09/2009 - 01:00

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.

USCIS is continuing to accept H-1 filings

Authored on: Wed, 04/08/2009 - 01:00

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.

Are H-1 holders being turned back at the airport?

Authored on: Fri, 04/03/2009 - 01:00

Question

This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting.

A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD.

While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES!

Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

Answer

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-1 Lottery for 2009

Authored on: Thu, 03/26/2009 - 01:00

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.

When does CIS investigate fraud?

Authored on: Thu, 03/19/2009 - 01:00

Question

Answer

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

Authored on: Thu, 03/19/2009 - 01:00

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.

 

 

 

 

H-1 Quota - what is acceptable evidence for degree

Authored on: Fri, 03/06/2009 - 01:00

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.