US Immigration Questions

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

H-1B transfer process for laid off employee

Question details

Hello, I have been laid off from Amazon, and I am unemployed since March-20, I got one offer from another company, and they did my immigration assessment, they told me that I do not have enough time and its difficult to ensure that I will not go out of status within this time saying that they have rejected my application. If I just file LCA my unemployment days will stop, or they will have to file my H1B change petition only then will I be able to save my status. Also, will I get 60 days grace period for each H1B petition?

ANSWER

Filing an LCA is not enough. In order to stop the running of the 60-days grace period and to start working, your H-1B transfer petition must be received by the USCIS within the grace period.

The grace period is not a one-shot deal. You will get it whenever you are in the layoff/cessation of employment situation again.

Nonimmigrant Visas

Immigration Law

Change of Status from H4 to Day 1 Cpt

Question details

Hello Rajiv Sir, My wife wants to do Masters and she is currently on H4 without EAD as I am awaiting PWD approval and other steps in the process.
 

My question is can she transfer from H4 to Day-1 CPT through F-1 by filing I-539? Also, If we do only 363 days of day-1 CpT, can she get opt and stem opt?

ANSWER

Once your wife obtains a change of status to F-1, she should be able to get CPT authorization if the school meets all the other requirements. Note that one year of full-time CPT takes away your eligibility for OPT. The regulations do not mention 363 days leading to disqualification. The regulations also provide an exception to the one-year bar for some graduate students. https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/se…. Source 8 CFR 214.2(f)(10)(i)

Nonimmigrant Visas

What to do if one is in India during the PERM and I-140 approval process

Question details

I'm on H-1B with employer A and am currently in the PERM process(recruitment done). I'm in India right now and would like to know what happens if:
1) PERM approved and i140 filed; (while I'm in India)
2) Receive PERM audit; (while I'm in India)
3) I-140 approved and Post I-140 approval; (while I'm in India)
Do I need to return to the US in any of the above scenarios? Any worst-case scenarios I should keep in mind?

 

ANSWER
Video URL

 

FAQ Transcript

1. No problem.
2. No problem.
3. No problem.
Do discuss your long-term plans with your lawyers.

Nonimmigrant Visas

AC21 AOS portability: Pending AOS I-140 withdrawn before 180 days

Question details

Currently working with Employer B since 2020.
Employer A - 140 Approved in 2013. EB2 category.
Employer A - Provided form 485J in Aug and I applied for I485 in Aug. My dates retrogressed to Oct 2011 now.
Employer A - Desi consulting company, we couldn't find a project for me to join them and they withdrew I-140 in Jan. At the time of the I140 withdrawal I485 was at 150 days timeline. Now that 180 days have passed since I485 was filed in Aug, can I provide 485J with my current employer to port the I485 application? Will USCIS approve porting or deny as I140(approved in 2013) was recently withdrawn before I485 reaches the 180 days mark? Is there any way to appeal the withdrawal of I140 as beneficiary with pending AOS or ex-employer can withdraw without any issue? Are there any laws to safeguard the beneficiary when dealing with abusive and mean desi consulting companies?

 

ANSWER
Video URL
FAQ Transcript

You should talk to an employment lawyer.

Marriage and relocation to the U.S.: Quickest path for the prospective fiancé of a U.S Citizen living in India

Question details

My sister is in India and the prospective groom is a US citizen. They have concerns about how to proceed with marriage and relocation of the girl to US in a timely manner (prefer not to wait more than a year for marriage/ living together post-marriage for personal reasons) Current fiancé visa processing time seems to be 15 months. It was not this long pre-covid, realistically can this processing time reduce this year? If they do marriage in India first, what’s the quickest way for her to come to US and how long would it take She has a valid B1. Can she travel on that to US post-marriage for 5-6 months only without any risk to her green card application? She is trying to get an L1-B visa through her current company. Will that visa approval be affected if they get married in the meanwhile? In short, what is the quickest path for her marriage & relocation to the US right now?

 

ANSWER
Video URL
FAQ Transcript

She can travel with a B-1 visa as long as she tells the truth. L-1 and H-1B visas are the quickest paths.

 

Citizenship and Naturalization

Handling H-1B visa and layoff : What happens if I get laid off before or after stamping my visa in India?

Question details

I got my H1B visa approval recently and I have got my stamping date in May. My company is going through a bad phase financially and has had 2 layoffs (might do another layoff in next few months) I go to India for stamping and get laid off before getting my visa stamped (Can I come back to the US with 60 days left? Can I get my visa stamped if my company pays me for another month or so considering that my last day is a month later? Can I get my visa stamped even if my last day has passed)I go to India for stamping and get laid off after getting my visa stamped (can I come to US and do my job search) If I get laid off while in India but have an offer letter from another company (H1B transfer done/ transfer to be done after returning to US)

 

ANSWER
Video URL
FAQ Transcript

This is a pertinent question. I don't think you should go for visa stamping if you have been laid off. If you do go, you should make it clear to the consulate that you have been laid off. However, under the law, you have a 60-day grace period during which you intend to apply for another job. I don't think it's going to work like that. I don't remember the details of the regulation off the top of my head, but I think there might be some restrictions against travel.

An offer letter is not good enough just to get the H-1B approval. Then, I don't think there's a problem with traveling.

 

Nonimmigrant Visas

Immigration Law

Multiple visas on passport: B-1/B-2 and H-1B Validity

Question details

Namaste! Rajiv ji, I have been listening to your podcasts discussing various situations and scenarios with valuable information about real life examples you share during your weekly podcasts and want to thank you for your time helping people like me through your forums. I have a question if you could share your thoughts on it I will greatly appreciate your response. If someone has a B-1 B-2 Visa valid for 10 years. Then they get H-1B Visa for 3 years and enters US using it. What happens to the B-1 B-2 Visa? Is it cancelled after H-1B is issued? If not, what if H-1B Visa expires or if it is revoked prematurely, does B-1 B-2 Visa still remain valid and can be used for travel in and out of US? Thank You!

ANSWER

The SOP should be that all existing visas are revoked when you apply for an H-1B. But, normally, consulates do not revoke existing visas like B-1/B-2. In such cases, those visas are still valid.

Nonimmigrant Visas

H1B transfer from cap exempt to non-exempt

Question details

I want to know how to transfer H1B from cap-exempt to non-exempt.

ANSWER

You will have to go through the lottery system to transfer. But concurrent employment is possible, keeping both exempt and non-exempt H-1B jobs simultaneously.

Nonimmigrant Visas

1099 on 2nd Concurrent H1B

Question details

Can I work part-time as 1099 (independent contractor) on a (concurrent) 2nd H1B? The work is related to my expertise/education and I currently have a full-time primary H1B employment.

ANSWER

An H-1B requires a W-2.

Nonimmigrant Visas

Does an H-1B Transfer approval overrule an earlier transfer?

Question details

I am on my 60 days grace period. I am doing H1B transfers and have one offer from a staffing company that I have joined already, and one offer from a full-time company. The staffing company has filed an H1B transfer in premium, and the full-time company is yet to file this coming week.

I have joined the staffing company. Suppose if H1B transfer with the staffing company gets approved this coming week. Does that transfer from my ex-company to a full-time company still stay valid, or now as H1B with the staffing company is approved I have to transfer it from staffing to a full-time company?

ANSWER

If two companies file for your H-1B transfer within the 60-day grace period, both approvals of the transfer are valid. One does not overrule the other. You can choose either one.

Nonimmigrant Visas