H Visa

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How to calculate time: H-1B grace period; H-4 COS; H-1B transfer delays

Question details

Could you analyze the following situation from an H-1B 6-year Max Out perspective (No Approved PERM or I-140)?

1. Employee gets laid off by her H1b employer on November 20.

2. Employee files for H4 COS + EAD through spouse on January 10.

3. Employee gets a new job on April 10 while H4 + EAD is still pending. New employer files for H1b transfer, though no premium processing.

4. H1b transfer gets approved (I-797A with I94 issued) on June 10.

5. Employee works on H1b status based on the approved petition from June 10 to July 10. H4 COS + EAD gets approved on July 10.

My questions are:

1. Does the November 20 - January 10 period (Grace Period) count towards the 6-year H1b Max Out?

2. Does the January 10 - April 10 period (pending H4 COS + EAD) count towards the 6-year H1b Max Out?

3. Does the April 10 - June 10 period (pending H4 COS + EAD and H1b Transfer) count towards the 6-year H1b Max Out?

4. Once the H4 COS + EAD petitions are approved, would the January 10 - July 10 period be counted as "Time Spend in H4 Status" based on the pending petitions that eventually got approved? If not, which period can be claimed as "Time Spend in H4 Status"?

Also, how does USCIS keep track of all this? Is it the responsibility of the employee to make the case to USCIS and claim time as "Spent in H4 Status"?

Video URL
FAQ Transcript

Though USCIS doesn't track H-1B time independently, it's your responsibility to claim your time accurately. Time spent legally on H-4, B-1, or B-2 after the 60-day grace period and waiting for a change of status from H-4 to H-1 don't count towards your H-1B maximum duration. When applying for extensions or status changes, you can always accurately track and report your time on different visas. Remember, this is not legal advice; consult an immigration attorney for specific guidance.

FAQ: H-1B visa and entrepreneurship: Launching a business with US citizen brother, Shareholding, Green card

Question details

I am currently on an H-1B visa. I am planning to start a business with my brother who is a US citizen and needs some guidance.

1) Until the business is operational and generating revenue, can I just be a partner in the company without doing any work visa application with it?

2) Can I have more than a 50% share in that company? If so, would that impact anyhow my H-1B with the current company?

3) In the future, if I want to file for concurrent or full-time H-1b through the new company, is it difficult to get it approved if my brother and I are the partners of the company?

4) Once I am on an H-1B visa in this new company, can the company file for my green card in the EB-1 or EB-2 category?

5) Does the company need to meet any specific conditions before sponsoring for H-1B and Employee-Based Green Card such as being E-Verified or having at least few citizens before hiring non-citizens?

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FAQ Transcript

Owning more than 50% of a company makes obtaining an H-1B visa difficult under current regulations. This is because the H-1B is for employees receiving a base salary, and owning a majority share raises doubts about a genuine employer-employee relationship. While regulations easing this restriction are pending, they haven't been finalized yet.

However, if you're a minority partner with your brother holding the majority and the job aligns with your field, securing an H-1B (concurrent or full-time) may be possible. Unfortunately, getting a green card through this company wouldn't be feasible due to your ownership. Consider exploring the EB-1A green card category, which recognizes individuals with exceptional ability in their field and doesn't require employer sponsorship.

Blacklisted employer, F-1, H-1B, L-1 turned back at the airport

Question details

My friend's F1 visa was recently revoked, and he was forced to return to India because his first employer had been placed on a blacklist. Also, he has applied for an OPT extension, which will provide him with an updated EAD, but we don't know how this would affect the process of getting the New EAD. He is working with a firm on a contract job now, but the end client which is a state gov company is considering him for Full time and can sponsor him for H1B. His old EAD expired on the 9th of January. He was traveling from India to the States on the 4th of January and was sent back. Questions: Is there any way that he could reinstate his Visa? Can the company sponsor H1B directly, if so what documents would the company need? If the H1B is picked, when can he travel back?

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FAQ Transcript

Being turned away at a US airport or port of entry can have significant consequences. Here's what you need to know:
Voluntary Withdrawal: If you choose to withdraw your application for admission, you avoid a 5-year entry ban but may have limited options when seeking to re-enter the US in the future.
Refusal of Admission: This comes with a 5-year ban on re-entry. In some cases, you may be able to apply for a waiver.
Fraudulent Employers: Involvement with any employer who engages in fraudulent activities can lead to a permanent ban on entering the US. It's incredibly difficult to get a waiver in these circumstances.

To avoid these situations:
Be Aware: Stay informed about potentially fraudulent employers. Universities may alert you if they suspect issues.
Consult an Attorney: If you've worked for an employer you now believe to be fraudulent, immediately consult an immigration lawyer. Your level of involvement and when you leave the employer will have a significant impact on your potential liability.
Important Note: There are currently no known successful lawsuits against fraudulent employers in these types of situations.

Recording for February 15, 2024 Conference Call with Rajiv S. Khanna

FAQs: Blacklisted employer, F-1, H-1B, L-1 turned back at the airport || H-1B visa and entrepreneurship: Launching a business with US citizen brother, Shareholding, Green card || National Interest Waiver standards; AI list of critical and emerging technologies focus || OPT EAD errors and typos: Eligibility for resubmission or renewal strategy? || How to calculate time: H-1B grace period; H-4 COS; H-1B transfer delays