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Frequently Asked Questions - H Visa

H-1 Visa (98)
  1. Maternity Leave and Pay Stubs
  2. I-140 Withdrawal vs NOIR in AC21 Context
  3. Grace Period - Using Tourist Visa After Quitting A Job
  4. OPT to H-1B
  5. Government Shutdown – Impact on Immigration Matters
  6. H-1 Transfer
  7. H-1B Amendment
  8. H-1 to H-4
  9. Request to Upgrade to Premium Processing
  10. H-1 Transfer and Stamping
  11. H-1B Quota and the "Reminder Option"
  12. B-1 in Lieu of H-1
  13. Receipt Notice for H-1B Petition
  14. Filing H-1B Quota Cases Next Year
  15. Applying for Spouse after H-1B Approval
  16. Sufficient Evidence of an Employer-Employee Relationship
  17. Filing H-1B Petition while Passport Expires in Six Months
  18. Change of Visa From H-1B to F-2
  19. H-1 After Marriage to a U.S. Immigrant
  20. Validation Instrument for Business Enterprises (VIBE) System
  21. Tracking H-1B Petition During Quota
  22. Exploring Other Options During H-1 Transition
  23. Fresh H-1B After 6 Years
  24. Decision on RFE
  25. Evaluation Required for Non-U.S. Education Credentials
  26. Export Control Regulations
  27. Form I-129 and Denial of Petition Based on License
  28. Form I-129 and Copy of the Export Control License
  29. H-4 Dependent Visa
  30. Maintaining H-1B Status While Changing Employers
  31. H-1B Transfer from Cap-Exempt Employment to Cap Employment
  32. Timely Filing of H-1B Extension
  33. H-4 to H-1 status
  34. Performing services in more than one work location
  35. H-1 Concurrent Employment
  36. Adjustment of Status from H-4 to H-1
  37. Subject to the Quota
  38. H-1 and Out of Status
  39. Petition to extend H-1B Visa
  40. Employer Sponsoring for H-1 Visa
  41. Traveling outside USA while H-1B petition pending
  42. H-1B petition and Quota
  43. 2014 H-1B Quota
  44. Time Frame for H-1B petition
  45. Eligibility of Refund of Premium Processing Fee
  46. Difficulty Posting LCA notices at End-Client Locations
  47. Salary Range Option in Posted Notices
  48. Time Frame for Case Filing
  49. H-4 TO H-1B
  50. H-1B petition returned to USCIS
  51. Change of status from L-2 to H-4
  52. Visa Stamp
  53. Options for H-1 extension
  54. H-1 transfer during pending extension
  55. J-2 to TN
  56. H-1B to B-2
  57. Working Visa
  58. H-1B transfer when 221g pending
  59. OPT - H4 - H1
  60. Business in the US, on H1B visa
  61. Concurrent H-1B
  62. H-1B after CPT
  63. PERM Audit and H-1 Expired
  64. H-1B Stamping
  65. H-1 Extension
  66. H1-B Visa Transfer
  67. H1B interview travel cost reimbursement
  68. Marriage in India or in US
  69. Employer/Employee Relationship while H1B transfer
  70. H1B renewal
  71. H-4 visa to H-1B
  72. There is a limiation of 100 H-1B2 visas
  73. Employer change in 6th year before I-140
  74. H-1 extension while PERM pending
  75. When to file for 7th year extension (Timing)?
  76. H1B-H4-H1B
  77. H1B layoff, H1B transfer-RFE raised, New H1B approved
  78. H-1b visa stamping in Toronto
  79. PERM and H-1 extension
  80. H4 to H-1
  81. When is the starting date to work on H-1B?
  82. H1B extension for pending labor
  83. H1B Visa
  84. H1 6th Yr - Labor Approved - NO I-140
  85. Filing H1B
  86. RFE H-1 without a client letter
  87. US employee working from India
  88. New H-1 employee returning -- rights and issues
  89. Effect of Bankruptcy on immigration
  90. When is an H visa stamping required?
  91. H-1 visa stamping -- is it difficult?
  92. H-1 Quota Status
  93. USCIS is continuing to accept H-1 filings
  94. Are H-1 holders being turned back at the airport?
  95. H-1 Lottery for 2009
  96. When does CIS investigate fraud?
  97. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  98. H-1 Quota - what is acceptable evidence for degree
H-1B2 (2)

DOD (Department of Defense) project visas.

  1. Licensing of Foreign Persons Employed by a U.S. Person
  2. Social Security Number And Card
  3. Indefinite H-1 Extensions( on yearly basis) Based On PERM Appeal
  4. Foreign Labor Certification Questions and Answers
  5. Information on Printing I-94
  6. H-1B Petition for Extension
  7. Status of H-4 Dependents When H-1B is Denied
  8. H-1B Filed Under the Quota for the Year 2014
  9. Applying for H-1B Renewal
  10. Moving Outside USA For A Year While H-1B Has Not Expired
  11. Applying H-4 Visa for Spouse During H-1 Processing
  12. SSN for Non-working Purposes
  13. Prevailing Wage
  14. F-2 to H-4 Visa
  15. Family Based F4 GC
  16. H-1 transfer during pending extension
  17. Transfer of jobs under same employer
  18. H-1B to B-2
  19. H-4 Visa and Status Validity
  20. OPT - H4 - H1
  21. Business in the US, on H1B visa
  22. Switching Jobs after I-140 approval
  23. H-4 Visa Stay in US
  24. H-1B Stamping
  25. H-4 rejected under 214(b)
  26. H-1 Extension
  27. H1-B Visa Transfer
  28. H-1 extension beyond 6 years
  29. H1B interview travel cost reimbursement
  30. Advance Parole
  31. H1-B to F-1
  32. H1 Renewal Denial/I 94 expired
  33. Parents B-2 Visa
  34. Employer/Employee Relationship while H1B transfer
  35. AOS applicants applying for H-1 visa
  36. Can I apply for Social Security Number ?
  37. H1B extension or EAD
  38. H-1 for Canadian PR with J-1 issue
  39. Self Employed while on EAD
  40. H-4 visa and age
  41. H4
  42. H1 Visa
  43. E3 visa for LPN
  44. US RN Graduate foreign national
  45. H-1B and E-3
  46. H1B Extension beyond 6 years
  47. H4 inquiry - Dubai resident holding Indian passport
  48. Visitors visa sponsored by H-1B holder
  49. Query about H1B Visa transfer
  50. H1B Validity Period
  51. Where to file complain?
  52. H1B Restamping
  53. Travel during H4 processing
  54. L1B to H1
  55. G-4 to H1B
  56. H1B- denial
  57. EB-1 Visa Processing for medical doctors
  58. L1A visa and H-1
  59. Outstanding researcher
  60. Quickest way to get a GC
  61. H1B Pending
  62. F1 visa to business visa or H1/L1
  63. H-2B Visa
  64. H1 working in University (non profit organization)
  65. Transfer to a startup company H-1
  66. H1 approval and stamping
  67. H1 B question
  68. H1B renewal using an old I-140 from a previous employeer
  69. Employer change in 6th year before I-140
  70. Out of Status
  71. H1B Status
  72. Must we withdraw a PERM application if the employee is laid off?
  73. Importance of having continuity of employment/pay stubs
  74. Status change from F1 to H1b
  75. H1B layoff, H1B transfer-RFE raised, New H1B approved
  76. H4 to H1-B
  77. H1B Visa Stamping
  78. EAD - Job title change on the same job
  79. F1 visa to H1-b
  80. Questions on AC21, EAD, losing job, etc.
  81. Convert L1B Blanket VISA to H1B
  82. H4 to H-1
  83. When is the starting date to work on H-1B?
  84. H1B extension for pending labor
  85. H1B Visa
  86. H1 6th Yr - Labor Approved - NO I-140
  87. Educational Qualification
  88. H-1 denial - options
  89. Prevailing Wage - H-1 and GC
  90. H1B exemption with I-131
  91. Stamping of H1B except for IT - Chartered Accountant
  92. Requirements (Degree/Education for H-1)
  93. Applying for B-1 when laid off
  94. H1B Processing
  95. H1 6th Yr - Labor Approved - NO I-140
  96. Extending H-1B After Staying Outside USA for 365 Days
  97. RFE H-1 without a client letter
  98. H1B laid off while labor is pending
  99. H1B Revival process (Extension while still abroad)
  100. H-1 Visa re-stamping
  101. Unpaid leave on H-1
  102. Divers Licenses, while H-1 extension pending
  103. Choices to work in USA
  104. I-485 AOS Pending, Employer's Bankruptcy
  105. Important questions on H-1, AP and Travel
  106. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  107. H-1 visa denial and investigation
  108. Compensation for H-1 lay off
  109. F-1 visa stamp, H-4 pending
  110. H-1 denial, appeal, MTR
  111. Can H-1 be extended based upon family-based green card?
  112. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  113. From H-4 to F-1
  114. What kind of company is good for H-1B processing
  115. LCA's for H-1 will probably take longer now
  116. H-1 Quota Count still at 45,000 as of 4 May 2009
  117. H-1 extension denied - status
  118. H-1 Extension based upon spouse's 140; Child born in USA
  119. H-1 Quota still open
  120. PROPOSED Legislation to Reform H-1B Visa Program
  121. H-1 without specific job/GC continuation without H-1
  122. H-1 Count 44,000 -- You can Still File
  123. US employee working from India
  124. H-1 holder aplying for H-4 visa
  125. New H-1 employee returning -- rights and issues
  126. Effect of Bankruptcy on immigration
  127. When is an H visa stamping required?
  128. Unreasonable H-1 requests from CIS
  129. H-1 visa stamping -- is it difficult?
  130. H-1 Quota Status
  131. USCIS is continuing to accept H-1 filings
  132. GC future job; H-1 ext. revocation upon 140 denial, etc
  133. Converting from EAD back to H-1--Updated 6 April 2009
  134. Are H-1 holders being turned back at the airport?
  135. Employers and Employees -- H-1 or EAD?
  136. H-1 and EAD
  137. H-1 Lottery for 2009
  138. When does CIS investigate fraud?
  139. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  140. GC Compliance for Employers
  141. L-2 EAD and H-1
  142. Starting business while in AOS/I-485/H-1/H-4
  143. Employers questions on H-1 compliance
  144. H-1 Quota - what is acceptable evidence for degree
  145. How does the Stimulus Bill affect H-1b, L-1 and Green Cards
  146. Do physicians have the right to an extension beyond 6 years for waiver jobs?
  147. Turning 21 - do I have to convert to F-1 from H-4?
  148. What happens when an employer is under criminal investigation/indictment?
  149. Employers responsibility in H-1 process
  150. Is salary reduction possible/legal?
  151. If I-140 gets revoked/denied does my H-1 extension get canceled?
  152. Consequences of not using an H-1 visa
  153. Note! Employer subject to H-1 quota, but the job may not be
  154. Leave US for job outside USA
  155. Employer not paying, may I tranfer H-1?
  156. L-1/H-1 COS Issues
  157. Do advanced degrees help in marriage-based green card?
  158. H-1 converting to H-4 and then (maybe) back again
  159. What to do if an I-140 gets rejected?
  160. Can H-4/F-2 holders perform volunteer work?
  161. L-1 - H-1 COS issues
  162. H-1 related I-94 issue
  163. Start-up applying for H-1 and AC21 for employees
  164. H-1 Quota issues for students
  165. H-1 where there is no license in hand
  166. H-1 - how to revert to old employer
  167. Laid off - Now what ???
  168. H-1 quota - the law
  169. H-1 transfer - what action is needed for H-4
  170. H-1 Quota
  171. Multiple H-1 approvals
  172. How to get back to H-1 status?
  173. AOS Pending, Should H-1 be Renewed
  174. Filling DS 156
Maternity Leave and Pay Stubs

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 ?

Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.

I-140 Withdrawal vs NOIR in AC21 Context

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?

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

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?

It has to be "activated." Note that under the circumstances reentry and hence "reactivation" is likely to be difficult.

OPT to H-1B

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?

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

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?

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

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?

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

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?

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

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?

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

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?

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

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?

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"

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 .

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

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?

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

How long will it take to get a receipt notice for my H-1B petition that was not filed with premium processing?

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

Can you let me know when we can start filing H-1B cases again for this year?

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

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?

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

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.

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

How can I file an H-1B petition if I have less than six months before my passport will expire?

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

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.

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

After getting married to a green card holder & applying for a spouse visa is it possible to apply for H-1 visa?

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

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?

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

How will I know if my H-1B petition has been accepted in the quota?

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

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?

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

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?

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.

Decision on RFE

We filed my H-1B petition using premium processing and now we received an RFE. How much longer will it take before USCIS makes a decision now?

When USCIS issues an RFE, they give a date by which the response to the RFE must be received by USCIS.  Once USCIS receives the RFE response, the 15-day clock starts again for you to receive a decision from USCIS.  This decision can be an approval, a denial, a notice of intent to deny (NOID), or USCIS could issue a second RFE.

 

 

Evaluation Required for Non-U.S. Education Credentials

What kind of evaluation do I need for my non-U.S. education credentials?

The evaluation should be done by a professor in the related field of employment.

Export Control Regulations

Where can I obtain additional information about the export control regulations?

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. SSpecific 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

Will a petition be denied if an export control license is required but has not been obtained prior to filing the petition?

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

Regarding Part 6 of Form I-129, does USCIS require a copy of the export control license if one is necessary?

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

Is it possible for an H-1B holder to apply for H-4 dependent visas for a fiancée and/or parents?

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

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?

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

Is a transfer possible from a cap-exempt to cap H-1B?

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

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?

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

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?

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

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?

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

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?

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

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?

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

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?

You should not be subject to the quota, because you were granted an H-1B approval before.

H-1 and Out of Status

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?

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

My H-1B approval notice is valid for four more months. When can I begin the process to extend my H-1?

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

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?

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

I am in the US in another status. Can I travel outside the US while my H-1B petition is pending?

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

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?

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

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?

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

If I do not file my petition using premium processing, how long will it be before I receive a decision from USCIS?

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.

Eligibility of Refund of Premium Processing Fee

My H-1B petition was filed with premium processing. We received a Request for Evidence (RFE), but it has now been four months, and the case is still not approved. How do I get a refund of the premium processing fee?

Premium processing does not guarantee an approval within 15 days.  This 15-day period may include either an approval, a denial, or a request for evidence.  Therefore, the case will not be eligible for a refund of the premium processing fee.

Difficulty Posting LCA notices at End-Client Locations

The beneficiary is working at an end-client location and we are not permitted to post the LCA Notices there. What options do we have?

You may provide electronic notification to employees employed with the same job title as the beneficiary (including both employees of the H‑1B employer and employees of another person or entity that owns or operates the place of employment) for which H‑1B nonimmigrants are sought, at each place of employment where any H‑1B nonimmigrant will be employed.

Salary Range Option in Posted Notices

In posted notices, can the salary be indicated as a range rather than the exact salary?

You may indicate a range provided that the low end of the salary range is no lower than the prevailing wage and the top of the range is at or above the employee’s actual salary.

Time Frame for Case Filing

How long after I send in my information will the case be filed?

If everything is in order when we receive the case; i.e., job description/salary can be approved and all supporting data is in order, the case can usually be submitted to USCIS by two weeks from when the case is opened in our office.        

H-4 TO H-1B

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?

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

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?

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

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?

H-4 holders can not use the EAD they received while on L-2. If you can, change to H-1.

Visa Stamp

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)?

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

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?

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

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?

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

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?

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

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?

You can and should apply for B2 for both.

Working Visa

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?

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

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?

I do not see any major issue with this as long as 221g was related to your employer, not you.

OPT - H4 - H1

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?

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

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?

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

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?

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

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?

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

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.

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

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?

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

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?

Personally, I have seen no correlation between premium processing and increased RFE's.

H1-B Visa Transfer

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.

The H-1 can be "transferred" - yes.

H1B interview travel cost reimbursement

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?

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

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?

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

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?

Working directly for the end-client eliminates the employer-employee issue usually.

H1B renewal

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.

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

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.

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

There is a limiation of 100 H-1B2 visas

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.

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

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?

Yes you can. But discuss the details with your H-1 lawyers.

H-1 extension while PERM pending

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.

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)?

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?

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

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?

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

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!!

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

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 ?

Yes, we did get this information.

PERM and H-1 extension

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?

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

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.

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?

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.)

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

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.

H1B Visa

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.

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

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?

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

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)?

You do not "lose" an existing H-1 by filing of a new one.

RFE H-1 without a client letter

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.

Read my blog and my article <on this issue.

US employee working from India

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?

New H-1 employee returning -- rights and issues

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?

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

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.

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?

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.

H-1 visa stamping -- is it difficult?

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.

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

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 is continuing to accept H-1 filings

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.

Are H-1 holders being turned back at the airport?

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.

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

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.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

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.

H-1 Quota - what is acceptable evidence for degree

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:
 

Time Frame for Case Filing

How long after I send in my information will the case be filed?

If everything is in order when we receive the case; i.e., job description/salary can be approved and all supporting data is in order, the case can usually be submitted to USCIS by two weeks from when the case is opened in our office.        

Are H-1 holders being turned back at the airport?

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.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

J-2 to TN

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?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

H-2B Visa

I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

Marriage to US Citizen

I am on H2b visa and married to an American. Should I go ahead and start filing my paper work or should I wait on till my contract is up with the company I am currently working for?

I see no reason to wait.

Are H-1 holders being turned back at the airport?

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.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Are H-1 holders being turned back at the airport?

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.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Maternity Leave and Pay Stubs

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 ?

Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.

H-1 to H-4

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?

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.

Status of H-4 Dependents When H-1B is Denied

If my H-1B petition is denied by USCIS, or withdrawn by my employer, what happens to my H-4 dependents?

If you are no longer in valid H-1B status, your dependents’ H-4 petitions will no longer be valid either.

Applying for Spouse after H-1B Approval

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?

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.

Exploring Other Options During H-1 Transition

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?

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.

Applying H-4 Visa for Spouse During H-1 Processing

My company is processing my H-1B application. Is there any information regarding dependents that will be accompanying H-1B applicant to US at the of filing petition ? What is the process to apply for dependent visa (H-4) for my spouse?

If you are outside USA, only H-1 is processed here. H-4 is done at the consulate when you go apply for H-1 visa.

Last Name Change for H-4 Visa

My passport is getting expired shortly and I need to renew it as my visa has the maiden name. I wish to change the last name in visa. What is the procedure to change the last name?

As far as I know, you will have to apply for a visa again. To change the name on a U.S. visa that has already been issued requires a new application. But if you carry your old passport (which has the old visa), with the new passport and your marriage certificate, you should be allowed entry. I think you should reapply on the new passport. 

SSN for Non-working Purposes

I am on H-1B visa and my wife just received her H-4B. She is not allowed to get SSN as this is only for people who allowed to work. I need to get her TIN (TAX Identification Number) but not sure where to start as I have been told she needs TIN for Driver licensing and open Bank account.

You contact IRS for tax identification. Also, SSN can be given for non-work purposes if the law requires you to provide a non-work Social Security number to get a federal benefit or state general assistance benefit that you are otherwise qualified for.


See this info TIN: http://www.irs.gov/Individuals/International-Taxpayers/Taxpayer-Identification-Numbers-(TIN)


This for SSN: http://ssa-custhelp.ssa<

H-4 Dependent Visa

Is it possible for an H-1B holder to apply for H-4 dependent visas for a fiancée and/or parents?

For an H-4 dependent visa, qualifying family members include only the spouse and unmarried children under 21 years old.

H-4 to H-1 status

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?

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.

Adjustment of Status from H-4 to H-1

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?

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.

Electronic Immigration System Eligibility

Can I use ELIS (Electronic Immigration System) to file an extension of status for my H-4 dependents?

Please refer to the following for classifications that are eligible to use ELIS: http://www.uscis.gov/uscis-elis

H-4 TO H-1B

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?

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.

F-2 to H-4 Visa

I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?

If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

H-4 extension for spouse and child

We had applied for H-4 extension for my wife and child (1 year) in same I-539 form. We received an approved 797 form for dependents. Applicant's name is my wife's name and beneficiary's name is my daughter’s name. The I-94 in the form contains only my daughter’s number and not my wife's I-94 number. My wife's name is mentioned as a petitioner. Should my wife also have a separate I-94 in the approved 797 form?

She must have a separate I-94.

H-1B to B-2

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?

You can and should apply for B2 for both.

Can I apply for H4 visa for spouse while on EAD?

My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

H-4 Visa and Status Validity

My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012

My questions :
1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ?
2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

OPT - H4 - H1

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?

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.


 

COS from H-4 to F-1 visa

I want to change my status from H4 to F1 and assuming that it would take approx 3-4 months. If I apply for COS today, I make a trip to France (I am French citizen) next week, can I re-enter US on my valid H4 visa? Or do I have to wait until F1 is approved, get it stamped in Paris and then re-enter US?

You do NOT need USCIS approval to apply for F-1 visa. Just apply for F-1 visa during your visit to France. Ask the school to explain the formalities to you. By the way, if you leave USA during a COS request, the COS is deemed abandoned.


 

H-4 Visa Stay in US

My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?

A few weeks absence should create no problems for your dependents.

H-4 rejected under 214(b)

My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?

In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

Advance Parole

Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?

If her I-485 was pending, she would not be out of status.

H-4 visa and age

I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?

The general rule is - we should not try to take advantage of an error made by the govt.

H4

Just would like to know that how soon can a spouse and children apply for a H4?

There is no time limit. As soon as you get an H-1.

H4 Visa Stamping

I recently switched jobs and had my H1-B transferred from Company A to Company B. I have all the H1-B sponsorship documents in place from Company B.
I am married and my wife is on H4 visa. My wife is currently in India and she has a valid visa and I-94 based on my Company A H1. My wife’s visa and I-94 are valid thru Sept. 30, 2010.
My question is, although I have the all the approved papers for my wife’s new H4 visa based on Company B, instead of having her go for a re-stamping can she fly back on her old but valid visa and I-94?

She should be able to enter with her existing H-4 visa as long as she enters USA before the visa expires. But note that her H-4 I-94 given upon entry would be valid only till the visa stamp validity, so you may have to eventually get the visa restamped, or PERHAPS get the H-4 extended again.

H4 inquiry - Dubai resident holding Indian passport

I am on an H1b visa working in the usa. My wife currently has a residence visa from Dubai (UAE) and she is an indian citizen holding an indian passport.She has lived for 27 years in Dubai and for the last six to 12 months she has also been living in Dubai. Could you guide me on the process of getting her into the USA on a dependends visa please.

Easy. She needs to apply for H-4 visa at the US Consulate in Dubai. Contact them (you can check their web site http://dubai.usconsulate.gov/dubai/gvi.html<) for what documents she must bring.

H-4 visa to H-1B

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.

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

Travel during H4 processing

I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

H1B-H4-H1B

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?

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.

H4 to H1-B

I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?

Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

H4 to H-1

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.

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<

Are H-1 holders being turned back at the airport?

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.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Licensing of Foreign Persons Employed by a U.S. Person

When is a foreign person considered an employee?
If residing overseas, is the foreign person employee considered a broker?
Should current authorizations be replaced or amended to be consistent with current guidance?
Can multiple employees be covered under one authorization?
How is an employee providing marketing services overseas identified in a license application?
What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
What value should be entered on the license application?
How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
Who should sign the DSP-83 for the transfer of U.S. classified information?

When is a foreign person considered an employee?
A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

If residing overseas, is the foreign person employee considered a broker?
If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

Should current authorizations be replaced or amended to be consistent with current guidance?
Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

Can multiple employees be covered under one authorization?
Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

How is an employee providing marketing services overseas identified in a license application?
If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

Wha value should be entered on the license application?
DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

Who should sign the DSP-83 for the transfer of U.S. classified information?
The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1

http://www.uscis.gov/working-united-states/temporary-workers/frequently-asked-questions-about-part-6-form-i-129-petition-nonimmigrant-worker&nbbsp;
http://www.bis.doc.gov/

Social Security Number And Card

How do I get a number and card?

A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your number.If you are a noncitizen living in the United States, you also may need a Social Security number. For more information, see Social Security Numbers For Noncitizens (Publication No. 05-10096<). If you are temporarily in the United States to work, see Foreign Workers and Social Security Numbers (Publication No. 05-10107<).

How do I get a number and card?

To apply for a Social Security number and card:

• Complete an Application For A Social Security Card (Form SS-5); and

• Show the original documents or copies certified by the issuing agency proving:

—U.S. citizenship or immigration status [including Department of Homeland Security (DHS) permission to work in the United States];

—Age; and

—Identity.

Then, take or mail your completed application and documents to your local Social Security office.

Citizenship or immigration status: 

The center accepts only certain documents as proof of U.S. citizenship. These include a U.S. birth certificate, a U.S.passport, Certificate of Naturalization or Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current U.S. immigration documents. Acceptable documents include your:

• Form I-551, Permanent Resident Card (green card, includes machine-readable immigrant visa with your unexpired foreign passport);

• I-94, Arrival/Departure Record, with your unexpired foreign passport; or

• I-766, Employment Authorization Card (EAD, work permit).

International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

Agee: You need to present your birth certificate. (If one exists, you must submit it.) If a birth certificate does not exist, Social Security may be able to accept your:

• Religious record made before the age of 5 showing your date of birth;

• U.S. hospital record of your birth; or

• Passport.

Identity: Social Security can accept only certain documents as proof of identity. An acceptable document must be current (not expired) and show your name, identifying information and preferably a recent photograph. Social Security will ask to see a U.S. driver's license, state-issued nondriver identification card or U.S. passport as proof of identity. If you do not have the specific documents asked for, Social Security will ask to see other documents including:

• Employee ID card;

• School ID card;

• Health insurance card (not a Medicare card);

• U.S. military ID card;

• Adoption decree;

• Life insurance policy; or

• Marriage document (only in name change situations).

All documents must be either originals or copies certified by the issuing agency. Social Security cannot accept photocopies or notarized copies of documents. Social Security may use one document for two purposes. For example, Social Security may use your U.S. passport as proof of both citizenship and identity. Or, Social Security may use your U.S. birth certificate as proof of age and citizenship. However, you must provide at least two separate documents.

Social Security will mail your number and card as soon as they have all of your information and have verified your documents with the issuing offices.

What does it cost?

There is no charge for a Social Security number and card. If someone contacts you and wants to charge you for getting a number or card, please remember that these Social Security services are free. You can report anyone attempting to charge you by calling our Office of the Inspector General hotline at 1-800-269-0271.

Are there different types of cards?

Social Security  issues three types of Social Security cards. All cards show your name and Social Security number.

• The first type of card shows your name and Social Security number and lets you work without restriction. Social Security issue it to:

—U.S. citizens; and

—People lawfully admitted to the 

United States on a permanent basis.

• The second type of card shows your name and number and notes, “VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” Social Security issues this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work.

• The third type of card shows your name and number and notes, “NOT VALID FOR EMPLOYMENT.” Social Security issues it to people from other countries:

—Who are lawfully admitted to the United States without work authorization from DHS, but with a valid nonwork reason for needing a Social Security number; or

—Who need a number because of a federal law requiring a Social Security number to get a benefit or service.

How do I get my child a Social Security number?

It is a good idea to get the number when your child is born. You can apply for a Social Security number for your baby when you apply for your baby’s birth certificate. The state agency that issues birth certificates will share your child’s information with us. Social Security will mail the Social Security card to you. Or, you can wait and apply at any Social Security office. If you wait, you must provide evidence of your child’s age, identity and U.S. citizenship status. If you are filing an application on behalf of someone else, you must show us evidence of your relationship to, or responsibility for, the person for whom you are filing. You also must show us proof of your identity. Social Security must verify your child’s birth record, which can add up to 12 weeks to the time it takes to issue a card. To verify a birth record, Social Security will contact the office that issued it.

Anyone age 12 or older requesting an original Social Security number must appear in person for an interview, even if a parent or guardian will sign the application on the child’s behalf.

Adoption: Social Security can assign your adopted child a number before the adoption is complete, but you may want to wait. Then, you can apply for the number using your child’s new name. If you want to claim your child for tax purposes while the adoption is still pending, contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S Addoptions. For more information, see Social Security Numbers For Children (Publication No. 05-10023).

What if my name changed?

If you leegally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected card. If you are working, also tell your employer. If you do not tell us when your name changes, it may:

• Delay your tax refund; and

• Prevent your wages from being posted correctly to your Social Security record, which may lower the amount of your future Social Security benefits.

If you need to change your name on your Social Security card, you must show us a document that proves your legal name change. Documents Social Security may accept to prove a legal name change include:

• Marriage document;

• Divorce decree;

• Certificate of Naturalization showing a new name; or

• Court order for a name change.

If the document you provide as evidence of a legal name change does not give us enough information to identify you in our records or if you changed your name more than two years ago (four years ago if you are younger than age 18), you must show us an identity document in your old name (as shown in our records). Social Security will accept an identity document in your old name that has expired.If you do not have an identity document in your old name, Social Security may accept an unexpired identity document in your new name, as long as Social Security can properly establish your identity in our records.

Citizenship: Also, if you are a U.S. citizen born outside the United States and our records do not show you are a citizen, you will need to provide proof of your U.S. citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

Your new card will have the same number as your previous card, but will show your new name.

How do I make sure my records are accurate?

Each year your employer sends a copy of your W-2 (Wage and Tax Statement) to Social Security. Social Security compares your name and Social Security number on the W-2 with the information in our files. Social Security add the earnings shown on the W-2 to your Social Security record.It is critical that your name and Social Security number on your Social Security card agree with your employer’s payroll records and W-2 so that Social Security can credit your earnings to your record. It is up to you to make sure that both Social Security’s records and your employer’s 

records are correct. If your Social Security card is incorrect, contact any Social Security office to make changes. Check your W-2 form to make sure your employer’s record is correct and, if it is not, give your employer the accurate information.

You also can check your earnings record on your Social Security Statement. The Statement is available online to workers age 18 and older. 

To review your Statement, go to www.socialsecurity.gov/myaccount and create an account.

What if my immigration status or citizenship chaanged?

If your immigration status changed or you became a U.S. citizen, you should tell Social Security so Social Security can update your records. To get your immigration status or citizenship corrected, you need to show documents that prove your new status or citizenship. Social Security can accept only certain documents as proof of citizenship for new and replacement cards. These include your U.S. passport, a Certificate of Naturalization or a Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

What if my card is lost or stolen?

You can replace your card or your child’s card for free if it is lost or stolen. However, you are limited to three replacement cards in a year and 10 during your lifetime. Legal name changes and other exceptions do not count toward these limits. For example, changes in noncitizen status that require card updates may not count toward these limits. Also, you may not be affected by these limits if you can prove you need the card to prevent a significant hardship.To get a replacement card, you will need to:

• Complete an Application For A Social Security Card (Form SS-5);

• Present an unexpired original document with identifying information and preferrably a recent photograph that proves your identity;

• Show evidence of your U.S. citizenship if you were born outside the United States and did not show proof of citizenship when you got your card; and

• Show evidence of your current lawful noncitizen status if you are not a U.S. citizen.

Your replacement card will have the same name and number as your previous card.

How can I protect my Social Security number?

You should treat your Social Security number as confidential information and avoid giving it out unnecessarily. You should keep your Social Security card in a safe place with your other important papers. Do not carry it with you unless you need to show it to an employer or service provider.Social Security do several things to protect your number from misuse. For example, Social Security requires and carefully inspect proof of identity from people who apply to replace lost or stolen Social Security cards, or for corrected cards. One reason Social Security do this is to prevent people from fraudulently obtaining Social Security numbers to establish false identities. Social Security maintains the privacy of Social Security records unless:

• The law requires us to disclose information to another government agency; or

• Your information is needed to conduct Social Security or other government health or welfare program business.

You should be very careful about sharing your number and card to protect against misuse of your number. Giving your number is voluntary even when you are asked for the number directly. If requested, you should ask:

• Why your number is needed;

• How your number will be used;

• What happens if you refuse; and

• What law requires you to give your number.The answers to these questions can help you decide if you want to give your Social Security number. The decision is yours.

Contacting Social Security

For more information and to find copies of our publications, visit our website at www.socialsecurity.gov or call toll-free, 1-800-772-1213 (for the deaf or hard of hearing, call our TTY number, 1-800-325-07788). Social Security treat all calls confidentially. Social Security can answer specific questions from 7 a.m. to 7 p.m., Monday through Friday. Generally, you’ll have a shorter wait time if you call during the week after Tuesday. Social Security can provide information by automated phone service 24 hours a day.Social Security also want to make sure you receive accurate and courteous service. That is why Social Security have a second SocialSecurity representative monitor some telephone calls.

Indefinite H-1 Extensions( on yearly basis) Based On PERM Appeal

Can we apply for indefinite H-1 extensions( on yearly basis) based on PERM appeal as long as your case is still in appeal?

As long as PERM appeal is pending (Not, MTR), you can apply for one-year H-1 extensions indefinitely, even beyond 6 years.

Foreign Labor Certification Questions and Answers

1. What is the Foreign Labor Certification Process?

2. How long will the employment-based visa process take?

3. Are there any employment-based immigration fees?

4. How do I find out the status of my permanent case?

1. The actual process for the Foreign Labor Certification varies depending upon the program being used. This http://www.foreignlaborcert.doleta.gov< website contains information regarding the process for filing for each of the programs under the Department of Labor's (DOL) jurisdiction. The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized in his/her behalf. In general the Department of Labor works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a Foreign Labor Certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

2. Depending upon the nature of the program the process for filing could vary between months and years. To be of assistance, we have provided on our Web site the current processing times< in the DOL regions and states. Currently, the process to obtain an employment based temporary labor certification (H-2A, H-2B) usually may take months through the state agency and the DOL regional office. However, H-1B processing usually only takes seven working days. The process to obtain an employment based permanent labor certification can sometimes take up to several months after completing the necessary recruitment steps and filing the application with the National Processing Center. The PERM Processing Times are updated monthly and available for view at http://icert.doleta.gov<.

For the employment-based permanent visa, the USCIS may take up to an additional 9 months to process the request. USCIS will provide"premium processing"< for some visa categories with an additional fee.

 

3. Most programs administered by the DOL do not charge fees for a foreign labor certification. Every program does, however, require fees be paid to the USCIS upon filing an application for a visa or greencard. See the individual program (H-2A<) for details regarding DOL fees. See the USCIS <site for details regarding USCIS fees.

 

4. An employer should pro-actively and regularly, advisably once a month or less, monitor the status of an electronically filed labor certification application via the Permanent Case Management System, and compare its filing date, i.e., the date the application was submitted for processing, to the PERM processing times posted on the iCERT Visa Portal System (http://icert.doleta.gov/<). If there is more than a 30-day difference between the employer's filing date and the PERM processing time, the employer may contact the National Processing Center (NPC) for a status update.

An employer who filed a labor certification application via mail may contact the National Processing Center's Help Desk at 404-893-0101 for a status update.

Information on Printing I-94

I do not have an I-94 from my last entry to the US in June, but I need it for my H-1B renewal. What should I do?

Please refer to the following link for information on printing your I-94: http://www.immigration.com/news/general-nonimmigrant-visa/i-94-web-appli...<

H-1B Petition for Extension

When should my H-1B petition for an extension be filed?

An H-1B petition for extension may be submitted to USCIS no more than 6 months prior to the expiration of the current H-1B status.

Status of H-4 Dependents When H-1B is Denied

If my H-1B petition is denied by ">USCIS, or withdrawn by my employer, what happens to my H-4 dependents?

If you are no longer in valid H-1B status, your dependents’ H-4 petitions will no longer be valid either.

H-1B Filed Under the Quota for the Year 2014

My H-1B was filed under the quota for the year 2014 and recently approved. Am I now in H-1B status?

A petition filed under the 2014 quota cannot have an effective date before October 1, 2013.  You cannot be in H-1B status prior to that date.

Applying for H-1B Renewal

I am applying for an H-1B renewal. Do I really need to submit all of the same documents, diplomas, client letters, and so on, again?

USCIS treats each petition as a new case and requires a complete set of documents, as if it is the first time you petitioned.

Moving Outside USA For A Year While H-1B Has Not Expired

I have a valid H-1B until April 2014. I left my employment with my company March 2013 and we were in the process of applying for the GC. I did not have time to find another employer and file a GC application before entering my final year. Therefore even if I transferred my H-1B I still would have had to leave in 2014. Therefore I have decided to come back to England for a year and reapply when I have completed 365 days out. I have 2 questions:

1) Does my time start from when I left the US or do I have to cancel my H-1B?

2) If I go back to visit, I assume I just visit under the visa waiver?

1. The one year out starts when you leave USA.

2. It may be best not to visit during that year.

Applying H-4 Visa for Spouse During H-1 Processing

My company is processing my H-1B application. Is there any information regarding dependents that will be accompanying H-1B applicant to US at the of filing petition ? What is the process to apply for dependent visa (H-4) for my spouse?

If you are outside USA, only H-1 is processed here. H-4 is done at the consulate when you go apply for H-1 visa.

SSN for Non-working Purposes

I am on H-1B visa and my wife just received her H-4B. She is not allowed to get ">SSN as this is only for people who allowed to work. I need to get her TIN (TAX Identification Number) but not sure where to start as I have been told she needs TIN for Driver licensing and open Bank account.

You contact IRS for tax identification. Also, SSN can be given for non-work purposes if the law requires you to provide a non-work Social Security number to get a federal benefit or state general assistance benefit that you are otherwise qualified for.


See this info TIN: http://www.irs.gov/Individuals/International-Taxpayers/Taxpayer-Identification-Numbers-(TIN)


This for SSN: http://ssa-custhelp.ssa<

Prevailing Wage

Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

F-2 to H-4 Visa

I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?

If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

Family Based F4 GC

Currently on my third year of H1B visa. If my sibling were to begin a family based F4 GC petition for me now, and the priority date is 12 years away, is there any way for me to continue to stay in the US until the GC is approved after I have used up my 6 years maximum of H1B? Are there any extensions possible based on the pending GC application? Or do I have to go back to India after the 6 years of H1B and wait there until the GC is approved?
Also, I should add that the above scenario is assuming that I don't have an employer-sponsored GC petition.

Unfortunately, the law does not permit you to wait the 12 years in USA just because you have a GC pending. No H-1B extensions are available on this basis. You will have to wait outside USA. Of course, you can come back on H-1 once you have reset the time by staying outside for one year. By the way, it is permissible for a person to apply for green cards through multiple categories simultaneously.

H-1 transfer during pending extension

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?

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.

Transfer of jobs under same employer

I am working for a newspaper in the U.S. as a designer under the H1-B visa. I might be taking up a job as a reporter at the same newspaper in the same location for the same salary. The only thing that would change would be my job profile. What are the ">USCIS formalities involved in this particular situation? Would my employer have to file a whole new I-129? Would the entire petition process have to be undertaken again?

The employer will have to file for an H-1B amendment. It is like doing an H-1 all over again, but the fees can be a lot lesser.

H-1B to B-2

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?

You can and should apply for B2 for both.

H-4 Visa and Status Validity

My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012

My questions :
1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ?
2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

OPT - H4 - H1

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?

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

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?

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.

Switching Jobs after I-140 approval

I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12,

1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)?

2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

H-4 Visa Stay in US

My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?

A few weeks absence should create no problems for your dependents.

H-1B Stamping

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?

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-4 rejected under 214(b)

My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?

In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

H-1 Extension

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?

Personally, I have seen no correlation between premium processing and increased RFE's.

H1-B Visa Transfer

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.

The H-1 can be "transferred" - yes.

H-1 extension beyond 6 years

My situation. I work for company A
1. My 6th yr H1-B ends in Dec 2011
2. Labor approved ( ">PD May 2010) and I-140 (applied Sep 2010) pending - EB3
3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014).
After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

H1B interview travel cost reimbursement

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?

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.

Advance Parole

Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question ">is can she go to India with advance parole and come back, will there be any problem?

If her I-485 was pending, she would not be out of status.

H1-B to F-1

I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

H1 Renewal Denial/I 94 expired

My H1 visa and I94 expired on 30th sept’10; we filed for a renewal but got an RFE in about 10 days for client letter. Replied to the RFE with client letter on October 29th, got visa denial on November 10th as client letter had project end date of 11/5. Current lawyer says I am ok to stay here 180 days from visa expiry, currently looking for new project with client letter to file for new H1 B visa and then go to India to get stamping and reenter. Am I ok to be here in the country or should I leave immediately? Will stamping and reentry be a problem? Is filing with the same company a good idea?

In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.

Parents B-2 Visa

My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches:
a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems.
b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

Employer/Employee Relationship while H1B transfer

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?

Working directly for the end-client eliminates the employer-employee issue usually.

AOS applicants applying for H-1 visa

My spouse and me are currently working on H1 and we do have our ">EAD and AP even though we are not using it.
We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped.

We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

Can I apply for Social Security Number ?

Can I apply for Social Security Number on basis of I -797. My license to work as a vet in State A in depended upon ">SSN. How long does it take to get a SSN. On what status will I stay until I get a SSN & a license & subsequently start my job.

Generally speaking, when you get your H-1 approval, you can apply for SSN. If there is an urgency, SSA could expedite your application. I believe USCIS and SSA have said if you have the appropriate USCIS approval, you can start working even without the SSN. Check with SSA on the details.

H1B extension or EAD

I am currently on my H1B extension and my employer filed a petition,I-140 under EB3 category which was approved. I cannot file for an adjustment of status at the moment so if my H1 B visa expires before I can file for the AOS in that case does my employer have to file for an extension for H1b or is it the ">EAD. I am confused if they are two diffrent things or one and the same. Please advise.

EAD and H-1 are two different things. You will get your EAD only after you file the 485.

H-1 for Canadian PR with J-1 issue

I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me.
1. They have no clue abt H1B visa. How do I proceed?
2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?

If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html<

Self Employed while on EAD

I am employed with H1-B and ">EAD. My wife has EAD through my petition. She is looking into working as an Independent Consultant (Self Employed). Is she allowed to be IC under EAD?

I see no issues at all with the derivative beneficiary being self-employed on EAD.

H-4 visa and age

I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?

The general rule is - we should not try to take advantage of an error made by the govt.

H4

Just would like to know that how soon can a spouse and children apply for a H4?

There is no time limit. As soon as you get an H-1.

H1 Visa

I have come to US through my company with my L1 Visa. I am currently working with my client. There is an agreement between my company and my client not to hire my company employees within 6 months after quitting. I cannot move to any other company here in US as i am on L1. My company is not willing to file H1 either. If I have to move to a different company I should have a H1 Visa filed.
Recently my client offered me to join their company, but I don't have my H1 and i cannot join my client company even if i get my H1 because of the 6 months restriction. What are the different options to join my client.

This seems to be an issue of contract only. Immigration law does not stop you from changing.

E3 visa for LPN

I already have a USA LPN license, was just wondering if its possible to get E3 visa to work in USA, I am an Australian citizen. What are the requirements?

As far as I remember, most nurses jobs do not qualify for H-1/E-3 type visas because a US Bachelor's degree is not required for the jobs. If you can find a job where a Bach. degree is the minimum requirement, you can be eligible for E3 or H-1B.

US RN Graduate foreign national

I am here on an H1B and completed my BSC Nursing as well as obtained my state licence. What is the best way to proceed to get a job/visa in the USA.

Start with Optional Practical Training.

H-1B and E-3

I was working in US on E-3 visa before H1B. Which means I entered USA earlier. When does my 6 years clock starts?

In that case, your 6-year clock begins to run on the date you converted (changed status) to H-1.

H1B Extension beyond 6 years

I got my H1B in Feb 2005 however never entered the country for first 22 months as I did not get an opportunity to visit my company here in US. Eventually I came here in Jan 2007. When does my 6 year period start? Feb of 2005 or when I first entered the US in Jan 2007?

H-1 starts on the date you ENTER USA.

H4 inquiry - Dubai resident holding Indian passport

I am on an H1b visa working in the usa. My wife currently has a residence visa from Dubai (UAE) and she is an indian citizen holding an indian passport.She has lived for 27 years in Dubai and for the last six to 12 months she has also been living in Dubai. Could you guide me on the process of getting her into the USA on a dependends visa please.

Easy. She needs to apply for H-4 visa at the US Consulate in Dubai. Contact them (you can check their web site http://dubai.usconsulate.gov/dubai/gvi.html<) for what documents she must bring.

Visitors visa sponsored by H-1B holder

I got my parents Visitor Visa stamped when I worked for Company A . But now I work for company B and I am planning to get them to US now. Do they need to go for stamping again?

I see no need for a new visa.

Query about H1B Visa transfer

I have my H1B through a consultant company in USA. I never traveled on this visa and never worked for this consultant company. Now I have a direct job offer from another employer. My new employer wants me to work for them directly instead of going through my current visa sponsor. Can I transfer my visa to my new employer and enter US on this new visa? What is required for this? And how much time shall it take?

Sure. Have the new employer apply for H-1 for you. Apply for premium processing.

H1B Validity Period

My H1B got approved in Oct 2005 but I entered US in July 2006. Now 6 Years H1B Validity Period begins from the H1B approved date(Oct 2005) OR the day(Jul 2006) I entered this country.

H-1B count down starts from the date of entry.

Where to file complain?

Some of my friends filed H1B through a Consulting company. They gave 1.5-2K USD each. All of the cases were rejected for some unknown reason. Now, that consulting company is not giving money back. Where should they file complain?
The consulting company's mother company is listed in Bombay stock exchange.

If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.

H1B Restamping

My visa is valid till Sept,2011. I recently changed employers;have received my approved I-797 from the new employer.Iam planning to travel to India in May,2010. Do I need to go for re-stamping? Shouldn't the employer name on my visa and my I-797 be the same? If not,then what all documents should I be carrying with me to show to the Immi officer at the Port of Entry? Should the employer name on the visa match the employer name in my I-797? My visa is valid till Sept,2011. I recently changed jobs and my I-797 from the new employer has the new employer's name;however my visa has the old employers name.

Generally speaking, if you have never been out of status, you can travel out of USA and back without changing the visa stamp on an unexpired H-1 visa, even though you have changed employers through a valid H-1 transfer while you were in USA.

Travel during H4 processing

I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

L1B to H1

I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

G-4 to H1B

1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B?

2. Can they apply for a GC after I have an H1B approval?

If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

H1B- denial

I was approved for an H1B by ">USCIS There is a new I-160 form, electronic to the previous form. I want to be able to travel to my home country during this working period, but I have to go home to get it stamped. Could I still be denied the visa even though I obtained my H1B?

Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.

EB-1 Visa Processing for medical doctors

I am working towards filing under EB-1 green card, currently on H-1B. Is there a certain number of publications in peer reviewed journals, presentations at international meetings that would make the application more likely to go through than not?

Number of publications, impact factor of journals and number of citations - that is what they look at these days.

L1A visa and H-1

I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?

That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

Outstanding researcher

I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?

I cannot think of any stage at which you cannot travel. Good luck!

Quickest way to get a GC

I was a resident physician on the H1B visa.. Prior to completing residency, I got the ">EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

H1B Pending

I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?

You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

F1 visa to business visa or H1/L1

Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

H-2B Visa

I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

H1 working in University (non profit organization)

My question is "what is the last date for applying academic H1" Is it april 1st or any time during the year.

For university and other quota exempt positions, you can apply for an H-1 any time.

Transfer to a startup company H-1

I currently have an H1-B status supported by a large enterprise company. This visa is valid for another 2 years. In the next 2 months I would like to transfer to a brand new startup company that will only have 1 American employee and myself. Do you have any recommendations I need to watch out for when moving to a start up company like this. I guess I'm wondering if the government is more suspicious for these smaller companies than the large coorporations. I'm also looking for immigration lawyer to help me with this.

These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.

H1 approval and stamping

I got H1 approval and they asked me to immediately go to home country for stamping. What is the best answer that I can give when they ask me about the gap where the status was illegal. My stamping is on March 9th 2010 in Chennai.

There are too many variable for me to be able to respond meaningfully. The general answer to your question is that the response must be the truth. Before you leave, make sure you are not subject to the 3/10 year bar from coming back because of unlawful presence. There is an entry on my blog on this issue.

H1 B question

Can an individual be granted H1-B status if they are doing an internship (unpaid) or any type of volunteer position? If not, can anyone tell me how an individual would go about getting anything resembling this type of visa for an internship?

H-1B is available only for paid positions. Generally speaking, unpaid internships could be undertaken on a B-1 visa. That would be at the discretion of the US consulate.

H1B renewal using an old I-140 from a previous employeer

When I was working at Company A I filed for my I-140. Unfortunate I had to quit the company A and join company B. When company B filed for my H1B transfer in 2007, the I-140 from company A got approved and we were able to extend my H1B for 3 years. After a year I had to quit company B and join Company C. Now in Company C I filed for Labor through PERM in 2008 which got an audited once and I am waiting for my Labor to approve.

My H1B is expiring in Sep 2010 and my company is not doing good. So if I change a job now, would it be possible to use the old I-140 and Renew my H1b for 3 more years.

I cannot think of any reason why the same I-140 cannot be used for repeat H-1 renewals. By way of caution, do not change companies until the H-1 approval is in hand.

Employer change in 6th year before I-140

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?

Yes you can. But discuss the details with your H-1 lawyers.

Out of Status

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

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

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

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status

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

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

Must we withdraw a PERM application if the employee is laid off?

I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes.
My question:
Q1. Do we need to withdraw PERM LC for him that was submitted 2009?

Q2. Question from the employee, Mr. Smith:
If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs

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

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Status change from F1 to H1b

I got F1 in Jan 2009. Got H1b approval in May 2009. H1b approval means just got I797B form. I preferred to join Fall 2009 semester in University and came in USA in Jul 2009, got I94 with F1 and continued to fulfill F1 obligations.Now I want to change my status from f1 to H1b, and its seems my employer needs to file a petition with form I-129, will that means it should be applied April 2010 and all the balloting process and I will be able to start work after 1st Oct 2010. Will my existing unused H1b approval be able to be used and to exempt cap and and all things required? And can I get I797

You are cap exempt and should be able to change status OR get H-1 visa stamping right away. No waiting till 1 Oct.

H1B layoff, H1B transfer-RFE raised, New H1B approved

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!!

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.

H4 to H1-B

I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?

Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

H1B Visa Stamping

My first term of H1B is going to expire in August 2010, is it possible that I will get the new visa stamped from Canada before expiration like in June or July?

I think they will not stamp a new visa while the old one is still valid for some number of days (30 or 60, I forget). Email the consulate.

EAD - Job title change on the same job

My wife and I am on ">EAD and also both have H1B (I am in my 8th year of H1B and wife is in 5th year as teacher). Our EAD is based upon my job in EB3 category in IT as System Analyst/Administrator, my priority date Aug'2003. Last year I have completed MBA in Finance and can now work as a Project manager within the same company. Can I change my title to Project Manager or IT Manager and also can I change my profile now to work in Investment Company or any other non-IT field in the same company I am already working. As these delay of getting green card are actually causing problem in my career.

If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.

F1 visa to H1-b

I just completed my undergraduate degree and my F1 status does not expire till May 2010. My ">OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim

">OPT<

application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Since the H-1 quota is over, OPT is your best option as far as I can tell.

Questions on AC21, EAD, losing job, etc.

1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, ">EAD and AP approved and successfully renewed. What is the real value of ">CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs?

2. Does having an EAD permit me to work multiple jobs?

3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct?

4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’?

5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I- ">485 application?

6. Do I lose EAD and AP?

7. My wife is working using her EAD…will she lose her EAD?

8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done?

9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.

2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

3A. Correct. You are in authorized period of stay. That has been explained in my blog.

4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).

5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.


6A. No.

7A. No.

8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.

9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Convert L1B Blanket VISA to H1B

I have an L1B VISA and want to convert to H1B in order to shift from my current employer to a permanent employer in US. I am aware that quota for H1B is full for the year 2009 but need the H1B VISA by 2010 Feb for my new employer. Is it anyway possible to get this done before Feb 2010 although the quota is full?

Once the quota is full (as it is now) you can get an H-1 only for a job that is quota exempt (not just an employer that is quota-exempt)

H4 to H-1

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.

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?

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.)

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

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.

H1B Visa

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.

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

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?

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).

Educational Qualification

I have 15 years of educational background against the requirement of 16 years for applying for an H1B.I wish to understand that if i complete a One Year Diploma in the same field as my College Degree, will this be counted/qualify? Or is it necessary to have something which would specifically mention 'Masters'? A 'Post Graduation Diploma' for an year will be equally valid or not?

A diploma that requires a bach. degree for admission may help, but a Master' in your own field is better. You can also acquire three years of experience in the field of your degree. That too can qualify you.

H-1 denial - options

I had applied for my H1B transfer from company A to company B. And I got query asking for last three months paystubs and Client letter. I had provided the paystubs but I didn't get the client letter. Though I got letter from primary vendor. And finally I got a denial notice. That denial is against the company B. It has three detailed reasons explaining the reason of denial.
My question is should I go back to Company A(they have not cancelled my H1B) or should I look for another employer and file for new transfer.?

It appears you had already started working for B. The denial puts you out of status. In order to go back to A, it is my view, you will need to go back to your home country, get a new H-1

Prevailing Wage - H-1 and GC

When is the employer bound to pay the prevailing wages as determined for an ">LCA and if the applicant is already working in the sponsored position. I have an H1B which was renewed recently, but my LCA was filed in March of 2008. Hence there were three wage determinations that were done for me - First one at the time of the initial H1B filing, second one at the time of the Labor for PERM and third one for the renewal. So at what dates does the prevailing wage come into effect as they happen to be different every time.

The employer is obliged to pay you the H-1 renewal wage now and the PERM wage after you get the GC approval.

H1B exemption with I-131

I am an H1B visa holder and married to a US citizen. I have read that if I do not use the EAD and keep my H1B valid through the Petition and AOS process, I could keep my H1B status and travel abroad without the approved AP (I131). Is that right? Or do I need anyway to file the I-131 and do not travel abroad while the parole arrives? My concern is because I need to travel abroad every 2 weeks, and I could not wait for the parole if it takes too much too arrive. We have not filed the petition yet. Should I include I7565 and I131? Can I keep my H1B status to travel abroad even if I file them?

You are permitted to travel on either an H-1 visa, or an

Stamping of H1B except for IT - Chartered Accountant

I wish to understand from you, how difficult or easy it is to get an H1B stamped for people other than IT sector? I am currently pursuing CPA (certified public accountant) course and will be writing my exams soon. How difficult do you think can it be to get an H1B stamped after completion of this course? Is IT the only favored sector?

The degree of difficulty has no quantitive scale. But generally speaking, all professionals should have the same degree of difficulty.

Requirements (Degree/Education for H-1)

1. I have heard that for H1B VISA application process the minimum educational qualification required is 16 years of education.A Bachelor’s degree from India is considered as only 15 years of education.
I have done an Intensive Diploma in German Language from Delhi University(regular) - one year and Advance Diploma in German Language from Delhi University(regular) - one year.So, ideally a two years regular course from Delhi University - will this be recognised? this is in addition to regular B.Com (H) from Delhi University. Will this fullfill the educational requirement for H1B?

2. How do i prove that i have actually been doing some/all of the tasks in my previous organisation? On my resignation, the company will provide me with an experience letter - but which is a very general one. Does not necessarily include the tasks performed.

A1. When a person has less than a complete 4-year bachelors degree, then each year of college education that they are missing may be replaced by three years of relevant experience in the field in which they are seeking a job. For instance, if a person has a three years degree in Mechanical Engineering and they wish to obtain an H-1

Applying for B-1 when laid off

I went through your blog on H1 to B1/B2. My friend has a similar case, he has been laid off and last working day is 09/15/09. He spoke to a local attorney on the feasibility of transferring H1 to B1/B2. But that attorney mentioned that the transfer request will be rejected as there will be a clear immigration intent. Can you please help with this?

From my blog, one thing should have been clear. Whether or not you get approved is irrelevant. A timely filed application puts you in authorized period of stay. That was the whole point.

H1B Processing

I have applied for EOS H1B at the end of june but my case still shows as pending processing on ">USCIS website. However, it looks like several cases filed in July have already been approved. What can I do about this?

Contact customer service of USCIS or convert your case to premium.

H1 6th Yr - Labor Approved - NO I-140

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?

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).

Extending H-1B After Staying Outside USA for 365 Days

If I stay outside the US for 365 days and return back on the same L1/H1B,will it reset the 5/6 year limit for the visa? Let’s say i max-out on L1B in Aug 2009 and have a valid H1B petition from Jan 2010-Dec 2010. If I go out of the US in Aug'09 and return in Sep 2010,when I re-enter and apply for H1B extension, will I get 6 more years on the same H1?(since technically,at that point,i would have already stayed outside US for 365 days and my H1B clock would start over fresh). If No,should I apply for a NEW H1B?If yes,will this new H1 be subject to the 65k cap?

Once you have been outside USA for one year, there are two options. One, be subject to the quota and get 6 years of H-1. Two, if there was any H-1 period left, take the remainder and not be subject to the quota.

RFE H-1 without a client letter

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.

Read my blog and my article <on this issue.

H1B laid off while labor is pending

I might get laid off. My labor is pending and I will apply for B1/B2. In the mean time if my employer recruits me back again, will I be able to continue with my PERM and rest of the green card process? Do I have to start from the beginning?

There is no easy answer. It could be argued that the employer laid you off so the permanent job, which is the basis of the green card is gone. Hence, the process is fatally interrupted. Generally speaking, I think you should be able to continue.

H1B Revival process (Extension while still abroad)

I have valid H1b visa till Sep , and right now I am in India ....can you please help me guide through possible ways of visa extension.

An extension can be had only if the employer can demonstrate that they have a definite job open for you. The rest is up to the lawyers and USCIS.

H-1 Visa re-stamping

I have valid H1B stamp till 2010 sept from employer A. Just after coming into US, transferred to employer B. My transfer is approved and got the I797 approval notice, which is valid until Sep 2010. Now I am planning to go India. Can I re enter US using my previous employer's Visa stamp and the new I797 or do I need to get visa stamped again? Is it true that if the previous employer has cancelled the visa, it would be a problem and the visa has to be re-stamped. It would be great if this can be clarified?

An H-1 visa does NOT need to be stamped during its life even if you change employers. You can use the same visa to travel as long as you have never been out of status.

Unpaid leave on H-1

What is the effect of unpaid leave for sick time or maternity leave on H1B status? I had to take about 3 months of unpaid leave and back to work for about two months now. I will have to file extension of stay H1B end of the year and want to know if it effects the extension of stay approval.

As long as the leave is normal, or supported by documented necessity, you should have no problem.

Divers Licenses, while H-1 extension pending

How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

Choices to work in USA

I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .

The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

I-485 AOS Pending, Employer's Bankruptcy

My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business.

1. How does it effect my H1B visa and GC application (filed I-485 - pending)?

2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment?

3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Important questions on H-1, AP and Travel

1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable?

2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to ">EAD?

3. How long is AP processing taking these days?

4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing?

5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog <.

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

H-1 visa denial and investigation

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

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

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

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

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Compensation for H-1 lay off

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

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

F-1 visa stamp, H-4 pending

I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April.
In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India.

Now we are very much concerned that what will happen to my H1 and her H4?

1) Since she has F1, will it affect H1/H4 processing?
2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same?
3) Is it possible to have F1 and H4 both together at the same time?
4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

H-1 denial, appeal, MTR

My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details.

H1B/H4 filed: March 1st 2009
">RFE was issued in April
RFE replied: May 6th 2009
H1B/H4 denied: June 1st 2009
Our H1B/H4 I-94 expired: Apr 10, 2009

My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.).

1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status?

2) While new H1B is pending, what is my status? Am I considered to be in status?

3) Can we file brand new H1B through the same company while appeal is pending?

4) Can I work for my employer while appeal is pending, without filing new H1B?

5) Can I work for my employer while new H1B is pending?

6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition.

7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

Can H-1 be extended based upon family-based green card?

I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

You cannot. This extension is available only to employment-based applicants.

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B

I (a software consultant) have ">EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know
a- Can they do it legally?
b- What are my options including can i sue this employer despite being on EAD?

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm<

H-1B and E-3 workers, go here:
 

From H-4 to F-1

1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ?

2. How long should I be on F-1 before when I will be eligible to apply for ">OPT and work using the same?

3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through ">USCIS, CA ? Will I get an approved F-1 by then ?

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

What kind of company is good for H-1B processing

Can you give us some tips on legally what kind of companies should one look for to process H-1.

I think this is a timely question. I can give some pointers based upon my experience.

H-1 approvals are easier:
- for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and

LCA's for H-1 will probably take longer now

New LCA Online System Beginning May 15th, 2009

Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/<.

Our office will use the new iCERT Portal System (http://icert.doleta.gov/<) to file LCAs online using the latest Form 9035.

H-1 Quota Count still at 45,000 as of 4 May 2009

USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
 

H-1 extension denied - status

Quote: Hi Rajiv,
Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

H-1 Quota still open

Here is the release from USCIS.

April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 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;

PROPOSED Legislation to Reform H-1B Visa Program

Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009

[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

 

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


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

H-1 Count 44,000 -- You can Still File

From USCIS:
Quote:

US employee working from India

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?

H-1 holder aplying for H-4 visa

My wife has been in US for 6 months on H1 and is going back to India.
In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1?
Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

New H-1 employee returning -- rights and issues

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?

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

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.

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?

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.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

H-1 visa stamping -- is it difficult?

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.

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

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 is continuing to accept H-1 filings

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.

GC future job; H-1 ext. revocation upon 140 denial, etc

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to ">RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july

I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009

Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Are H-1 holders being turned back at the airport?

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.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Employers and Employees -- H-1 or EAD?

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the ">LCA salary as mentioned on my W2, would switching to ">EAD with my sponsoring employer help with getting away from this restriction?

Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.

Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

H-1 Lottery for 2009

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.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

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.

GC Compliance for Employers

Some of our employees' Green cards
have been filed. There projects have ended. They are working on H-1 but possess ">EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

L-2 EAD and H-1

1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for ">EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2?

2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)?

3. Does EAD allow one to be do multiple things as a free-lance professional?

1.  Ans. It lapses upon change of status from the date the status is changed.

2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

3. Ans. Yes.

Starting business while in AOS/I-485/H-1/H-4

1. Hi Rajiv I have a few questions about starting business in partnership.

I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has ">EAD.

I will be the one who will be investing in this business but I won't be employed with that business.

- Is this legal ?

2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

H-1 Quota - what is acceptable evidence for degree

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:
 

How does the Stimulus Bill affect H-1b, L-1 and Green Cards

What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

Do physicians have the right to an extension beyond 6 years for waiver jobs?

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.

Turning 21 - do I have to convert to F-1 from H-4?

My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

 I do not see any way around filing an F-1.

What happens when an employer is under criminal investigation/indictment?

What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Employers responsibility in H-1 process

Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

Is salary reduction possible/legal?

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

Consequences of not using an H-1 visa

I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from ">USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.

Note! Employer subject to H-1 quota, but the job may not be

My wife is on cap-exempt H1B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution.
It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think, any chances here ?

Difficult to say what the chances are, but read on.

Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

Leave US for job outside USA

If you leave USA for job outside USA before using 6 years of H visa and work for 1 year, does the H1B clock reset for another 6 years and what happens to unused period of H visa?

After one year abroad, you have 6 more years. The unused portion is ignored.

Employer not paying, may I tranfer H-1?

At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have.

Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.dol.gov/whd/forms/wh-4.pdf<

You can also contact the local WHD of DOL where you are:
http://www.dol.gov/whd/<

Not only will you most likely get your full salary for every day of H-2, you also well protected from any problems past or future due to non-payment. Good luck!

L-1/H-1 COS Issues

I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa).
1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1)
What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1.
2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?

I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

Do advanced degrees help in marriage-based green card?

I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose:

1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application.

2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference?

3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an ">OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his?

4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

H-1 converting to H-4 and then (maybe) back again

I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B .

Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project.

While working she have been paying taxes regularly.

Pl let us know what needs to be done now:-

* She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to ">USCIS ?

* When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work?

* If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?

Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

In my view, she will not be subject to quota unless she is outside USA for a year.

The companies are required by law to revoke her H-1. I see no issues there.

What to do if an I-140 gets rejected?

Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a ">RFE in Sep 2008 and reply recieved by the ">USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are:

1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending?
2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009?
3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then?
4. If at all everything is rejected what can I do to start residency in july if I match?

If all else fails what are my options to continue working in the US?
My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Can H-4/F-2 holders perform volunteer work?

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?

L-1 - H-1 COS issues

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

H-1 related I-94 issue

I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94.

I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ???
Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...

Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

Start-up applying for H-1 and AC21 for employees

If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer?

How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue?

Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

H-1 Quota issues for students

Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

H-1 where there is no license in hand

In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

H-1 - how to revert to old employer

My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond.

Couple of questions, Can I switch back to Company A.
1. Does he need to file with ">DOL (or) ">USCIS that I am switching back to company A
2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay?

Other Question is, Company A send a letter to ">INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A???

If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.

In my view, he cannot go back to company A without taking some additional steps.

Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

Laid off - Now what ???

Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) ">EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

H-1 quota - the law

People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

The Law
_________________________________________

AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:

H-1 transfer - what action is needed for H-4

I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?

If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

H-1 Quota

I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2.

Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again?

Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.

Ans 1.  In my opinion, you will not be subject to the quota again.

Ans 2. You should not be subject to the quota.

Multiple H-1 approvals

I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions

Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Ans1. Yes. I usually recommend that all I-94’s be surrendered.

How to get back to H-1 status?

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?

AOS Pending, Should H-1 be Renewed

Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Filling DS 156

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Nonimmigrant Visas
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