You may apply for H-4 EAD and H-1B for Consular Processing for your spouse at the same time. This way, you have the option of choosing one while keeping the other status until you choose to give it up. H-1B consular approval will require your spouse to apply for a Visa abroad.

No, you may not.

Sorry, we do not offer assistance with Canadian PR

Yes, that is possible.

If at all possible, steer clear of the J-1 option. Hunt for a job that allows you to maintain your H-1B status and provides for future sponsorship as an Immigrant. The J-1 Visa option, in all likelihood, would result in your being subject to §212(e) – two year home country residence requirement. Seeking a waiver is oftentimes cumbersome and time consuming. More importantly, since the J has a dual intent limitation (cannot intend to be an immigrant while in this status), you would not be eligible for an immigrant petition. Finally, you will be unable to adjust status until you fulfill the two year home country residence requirement.

There is no restriction on travel while an H-1B extension is pending. You could even return with a valid visa prior to the expiration if necessary. Travel will not invalidate the pending petition. You should, however, affix both the I-94 with which you return and the one that you get with the extension to your passport and surrender both when traveling abroad next.

The regulations require physical presence abroad for a period of 12 months before you can reapply for a fresh six years. Then again, the initial admission will only be for a period of 3 years with a maximum (including extensions) of 6 years.

We are planning to go to Vancouver on 01-Sep-2010 for H1B visa stamping for my wife. We always assumed that the stamping will be either approved or denied (in which case my wife can travel back on L2 which will be still valid). Today, we got to know that these days visa officers are sending the applicants to 221(g) additional processing, so they don’t deny it but don’t approve it either. The only question we have is whether they take the passport in case of 221(g) or we get the passport back? If they keep the passport, do we have an option to get it back / request to get it back and whether it will have any negative impact on the whole process?

There is no clear procedure in these situations. Unfortunately, you would have to go through an interview at the Consulate to know for sure. However, you could always withdraw your application from the Consulate to receive your passports back and go elsewhere.

With the advent of the new PIMS database, all U.S. Consulates have the ability to view your approval information and supporting documents online. However, accepting jurisdiction over a visa matter is left to the discretion of the Consulate where you apply for a visa. Therefore, you could attempt to apply for a visa (in your situation) at a different U.S. Consulate either in India, or Canada.

CAP Exempt entities do not fall under the 65,000 annual CAP set for the H-1B visa category. Individuals who are employed by these institutions may only move to another cap exempt institution. If they seek employment with a cap subject entity they would fall under the annual H-1B CAP although they have been issued an H-1B in the past.

The rejection by Canada for failing to maintain status should not impact your ability to re enter the U.S. with a valid H-1B visa.

I am in US on H1b and my husband is in india. He is also holding an H1b and wants to come here.

Following are my questions:

1. Spoke to many consultant and they told that transfering H1b from India is diffcult. Can you please tell me, if we can get it transfered to an US employer from india?
— Your husband is no longer subject to the CAP. He should identify an employer who would be willing to process an H-1B for him based on immediate employment.

2. If my husband resigns his company, which filed his H1b from india. They will revoke it and then if we try to file an new H1b from an consultant. Will he still be applicable for Quota/Lottery system or he will be cap-exempt as he was already considered once.
— As stated earlier, your husband is not subject to the CAP.

3. How long does it take for a company to revoke the H1b?
— The Employer could notify the USCIS to have an H-1B revoked immediately upon termination of employment. However, the process takes approximately 4 to 6 weeks.

4. How long does it take to transfer H4 to H1b?
— That process could be done in 4 to 6 weeks if using premium processing. This takes into account time taken to process and have an LCA certified and processing including having the petition paperwork executed by the Employer.

That would depend on whether you are entitled to work at this time. If you are currently in H status, you would be entitled to the salary as stated on the H-1B petition. If not, you would have to wait for the approval to begin employment with the petitioner.

From our experience, the receipt# is usually emailed to the Attorney of Record/Employer within 48 to 76 hours from receipt. As long as the petition was filed properly, you need not leave the U.S. You would be considered in valid status. Have the Employer/Attorney check to see if the checks have been remitted. A copy of the cancelled check will have the receipt# as well.

You will no longer be considered a non immigrant. You should identify yourself as an immigrant pending adjustment. Remember to renew your EAD at least 120 days prior to expiration.

Travel is permitted while and H-1B/H extension is pending. You could always re enter with the AP.

The answer to this question is ‘yes’. You are allowed to port to a third company while your petition with the second company is still being processed provided you are able to document clearly that you have always been employed and in status with each of the prior companies.

Using the EAD will not impact your Husband’s H-1B status. In fact, you are right in planning to have your husband retain his H-1B status (as you put it, “in case something were to happen to the I-485.”).

The transfer is possible. A new Petition would have to be filed with the receipt of the pending H petition. If this is a CAP subject petition, no additional proof is necessary to file a second petition with a different employer.

From your email below it appears you currently have a valid H-1B approval. However, this approval does not correspond to the visa on your passport. Well, visas are not employer specific and therefore, you could travel and re enter with the valid visa and your current H-1B approval. A visit to the Embassy would not be required in this situation.

Yes, you may go back to work for your Employer in this situation. H-1B approvals remain until revoked.

You could wait, but know that it is not always that the USCIS issues an RFE in this situation. They could outright deny your I-140 and I-485. They could also invalidate the EAD and you could find yourself in a serious situation without proper work authorization. Proactively complying with AC21 portability is recommended.

Your permanent resident husband could always file an immigrant petition on your behalf. You would become eligible to apply for Adjustment of Status as soon as your ‘priority date’ becomes current.
Additionally, you should be able to reclaim any time that you have spent abroad towards your H-1B stay in the U.S.
If you decide on a course of study and obtain admission at an accredited university, you could extend your stay in the U.S. by changing to student status.
You have several options to remain in the U.S. beyond the expiration date of your H-1B. Since this is a general answer and your situation may be more sophisticated and complex than that mentioned in your email, we highly recommend scheduling an appointment the Attorney to discuss your options.

EAD adjudication has been delayed due to significant changes to the procedure involved in accepting and processing these applications. Contractor errors contributed to significant delays as well. As such, you could always call to expedite your EAD if you can show that you are likely to lose your job, or the Employer would suffer serious financial loss due to your inability to work. It might be a good idea to visit the local Office (schedule an Infopass Appointment) to see if and when they are likely to issue an interim EAD.

Utilizing AP to enter the U.S. does not invalidate H status. In fact, this very issue has been addressed by a Memo. The text of the Memo is reproduced below

U.S. Department of Justice
Immigration and Naturalization Service
HQADJ 70/ 2.8.6, 2.8.12, 10.18
AD 00-03

May 16, 2000

MEMORANDUM FOR:

REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
OFFICERS IN CHARGE
ASYLUM DIRECTORS
PORT DIRECTORS

FROM:

MICHAEL D. CRONIN
ACTING ASSOCIATE COMMISSIONER
OFFICE OF PROGRAMS

SUBJECT: AFM Update: Revision of March 14, 2000 Dual Intent Memorandum.

This memorandum supersedes and amends the March 14, 2000 memorandum on dual intent for H-1 and L-1 nonimmigrants with pending applications for adjustment of status, which changes the Adjudicator’s Field Manual, Chapter 23.

Please note that the Service intends to address these issues definitively when the Service finalizes the interim rule published on June 1, 1999, at 64 Fed. Reg. 29,208 (1999). When the final rule enters into force, the final rule, not this memorandum, will be controlling.

In Chapter 23 of the Adjudicator’s Field Manual, the questions and answers added at APPENDIX 23-4, entitled FREQUENTLYASKED QUESTIONS ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NONIMMIGRANT WHO HAS APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed and replaced with the questions and answers below:

1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, does the interim rule affect the applicant’s responsibility to establish his/her intent to work for the petitioning entity?

No. If an H-1 or L-1 has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, the applicant still has the responsibility of establishing his/her intent to work for the petitioning entity after becoming a permanent resident. Neither the rule nor the guidance has modified this requirement or the corresponding requirement that the employer establish his/her intent to employ the applicant.

In the interim rule and initial guidance, the term “open-market employment” was used to mean unrestricted access to employment. Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). With an EAD, an alien has access to unrestricted employment, the “open-­market”. However, if the applicant is adjusting status under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant is able to work in the open-market does not alter the applicant’s responsibility to demonstrate an intent to work for the petitioning employer.

2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status?

Yes. The fact that an H or L nonimmigrant is grantedan EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-1 or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved I-129 petition and engage in employment for a separate employer.

3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien’s application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien’s employment authorization?

A Service memorandum dated August 5, 1997, stated that an “adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization …is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii).” The Service intends to clarify this issue in the final rule. Until then, if the alien’s H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant’s failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien’s prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.

6. Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer’s name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then they use their 1-512.

In Chapter 15.4 of the Inspector’s Field Manual, the Special Note A for nonimmigrant classification H-1B should be revised to read as follows:

(A) Foreign residence requirement. H-1B does not have to establish he or she has a foreign residence. For information pertaining to dual intent, see AFM Appendix 23-4.

In Chapter 15.4 of the Inspector’s Field Manual, add Special Note E for nonimmigrant classification L-1 to read as follows:

(B) Dual intent. For discussion of applicability of dual intent, see AFM Appendix 23-4.

Field Inquiries

All operational regional program units should familiarize themselves with this memorandum and related procedures in order to be responsive to any inquiry from the field. Questions regarding this memorandum may be directed, through appropriate supervisory channels to HQADN. For issues concerning H or L status, contact John Brown or Irene Hoffman, respectively, at 202-353-8177. For issues concerning advance parole, contact Michael Valverde at 202-514-4754.

The USCIS does not target any cases, or so they claim. RFEs are generated when the USCIS requires additional evidence to adjudicate a certain application or petition. Most RFEs are based on boilerplate checklists made available to adjudication officers, who then use them to generate consistently worded requests for additional evidence.

You are required to carry your Passport, the I-94, Arrival Departure Record, a recently dated letter from your employer documenting your current employment and your 3 most recent pay stubs. Remember, the Service can always call your employer to verify the information.

There are no disadvantages in seeking “Premium Processing” for sure. The advantages are significant. We have found the Service extremely prompt in dealing with premium processing cases. Our office participated in an INS sponsored pilot program that tested the “Premium Processing” service when it was first introduced and is extremely familiar and comfortable with recommending the Service.

This question is answered in light of legislation introduced as part of the American Competitiveness Act of the Twenty First Century [AC21]. The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment.

Processing times differ based on the Service Center processing them. Traditionally, the Vermont Service Center leads the pack and Nebraska and California lag not far behind. Texas has always been unpredictable and independent!

Please check the consulate’s website for Visa Reservation procedures. Documents required for visa processing are usually provided in this section of the consulate’s website. See http://usembassy.state.gov/

Yes, but the employer would have to re-file and apply for Change of Status. You may begin working upon proper filing of the H-1B petition.

In fact, we highly recommend you do both. The extension will ensure you remain in status while the transfer can always be processed at any time. However, the USCIS may require an approval of the extension if the transfer is not adjudicated prior to the expiration of your current H-1B period. Premium processing is recommended.

Yes, as a part-time employer, you would be required to file an H-1B for concurrent employment.

What you have is a restrictive covenant against competing with your current employer. However, such restrictions are private agreements and have no bearing on the H-1B transfer itself. In this case, your current employer would have to sue you to enforce the clause. This will have no bearing on the petition filed to transfer your H-1B. Having the Client invite you to continue working at their site through a different vendor is different from soliciting the client directly.

There is no timeframe. However, it is best to file the AC21 letter at the earliest to avoid having to file a Motion in the event the I-485 is denied because the sponsoring employer notified the USCIS as such. There could also be other complications and ramifications and these are best addressed through a personal appointment.

There is no such requirement. Your employer may file to seek an extension of your H-1B without your ever having left the U.S.

There is no limit on the number of petitions that can be filed with the USCIS for the same individual by different employers. However, if the underlying extension was denied, the new petitions may not be approved for extension of status. You would have to leave the country and appear at a consulate for H-1B stamping.

Not necessarily. Check with the employer to ensure that the position is full time and permanent. More importantly, it must be within the same occupational classification.

The Consulate will contact the Service Center and PIMS to obtain the information. You cannot send documents directly to the KCC (Kentucky Consular Center) for the PIMS database. This could cause delays at the Consulate when seeking a visa. Please be prepared to spend some time obtaining a visa before you decide to travel abroad.

You are not allowed to work unless you have a valid EAD. However, 80 days appear to be within the time frame by when you are most likely to obtain an approval of the extension. If the approval does not come through, you may have to stop working for a few days.

It is best if you could get the Financial Firm to sponsor your H-1B petition since they are the true employer and have control over your employment.

Yes, there is. You may want to check out http://www.flcdatacenter.com/ for prevailing wages for various occupations.

Unlike your H-1B, the visa is not employer specific. You could use a valid visa (obtained through a petition filed by a different employer) in your passport and re enter with your current H-1B approval.

While pay stubs may not be the only evidence required to obtain an approval of an H-1B petition, the lack of documentation to show valid employment status may be an issue. If you have only been with the employer for a period that would be accounted by the single pay check, a transfer may still be possible.

Yes, you are allowed to change employers while your H-1B is pending. In this situation, since visa numbers are available, it would be better to file a Change of Status petition in order to avoid any complications due to the current employer withdrawing the pending petition.

No, there is no fee associated with H-1B cancellation. However, the Employer is required to notify the USCIS upon termination of employment.

Generally, the answer would be yes. However, if the Consulate rejects your wife’s visa application on substantive grounds (lack of evidence of work; failure to substantiate Employer-Employee Relationship; violation of status, etc.) it may be harder for her to apply for an H-4 visa immediately after an H-1B visa rejection. Therefore, it is important to ensure your wife has all the paperwork required for successful stamping before she leaves the U.S.

You could certainly apply for unemployment benefits. And no, it should not affect your GC processing.

The first step is to correct your name as it appears on your Passport. Once this is accomplished, you could file an amended H-1B petition to correct the name on the H-1B approval Notice. This will also change your name on the corresponding I-94. Once this is accomplished, you could go about changing your name on your SSN and Drivers License.

You will no longer be subject to the CAP even if you accept temporary cap-exempt H employment. However, you could always choose to continue as a non exempt employee in H status to avoid any complications.

Your only hope of being able to remain in the U.S. and continuing in H-1B status is if your Immigrant Petition is approved prior to the expiration of your H-1B visa (post reclamation of time). It may be too late to rely of the rule that allows for extensions based on a pending PERM application since you are already in your sixth year. There are other options in such situations including switching to a different status (F-student) and then returning to H-1B upon I-140 approval. However, it is best if you discuss this with an Attorney based on your specific circumstances.

The USCIS may be reluctant to extend your status if you apply after the expiration of your current status. The RFE must be resolved successfully to obtain an approval.

I am on H4. Last year I applied for H1-B and it was approved but the copy was sent to chennai consulate. I did not go to india for H1-B stamping, instead I renewed my H4 in US. Did my status change from H4 to H1 or am I still in H4?

From the facts outlined below, it appears you are currently in H-4 status.

1. H-1B Dependent Employers
   An employer is considered H-1B dependent if it employs in the U.S.:
   1. 25 or fewer Full-Time Equivalent (“FTE”) employees and more than 7 H-1B employees;
   2. Between 26 and 50 FTE employees and more than 12 H-1B employees; or
   3. 51 or more FTE employees and 15% of the employer’s workforce are H-1B employees.

      In counting the number of FTE employees for this purpose, H-1B employees are included. Interestingly, bona fide independent contractors and consultants are not counted as employees. The Department of Labor will accept the employer’s definition of “employees,” provided they are consistently treated as employees for all other purposes, including FICA and FLSA. The count of employees should be based on the most recent records of the employer before filing the LCA.

   Employers need to be aware of the definition of “single employer” in the regulations. A “single employer” under the Internal Revenue Code must combine their employees for determining their dependency calculation. In general, those sections include: 1) “controlled groups of corporations,” such as a parent-subsidiary controlled group, a brother-sister-controlled group, or a combined group; 2) “trades or businesses under common control” which can include sole proprietorships, partnerships, estates, trusts, and corporations; or 3) “affiliated service groups,” such as a service organization (health care organization, law firm, accounting firm) and other organizations that regularly perform services for the first organization and either are shareholders or partners in the first organization or the interest in the second organization is held by highly-paid employees of the first organization. At present, the Treasury Department has no regulations governing employee-leasing situations and thus such situations are not covered in this regulation. If, however, the Treasury Department issues regulations on the subject in the future, members of employee leasing groups might be treated as a single employer. This “single employer” definition is only to be used in dependency calculation, and not in any other element of H-1B LCA filing or enforcement.

   This interpretation, no doubt, acts as a dampener to ideas that clients may have had of corporate reorganization to avoid being classified as H-1B dependent!

   You have no choice but to declare H-1B dependency and comply with the new law. That way you do not open yourself up to an interpretation battle with the INS that could very well lead to an audit.

2. Exempt H-1B Workers
   Under ACWIA, “exempt H-1B nonimmigrants” (for whom an H-1B dependent employer is not obliged to meet the additional attestation elements) are those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000. The determination as to whether you are exempt will be made by the INS and based on the certified LCA being submitted.

   In calculating the $60,000 figure employers should use a “cash in hand, free and clear” standard and in addition satisfy the prevailing and actual wage requirement. Under the regulation, part-time workers may not meet this requirement unless they actually receive $60,000 for their part-time work (i.e., the $60,000 cannot be prorated for part-time employees). Employees who have worked less than a full year will retain their exempt status if they received at least the pro rata share of the $60,000 annual requirement for the period.

   The degree equivalency is more complicated. While the Department of Labor rejects work experience equivalency, the INS has traditionally allowed work experience evaluations to be submitted to show a person qualifies for an H-1B visa. It appears from a reading of the Interim-Final regulations that an evaluation submitted from a reputed credential evaluation service will continue to be accepted. However, one has to wait to get a first hand experience of how this is going to be dealt with. Again, one should remember that the Master’s or higher degree should be in a “specialty related to the intended employment.” Now, again this has not clearly been defined in the regulations and my guess is that the INS will use the “Math, Computer Science, or Engineering” standard for computer related occupations. Employers should be more discerning in their recruitment of new candidates.

3. Attestation Provisions
   There are two new attestations that you will now be required to maintain. The first attestation is the “Displacement Attestation” and requires employers in contractor situations to attest to the non-displacement of U.S. workers. The second attestation is the “Recruitment Attestation” that requires employers to engage in “good faith recruitment” using industry standards.
   1. Displacement Attestation:

      ACWIA aims at protecting the employees of the petitioning employer and the end user (in contractor situations) from displacement by H-1B nonimmigrants. ACWIA uses “employees of the employer” and “employees of the other employer” to describe the relevant entities. In order to further determine the scope of employment with the “other employer” – the regulations offer a list relevant indicia of the employment relationship between the two entities that include,

      1. The other employer has the right to control when, where and how the nonimmigrant performs the job (the presence of this indicator would suggest that the relationship “approaches” the relationship that triggers the secondary displacement provision);
      2. The other employer provides tools, materials and equipment;
      3. The work is performed on the premises of the other employer (this alone would not trigger the secondary displacement provision);
      4. There is a continuing relationship between the nonimmigrant and the other employer;
      5. The other employer has the right to assign additional projects to the nonimmigrant;
      6. The other employer sets the hours of work and the duration of the job;
      7. The work performed by the nonimmigrant is part of the regular business of the other employer;
      8. The other employer is itself in business; and
      9. The other employer can discharge the nonimmigrant from providing services.
      In other words, even though you may be paying the beneficiary his salary and be the employer for tax purposes, the worker’s status for the H-1B program may be dependent on the above-mentioned indicia of employment relationship. Now, let’s assume we have determined you are an H-1B dependent employer and one of your employees is placed at a client site. You, as the placing employer are required to exercise “due diligence” in enquiring of the other employer as to displacement of U.S. workers during the relevant period (90 days before and after placement of the H-1B nonimmigrant at the worksite). The LCA makes it clear that making this inquiry will not protect a placing employer from sanctions if the secondary employer does in fact displace a U.S. worker within the relevant period. However, unless the employer knew or had reason to know of the displacement, the employer would be subject only to monetary penalties, and not to debarment. The other employer has no liability in such situations.

      The placing employer may accomplish this inquiry in several ways, including securing written assurance from the other employer regarding displacements, preparing a written memorandum of an oral statement of the other employer, or including a displacement clause in the contract with the other employer. In my opinion this is possibly the best way to satisfy this attestation requirement. The regulations also states that the employer may be required, in the exercise of due diligence, to make further inquiries when it has other information which indicates that U.S. workers might have been or will be displaced (examples include where the employer is taking over a function of the other employer that was formerly conducted by its own employees, or following news reports of layoffs by the other employer) if the information is available before the placement of the H-1B nonimmigrant.

      The regulations however clarify that an employer may terminate an employee for cause. In other words inadequate performance, violation of workplace rules, or worker’s performance or behavior on the job. The worker may also voluntarily depart or retire (Employers should watch out for “constructive discharge” allegations that the DOL could reasonably investigate). In cases where the U.S. worker is discharged because of the expiration of a grant or contract, where such expiration essentially ends the need or funding for the job, DOL will not consider it to be a lay off, but will examine closely to determine whether or not the employer usually moves employees to a new contract or project when such expirations occur. The preamble states that in situations where an employer normally lays off U.S. workers when alternative work is not available and then rehires them when it is, DOL will expect the employer to first contact the laid off U.S. worker before hiring an H-1B nonimmigrant. An employer may also offer a U.S. worker who loses employment an alternative job offer that is a “similar employment opportunity” at equivalent or higher compensation. The alternative offer does not need to be in the same area of employment, but in a case where the job location is different, DOL will assess cost of living differentials and payment of moving expenses in determining whether the offer is at “equivalent or higher compensation.” The comparison of the job opportunities will also include comparison of compensation and benefits, levels of authority, discretion and responsibility, opportunity for advancement and tenure and work scheduling.

      In terms of actual documentation, as suggested earlier, a written memorandum of an oral statement regarding displacement should suffice. Clients could also phrase this as a question and make it part of a user requirements questionnaire.

   2. Recruitment Attestation:

      ACWIA requires that employers engage in “good faith recruitment” using “industry-wide standards.” Reading through the regulations, I get the distinctive feeling that we are heading towards a ‘Labor Certification’ type review for H-1B Nonimmigrant visas. If this happens, clients can be assured of long delays in processing and complicated adjudication criteria based on DOL guidelines.

      An employer must, at a minimum, recruit both internally and externally and use both active and passive methods. Examples of active methods include attending job fairs, using college placement services or headhunters, and internal employee training. Examples of passive methods include print or Internet advertisement and internal job postings. The language of the regulation appears to require that at least some recruiting must target former employees.

      The employer has the burden of proving, in an enforcement action, that its recruitment met “industry-wide standards,” such as trade organization surveys, studies by consultative groups or reports/statements from trade organizations. Staffing firms must meet the standards of the industry in which they are placing employees, i.e. health care staffing firms must meet the standards of the health care industry, and technology-staffing firms must meet the standards of the information technology industry generally. The preamble also makes clear that an employer may advertise for multiple similar positions, and such recruitment may be acceptable if it accords with “relevant industry standards” applicable to that employer. The preamble also cautions employers that disproportionate use of certain recruitment methods, such as college campus recruiting, may have the unintended consequence of discriminating against older workers.

      DOL also states that it would look with disfavor upon any practice that screens the applications of H-1B nonimmigrants or prospective H-1B nonimmigrants differently than U.S. workers.

      The employer must offer the job to any equally or better qualified U.S. worker who applies. The employer may use any “legitimate selection criteria relevant to the job that are normal and customary to the type of job. While the Department of Justice has jurisdiction over claims from U.S. workers who allege they were not offered the job but were equally or better qualified, DOL asserts its authority to determine whether or not legitimate selection criteria were used. The regulation indicates that each criterion must meet three standards: 1) legitimate, meaning legally cognizable and not violating any applicable laws, 2) relevant to the job, meaning having a nexus to the job and its duties and responsibilities, and 3) normal and customary to the type of job, meaning necessary and appropriate based on the practice or expectations of the industry, rather than the preferences of the particular employer.

      The employer must maintain documentation of the recruiting methods used, including the places and dates of any advertisements, postings or other methods used, the content of the advertisements or postings, and the compensation terms, if such are not included in the advertisements or postings. The documentation may be in any form, including a summary memorandum. The employer must keep any documentation it has received or prepared concerning the treatment of applicants for the position, such as copies of applications and related documents, test papers, rating forms, records of interviews, and records of job offers and responses. The regulations emphasize that DOL is not requiring that the employer create any documents relating to the treatment of applicants, but it must keep any documents it does create or receive. Employer’s may nevertheless want to maintain information pertaining to applicant contact, interviews and results, etc. A summary of the recruitment methods used and periods for recruitment must be in the Public Access file. All other documentation must be made available to DOL upon investigation and request.

4. New LCA Requirements

   There is a new 3-page form for filing LCA’s that goes into effect January 19, 2001. This Form replaces the present LCA and will be made available to the public on January 18, 2001. That gives us one day to actually get used to the new Form and then have it certified by the following day for new petitions being filed beyond the January 19th deadline. However, the INS has announced that there will be a transition period between January 19, 2001 and February 5, 2001, during which the fax back system will be retooled to accept the new 3-page form and hence be inoperative. There is also a new Form I-129W that is now in place and the INS expects to see this Form filed with H-1Bs filed on or after January 19, 2001.

5. Benching
   ACWIA made benching illegal. The regulations go further and clearly state that DOL cannot “forgive” employers from compliance with this rule due to annual plant shutdowns or holidays or other events that affect both U.S. workers and H-1B nonimmigrants. However, DOL indicates its view that laying-off U.S. workers in such situations while retaining H-1B nonimmigrants may violate other nondiscrimination laws.

   If an H-1B employee is in a nonproductive status due to a “decision by the employer,” which includes lack of work assignments and lack of a permit or license, the employee must nevertheless be paid the full pro-rata amount due. Part-time employees in nonproductive status must be paid at least the number of hours indicated on the petition. If a range of hours is indicated on the petition, then the employee must be paid for the average number of hours he or she ordinarily works. The preamble indicates that if an employee regularly works more than the designated number of part-time hours stated on the petition, DOL might charge the employer with misrepresentation.

   These obligations begin once the H-1B employee “enters into employment,” which is deemed to occur when the individual first makes him or herself available. The regulation indicates that “even if the nonimmigrant has not yet ‘entered into employment’,” once the petition is approved, the required wage must start to be paid 30 days after the nonimmigrant is first admitted to the U.S., or if he or she is already here, 60 days after the nonimmigrant first becomes eligible to work for the employer. The latter is deemed to be the later of the start date set forth on the petition or the date INS renders a status decision. Payment obligation ends if there has been a “bona fide” termination of the employment relationship. While the language of the regulation itself is less than clear on this point, the preamble indicates that a “bona fide” termination will be deemed to have occurred only when the employer notifies the INS of the termination, the H-1B petition is canceled, and the return fare obligation is fulfilled.

   If the nonproductive period is due to “conditions unrelated to employment” as the employee’s “voluntary request and convenience” (such as caring for a sick relative or touring the U.S.) or due to circumstances like maternity leave that render the employee unable to work, the employer is not obligated to pay the employee, provided the period is not subject to pay under the employer’s benefit plan or under other statutes.

6. Benefits
   The regulations require that H-1B nonimmigrants be treated exactly like other U.S. workers. They should be eligible for the same set of benefits offered to the employer’s U.S. workers. The regulations require that employers retain, as documentation of the benefits attestation, a copy of benefit plan descriptions provided to employees, a copy of the benefit plans themselves and any rules used for differentiating benefits among groups of employees, evidence as to what benefits are actually provided to U.S. workers and H-1B nonimmigrants, and the benefit elections made by those employees. If the employer is a multinational employer providing “home country” benefits, evidence of the benefits provided to the H-1B nonimmigrant before and after the move to the U.S. also must be maintained.

   DOL takes the view that benefits may have a monetary value and a violation under this provision would be treated as employer’s liability for “back…fringe benefits.” DOL also feels that benefits are more “in the nature of wages than working conditions.”

7. Penalty v. Liquidated Damages
   ACWIA prohibits the requirement of payment of a penalty for the H-1B employee ceasing employment prior to an agreed date, except that the employer may receive liquidated damages in such a case. However, the regulation indicates that liquidated damages cannot be recovered from the employee’s paycheck. The regulation also states that attorney’s fees may be included and made part of liquidated damages. In any event, the regulation indicates that the $1,000 surcharge [training] on the INS filing fees could never be a part of liquidated damages and cannot be recovered in any form.
8. Job Notice Posting at Client Site
   Notices must be posted at new worksites within the area of intended employment on or before the date that the H-1B employee reports to that site. It also explicitly requires postings not only in the employer’s own facility, but at third party worksites. The Notice could be emailed to employees in the occupational classification at the place of employment, or by making the notice available for 10 days by electronic means such as a company intranet or bulletin board.
9. Complaint Procedure
   Is it true that DOL can now conduct investigations based on statements made by an irate employee?
   Under ACWIA, DOL is authorized to conduct investigations, under certain specified circumstances, based on information received from persons who would not be considered aggrieved parties. The regulation sets forth a process for receiving such information, which the DOL will then review to determine whether the source is likely to possess relevant knowledge, whether the information provided is specific and credible and provides reasonable cause to believe that the employer has committed a violation, and whether the alleged violation is willful, involves a pattern or practice, or involves substantial violations affecting multiple employees. The regulation specifies that “information” does not include information from DOL employees unless obtained in the course of a lawful investigation. However this will not preclude the DOL from conducting a random investigation as authorized by ACWIA.

Though there is no clear directive on the issue, the situation appears to be analogous to the 240-day grace period, which authorizes employment with the same employer for up to 240 days after an extension petition is filed. In both circumstances, the employment is authorized but there is no provision on the I-9 form for the documentation of this fact. Thus, employers may want to follow whatever documentation procedures they use for the 240-day grace period.

The minimum salary for an H-1B depends on the prevailing wage in the primary statistical metropolitan area in which you work. The employer sponsoring you must determine the salary in the area of employment and pay accordingly. Very often, employer’s either ignore or skirt this issue not knowing that it could come to haunt them in the event of a Department of Labor audit.

I am assuming from your question that you are not a citizen, or permanent resident of Ireland. There is always a risk in traveling abroad without a valid visa. Re entry could be difficult if the U.S. Consulate abroad refuses to grant you a visa to return to the United States. This situation is further complicated for persons with an H-1B approval whose basic education was in a country other than the country that they are visiting.

I recommend the employer-sponsored labor certification process as the quickest way to a Green Card. The PERM process has greatly reduced the processing time for Labor Certification and you may not have to wait in line to file your Application to Adjust Status.

The H-1B visa is employer-specific. In other words, your employment is restricted to the sponsoring employer. Further, an H-1B visa holder may not be self-employed. However, this does not preclude an H-1B visa holder from investing in a business or holding shares of another corporation.

You can leave and join a new employer without having to spend any time with the current one. There is no regulatory requirement that you spend any mandatory time with the sponsoring employer before you begin new employment.

1. Is otherwise admissible
2. Is in possession of a valid visa and un expired passport
3. Satisfies the POE officer that he was originally admitted as an H-1B nonimmigrant
4. Presents evidence in the form of a receipt that a new H-1B petition has been filed and is pending with the Service center.

1. Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
2. Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
3. Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
4. Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.”

You have a right to be paid for your services. I recommend that you discuss the matter with your employer and insist on being paid. Failing which, I suggest you contact a good lawyer in your neighborhood to negotiate on your behalf. Under the American Competitiveness and Workforce Improvement Act [ACWIA], Employers are not allowed to “bench” employees and penalize them by non-payment of salary due to them. The Department of Labor’s Hour and Wage department could also assist you in your endeavor to obtain back wages.

I suggest filing an Application for Action on an Approved Petition on Form I-824, seeking to amend the Petition from a Notification to a Petition for Extension of Status. You may have to appeal to Service discretion in the process, but I think this is better than going back.

H-1B visa holders are allowed to study in the U.S. without having to change status as long as the study is incidental to the H-1B status that they are currently on.

According to a recent UCSIS-American Immigration Lawyers Association meeting Minutes, you would have to wait for an approval before commencing employment.

The Employer may not compel you to execute any document based on a threat. The employer also does not have the power to revoke your Permanent Resident Status.

H-1B petitions are employer specific. The new employer would not be able to continue the earlier filing, or challenge the rejection.

Yes, that would certainly be possible.

The H-1B status is only granted upon entry into the United States. Mere approval does not grant status if the individual is not in the country at the time.

My wife finished her Masters and has been working under OPT and has H1B approval. Now she has an opportunity to move to a non-profit research organization.

1. Does she need to get a visa stamped on her passport, before her new employer can transfer the H1?

Answer: That would not be required.

2. Is it a problem to transfer a H1b approved under the cap, to a H1 employer who is a non profit research organization?

Answer: No.

3. Her H1 starts from October, and does this affect the transfer of the visa?

Answer: No.

There is no way for you to update the PIMS database directly. However, you are allowed to send a duplicate of the petition package to the USCIS Service Center where the petition was originally processed requesting it be forwarded to the Kentucky Consular Center for entry into the PIMS database. This request must be boldly highlighted when the package is sent to the Service Center. We normally send it with a RED COVER with DUPLICATE PETITION FOR ENTRY INTO KCC-PIMS – PLEASE FORWARD (24 PTS) on top.

I entered USA on H-1B and changed the status from H-1B to H-4. Now I would like to change my status back to H-1B once I get the job confirmation. I have to file “change of status” from H-4 to H-1B and it won’t be subject to CAP as I previously held H-1B status, am I correct?  Will be any time limit for this status change? Will there be any risks involved with this status change that I should be aware of?

You are correct; Yes, you will be able to obtain H-1B extensions for a maximum of 6 years; We cannot comment on risks without first carefully evaluating your situation. However, most COS petitions are relatively straight forward.

We could certainly assist you with the H-1B process. However, we do not get involved directly with placement of candidates, or actual recruitment. We suggest you contact a local recruiter for opportunities.

You would have to wait to file a petition for next year’s H-1B quota. The only way you would be eligible for an immediate H-1B is if you were granted an H-1B in the past.

If an employer files a PERM case less than 365 days before the 6th yr H1B expires and once the labor is approved,  the I-140 was premium processed, does the beneficiary still need to recapture time in order to be eligible for an H1B 7th year extension?

Until the I-140 is approved, there is no basis to extend the H-1B. Reclamation of time may be the only option available.

Yes, a rejection based on §212(g) is technically a refusal.

You could certainly file to exhaust your initial 6-year period. You will not be subject to the CAP. Alternatively, you could seek to qualify for the H-1B CAP beginning October 1st (fresh six year period). You could apply for a visitor’s visa independently.

You are not subject to the CAP. However, time spent in the US will be deducted from the overall time allowed in H status.

You should use the ‘successor company’s name’ on the DS Form. Please also ask your employer to provide you with documentation to show the new company is a true ‘successor in interest’.

Yes, that should be possible.

The I-485 portion based on AC21 would look at the occupational description as entered on the Labor Certification and not the current H-1B to decide whether the new position is in the same or similar occupational classification. Be guided by your LC/I-140 when making the decision to switch.

The Application is for a position and belongs to the Employer. You derive no benefit from it.

The prospective employer in this case should be willing to sponsor you. In other words file a petition with the Immigration service to allow you to enter the U.S. to work. For instance on an H1B Visa. You must act quickly because the window for filing opens in April, but may end within the first week. The earliest you may enter the U.S. would be October of this year.

See our blog post for this question.

http://blog.kidambi.com/2013/05/31/i-am-a-successful-entrepreneur-own-a-business-and-employ-5-10-us-workers-do-i-qualify-for-the-new-entrepreneur-h-1b-visa/

There is no grace period for H-1B Beneficiaries. However, the Service may excuse reasonable delay in filing a new Petition if the Petitioner can show that the delay was due to extenuating circumstances beyond the control of the Beneficiary.

Yes, your employer may file a Change of Status petition. Sometimes, filing an amended petition could have the same effect.

I got an I94 with my H1B approval i-797 notice form and I already have a white I94 departure card attached on my Passport. While travelling to India, should I give both my I94’s at airport or just the white I94 attached in the passport?

Hand over both I-94s to the airline at the time of departure.

If this is an H-1B Visa, there is no requirement to enter the U.S. within a certain period; you could enter anytime during the validity of the approval. However, you must be prepared to explain the delay at the Port of Entry.

I heard that the H4 period cannot be recaptured. Is that correct? Please clarify.

A:  Time spent in H-4 is not counted against the H-1B CAP and therefore no re capture is necessary.  Please see http://rbhs.rutgers.edu/internationalservices/immigration_updates/documents/uscis_memo_on_h-1b_eligibility.pdf