We have compiled all the questions sent by people from all over the world that have been answered by our attorneys via the Ask Kidambi feature on the site. READ DISCLAIMER
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.
I am completing 7 years of L1A in Oct 2018. Am I eligible to file H1B in April 2018 ? I want to comeback after oct 2019
No, you are not eligible to file under this year’s CAP. You would have to leave the country and remain abroad for a period of 12 months prior to applying for a CAP subject H-1B.
I am on h4 EAD. My husband’s employer is not ready to process his h1 extension in premium. If we don’t get approved before expiration of EAD . Can I still work on renewal receipt?
No, you may not.
Currently i am in US with H1B visa. I would like to move Canada by applying PR. Please let me know the procedure
Sorry, we do not offer assistance with Canadian PR
H1b extension after i-140 is in progress. Can we transfer H1b to another employer with just receipt number during extension is in progress?
Yes, that is possible.
Once I have obtained the E1 visa, can I switch to a different company in the US without having to leave the country?
The E-1 [Treaty Trader] visa is issued to persons entering the U.S. solely to carry on substantial trade principally between U.S. and the Foreign State of which s/he is a national. There is no bar on extending your status or transfer to another employer. However, the USCIS will have to authorize the transfer and employment cannot be inconsistent with the terms and conditions of the E-1 visa status.
In this case, the Consulate would be concerned with two things: (1) the nonimmigrant intent of your parents when applying for a visa to visit the U.S. (ii) your ability to support them while they are here.
It is important to address both when applying for a visitor’s visa. It would certainly help to have an approved extension documenting your ability to stay and work in the U.S.
- Consular Officers should not refuse visa applicants on substantive grounds without first giving the applicant an opportunity to be interviewed in person
- When refusing a visa application, consular officers should inform the applicant of the section of the law under which the visa was refused, as well as the underlying factual basis for the refusal, unless the facts are classified
- When the refusal is based on substantive grounds (i.e., other than 221(g), the explanation should be provided in writing.
There should be no problem with the change of status per se. But, where a person obtains a B-2 and/or enters on a B-2 claiming to be a tourist, and within 30 days of visa issuance or entry actively begins seeking employment or admission in a school, s/he may be presumed to have misrepresented his or her intention in seeking a visa or entry and his/her subsequent petition for change of status denied.
Should I withdraw an Application for extension of a B-2 Visitor Visa since the Applicant has since departed?
In this situation, the applicant left the U.S. prior to the original expiration of the I-94 and so, the request for extension is moot. However, there is no way of withdrawing an application once it is filed. You could, however, notify the USCIS of the departure and attach a copy of the stamp on the passport showing arrival abroad.
The USCIS will then confirm receipt of this letter and cancel the pending application for extension.
My dad has applied for B2 Visa extension and his I-94 would expire by the time his case is processed. In case of denial, will his B2 be void? How will it affect his travel to US for the next time?
If your Father no longer has a valid visa to reenter the U.S., he must first obtain a valid visa to return. However, there is no requirement that he obtain a new Visa just because he sought an extension in the U.S. notwithstanding the outcome of that extension.
The following link provides the details of Visitor’s visa.
My parents are on visitor visa. If they stay here for 6 months this year or 3 months in this year and 3 months in next year, then when can they can visit USA again?
As long as your parents have a genuine need to visit and remain visitors, there is no limit on the number of trips they are allowed to make. However, care must be taken to document that frequent visits are not a way of remaining in the U.S. permanently.
We have a forty year old mentally handicapped daughter. We have received green card but our daughter has not. Can she travel on visitor visa?
Your daughter is not technically a dependent and may not benefit from your Green Card. Be this as it may, she may be able to travel to the U.S. in a nonimmigrant classification as a dependent if it can be shown that she is dependent on you entirely for care and support. The application process is involved and will require discretionary adjudication by the Consulate following a request for a waiver.
We recommend reaching out to the Consulate for further assistance.
The Service requires you to file a Form AR-11. This form is available on the Service website at www.uscis.gov
- Extension of Status situations: An individual can travel when the INS is processing a petition for extension of status, provided the individual has an unexpired visa to travel and return to the United States.
- Change of Status situations: Travel is prohibited if the individual has applied for a change of status. The change of status application is considered abandoned if the individual leaves the United States when the Petition is pending with the INS.
- Travel Under Portability: In a memo dated, January 29, 2001, Michael A. Pearson, Associate Commissioner, Office of Field Operations, outlined the requirements for admission of an individual at a Port of Entry. The memo states that an H-1B applicant for admission, who is no longer working for the original petitioner is admissible pursuant to portability provisions of AC21, as long as he meets certain requirements:
- Is otherwise admissible
- Is in possession of a valid visa and unexpired passport
- Satisfies the POE officer that he was originally admitted as an H-1B nonimmigrant.
- Presents evidence in the form of a receipt that a new H-1B petition has been filed and is pending with the Service center.
On June 1, 1999, the legacy Immigration and Naturalization Service published an interim rule at 64 Federal Register 29209. The rule amends the previous Service policy statements regarding the eligibility of H-1 and L-1 [there is a move to extend this to F, E and O visa holders] nonimmigrants, and their dependent family members, to maintain and to extend their nonimmigrant status while their applications for permanent residence remain pending.
This rule also addresses the issue of the eligibility of these aliens to travel outside the United States without their applications for Adjustment of Status. As long as H-1 and L-1 nonimmigrants remain compliant with their nonimmigrant classification, including restrictions on periods of stay, change of employer and engaging in employment, the mere fact that they have filed an application for adjustment of status does not make them ineligible for extensions or applicable changes to their nonimmigrant status Further, the rule also amends Section 245 by providing that an H-1 or L-1 nonimmigrant with a pending application for adjustment of status no longer needs to seek advance parole to travel abroad. An H-1 or L-1 nonimmigrant may be readmitted to the United States in the same status provided that her or she has a valid H-1 or L-1 visa, has the original I-797 receipt notice for the I-485 filing, and remains eligible for H-1 or L-1 classification.
My OPT extension started from June of this year I had been working since then. But the client is deferring their project to next year and hence wants all contractors to go back. Does an Unpaid Internship or Volunteering be considered as unemployed or emp
In SEVP’s OPT 2010 Policy Guidance, Section 7.2.1 (p. 17-18) states, in part:
“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”
Please recommend options for PR Status/Citizenship for our unborn Child while we are awaiting Naturalization
Your questions are case specific and complex. We suggest you schedule an appointment to discuss your situation. Be this as it may, a child born to a U.S. Citizen is automatically accorded citizenship and your child will benefit by this automatic child citizenship provision. The Attorney recommends that you continue the process towards your naturalization while seeking deferral of the oath ceremony for your spouse.
Your question pertains to Naturalization when married to a U.S. Citizen. In your case, although you have been married for three years, you have only been a permanent resident for less than two years. You would have to wait until 2 years and 9 months from the time you became a permanent resident to apply for Naturalization. This could be done while you are still waiting for the condition to be removed on your Permanent Resident status.
§214(i) is an ameliorative provision for adjustment of status. However, once adjusted, you are considered a permanent resident without any strings attached. The prior § 245(i) filing does not affect your ability to file a Naturalization application and it should not be called into question during the interview.
Leaving the U.S. for over 6 months while you’re a permanent resident, raises the presumption that you have abandoned your status. You must file and obtain a “Re Entry Permit” prior to departure in order to be allowed to return without any issues. We also recommend that you consider filing an Application to preserve your residence for Naturalization purposes.
My mother cannot speak English and she is 56 years old. She has been an LPR for the last 3 years. How can she qualify for Citizenship?
She must possess an elementary understanding of English to be eligible. However, The English language test is not applicable to: (1) persons who are over 50 and living in U.S. for 20 years subsequent to LPR status; or (2) persons who are over 55 years of age and living in U.S. for 15 years subsequent to LPR status.
I am married to an American citizen for 4yrs and have been a permanent Resident for last 3yrs. Two of which as a Conditional Resident. Am I eligible for Citizenship?
You will have to wait until the condition is removed. However, the time spent in conditional status will be counted against the period of eligibility required to apply for naturalization.
Both my parents are citizens. Does that make me a citizen automatically? How do I bring my fiancé to the U.S.?
You are eligible for derivative citizenship and should apply on Form N-600 with the nearest USCIS Field office, with the appropriate filing fees. If approved, you will be scheduled for a naturalization interview. As far as your fiancé, I recommend that you file after you obtain your citizenship. That way, you can bring him on a K-1 fiancé visa.
Unlike Permanent Residents, who have to worry about abandoning their residence in the United States, American Citizens have no restrictions on time spent abroad. She can stay there for as long as she wants.
- Immediately preceding the date of filing for naturalization the applicant has resided continuously, after being lawfully admitted for permanent residence within the United States for at least five years and during the five years immediately preceding the date of filing his or her application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Immigration and Naturalization Service of the United States in which the applicant filed the application for at least three months,
- Has resided continuously within the United States from the date of application up to the time of admission to citizenship and
- During all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. Absences from the U.S. during the statutory period are presumptive and can be overcome. For absences of 6 months or less, there is no break in continuous residence. An absence of more than 6 months but less than a year raises a rebuttable presumption of abandonment of continuous residency for naturalization purposes. The burden is on the alien to show that the continuous residence requirement has been met.
The residency requirement that you reference requires that the Applicant:
*Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application*
As long as the Applicant can document proof of residence for at least 3 months prior to filing, he should satisfy the requirement.
USCIS is said to have repeatedly used only material from these 100 questions to test applicants for naturalization. We make no representations in this regard. PLEASE USE THEM AT YOUR OWN RISK.
To qualify for Employment Based Second Preference classification, the job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). You could also qualify for the position if it requires a Master’s degree and you possess such a degree or its equivalent.
Yes, you can, but we advise strongly against it. Postponing your fingerprinting appointment could delay it for an indeterminate period of time and lead to an overall delay in processing.
Generally, there is no requirement that you wait to switch employers after you become a permanent resident. However, the USCIS may make this an issue when you apply for Naturalization if they suspect that the employment was purely meant to obtain your Green Card.
It is important to understand that the category – EB2 vs. EB3 does not really affect processing times in the first two stages (Labor Certification and Immigrant Petition). In simple layperson terms, a priority date is set for an application when the Labor Application is filed (date of filing). The final stage, or application to adjust status may be filed only when the priority date becomes ‘available’ based on the Visa Bulletin . The ‘availability’ of immigrant numbers as per the Visa Bulletin is based on the country of birth; Traditionally, the EB2 category has progressed more quickly than the EB3 category for some countries.
With respect to Visa Numbers for Adjustment Purposes, to which Country Would I be Charged – Birth or Citizenship?
The United States Department of State Foreign Affairs Manual, Volume 9 states,
9 FAM 42.12 N2.1 General Rule of Chargeability
The numerical limitations prescribed in INA 201, 202, and 203 apply to the foreign states and dependent areas. (See 9 FAM 42.12 Exhibits I and II.) An immigrant visa applicant subject to these numerical limitations is generally chargeable to the numerical limitation applicable to the applicant’s place of birth. An immigrant visa applicant born in a dependent area is chargeable to the dependent area (to ensure compliance with the dependent-area limitation imposed in INA 202), as well as to the mother country.
Therefore, in your case, your Visa Number allocation will be based on your Country of Birth – India.
First, the requirements for the position are based on actual job requirements and not your qualifications; Secondly, the salary of the position must be considered in making a final decision in this matter. Porting your EB3 priority date to a later filed EB2 petition is possible. However, this matter is best handled through a private consultation with our Firm.
The EB-2 classification includes: aliens who are “members of the professions holding advanced degrees or their equivalent” and aliens “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.”
- An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
- Letters documenting at least ten years of full-time experience in the occupation being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
- Membership in professional associations;
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
- Aliens with at least two years of experience as skilled workers;
- Professionals with a baccalaureate degree; and
- Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
My I 140 was approved a month ago in EB3. Should i wait for 180 days to change my job to retain my priority date, if my new employer plans for file for GC in EB2?
Yes, there are specific rules governing retention of priority date. Based on new rules issued on January 17, 2017, you would lose your priority date if you leave the sponsoring employer within 180 days of approval.
What is “Priority Date” for Employment Based Green Card purposes where the LC Application was substituted (Filed January 2002) and where can I find it?
Your priority date is the date of acceptance (filing date) of the substitute labor – January, 2002. Priority date is not always reflected on the I-1485 receipt.
The Fraud Rule of the Department of Labor is specifically designed to address payment of fees at the PERM stage and includes cost of recruitment. Please read the FAQ by ETA regarding this. However, this rule does not preclude employees from bearing both professional and filing fees at the I-140/485 stage. Personal checks may be used to pay filing fees. However, it is best to use US Postal Money Orders or certified checks.
I am still waiting for my I-485 approval. If I am terminated or if I resign from my petitioning employer, what will happen to the petition? Am I safe at this stage to look for another employer?
If the I-140 has been approved and you have an adjustment of status application (Form I-485) pending for over 180 days, you would be eligible to move without losing the underlying validity of the Labor Cert/Immigrant petition. Of course, you would use your EAD document to work for the new employer and would have to submit a letter from the new employer assuming the responsibility of providing you with full time, permanent employment. Kindly contact the office to schedule an appointment to review the job profile (must be in the same or similar occupational classification).
PERM based Applications are filed online at http://www.plc.doleta.gov/ . General processing times may be accessed there. However, you would have to be the Employer, or the Attorney of Record to check status on specific Applications that are currently pending with the DOL.
Employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more and who currently have an approved I-140 petition may change jobs or employers without invalidating the underlying I-140 or labor certification, as long as the new job is in the same or a similar occupational classification as the one for which the petition was filed.
Your question is case specific and best handled through an a personal consultation. If interested, please contact our Office to schedule a time.
A three-year bachelor’s degree from India is not considered equivalent to a four year bachelor’s degree earned in the United States and even if you present 10 years of experience, the combination of education + experience will not be acceptable to the USCIS for eligibility towards an EB-2 position.
As long as you have a valid Advance Parole document to reenter the U.S., you may travel during a pending EAD extension. This is only applicable if you have separate EAD and AP approvals with the AP approval remaining valid beyond the expiration of the EAD. Note: Any reentry is always at the discretion of the CBP at the port of entry.
Depending on the reason for the omission, your Employer may seek a review, or file an Appeal from the Denial. If the omission was due to an egregious error on the part of the Employer, re filing may be the only option.
No, you may not use your wife’s EB-2 PD to accelerate processing of your EB-3 PD. The PD is specific to the individual to whom it is assigned. Hope you find this helpful.
Please read our blog article on Invalidation of Labor Certifications – What happens when the USCIS second guesses a certified PERM Application?
The USCIS will sometimes accept secondary evidence where letters from former employers are unavailable. However, you must as stated in the relevant paragraph from the RFE, explain and show why these letters are unavailable.
My PERM has been approved. I am in EB2 Category planning to premium process I140. Can I change employer?
You may, but the underlying PERM (Labor Certification) will no longer be valid if you do so. You could leave after the I-140 has been approved and doing so would allow you to preserve your priority date. Your question is subjective and this answer is but a generic response. We highly recommend scheduling a paid appointment to go over more nuanced questions.
We got our greencards in 2007 thanks goes to you for this. My Son turned 15 and I’ve read that “children who reach 14 must file an application to replace their green card”. We leave to go to Australia on Vacation in 65 Days. Is there enough time to do this? Is the current card still Valid until the new card is issued? Can I just apply when we get back from our Vacation?
The I-90, Application to Replace PR Card receipt should be temporary proof of PR status. Additionally, you could go to the local Office of the USCIS and obtain a temporary stamp evidencing PR status that will allow you to travel abroad.
Right now the visa bulletin shows the current date as Jan 2010 for Family-Based 2A category. Dose that mean If anyone filing I-130 & I-485 for spouse will be getting GC with in a year ? When can a GC holder file I-130 & I 485 for spouse ? After filing I-130 & I 485 for spouse, Will Spouse get eligibility to stay in US ?
You would be able to file an Immigrant Petition for an Immediate Relative immediately. However, the application to adjust status would have to be filed after the priority date (date of filing of the immigrant petition) is current on the visa bulletin.
What financial information should we submit along with the Affidavit of Support? My spouse has no education – will that matter?
Consulates may seek additional documentation and you may have to produce them. The additional documents could range from title/mortgage documents showing property owned to recent bank statements showing the availability of immediate funds. As mentioned in an earlier answer to a similar question, more is always better in these instances.
The lack of education may pose a problem in the Consulate’s assessment of the future prospects of your husband finding a job in the U.S. The Consul may perceive the lack of education as a disqualifying factor from that point of view. Demonstrating experience, skills and the ability to find a job in the U.S. is imperative.
I strongly recommend that you collect and produce documentation of financial ability to support yourself and your new husband in the U.S.
My friend and his wife have some differences. However, they were married in good faith and he obtained a Conditional Green Card. Can he now obtain his Green Card if their marriage ends in divorce?
Unfortunately, your friend has the onerous task of overcoming a presumption in the law that allows married citizens to obtain a Green Card [Alien Registration Card] in the first place. The presumption is that all marriages are ‘sham’ marriages, unless proved otherwise. The two-year conditional permanent residence is a probationary period and the marriage must last beyond this period for the individual to be entitled to Permanent Resident status in the United States [the card itself is valid for 10 years and is renewable]. It is imperative that the marriage lasts beyond the two-year period for your young friend to stay here permanently.
What is the maximum stay allowed for stay outside U.S for Green Card Holders with out obtaining the Re-Entry Permit.
Permanent residents are required to maintain permanent residence in the U.S. Any absence abroad that extends beyond six months raises the presumption that the Green Card holder has abandoned his or her permanent residence in the U.S. The Green Card holder then has the burden of overcoming this presumption when he/she attempts to re enter the United States after a long absence.
You should now notify the NVC that your parents are in the U.S. and will adjust status here. This can be done via email (email@example.com), or by means of a letter. You should then proceed to file Applications to Adjust Status after waiting to ensure there is no conflict with their visitor status.
What Happens if Spouse is not Included in I-485 Adjustment? Will Filing an I-130 Grant Status to Remain in the US?
The I-485 for the spouse can and will be adjudicated only if dates are current, which would immediately allow the principal to file a dependent application to adjust status. Also, the spouse would be able to accompany/join the principal if her name was included in the I-140, or the marriage happened prior to adjudication. Filing an I-130 would certainly be possible if this is being done after the fact. However, this does not grant the H-4 spouse status to remain in the U.S. Other options may be available. Please contact our Office for an appointment to discuss this matter in greater detail.
As long as it is receipted prior to the date of expiration of green card, your wife should not have any issues. Not filing a removal of condition application could lead to an automatic revocation.
Are children under the age of 15 applying for a green card required to pass an HIV test as part of their obligatory physical examination?
All visa applicants are required to complete a medical examination. HIV testing is now required of all applicants. Infection with the HIV virus is a ground for exclusion from the U.S., although a waiver may be available.
There are three options available. 1) Marriage to a U.S. citizen, or 2) An Employment based petition to sponsor her as an immigrant and finally 3) A petition for immediate relative.
“Follow to Join” is a term of art. Your spouse and children are eligible for “derivative status” – visas given to spouse and children who accompany the principal beneficiary, or enter the U.S. If the entry is within 4 months of the principal beneficiary’s entry or appearance at a consulate abroad, then they are supposed to be following to join the principal beneficiary in the U.S.
I filed a Green Card petition for my mother. The Service wants additional information. How do I find out what is happening with my application and how long will it take?
I am a U.S. citizen. I want to apply for a Green Card for my parents. How long do they have to remain here to maintain their GC status?
Permanent residents are required to maintain a permanent residence in the U.S. Any absence abroad that extends beyond six months raises the presumption that the Green Card holder has abandoned his or her permanent residence in the U.S. The Green Card holder then has the burden of overcoming this presumption when they attempt to re enter the United States after a long absence. I foresee problems when your parents attempt to return at the end of each absence, unless they obtain permission [in the form of a re entry permit] prior to departure.
I will be going for my US Naturalization oath ceremony soon. I would like to bring my fiance to US after our marriage. What visa do I need to apply for her and what paper work needs to be completed?
There is an entire process involved and would require you to file an Immigrant Petition (I-130) and process an Immigrant Visa Application with the National Visa Center. The USCIS website has an excellent overview of the process. See: http://www.uscis.gov/family/family-us-citizens/spouse/bringing-spouses-live-united-states-permanent-residents. Alternatively, you could engage a Law Firm to take care of the paperwork.
There is no easy way to expedite an AP filing. You could always obtain an Infopass appointment and visit the nearest USCIS District Office if there is an emergency need to travel. We have found regular filing with a request to expedite is easier than e filing.
Unless the document is returned to the USCIS, they will refuse to provide you with a duplicate. In this situation, you should file a new Application immediately with fees, but request expedited processing explaining the reasons.
The Priority Date is the date by which the Service determines, or allows you to Adjust Status to that of a Permanent Resident. It is important and should be kept handy when checking status information.
The priority date is used by the Service to establish the priority with which the alien will obtain a visa or be allowed to adjust status. Generally, this is the date on which the Department of Labor, or USCIS, as the case may be, accepts your application for processing.
This applies to the final stage of your Green Card process. Advocates of Consular Processing draw attention to the fact that it is faster and supposedly less cumbersome than Adjustment of Status. Nothing can be more simplistic than this notion of quick and easy processing at the Consulates abroad.
Here is what you need to know about the process – Consular Processing involves the Consulate and therefore the capricious concept of ‘Consular discretion’. Further, the Consulate does not afford Attorneys the opportunity to represent the Applicant at the Consulate, leaving the Attorney incapable of bailing the client out of a difficult situation. Almost all Consular cases are subject to a personal interview process before a Consular Officer, further subjecting the Applicant to scrutiny and “second guessing.” Moreover, and more importantly, the AC21 statutory provision that allows an Applicant in Adjustment of Status proceedings the ability to find new employment after 180 days of the filing of the Application without losing the validity of the underlying Labor Certification Application, or Immigrant Petition, is unavailable to Applicants who opt for Consular Processing. The process is further complicated by a new rule that requires all processing be completed by the National Visa Center, in the U.S., before any Consular Processing can commence. This is bound to delay the process and render the advantage of faster processing, moot.
Further, upon filing an Application to Adjust Status, the Spouse of the principal applicant is granted an Employment Authorization Document to work in the United States. This advantage is not available when one opts for Consular Processing.
Finally, Consulates may change processing rules and introduce additional documentary and evidentiary standards almost overnight without any need for administrative rule making or procedure. This is most unnerving.
The final stage of the Green Card process involves filing an Application with the Immigration and Naturalization Service to adjust status from that of a nonimmigrant to that of an Immigrant. This stage can either be completed in the United States, or abroad at a Consulate, involving “Consular Processing.”
You can file an Application to allow your spouse to join you in your Green Card application up until the final adjudication or your Application to Adjust Status. In other words, it is not necessary to get married prior to filing the Form I-485, Application to Adjust Status. You are allowed to file an application on behalf of your spouse after the filing of the Application to Adjust Status, but prior to final adjudication.
Birth Certificate and Documents in Lieu of Birth Certificate
You will need to provide a photocopy of your birth certificate and a photocopy of the birth certificate of each family member applying with you. Please be advised that each of the birth certificates must include all of the following information
Applicant’s Full Name
Full Date of birth (Month, Day and Year)
Place of birth (City, Province/State if applicable, country)
Full Name of Mother (BOTH First Name and Last Name – maiden or married name.) Both first name and last name must be spelled out. An initial is not sufficient.
Full Name of Father (Both First Name and Last Name.) Both first name and last name must be spelled out. An initial is not sufficient.
Birth documentation must comply with the State Department Foreign Affairs Manual (“FAM”), which specifies documents required and available from each country. A Birth Certificate is available from most countries. In some instances, a Birth Certificate may not exist or may not contain all of the required information. If that is the case, the FAM will describe what alternative documentation may be submitted in place of a birth certificate.
If a birth certificate does not exist or it does not contain all of the required information as stated above, a sworn affidavit executed by both parents (mother and father) may be submitted. For a sample affidavit by both parents, click [here].
Alternatively, if either or both parents are not living, then the missing affidavit(s) can be signed by any other close relative older than the applicant, who is not party to the application and who has direct knowledge of the birth event and circumstances. Two affidavits are required. Here is a sample of the affidavit – word doc or pdf
The affidavit must specify the relationship between the signer and the applicant, how well the signer knows the applicant, date and place of the applicant’s birth, the names of both parents, and any other related facts. The affidavit must be signed and notarized. Here is a sample affidavit by a close relative- word doc or pdf. The affidavit can be modified accordingly.
Certificate of Non-Availability
When a birth certificate does not exist, a “Certificate of Non-availability” issued by a competent governmental authority confirming that the birth certificate does not exist should accompany an affidavit of birth. There is no set format for certificates of non-availability, but the document must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available.
Any document containing foreign language submitted to the INS must be accompanied by the full English translation, which the translator has certified as complete and accurate, and the translator must certify that s/he is competent to translate from the foreign language into English. The translation must be done by a third party (non-family member).
Certification of Translation
I, ________________________, certify that I am familiar with the English and _______________________languages, and certify that the above is a correct and accurate translation of the following documents attached hereto.
Date: ______________________ ______________________________ Name of Signer
No she does not. She can always submit the medical report at a later stage. In fact, the USCIS will provide the candidate with an opportunity to submit the medical report prior to final adjudication of the Application to Adjust Status on Form I-485.
The Approval Notice will be mailed to our office. This Notice is the culmination of the USCIS processing of your Application to Adjust Status. The PR Card usually follows by mail.
My daughter is in college and has filed for adjustment of status as my dependent, What documents do I have to give the college showing her legal presence?
Please direct the school to the following regulation:
8 CFR PART 1274a-CONTROL OF EMPLOYMENT OF ALIENS \ § 1274a.12 Classes of aliens authorized to accept employment\ § 1274a.12(c) Classes of aliens authorized to accept employment.
(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. Except as provided in §§ 1245.13(j) and 1245.15(n) of this chapter, employment authorization shall be granted in increments not exceeding one year during the period the application is pending (including any period when an administrative appeal or judicial review is pending) and shall expire on a specified date. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence;
Please see: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-39749/0-0-0-39967.html
This link (above) discusses the ability of an individual to accept employment after filing adjustment of status. Individuals in Adjustment proceedings are accorded the same privileges that accrue to a Permanent Resident. It is also sufficient to attend school. You should discuss this matter with the Designated School Official (DSO) in the International Student Office. I am sure they will be able to provide proper input to the admissions office.
I came to the country about 10 years ago with a C1-D Visa. I lost my status. My mother became a Permanent Resident 2 years ago and I applied for adjustment of status but was rejected due to ineligibility. Can I apply for F-1? What are my options?
Unfortunately, crewmen are not able to apply to the U.S. Citizenship and Immigration Services (USCIS) to change status, adjust status, or extend their stay in the U.S., under immigration law. Overstaying comes with added complications. You are not eligible for adjustment in your situation. Leaving the country for an F-1 (requires nonimmigrant intent and the immigrant petition filed by your mother doesn’t help) may additionally subject you to a 10-year bar.
When should I hand over my I-94, during my domestic flight to an international terminal, or at the international terminal?
I-94 is taken when you leave the shores of the U.S. You must surrender it when you board the international flight.
1084 South Laurel Rd.,
London, Kentucky 40744
Here is an extract from the process to surrender I-94 documents that are not taken at the POE.
The bottom line is that in today’s world of increased enforcement and increased scrutiny of applicants for admission or adjustment of status, it has become incumbent upon on those whose I-94s were not surrendered upon departure to return them to the CBP. When this is done correctly it should close out an applicant’s prior arrival and departure record and prove that a timely departure was made.
At a minimum, the card and information should be sent to:
ACS – CBP SBU
1084 South Laurel Rd.,
London, Kentucky 40744
The I-94 card should not be returned to a consulate, embassy or even a local CBP office.
The return process, however, is also not perfect and thus, it is important to follow and augment designated return procedures. It is imperative that the applicant provide ample proof of the actual day of the departure and not just proof of the departure itself. Among the kinds of documents to prove the actual day of departure, CBP suggests sending a used airline ticket or boarding pass, a passport stamp showing date of arrival in home country, pay slips from employment outside of U.S. subsequent to departure, credit card slips showing purchases made outside of the U.S. post departure, etc.1 In addition, we recommend that when returning the card the applicant include a statement on boldly colored paper identifying clearly the date of departure and requesting that it be entered rather than the date that card was received by the processing center. This will hopefully reduce the chances that the date the data is received at the record center is recorded as the date of departure. In addition, remind your clients to carry copies of the evidence they sent when they seek to reenter just in case the information was not entered or, it was not entered correctly.
To determine whether an I-94 has been received and the date of departure correctly recorded applicants should submit a FOIA request to CBP’s new FOIA office at the following address: U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW Attn: Mint Annex Building, FOIA Division, Washington, D.C. 20229.
- A non immigrant visa to work in the US under NAFTA as a professional
- A non-immigrant visa to work in the US in a specialty occupation as an H-1B professional. [Minimum is a bachelor’s degree in the field of endeavor]
- A non-immigrant student visa which will allow her to work 20 hrs a week and for one full year on practical training after she completes her education.
- A non-immigrant visa as a L-1 intra company transferee [if her company in Canada has a branch in the U.S.]
- A non-immigrant visa as a treaty trader or treaty investor.
I am a freelance medical writer currently registered and living in France. What is the best visa for entry into the U.S.?
Most visa categories currently available for work in the United States are geared to assist U.S. businesses hire international workers. Freelancing may not be possible unless you are a journalist being sent here by a foreign publication [again, in a very limited sense]. However, if you have outstanding ability in your field of endeavor you could have an U.S. Agent sponsor you.
Yes, it is possible to seek change from L to H while still in the U.S. However, the start date of the H-1B would be October 1st of this year. As long as your L-1B is set to expire later than that date, you should be fine. Alternatively, you could seek consular processing, but would have to leave the country prior to the October 1st start date and reenter with an H-1B visa.
Yes, you can. There is no restriction on bringing family when entering in L-1B status.
Yes, but that process may involve having an employer file an H-1B petition on your behalf.
If I apply L1B to H1B conversion, will my L1B years of stay count against H1B’s 6 years of validity?
Yes, they will count against the overall limit of 6 years.
An L-1A would be the preliminary step towards establishing eligibility for EB-1C consideration.
The answer to this question is not simple. The student may be permitted by the Designated School Official to enroll for less than full-time where it is recommended for academic reasons or due to the student’s illness [I guess a complicated pregnancy qualifies]. The regulations are not specific as to how long a student may take less than a full-time load. An F-1 student is considered to be in status during the school’s annual vacation, if the student is eligible for and intends to resume full-time studies in the next term.
My friend’s son wants to come to U.S. for higher studies or employment. He will be completing his BE Btech. What steps he needs to take –
1. For coming to U.S. to do his M.S. in Computer Science.
— He must immediately obtain admission to an M.S. program from an accredited U.S. University. This University would have to provide him with an I-20 Admissions Record that he would then have to use to obtain a visa.
2. Come here for employment, securing a job and H1-B Visa.
— For this, he would have to find employment with a U.S. employer capable of employing him in a specialty occupation (one that requires the minimum of a bachelor’s degree).
Since you have already filed an application for change of status it is important that you respond to the Request for Evidence from the USCIS. Not doing so could affect an application for a visa at the U.S. Consulate.
You will be unable to return in F status if you leave the country. Also, once you depart you are ineligible to use the remainder of the OPT period.
Optional Practical Training (OPT) is accorded to individuals in F-1 status. You should be able to file a COS application to be accorded F-2 status.
Yes, however, it may be unlikely that you will receive your Permanent Residency before your OPT expires. This could be a problem if you plan on continuing in school or extending your F status. Indicating you are in intending immigrant renders you ineligible for extensions of your F student visa. There may be additional complications and we highly recommend you discuss this matter with one of our Attorneys.
I am a student with a 5 years F1 visa. I married an US-citizen, I want to know if the marriage invalidates the visa.
Marriage to a U.S. citizen does not in itself invalidate your F-1 visa.
Are there any restrictions on port of entry for a F1 visa? Should the student arrive in the same state where the college is located in?
There are no restrictions. However, you must be prepared to explain to the satisfaction of a CBP official why you your entry is at a POE different from the one located nearest to the school.
I’m an international student. I received a notice that my I-20 expired this year that the University did not notify me until after passing of the grace period of 60 days during which reinstatement could take place. The university is asking me to leave the US and try to enter again with a new I-20 that they will provide me. Is there still a way to avoid leaving and filing reinstatement? What are the options in case problems arise at port of entry?
This situation is case specific and the questions sensitive. Unfortunately, this scenario is outside the scope of this forum. We recommend a personal consultation.
I am on F1 visa and my wife is green card holder. Should I apply for green card now or wait till my wife becomes citizen after 2 years?
You could have your spouse petition (file an Immigrant Petition) for you immediately under the Family Based (2A) category. According to the Visa Bulletin for July 2012, it appears the backlog for India is approximately 2 years. However, numbers could move rapidly. If this happens, you could be looking at filing an Application for adjustment of status before your spouse becomes eligible to apply for naturalization. This strategy has no downside since you could always wait to file an Application to Adjust Status after your wife becomes a naturalized U.S. Citizen. You will not be required to file an immigrant petition all over again.
Reinstatement may be possible, but not guaranteed in this situation. It appears you have been out of status for over 5 months. Under federal USCIS regulation 8 CFR 214.2(f)(16), an F-1 student is only eligible for reinstatement if all of the following conditions apply to the student:
- Has not been out of status for more than 5 months at the time of filing the request for reinstatement (or the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances)
- Does not have a record of repeated or willful violations of [USCIS] regulations
- Is currently pursuing, or intending to pursue, a full course of study in the immediate future at the school which issued the Form I-20
- Has not engaged in unauthorized employment
- Is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act
- Establishes to the satisfaction of the [USCIS], in detail showing, either that:
- The violation of status resulted from circumstances beyond the student’s control. Such circumstances might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but do not include instances where a pattern of violations or where a willful failure on the part of the student resulted in the need for reinstatement or
- The violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.
- Hope you find this helpful. Contact your International Students Office to discuss reinstatement immediately.
- He or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and
- Seeks to enter the U.S to continue service to that firm or organization as a permanent worker.
- The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
I have L1 blanket visa from company A which is valid until next year. I joined company B 2 years ago. Is the L1 from company A still valid?
The only way to tell current status of an individual who enters on the basis of a blanket L-1 is to ask the employer because there is no corresponding petition receipt# that could be checked online.
No, not all J-1 visas are subject to the two year home country residence requirement. The restriction is specifically applied based on a skills list and varies from country to country. You may want to look at Form DS-2019, your visa and I-94 to determine if you are subject to the provisions of §212(e).
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.
The J visa would limit you to one-year terms at the most and be restricted to three years. It would also restrict your ability to apply for permanent resident status in the U.S. For case specific analysis, kindly contact the Office for an appointment.
Both my wife and I have J-1 visas. However, her J-1 [IAP-66] does not have the § 212(e) home country residence requirement. Why? Does this mean we can change status without having to go back home?
I have a strong feeling that the notation on the IAP-66 may be an error. Please note that it is not binding on an USCIS inspector or examiner, or consular officer. They could still look at the underlying facts and find your spouse subject to the 2-year 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.
Will I remain “CAP Exempt” if I resign from a cap exempt institution and apply for an H-1B through a CAP Subject Entity?
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 should have the employer submit the latest I-94 along with a copy of your H-1B receipt along with a cover letter. This will ensure the I-94#s are consistent.
H-1B Adjustment of Status – Pending adjustment, am I considered a non-immigrant when no longer in H status?
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.
- Clarifies that time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status.
- Clarifies that H-1B aliens, who qualify under American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub.L.106-313) section 106(a) and (c), need not be in H-1B status when requesting an additional period of stay beyond the six year maximum.
- Clarifies how to determine the maximum period of admission in H-1B status for a beneficiary who was in the United States in valid H-1B status for less than the six-year maximum period of admission, but who has since been outside the United States for more than one year.
Can an H-1B Beneficiary port to multiple employers while he has already ported once using an I-129 Receipt?
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.
Can an Employee move to a different location while in H status. What is the impact on Green Card Processing?
How can an F Visa holder travel in the event that an H Petition is filed on his behalf for October 1st?
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.”).
My H1B is in process and in initial review. Now, I have an offer from a second company. Can I transfer to the new company while my H1B petition is pending?
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.
What options does the wife of a Permanent Resident have to extend her H-1B status beyond six years ?
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.
Can I travel using my Advance Parole while in H status? Would this inavalidate my H-1B and require switching to EAD status?
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
May 16, 2000
SERVICE CENTER DIRECTORS
OFFICERS IN CHARGE
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.
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.
I have been offered IT consulting position with a financial firm. The firm uses only approved vendors (head hunting agencies) to recruit consultants. Who must sponsor my Visa, the vendor or the financial firm?
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.
I wanted to know the minimum prevailing wages required for my background before applying to LCA. Is there a way to know the minimum salary before hand?
Yes, there is. You may want to check out http://www.flcdatacenter.com/ for prevailing wages for various occupations.
You may be able to change status to F-1 provided you register for classes and initiate processing while the second H-1B remains pending. Discuss the situation with the designated school official at the School.
There is a requirement that individuals in F status maintain a foreign residence that they have no intention of abandoning. In other words, they cannot intend to immigrate while in F status. Since you already have an immigrant petition approved on your behalf, you have expressed your intention of becoming a permanent resident. This may be a problem when seeking change of status from H to F. The change of status petition could complicate your immigration and future adjustment.
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.
I was employed on H1B visa and I just got laid off. Can I claim for unemployment benefits using my EAD ? Will it hurt my Green Card processing?
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.
Will I be able to submit a greencard petition and work legally in the US if I start with a new employer? I’m in the sixth year of my H1B.
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.
My H1 visa expired last week and I have applied for H1 extension but USCIS has asked for RFE. At this time, can I apply for new jobs and get my H1 transfered?
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.
- H-1B Dependent Employers
An employer is considered H-1B dependent if it employs in the U.S.:
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.
- 25 or fewer Full-Time Equivalent (“FTE”) employees and more than 7 H-1B employees;
- Between 26 and 50 FTE employees and more than 12 H-1B employees; or
- 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.
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.
- 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.
- 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.
- 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,
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 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);
- The other employer provides tools, materials and equipment;
- The work is performed on the premises of the other employer (this alone would not trigger the secondary displacement provision);
- There is a continuing relationship between the nonimmigrant and the other employer;
- The other employer has the right to assign additional projects to the nonimmigrant;
- The other employer sets the hours of work and the duration of the job;
- The work performed by the nonimmigrant is part of the regular business of the other employer;
- The other employer is itself in business; and
- The other employer can discharge the nonimmigrant from providing services.
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.
- 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.
- Displacement Attestation:
- 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.
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.
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.”
- 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.
- 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.
- 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.
Under H1-B portability, what should I do when the Employer wants me to complete the Form I-9, Employment Eligibility Verification?
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.
What is Prevailing Wage and can the Employer pay less than the prevailing wage when hiring an H-1B worker?
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’m British citizen and working here on H-1 visa. I want to know how long it take to get a green card.
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.
Can an individual travel while the USCIS under the portability section of AC21 is processing his H-1B visa?
- Is otherwise admissible
- Is in possession of a valid visa and un expired passport
- Satisfies the POE officer that he was originally admitted as an H-1B nonimmigrant
- Presents evidence in the form of a receipt that a new H-1B petition has been filed and is pending with the Service center.
- Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
- 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;
- 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
- 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.”
My Employer terminated my services last week. For the last six weeks he was not paying me. Earlier he was paying me bench salary. What is my recourse?
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.
On June 1, 1999, the Immigration and Naturalization Service published an interim rule at 64 Federal Register 29209. The rule amends the previous Service policy statements regarding the eligibility of H-1 and L-1 [there is a move to extend this to F, E and O visa holders] non-immigrants, and their dependent family members, to maintain and to extend their non-immigrant status while their applications for permanent residence remain pending.
This rule also addresses the issue of the eligibility of these aliens to travel outside the United States without their applications for Adjustment of Status. As long as H-1 and L-1 non-immigrants remain compliant with their non-immigrant classification, including restrictions on periods of stay, change of employer and engaging in employment, the mere fact that they have filed an application for adjustment of status does not make them ineligible for extensions or applicable changes to their nonimmigrant status Further, the rule also amends Section 245 by providing that an H-1 or L-1 nonimmigrant with a pending application for adjustment of status no longer needs to seek advance parole to travel abroad. An H-1 or L-1 nonimmigrant may be readmitted to the United States in the same status provided that her or she has a valid H-1 or L-1 visa, has the original I-797 receipt notice for the I-485 filing, and remains eligible for H-1 or L-1 classification.
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.
I will be finishing 6 years on H1B. I have a pending PERM application filed in less than 365 days ago. Can I extend my H-1B status?
I assume you cannot file your Adjustment Application due to retrogression. The only way to obtain an extension would be to premium process your I-140, Immigrant Petition and use the approval to apply for an extension pursuant to §104(c) of AC-21.
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.
In a Change of Status situtation, where I was previously in H1B status, may I begin working upon filing of the COS Petition?
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.
I have an approved I140 (EB3) and got my 3 years H1-B extension recently. Can I transfer my H1-B to a new employer who is ready to sponsor my GC in EB2?
Yes, that would certainly be possible.
What date to consider for change of status?- h1 approval validity date OR US entry date OR h1 to h4 change of status date.
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?
3. Her H1 starts from October, and does this affect the transfer of the visa?
My H1b transfer information has not been updated in PIMS database, how is the PIMS database is getting updated? Can I update it?
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.
My wife is currently employed in US and I would like to get employment in US. Please suggest if you can assist with job and visa processing for H1B?
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.
I am in H4 and want to get a work permit. Since the H1-B quota for this year is over, is there any other way to get it?
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.
Does the beneficiary still need to recapture time in order to be eligible for an H1B 7th year extension?
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.
I received 221(g) for my h1B visa requesting more docs from petitioner. Now for a new visa application with new employer is the past considered as a visa refusal in DS-160?
Yes, a rejection based on §212(g) is technically a refusal.
I could not use up my 6-year H1B period fully. Can I file for an H1-B transfer and avail the remaining period (2 years) or Should I file for a new H1-B? Can I attend a conference in US with a visitor’s visa?
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.
My H1b was extended. I was away from US for a year and returned in H-4. When applying for H1B, will I be subject to cap?
You are not subject to the CAP. However, time spent in the US will be deducted from the overall time allowed in H status.
My husband was on L1. His H1B got approved and we are planning to file my parent’s visa. Can we still file though his status is changed?
When seeking to write an invitation letter for visitors, it is important to document the ability to support the visitor. Current employment should be documented by means of a letter. An Affidavit showing your ability and willingness to support the visitors during their stay would be required. Please also have the visitor clearly document ties to the home country (economic and familial).
My company has been taken over by another company along with visa obligations. My H1B extension was filed under the old company name. What company name should I give on the DS 160 form?
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’.
Can I transfer my approved petition to another employer on the basis of eac number? My employer hasn’t given approved notice (I-797).
Yes, that should be possible.
I have received EAD and GC was filed. I was promoted and my H1B was amended and got approved by USCIS. Can I change employer and take up position for a different employer. My I-485 is still pending.
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.
Can I use a certified PERM from a denied I-140 (due to lack of financial ability to pay salary) to re file through another employer? Is the certified Application useful to me?
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.
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.
There is no way to sponsor yourself on an H-1B. It must and can only be through a U.S. Employer.
Yes, your employer may file a Change of Status petition. Sometimes, filing an amended petition could have the same effect.
How can I opt for part time job if I am currently on H1B and getting paid on W-2. What are my options?
The regulations allow an individual in H-1B to work two or more jobs by filing an H-1B petition for “concurrent employment”. We could assist you with this process if the job rises to the level of a specialty occupation and your employer is willing to file a concurrent H-1B petition on your behalf.
Q: My wife just joined a new company and received new I94 which has expiration date of March 2015. However she is approaching her maxout time period of 6 years and maxout date falls in Oct 2014. Based on new I 94, does this mean her maxout date is March 2015 and not Oct 2014? or could USCIS provided an incorrect I94 expiry date?
A: The March expiration date is an USCIS error. You should not assume your wife has until the expiration, but rely on the earlier max out date to make plans.
When filing an H1-B extension, what kind of documentation is needed for showing the job offer on hand?
The key is to document the existence of an “Employer-Employee Relationship” and the ability of your employer to control your employment at the client site.
This may be documented through a letter(s) from the End Client, or a chain of contracts from the employer to the end client.
I came in United States in February 2013 with Employer A (H1 B valid till Sept 2015) and joined Employer B in November 2013(Got new H1 B visa valid till September 2016). In December 2013 went to India for vacation and did not get my visa stamped with new employer(B)… because my old stamp was good till September 2015.. so I traveled on Old visa.. at port of entry the officer gave me I-94 with validity of old visa (which is Employer A valid till September 2015). Now I got another job and I want to transfer my visa.
1. Is there any problem in doing that..?
A. >>There is no problem moving to a new employer in the situation described below.
2. Which I -94 should I give for my transfer (the one I got from new employer transfer or the one get while I enter in US after my vacation?
A. >>You should submit the I-94 that your obtained upon reentry. However, the earlier approval (Company B) along with I-94, should be included in the petition package.
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.
I got my H1B approved this April and I am travelling to India in this October , so should I submit the I-94 in the Indian embassy while going there for stamping or should I submit it at the USA airport at check-in before traveling to India?
The I-94 is known as the arrival-departure record and will be taken from you at the POE (Airport).
I got visa stamping on September 10th 2014 and valid till 2016. The requirement will be open on January 2015. Do we have any time limit to travel to US after stamping?
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.
My company had given me a pdf scanned copy of my W2. Can I take that printout to the US embassy when I go for my H1b stamping or is a official copy of W2 required?
A photocopy should be sufficient.
Two distinct employers would be treated as having filed two distinct petitions. The two should be completely unrelated and not rely on the same end client documentation/contract(s).
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
Will there be an issue for Green card processing with a new company when I’m not in good terms with my previous employer specifically with regard to experience letter?
Unless there is a specific instance of fraud, the USCIS does not randomly call employers to verify the contents of an experience letter.
USCIS FAQs on employment authorization for certain H-4 dependent spouses can be found here.
I am very close to obtaining my EAD. My wife is a doctor and wants to do her residency. She intends to join a Residency program on J-1 Visa. Comments.
The J visa is accorded to a non-immigrant, having no intention of abandoning foreign residence. He or she is treated as an exchange visitor and is subject to, in most instances, a two-year “foreign residency” requirement upon completion of his or her designated period of stay in the U.S. For Foreign Medical Graduates, this corresponds with the completion of their residency program. A person subject to the two-year foreign residency requirement is ineligible for an immigrant visa/adjustment of status, change of status. Marriage to an U.S. citizen/Permanent Resident does not absolve the J non-immigrant from the two-year foreign residence requirement.
Can I avoid the two-year home country residence requirement for J visa holders? I have a J Visa issued by the AIESEC.
There is a limitation on the J-1 Visa that requires the incumbent to fulfill a 2 year home country residence requirement pursuant to Section 212(e) of the Immigration and Nationality Act. However, not all J-1 Visas have this limitation. You must first determine whether the J-1 visa issued by AIESEC has this limitation.
In the event that it does, there are ways of seeking a waiver in the United States based on (a) hardship (b) A recommendation by an Interested Federal Government Agency and (c) on the basis of a No Objection Letter from the individual’s home country sent through diplomatic channels.
I recommend that you explore the possibility of entering the U.S. on other visa categories to avoid being subject to the J-1 two-year home country residence requirement.