Authorized Period of Stay FAQs

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

H-1B title "Programmers" and USCIS site visits

Authored on: Wed, 05/03/2017 - 05:34

Question

Brief history - 7th year on H1, 140 approved.<br>

1. Per recent USCIS memo 'H-1B for Programmers - 2017 Guidance'.... if the designation in my current LCA has 'Programmer' word, should I be changing the designation to a different one when I apply for H1 ?renewal?<br>

2. Also in the same memo, it said: "USCIS will now target employers petitioning for H-1B workers who work off-site at another company or organization’s location."
........what does that mean......between my employer and the end client there is middle vendor...is that in any way related to what's stated above?
<br>
3. My most recent H1 is via COS from H4 and is valid until March -18. I will be applying for H1 renewal 6 months before but just in case the renewal doesn't go through, can I apply for a change of status to H4 while I'm here .

Answer

Watch the Video on this FAQ: H-1B title "Programmers" and USCIS site visits

Video Transcript

1. Sure, if your job is indeed something other than a programmer. The problem is in the IT industry titles are very misleading you could have somebody called a programmer but they are doing software architecture. The job description is the most important thing. Titles matter only as pointers. Titles are not definitive.

2. Regarding site visits, they are going to target consulting companies and companies who are basically off-sitting their employees for site visits more than they would normally. Make sure you are working where you are supposed to be working, you are doing the job you are supposed to be doing at the level you are supposed to be doing. The job description should be the same as what you are actually doing and it should reflect the level of your seniority.

3. When you have a case pending it is OK to stay, it is called Authorized Period of Stay, but you don't have full status if your old I-94 is expired. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Does the H-1 60 days grace period apply when one quits a job?

Authored on: Thu, 03/30/2017 - 03:34

Question

1. Does the new 60 day grace period for H-1Bs apply to one after quitting their job ? Or is it only applied to situations only in the cases where the employer terminates the job?<br>

2. I am on H-1B and plan to quit my job and move back to India, I would need 3-4 weeks to wrap up things here after quitting the job. I am trying to see if I can use this 60 day grace period.

Answer

Watch the Video on this FAQ: Does the H-1 60 days grace period apply when one quits a job?

Video Transcript

1. According to the regulations what my best guess is it was reserved for those circumstances where you had no choice but to be out of status, but if you quit voluntarily I don't think you can claim the 60 day grace period.

2. Apply for a B-1 or B-2 visa, change of status before you quit your current job. It takes them 4-5 months just to decide on that application and as long as that application is pending you are not illegal in the United States as you are in an authorized period of stay. Carry a copy of that application and the receipt always to make sure if ever that question comes up about your stay. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

The Proposed I-140 EAD Rule - FAQ's

Authored on: Mon, 01/11/2016 - 07:23

Question

Answer

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

H-1B Laid Off Issues

Authored on: Thu, 11/12/2015 - 09:15

Question

I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017. <br>
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?<br>
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?<br>
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?<br>
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?<br>
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?<br>
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?<br>
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?<br>
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.<br>
9. Can my employer continue to pay severance checks when I am on B-2 status?<br>
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?<br>
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?<br>
12. What other words of wisdom do you have for me?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/F0YZD8zWm88?t=1068&nbsp;

FAQ Transcript:

If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.

Answer 1.  Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.

However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government.  I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.

Answer 2.  Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2  or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.

Answer 3.  No because you don’t have a job. If you use the same visa to come back in, that could be fraud.

Answer 4.  The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.

Answer 5.  That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer. 

Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.

Answer 7.  It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is  well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.

Answer 8.  B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.

Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US.  You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor. 

You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.

Answer 9.  Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working.  In order for employment to be unauthorized there must be a payment or remuneration as well as work.  If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.

Answer 11.  There is no consistency.  I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done  for two or three months. Most of the times they are not tolerant of this issue at all. 

Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.