US Immigration Questions

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form. This answer is for information purposes only and does not create an attorney-client relationship.

NIW: Porting priority date

Question details

Hello, Let me start with my question: Is it possible to port priority date from an existing employer sponsored EB2 petition to a new EB2 NIW petition ? I am an Indian citizen with a masters degree in Electrical Engineering from Univ. of Maryland College Park. I have a pending EB2 petition (approved I140) through my employer but am also exploring a self petitioned EB2 NIW application in parallel. I would like to understand if the earlier priority date from my employer sponsored petition can be ported to the NIW petition, if approved. Please advise. Thank You Mathew

ANSWER

Yes. You can port the PD.

H-4 visa dependent children change of status to F-1 before 21

Question details

My daughter was born in Canada and is on my H-1 visa as an H-4 dependent. She is currently studying 2nd year of her Bachelor's degree and will turn 21 in July/2024. I have a couple of questions, and they are
1. By what date/age she needs to change her status from H-4 to F-1?
2. Once on F-1 status, are there a minimum number of months/semesters/years she has to complete before being eligible for a CPT or OPT?
 

ANSWER
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FAQ Transcript
  1. She needs to file for a change of status before she turns 21.
  1.  I believe it is two full semesters one academic year, double check that with the DSO.

 

Can H-4 EAD start a Business in any State? Can a relative's company file H-1B?

Question details

Can an H4 EAD holder start a business in any state, or do they have to be in the same state as the primary applicant's H-1B?

Another question is can a relative's LLC file for H-1B if they have a need and it aligns with my MS coursework?

 

ANSWER
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It can be done, but H-1B is not complicated that's absolutely straightforward.

Can H-4 visa (no EAD) holders take an unpaid internship?

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I am an LLM student on H4 (no EAD). My college offers paid and unpaid supervised externships (optional classes) for 2/3 credits as part of our course. Can I participate and work in an unpaid supervised externship on H4 without EAD?

ANSWER
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Sure. I don't see any problem for you, the employer should watch out for themselves.

 

FAQ: Multiple companies applying for H-1B Cap registration - H-1B lottery

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I am an international student currently of F-1 visa status and will be graduating in May-23. I have the below questions:

1. Can multiple companies / employers apply for H1-B on my behalf in this upcoming H1-B cap pool?

2. If yes, is there a possibility that the employers might get to know about this?

3. Should my name in the passport and birth certificate match exactly? My birth certificate has an abbreviation my last name but my passport has my complete last name.

 

ANSWER
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FAQ Transcript

When there is no connection between two companies, and they are not colluding to help somebody get an H-1B visa or increase their chances of getting selected in the H1B lottery, multiple companies can file. Interestingly, even different units within the same bigger company could file if they have a genuine need and not face any issues.

Criteria for national interest waiver || NIW for physical therapists

Question details

I am on H-1B working in the IT industry. My wife has H4 EAD, and with the same status, she is working in the hospital as a Physical Therapist.

1. Can her employer file for GC while she is on H4 EAD status?

2. If she is eligible for NIW, could you please let me know if the PWD and PERM are both required if her employer file for GC?

3. Can she use my priority date to file an adjustment of status?

 

ANSWER
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FAQ Transcript

1. Absolutely 

2. I doubt it.

3. No she cannot. That is one thing husband and wife cannot transfer to each other their priority date.

 

H-1B layoff options - Going to home country and applying for jobs, going through the lottery again and documents required to apply for a new visa to explain missing pay stubs

Question details

I am on an H-1B visa and recently got laid off.

If I don't find a job within the 60 days grace period:

1. Can I go back to my home country and keep applying for jobs and then come back once I get one? If yes, would I have to go through the lottery again?

2. If not, what are my options?

3. What additional documents do I need to provide while applying for my new visa to explain the missing pay stubs?

4. What does the company that let me go send to the USCIS as documentation for termination of contract?

 

ANSWER
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  1. Sure, you can go back to your home country. No, you do not have to go through the lottery again.
  2. H-4 and F-1 CPT visas would be options.
  3. You actually just need a copy of your H-1B approval.
  4. If an employer wants to conclude an H-1B, they have to do three things: First, they have to inform the employee that their job is terminated. Second, they have to offer the employee a one-way ticket back to their home country. Third, they have to put it down in writing and request that the H-1B be revoked because they have to write to the USCIS.

Will having EAD cards or petition approvals with gaps in the start and end date cause an issue?

Question details

I recently renewed my green card EAD; the first EAD card expired on 04/2019. I had filed for renewal before the expiration. The USCIS provided a 540-day auto-extension based on the renewal application. Based on the I-797 C for renewal, the original EAD is valid till Oct 2023.

The new card is valid from Jan 2023 till Jan 2025. Will having EAD Cards with gaps in the start and end dates cause an issue?

 

ANSWER
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Gaps are normal. If the gap is abnormal it is wise to discuss it with your lawyers to ensure that there are no potential problems or risks.

Immigration Law

H-1B visa cap exemption - How does the 6-year rule work?

Question details

I got a H-1B approval in 2020 and stamping was done in 2022, due to personal reasons, I have decided not to travel to the US. My question here is at a later point in my career, will I be eligible for the CAP exemption for the different sponsor, even If I never visited the US using the stamping? Also whether this cap is exempt till 6 years from approval time or forever(but the 6 years clock starts from the time I enter the US)?

 

ANSWER
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FAQ Transcript

The six-year period should be counted from the date your H-1B was approved.

 

Is cap gap extension continuation of F-1 status?

Question details

My F1 status will end with EAD, correct? EAD ends on June 25th and in July-August I was planning to use H1b Cap gap until I start my PhD program

ANSWER

See this link: https://studyinthestates.dhs.gov/students/h-1b-status-and-the-cap-gap-e…

U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. We call this the cap gap extension. The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.1.