H Visa FAQs

Questions on AC21, EAD, losing job, etc.

Authored on: Tue, 01/19/2010 - 04:08

Question

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

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

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

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

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

6. Do I lose EAD and AP?

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

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

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

Answer

1A.  Yes.

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

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

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

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


6A. No.

7A. No.

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

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

Convert L1B Blanket VISA to H1B

Authored on: Fri, 01/15/2010 - 07:08

Question

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

Answer

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

H4 to H-1

Authored on: Thu, 11/26/2009 - 04:58

Question

I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

Answer

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

When is the starting date to work on H-1B?

Authored on: Thu, 11/26/2009 - 04:52

Question

Regarding USCIS Updates H-1B Cap Count 10/30/09, if the employer files my H1B petition immediately, (1)how long the H-1B approval takes and (2)when is the starting date to work on H-1B? As far as I'm concerned, the H-1B petition quota had usually been reached on APR 1 and the starting work date is Oct 1. But this year is different since the quota has not yet been reached. My employer would like me to work ASAP, so I would like to know if they file my H-1B petition now, can I get approved and work before Oct 1, 2010? (I have a Master's Degree from USA.)

Answer

I believe the quota for this year is still available. If so, you can start work as soon as as the H-1 approval says you can (usually immediately upon approval). You need not wait till 2010. File through premium processing if you are in a hurry.

H1B extension for pending labor

Authored on: Fri, 11/06/2009 - 00:55

Question

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

Answer

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

H1B Visa

Authored on: Fri, 11/06/2009 - 00:45

Question

Isn't it interesting that this year (2009) there are still 20,000 H-1B left that no companies have applied for 4 months after the dead line were they usually all are taken?
This is because the recession has made it impossible for banks and other TARP precipitants to hire people from abroad for a job that an American can fill and it is quite a stretch in this economy to argue that you can not find a qualified IT worker in the US.

Answer

True. But, TARP alone is not the real issue. I think the economy has been hard on all jobs including H-1. TARP is a factor. And there has been a disproportionately high rate of H-1 denials.

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

Authored on: Fri, 11/06/2009 - 00:26

Question

My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140.
Is there any option left for me?

Answer

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Educational Qualification

Authored on: Tue, 11/03/2009 - 03:51

Question

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

Answer

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

H-1 denial - options

Authored on: Tue, 11/03/2009 - 03:24

Question

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

Answer

It appears you had already started working for B. The denial puts you out of status. In order to go back to A, it is my view, you will need to go back to your home country, get a new H-1 visa stamp and come back (assuming A has not revoked your H-1). If they have revoked your H-1, they will need to also reapply for your H-1. Also search for "unlawful presence" on my blog or on immigration.com.

Prevailing Wage - H-1 and GC

Authored on: Thu, 10/29/2009 - 05:20

Question

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

Answer

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