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.

H-1B 60 days grace period H-1B transfer; Impact of switching to B-1/B-2; and family visa validit

Question details

1. I am currently in a 60-day grace period due to a layoff and am in the process of finding a new employer to file an H1B transfer. I have two questions regarding my situation:
If I apply for a B1/B2 visa on the 59th day of my grace period and it is approved within two weeks, can my new employer still file an H1B transfer using premium processing? 

2. Specifically, I am concerned about the impact of my status change from H1B to B1/B2 and then back to H1B on the processing of the transfer.

3. My family members hold a valid US visa stamping until March 2027, which was obtained using my previous employer's I-797. Can they enter the US using this existing visa with a copy of my new employer's I-797 at the port of entry?

 

ANSWER
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FAQ Transcript
  1. No, because if you are on B-1 or B-2 status, then you are not on H-1B. 
  2. If the B-1 or B-2 status is approved, then it obviously replaces the H-1B. 
  3. You can maintain the H-1B only if necessary.

International Managers (EB-1C) changing jobs under AC21 portability after 180 days

Question details

1. I am on L1A, and I have Approved EAD and AP. Also, 180 days of waiting is over.

My question is, can I switch employers? If so, how will USCIS match my job duties? 

2. On L1A, it's an International Manager experience, and how can I show that I have international manager experience with the new Employer?

 

ANSWER
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FAQ Transcript

1. Yes, I can confirm that your understanding is correct.

2. Regarding your new employer, your lawyers will provide the necessary assistance and guidance. It's important to note that in your current situation, the requirements differ from when you initially obtained your L-1A or EB-1C visa. At that time, you were required to demonstrate that you had the appropriate experience with the related company. However, now that you are in the AC21 portability phase, you are no longer obligated to fulfill that specific requirement.

 

Nonimmigrant Visas

Procedure to recapture H-1B/L-1 time outside the U.S.

Question details

During the last three years on H-1B, I have spent approximately one year outside of the US (multiple visits to India). What is the procedure to recapture that time and add it back to my H-1B total time?

 

ANSWER
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FAQ Transcript

You can recapture your H-1B time (one year) by requesting it during your next extension application. There's no deadline, and you might even recapture a full year if you exceed six months out. Documentation like passport stamps is needed.

B-2 visa dilemma: Extend or switch to CPT for PERM/I-140

Question details

I am currently on a B2 status and waiting for PERM approval. I have extended my B2 once, and I still think I would need another six months until my perm and I140 get approved. I need your suggestion in making a decision:

Should I move to day 1 CPT OR extend my B2 for another six months?

Which one will be the best option so I don’t get any RFEs from USCIS in the future?

I have another question: My parents and brother have their B2 visa interview scheduled for May 31st. If they ask my parents about me, is it a good idea to mention my situation in the interview?

 

ANSWER
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FAQ Transcript

If you are on a B-2 visa waiting for PERM approval. You can choose between:
Day 1 CPT: Allows you to work while studying but requires school enrollment.
B-2 extension: Extends your stay but may not allow work. Choosing depends on your work needs and ability to enroll in school.
Regarding your parents' visa interview, advise them to answer truthfully about your situation. Don't misrepresent information to USCIS.

Options when H-1B project is canceled

Question details

Scenario: Currently working for company A. Company B has filed H1B petition and gotten approval for Oct 1st start date. Unfortunately, Project with company B goes away before Oct 1 and company B doesn't revoke my visa before Oct 1st.

1) Since I will automatically move to H1B on Oct 1st and I don't have that project anymore, can I continue to work for my current employer using the new H1B visa? (What options I have if I want to use the new H1B visa and work for the same employer?)

2) In the same case, will company A be notified about my new H1B visa on Oct 1st?

3) Will company A have to rehire me for H-1B transfer? or can I continue to work with them while the transfer is pending?

4) How would it work if I find a new project through a new company C? Would they need to file for H-1B transfer as well ?

5) What info can USCIS ask for H-1B transfer in that case? What sort of RFEs may come up?

 

ANSWER
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FAQ Transcript

You can't work for your current employer (Company A) on the new H-1B. File an H-1B transfer to Company A. USCIS won't notify them. Consider a lawyer consultation to possibly keep working at A while the transfer is pending.

Immigration Law

Benefits of National Interest Waiver

Question details

Two general questions,

1. What are the benefits of filing an EB2 NIW for a person whose I-140 has already been approved by an employer in the same category apart from NIW, not depending on your employer? Also, can you get your I140 approved priority date to your NIW?

2. Is it possible to renew the H-1B visa stamp before expiration? For example, if my H1B expires on November 1st and I apply for a visa stamp in October with approved extension I797, Would I be able to renew it?

 

ANSWER
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FAQ Transcript

While an approved I-140 with an employer offers some benefits, an EB-2 NIW grants portability - you can keep your green card across job changes in your field. It also allows extending your H-1B past the 6-year limit and enables your spouse to work and travel with you.  For those with backlogged priority dates (e.g., India), NIW can help with I-130 petitions in specific situations. If your I-140 is approved already, the main advantage of NIW becomes self-sponsorship.  Finally, you can renew your H-1B visa stamp before expiry, though consulate lead times (like four months) might apply.

 

Nonimmigrant Visas

EAD delayed - options

Question details

If EAD approval is delayed and the employment is no longer valid unless the EAD is received by USCIS, then the employer has to terminate the employee. Can the company send the employee on leave without pay temporarily until the EAD is received? Both can be done, and it is up to the company how they want to handle the case.

 

ANSWER
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FAQ Transcript

The employer can put the employee on unpaid leave to avoid unauthorized work. Termination is also an option but not mandatory. The company decides between leave and termination.

 

Nonimmigrant Visas

Agency

Immigration Law

What is Cap Gap Extension? How does it work?

Question details

1) Is H1B cap-exempt to H1B lottery-based considered a change of status?

2) If I currently have an H1B cap-exempt visa and am filing for an H1B petition in June, when can I not travel outside of the US - from now to June, June to Petition Approval, or from Petition Approval to Oct ? My current H1B visa would be valid until Nov.

 

ANSWER
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Yes, potentially. It allows you to work while your STEM OPT expires (April 30th in your case), and your H-1B petition is pending, extending your work authorization until October 1st.

 

Layoff during Self-NIW application, changing jobs with NIW not yet filed, pending or approved

Question details

I started the self-NIW application while working with employer A, but for some reason, I could not file the petition. Later I got laid off from employer A and now I'm working with employer B.

I want to restart the NIW application. Questions:

1. Since I got laid off with employer A, will that be a challenge/red flag in my petition?

2. It's only been one month with employee B. Shall I wait some time at company B to restart my NIW application? or doesn't it matter?

 

ANSWER
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FAQ Transcript

Answer 1. Being laid off is not a challenge/red flag. 

Answer 2. There's no reason it should be. You don't need to wait to restart the application. You can file it even though you've only been with employer B for a month.

H-1B lottery layoff before start, Automatic status change, Multiple filings, and Traveling

Question details

Case: Picked for H1B lottery.

- What happens if the company lays off after June but before October 1? Would I stay on my current visa status? Or will I be on H1B but with a 60-day timeline to find the next job?

- Does the status automatically change to H1B on Oct 1? or does immigration require paystubs for a couple of weeks to prove our employment?

- If I file the petition with two companies separately, how will immigration decide which one to approve? Will they approve both?

- Are there any travel restrictions from June to Sept

 

ANSWER
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FAQ Transcript

In this scenario, you won't be on H-1B status with a 60-day grace period to find a new job.