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 options as an F-1 student on STEM OPT in a nonprofit university: Cap-subject vs. cap-exempt strategies and transitioning to cap-subject H-1B in the future

Question details

I am currently in my second year of OPT ( my stem OPT expires in December 2025), and I am working as a software engineer at a Nonprofit university.

Here is my plan for scenarios that might happen, and I need your help to tell me if I am on the right path or completely moving in the wrong direction.

My employer agreed to file an H1 at the end of the stem opt, but I plan to ask my employer (a non-profit) to file a cap-subject visa for me. Everything will be fine if they do and it gets picked. If not, I have a long-standing offer ( with a project ) from a consulting firm who will file for me.

- My question is, either way if lottery doesn't get picked i am planning to go with cap exempt route from my university.

- If I have an H-1B cap-exempt visa and my lottery gets picked any time in the future, the chances of the client waiting till Oct 1(visa start date) can be unpredictable. Is there a way to bypass this by moving to day one CPT or any other visa and starting working immediately with the client? I heard that it is practically impossible to move to cap subject if i have cap exempt visa and my priority is cap subject.
 

ANSWER
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If an H-1B cap petition is approved, you could consider moving to Day 1 CPT to start working immediately for a client. However, since your H-1B won't take effect until October 1st, a better option might be to pursue a concurrent H-1B until then, allowing you to work immediately and transition to your permanent H-1B status later.

H-1B extension pending: Impact of traveling to India using old visa, returning with 2-3 days remaining on visa, etc.

Question details

My current I-797 and H-1B visa stamping is valid until 03rd December 2024. I have filed for an extension. Can I travel to India while my H-1B extension is pending? Does it have any impact on my I-797 approval and its validity period, as my I-94 will be changed upon my reentry to the USA?
I am traveling to India for Medical reasons in the month of September and will return on December 1st, 2024. If my H-1B is not approved by December 1st, Can I enter the USA with 2-3 days of Visa stamp validity, and what justification could I give with only 2-3 days of stamping validity?

If my H-1B is approved while I am out of the country or during transit, Can I enter the USA with the existing H-1B stamping?

My work is remote, and I can work from anywhere. Can you provide me with a better solution than the 2 options below?

1. If my visa is not approved by then, I will travel to India and return to the USA before December 1st.

2. I will continue to stay in India until I get my visa approved and get the stamping done before reentry to the USA. Premium processing is no option for me as my employer will not support citing RFEs as the reason.
 

ANSWER
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FAQ Transcript

If you have an H-1B visa from a previous employer that hasn't expired and your current employer has filed for an extension, you can travel outside the U.S. while the extension is pending. You can return with just a few days left on your old visa stamp. The visa is not tied to a specific employer, so as long as your old visa is valid, you should be able to re-enter the U.S.

However, it's important to carry proof of your pending extension when you return. While there is no official source confirming this, many individuals have successfully traveled under similar circumstances without issues.
 

Impact of DWI conviction on H-1B holder's H-4 dependent visa stamping and future travel considerations

Question details

I got a DWI in January 2024 and was convicted of two misdemeanors (DWI+ Eluding police) in June 2024. I have an H1B petition valid until 2027, and my visa stamping has already expired in March 2024. I'm not traveling to India for now, but my wife and kid are going to India in December. Will there be an impact on H4 stamping, which will be dependent on my H1B petition? Do I have to send all papers to them, like the court decree, the court certificate of registration of actions, the charge sheet, etc.? I have a home in the USA, which I bought in November 2022. Can I also travel to India? What will be my future in the USA? Please advise if there will be an impact on visa stamping on my wife's visa.
 

ANSWER
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A DWI conviction can lead to visa cancellation, requiring visa stamping upon re-entry. However, this may trigger an addiction examination, which can take months. If deemed to have an addiction problem, you could be excluded from entering the U.S. If a spouse's visa has expired while waiting for the primary applicant's visa stamping, it's unclear if they can still obtain their visa stamp.
 

NIW Required commitment duration, Adjustment of status, Naturalization considerations, and Interim work status option

Question details

1. How much and for how long do we have to work on an endeavor for which NIW I-140 was approved to avoid any issues in adjustment of status, naturalization, etc.?

2. Is there a way to get any status in the US to work on the approved NIW endeavor until I-485 is filed?

 

ANSWER
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It is important to note that if you are from a country like India, you may face a long wait—up to 10 to 12 years—for a green card. After receiving your green card, you are not required to stay in your job indefinitely; you can leave for valid reasons after a few months, as long as you act in good faith.

Regarding work status for those with an approved NIW, the Compelling Circumstances EAD is an option. Still, it has several drawbacks: unpredictable, uncertain processing times, and requires annual renewal. Another alternative is Entrepreneurial Parole, which offers up to five years of work authorization but may not be ideal for individuals from India due to the lengthy green card process. Please read the articles on the The Economic Times Author Page for more information.

 

Citizenship and Naturalization

H-1B Grace Period Related Issues

Question details

I have just 50 days left on my H1B grace period, and I need to get an employer to transfer my H1B, or I will be kicked out of the States. My question is, which of the following paths should I choose?

1) I have a Canadian visitor visa, which is for six months, so can I go to Canada if I don't get a job by the grace period?

2) If I don't get an employer should I shift on B1/B2? If I do, how can I come back on H1B? Is there anything else you suggest to keep my H1B active?

 

ANSWER
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1. Sure.  If you're not in the US, you can go anywhere. Please review my post on the immigration.com blog and my article in the Economic Times.

2. If you think it will be difficult to find a job for a long time and are okay with returning to school and earning another degree, you should consider CPT an option. If you do not think you'll get a job relatively quickly, you should try the B-1/B-2 option. People have been getting extensions to B-1/B-2. 

Naturalization eligibility for recently extended absences over six months and less than one year from the U.S.

Question details

My father is a green card holder (five years, three months now). He has spent 33 months in the US in the last five years and for 6 months every calendar year. The issue is that on two of his most recent trips, he was out of the US for nine months, six weeks, and 11 days.

He has always been retired and has not held a job in the US or abroad. His daughter and family continued to stay in the US during these trips. He does not own a house in the US but stays with his daughter and her family and continues to have access to that residence during these trips. He does own property in India and has continued to hold that same property over the last five years. His trips abroad were to visit his other children.

What are the rough chances of "rebutting the presumption of break of continuous presence", if he applies for naturalization, despite these two trips of 9 months and 6 months two weeks ? Would you recommend going through a lawyer ?

Regarding the 9-month absence that is being questioned, if he doesn't own a house but still has access to the residence, it should be acceptable as long as there's a valid explanation for his absence of more than six months. This situation has occurred before. For example, if he couldn't return due to reasons like COVID-19, health issues, or similar circumstances, as long as these reasons are clearly explained, it should be acceptable.

 

ANSWER
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Regarding the 9-month absence being questioned, if he doesn't own a house but still has access to the residence, it should be acceptable if there's a valid explanation for his absence of more than six months. This situation has occurred before. For example, if he couldn't return due to reasons like COVID-19, health issues, or similar circumstances, it should be acceptable if these reasons are clearly explained.

Citizenship and Naturalization

Assessing eligibility and strengthening profile for EB2-NIW application without a research background

Question details

I'm from Bangladesh and am pursuing a non-thesis Master’s degree in Civil Engineering at Texas A&M University. My area of specialization is Geotechnical Engineering. I’ll graduate with my degree in May 2025 after completing a co-op with one of the top Engineering and construction companies in the United States. The company also offered me a full-time position after my graduation so that I could continue my work with them. Many PhD candidates from my country with a master's degree are applying for EB2-NIW using their citations and research experience.

1. Since I lack a prominent research background (basically, I have no experience at all in terms of publication/citation), do I have a chance of getting approval for EB2-NIW?

2. Is citation/research compulsory for EB2-NIW to get approved?

3. If I want to apply in the future, how should I prepare my profile to increase my chances? I’m more interested in working in the industry than in research and academia.

4. I want to mention that, from my experience, there is a huge demand for geotechnical engineers in the civil engineering industry, but not many people, especially Americans, are pursuing this major. Can I use this fact to show national interest?

 

ANSWER
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The key is to emphasize activities and achievements that demonstrate your potential to contribute significantly at a national scale. Your profile should highlight projects or initiatives that have a broad, national-level impact, as this aligns closely with the NIW criteria.

 

Eligibility for 1-year H-1B extension under 365-day rule based on PERM filed on November 1, 2023

Question details

My PERM was filed on November 1, 2023, and my current visa expires on October 10, 2024. Am I eligible to apply for a one-year extension based on the 356-day rule? If so, is July a good month to apply for a one-year extension?
OR do I need to travel back to my Country and apply for an extension after 1st November 2024?

 

ANSWER
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H-1B extensions beyond 6 years are possible through an approved I-140 or a PERM labor certification pending for 1 year. For PERM-based extensions, you can apply before the 1-year mark, but the extension only becomes effective after a full year. For example, if your PERM was filed on November 1, 2023, and your current H-1B expires in October 2024, you could apply for an extension in July 2024. However, the extension would only be effective from November 1, 2024. You may need to leave the country temporarily if there's a gap between your current H-1B expiration and the extension's effective date.

Work authorization, visa stamping, and optimal strategy for a laid-off H-1B professional

Question details
  1. I was on an H-1B visa and got laid off. I then switched to a B2 visa to extend my stay in the US after the 60-day grace period. My B2 visa is about to expire. I can request an extension of the B2 visa, but I want to enroll in a master's or a PhD program. Once I switch to an F1 visa, will I be allowed to work on H-1B (or any other visa) if I get a full-time job during my course period? If I am allowed to work, can I also continue my course?
  1. When the F1 is approved, will I have to leave the US to get my visa stamped and re-enter (as I am currently on a B2 visa)?
  1. What would your suggestion be considering the different visa options I have? Should I extend my B2 visa or switch to an F1 visa?
ANSWER
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    1. Absolutely, you can convert back to H-1B, and you can continue your course.
    2. No.
    3. If you think you can find a job in the next six months, stay on the B-1/B-2. But if you think that's dicey or unknown, I would rather have you spend your time studying, getting more education, and, if possible, getting curricular practical training.

    Immigration Law

    Extending parent's stay in the U.S. beyond six months on a B-2 visa

    Question details

    I have a question about my mother's stay in the US on a visitor (B2) visa. I am an IT Professional in the US on an L1 work visa along with my family (spouse & kid). My only sibling (younger sister) is also settled here in the USA. My father passed away a couple of years back in India. My mother is 60+ years of age, and currently, there is no family member in India to stay with her at all times. She visits the USA and stays with us for six months at a stretch during the year. Considering her health and emotional support needs, I am looking for options to have her stay with us long-term (beyond a six-month period in a year). As is the case in this scenario, are there legally valid options/exceptions for old-age single parents?

     

    ANSWER
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    Yes, it is possible.