H Visa FAQs

Monday, July 15, 2024 - 02:07

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


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?



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Tuesday, June 25, 2024 - 12:37

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


  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?


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    Monday, June 24, 2024 - 05:11

    Moving to India in 2025 on H-1B extension, I-140 portability, and future U.S. opportunities


    I need to relocate to India for family reasons in 2025. My I-140 has been approved for over 180 days, and my initial H1B visa is valid until August 2025. I want to keep my options open if I decide to return to the US in the future.

    1. Is there any difference in moving to India before or after filing for my H1B extension if I plan to return to the US with the same or different employer?

    2. Additionally, is there a time limit within which I must return to the U.S. with the same or a different employer with an approved I-140?

    3. Do I need to go through the H1B lottery again anytime if I want to return in the future?

    4. Does it matter if my PD is current when I return to the US?



    Video URL

    Wednesday, June 12, 2024 - 09:53

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


    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?



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    Monday, May 27, 2024 - 05:34

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


    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?



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    Monday, May 27, 2024 - 05:23

    Options when H-1B project is canceled


    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?



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    Wednesday, May 15, 2024 - 09:21

    Benefits of National Interest Waiver


    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?



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    Friday, May 3, 2024 - 06:16

    What is Cap Gap Extension? How does it work?


    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.



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    Friday, May 3, 2024 - 05:40

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


    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



    Video URL

    Tuesday, April 2, 2024 - 09:30

    Unemployment Benefits for H-1, H-4 + EAD Holders with Previous H-1B Employment


    Can someone in H4 + EAD status receive unemployment benefits if they only worked on H1b status? Would receiving such benefits be considered a public charge or have any other negative impact down the road?



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    Friday, March 22, 2024 - 03:00

    H-4 EAD or otherwise & Remote Work for Indian Company: Legality and Considerations


    I have H-4 EAD. However, I have not yet found a relevant IT job. Can I take up a remote job offer from one of the Indian payroll companies? Is it allowed legally?



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    Tuesday, February 20, 2024 - 05:03

    How to calculate time: H-1B grace period; H-4 COS; H-1B transfer delays


    Could you analyze the following situation from an H-1B 6-year Max Out perspective (No Approved PERM or I-140)?

    1. Employee gets laid off by her H1b employer on November 20.

    2. Employee files for H4 COS + EAD through spouse on January 10.

    3. Employee gets a new job on April 10 while H4 + EAD is still pending. New employer files for H1b transfer, though no premium processing.

    4. H1b transfer gets approved (I-797A with I94 issued) on June 10.

    5. Employee works on H1b status based on the approved petition from June 10 to July 10. H4 COS + EAD gets approved on July 10.

    My questions are:

    1. Does the November 20 - January 10 period (Grace Period) count towards the 6-year H1b Max Out?

    2. Does the January 10 - April 10 period (pending H4 COS + EAD) count towards the 6-year H1b Max Out?

    3. Does the April 10 - June 10 period (pending H4 COS + EAD and H1b Transfer) count towards the 6-year H1b Max Out?

    4. Once the H4 COS + EAD petitions are approved, would the January 10 - July 10 period be counted as "Time Spend in H4 Status" based on the pending petitions that eventually got approved? If not, which period can be claimed as "Time Spend in H4 Status"?

    Also, how does USCIS keep track of all this? Is it the responsibility of the employee to make the case to USCIS and claim time as "Spent in H4 Status"?


    Video URL

    Tuesday, February 20, 2024 - 03:34

    FAQ: H-1B visa and entrepreneurship: Launching a business with US citizen brother, Shareholding, Green card


    I am currently on an H-1B visa. I am planning to start a business with my brother who is a US citizen and needs some guidance.

    1) Until the business is operational and generating revenue, can I just be a partner in the company without doing any work visa application with it?

    2) Can I have more than a 50% share in that company? If so, would that impact anyhow my H-1B with the current company?

    3) In the future, if I want to file for concurrent or full-time H-1b through the new company, is it difficult to get it approved if my brother and I are the partners of the company?

    4) Once I am on an H-1B visa in this new company, can the company file for my green card in the EB-1 or EB-2 category?

    5) Does the company need to meet any specific conditions before sponsoring for H-1B and Employee-Based Green Card such as being E-Verified or having at least few citizens before hiring non-citizens?


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    Tuesday, February 20, 2024 - 03:16

    Blacklisted employer, F-1, H-1B, L-1 turned back at the airport


    My friend's F1 visa was recently revoked, and he was forced to return to India because his first employer had been placed on a blacklist. Also, he has applied for an OPT extension, which will provide him with an updated EAD, but we don't know how this would affect the process of getting the New EAD. He is working with a firm on a contract job now, but the end client which is a state gov company is considering him for Full time and can sponsor him for H1B. His old EAD expired on the 9th of January. He was traveling from India to the States on the 4th of January and was sent back. Questions: Is there any way that he could reinstate his Visa? Can the company sponsor H1B directly, if so what documents would the company need? If the H1B is picked, when can he travel back?


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    Monday, February 5, 2024 - 02:16

    The path for an entrepreneur from STEM OPT or H-1B


    I'm on F-1 OPT with a STEM MS Degree. If I put a startup, I will be performing my roles directly related to the degree.

    1) To establish employer-employee relations would having a board of directors be sufficient during STEM OPT?

    2) If I apply for EB2-NIW and get I-140 approval then can I immediately shift to other non-tech roles within my startup (CTO -> CEO) Or do I have to wait for 6 months before doing that, all the while when I-485 is pending?

    3) If I shift immediately and use I-485 EAD instead of F-1 EAD, then can that lead to I-485 being rejected?

    Should I wait at least 6 months before using I-485 EAD? Also, if the startup fails, does that discontinue my I-485 process having approved I-140?



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    Friday, January 26, 2024 - 04:44

    Optimizing H-4 EAD options and bundling premium processing for H-1B and H-4 extensions


    Currently on an H-4 visa valid until June 2024. I'm seeking your advice as I try to figure something out.

    I'm a bit unsure about when to apply for my Employment Authorization Document (EAD), and I am considering the following options:

    Option 1: Apply for H4 EAD now (first time - applying separately) since my I-94 is valid until June 2024. If I do this, can I keep working after June 2024 while the H4 extension and H4 EAD are in the approval process if the H4 extension is applied before June 2024?

    Option 2: Apply for H4 EAD (first time) + H1B extension + H4 extension using the Premium processing option, probably during June 2024. Will the H4 EAD be approved in 15 days if all three (H4 EAD, H1B extension, H4 extension) are applied together in premium processing? Also, will the H4 EAD have a validity of three years if the H1B and H4 extensions are approved for three years?

    Please guide me on which option is simpler and better or any other better solutions.



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    Thursday, January 25, 2024 - 07:20

    H-1B lay off 60 days grace, options including B-1/B-2, approved I-140, Severance pay


    Many have asked this question before, but since rules and situations are always different, so here I go - I'm on H1B with an approved I-140.

    A layoff recently impacted me - my last day on payroll is 10th Feb 2024. I will also receive a severance (lumpsum) within 75 days of Feb 10th. My questions are -

    1) Given the market, it may take more than April 10th to finalize an offer and start the H1B transfer. What are the options ( if any ) to extend my stay beyond April 10th?

    2) Many suggest applying for B1/B2 (I'm single, have no spouse to move to H4, etc), but I also hear if it's rejected then the time of my stay after April 10th will be an illegal presence, is that true?

    3) Say I receive the severance lump sum on March 15th -- are the days from Feb 10th until March 15th counted on company payroll?



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    Tuesday, January 23, 2024 - 02:07

    Advantages of a National Interest Waiver, transitioning to EB-1, entrepreneurship, and H-4 employment for spouse


    I entered the US to complete my Masters on an F-1 visa in 2018, I got my H1B visa approved in Oct 2022. I was planning to go for a green card through the EB2 NIW route. I have a few questions, which are as follows:

    1. Suppose that I got EB2 NIW approved and I am waiting in queue for a green card, but I went back to India and worked in India (employer may or may not be related to the US). Can I collect my GC whenever the priority date becomes current?

    2. Suppose that I have already applied for an EB2 NIW visa but then I build my profile and want to apply for an EB1 visa, can I do that?

    3. When can I start my business/startup during the EB2 NIW application process? or Do I need to wait until the visa is approved to start a business?

    4. When can my wife start working on an H4 visa? Is it during the EB2 NIW application process? Does she need to wait until the visa is approved?



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    Tuesday, January 23, 2024 - 01:54

    Implications of visa fraud by an employer on H-1B, L-1, green card, citizenship


    I am exploring my options to file a new H1B and would be great if you could provide any suggestions or insights on my current situation.

    My details are -

    1) I have my I140 approved in 2013 with an Employer (XXX IT Services Inc) and had multiple successful H1B extensions until 2017.

    2) My latest.H1B had an I-94 expiry date of May 30, 2017. The extension was timely filed on May 16, 2017.

    3) The work location changed in October 2017 and an Amendment was filed when my above H1B extension petition was still pending.

    4) Amendment Petition was upgraded to premium service in December 2017.

    5) I continued to work for it until September 2019 as no decision was made by USCIS on my amended petition.

    6) I exited the USA in October 2019 to join my wife and kids who were stuck in India for all these years.

    7) In the middle of the year 2020, administrative processing was lifted on my petition and an RFE was issued. However, as I was already out of the USA, no response was given.

    At this point, I came to know that my Employer (XXX IT Services Inc) got into a visa fraud and money laundering case and served a jail sentence as well by 2020. Employees weren't made aware of it at all. Probably that's the reason for not hearing this long.

    My questions are-

    (A) Will USCIS consider my stay between May 2017 and October 2019 as unauthorized, will there be a 10-year bar on me?

    (B) Can I apply for a waiver of inadmissibility on the grounds of an administrative processing hold on my last petition and I left before the decision was taken?

    (C) Will my employer's visa fraud case impact my H1B approval in the future?


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    Thursday, January 11, 2024 - 09:02

    H-1B laid off: grace period, last employment date, health insurance, and legal stay during change of employer


    1. On my H-1B visa, my last day of employment was date X, but my last paycheck was until date Y but this paycheck was for Severance pay. So, my H-1B 60-day grace period has started from date X or date Y?

    2. Is it mandatory to have health insurance during H-1B 60-day grace period or beyond, and would it affect status or future visa/immigration if failed to get health insurance for some time?

    3. If H-1B change of employer is filed during H-1B 60-day grace period, but during this transfer process 60-day grace period is ended, then is it legal to stay in the U.S. during this period while H-1B change of employer is in process? Or is there a way to stay in U.S. during that period?



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    Thursday, January 11, 2024 - 04:44

    Transitions From H-1B job loss to B-2 status and impact on future H-1B employment


    I entered the country back in 2019 to complete my Masters degree (F1 Visa). I am on an H1-B visa, which was approved last year (10/01/2022 - 10/10/2025). However, I have yet to go to India, so visa stamping is incomplete. I got laid off on December 14, 2023, so I am on my 60-day grace period. Suppose I cannot secure a new role within the 60-day grace period. In that case, I am considering changing my status to a B2 visa to extend my stay and continue looking for an opportunity. However, since my H1 visa is not stamped, will that create an issue filling for a change of status to a B2 visa? And when I land a new job returning from B2 to H1, would that be an issue since the visa won't be stamped either?



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    Thursday, January 11, 2024 - 04:08

    Holding two full-time IT jobs on H-4 EAD


    Can one do two full-time jobs in IT/Software development when on H4 EAD? Is there any downside to it on any kind of future approvals by USCIS?



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    Wednesday, December 20, 2023 - 00:53

    Converting from B visa to any other status such as H-1B, etc.


    I have a valid B-1 visa and have traveled to the US recently in April 2023. Now my H1B petition has been approved, and I am eligible for Dropbox. My employer is telling me that if my case does not get approved in Dropbox, he is asking me to travel on B1 and then get the status converted to H1B. In my I-129, it was mentioned as a change of status, as my I-94 was valid when my H1B was approved. I wanted to know if there will be any issues with coming to the US on B1 and changing the status if they call me for an interview in Dropbox. Also, I want to know if it is possible to switch employers with an approved H1B petition before getting my visa stamped. If I change the employer, will it have any issues?



    Video URL

    Wednesday, December 20, 2023 - 00:53

    Converting from B visa to any other status such as H-1B, etc.


    I have a valid B-1 visa and have traveled to the US recently in April 2023. Now my H1B petition has been approved, and I am eligible for Dropbox. My employer is telling me that if my case does not get approved in Dropbox, he is asking me to travel on B1 and then get the status converted to H1B. In my I-129, it was mentioned as a change of status, as my I-94 was valid when my H1B was approved. I wanted to know if there will be any issues with coming to the US on B1 and changing the status if they call me for an interview in Dropbox. Also, I want to know if it is possible to switch employers with an approved H1B petition before getting my visa stamped. If I change the employer, will it have any issues?



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    Friday, December 8, 2023 - 07:08

    Employee paying for green card and H-1B premium costs and Using an old H-1B visa stamp of a different employer


    Question 1

    1. Is it legal for an employee to pay all the expenses of a green card (eb2 / eb3), such as cost of attorney, pwd, recruitment, perm, I140 premium, I485, etc.?

    2. Is it legal for employee to pay the cost of h1b premium transfer?

    Question 2

    My question is related to H1B stamping.

    I have a stamped visa till April 2024 from my previous company.

    I have a new I-797 from my current company.

    Do I still have to go for Visa Stamping if I visit India in December 2023.



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    Friday, December 8, 2023 - 07:03

    H-1B visa transfer before arrival into the USA


    This is regarding the H-1B transfer from India before working for Employer.

    I have the H-1B visa stamped with employer A, but now I want to transfer the H-1B to Employer B. I have not yet entered the USA and I have not started working for employer A.

    Can I transfer the H-1B visa to new Employer B, and what are the mandatory documents that are required?

    Also, I wanted to know if the pay slips are mandatorily required for H-1B Transfer as I don't have any. Looking for more details about pay slip requirements.

    If I can transfer my H-1B to Employer B, then should I travel to the USA and then start the process or should I do it from India?



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    Monday, November 20, 2023 - 06:11

    Handling a temporary break on the H-1B visa: Transitioning from work to school and back


    I am working on an H-1B visa, and I want to leave my job and join full-time school for a couple of years. I want to start working again using my same H-1B visa when my studies are completed. So, how can I do that by staying within the U.S.?



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    Monday, November 20, 2023 - 06:07

    Working outside the United States on H-1B visa and the implications for remote employees


    Is there any legal limit on how many days a H-1B employee can work outside the  United States? A quick search around forums, I came across 30 workdays to 60 workdays being the limit BUT it was a comment from someone and hence unreliable.

    My workplace in the USA is my home, I am fully remote and LCA filing has Place of Employment Information as my home address in the USA. I got picked on H1B just this year and I have been outside of the States since the 23rd of September. My H1B obviously started on Oct 1st and I have a situation here at my home and only planning to return in the middle of December. I had/have some days of leave/vacation in October and November. So, won't be fully working. I counted the days that I will work till mid-December, and it summed up to about 42.



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    Monday, October 23, 2023 - 06:01

    What is a 212(a)(6)(c)(1) refusal of visa?


    My entry into the United States was denied a few months back, and my H1B visa was canceled saying that I need to re-apply for a new visa and I agreed to that. A few days back I attended an interview on H4, but the interviewer was asking about the canceled visa and gave me a refusal worksheet Section 212(a)(6)(c)(1). I'm wondering what's happening here, could you please help me with this?



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    Tuesday, September 12, 2023 - 05:44

    H-1B approved after the lottery, can we change employers? Multiple employers in H-1B lotteries


    Question 1: Can my H-1B be approved after the lottery, and can I change employers?

    Question 2: Do I need pay stubs for an H-1B transfer?

    Question 3: Can I have multiple H-1B employers?



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    Monday, August 28, 2023 - 05:24

    Difference between H-1B consular processing and change of status


    I am on my STEM OPT, and it is valid till July 2024.

    My H1B was picked(March 2022) and approved(August 2022) last year.

    However, my H1B was approved under the Consulate processing and received ( I-797 B). So, I asked my employer about it and got to know that I can change to H1 status whenever I intend to or after my stem opt expires.

    I am planning to go to India in Oct for stamping. So I asked my employer to change my status to H1B, and they mentioned COS is not needed, I can directly go on STEM OPT and get my H1B visa stamped. It will automatically change the status to H1B.



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    Monday, August 28, 2023 - 05:19

    Green card processing, F-1 visa, and H-1B transition: Travel and work considerations


    I am on an F1 visa, and My spouse is on a Green Card. My Green Card through my spouse is under processing(I-130 under Review). I am graduating in March 2024. My questions are as follows:

    At what stage in my Green Card Processing can I start traveling outside the USA?

    Let us consider my GC is still under processing by the time I graduate and enter the job market:

    A)Can my employer file an H1 while my Green Card is under processing?

    B)Given my H1 got picked, will there be any issue for me to travel to India to get my H1 stamped?



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    Thursday, July 20, 2023 - 00:02

    Transfer an approved H-1B selected in the lottery to a new employer before October 1st


    I am in the F1 OPT period and I worked with Amazon from August 2022 to May 2023. My H1B got picked in the lottery this year, and got it approved in June 2023. Currently, I’m in my 90-day period of unemployment, and would possibly get a new job with another employer before it ends.

    I don’t want to lose my H1B this year. Is there any way that I can transfer my approved H1B to the new employer?



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    Wednesday, July 19, 2023 - 23:59

    Legal options and factors for a future stay in the USA; not selected in H-1B lottery, Master's Degree, and passport renewal


    Currently, I am holding a STEM OPT from May 2022 until May 2024 (2 years).

    My employer had applied for H1B this year and last year but had no luck.

    Question and suggestion, please:

    1) What are my legal options?

    1.1 Apply for H1b next year in March and wait for the result, In case H1b is picked, how do I process it as my STEM opt expires in May 2024?

    2) Enroll in university for the Master's degree?

    2.1 I have a few classes remaining for my master's as I have finished my bachelor's degree in the USA and I take Day One CPT? Once a master's degree is complete, reapply for OPT and STEM OPT.

    2.2 Should I continue to apply for H1B in the meantime?

    3) If I apply for Master and Day One CPT, do I need to enroll for May–August 2024 (the summer class) or can I enroll for Fall 2024?

    Note: STEM OPT Expires: May 15, 2024, or please suggest any other better option to stay in the USA.

    Lastly, my passport expires in May 2024 as well. Is there any problem there?

    - I'm thinking of starting the process for the renewal online. Should I do it now or wait for some time?



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    Wednesday, July 19, 2023 - 23:56

    EB-1C (International Managers and Executives): Eligibility for H-1B managers in the USA


    I started working in the USA at my current company as a technical engineer, and they sponsored my GC application under the EB2 category. Recently, I was promoted to a manager position where I now oversee a team of 10 individuals. I'm wondering if I qualify to apply for a GC under the EB1 category based on my managerial role.

    What are the available avenues to pursue a GC under EB1 as a manager in my current situation?



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    Monday, May 8, 2023 - 00:24

    Potential visa complications for an H-1B visa holder due to past employment with a blacklisted company and alternatives for obtaining an H-1B stamp


    I came to the US in Aug 2015. Completed masters in 2017. Started OPT on 07/2017. When applying for OPT EAD I joined employer AZTech Technologies. I joined as an intern and was there for like 4 months. He responded for 2 months during training, after a couple of months employer did not respond at all. I got a doubt and found another job and moved to a different company. Later I got an H1B and I 140 approved. I am planning to go to India this August 2023. Recently I found out through social media that the company I joined in the initial stage of OPT EAD was a black listed company. Most people who joined those similar companies' visas got rejected when they went for stamping. I am going for H1B stamping. Will there be a problem in my case? Could you please advise me in this case? In an emergency situation, I need to go to India. I heard from some friends and social media groups out of my research that I can go get stamping done in other countries and then travel to India and can be back to the US. 



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    Thursday, April 6, 2023 - 05:08

    Handling H-1B visa and layoff : What happens if I get laid off before or after stamping my visa in India?


    I got my H1B visa approval recently and I have got my stamping date in May. My company is going through a bad phase financially and has had 2 layoffs (might do another layoff in next few months) I go to India for stamping and get laid off before getting my visa stamped (Can I come back to the US with 60 days left? Can I get my visa stamped if my company pays me for another month or so considering that my last day is a month later? Can I get my visa stamped even if my last day has passed)I go to India for stamping and get laid off after getting my visa stamped (can I come to US and do my job search) If I get laid off while in India but have an offer letter from another company (H1B transfer done/ transfer to be done after returning to US)



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    Wednesday, March 15, 2023 - 01:04

    Volunteering on a non-profit board committee while on H-1B or H-4 visa: Implications for visa stamping and green card process


    Can a person on H-1B or H-4 visa be on the Board committee (Vice President) for the US based non-profit religious organization without pay (volunteer) ? Would it create any issue on visa stamping or GC process?


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    Wednesday, March 15, 2023 - 00:50

    Filing H-4 and H-1 simultaneously || Status of F-1 once H-4 is approved || Most efficient way to get EAD F-1 or H-4?


    My case in brief:

    I am currently of F1 OPT (STEM), valid until 15th June 2023.

    My company will be filing for H1B this March.

    However, I am wondering if I should be filing for an H4 visa simultaneously.

    Could you tell me how long it takes for an H4 visa and an h4 EAD to process?

    If I file for an H4 visa in February, would I lose my f1 visa as soon as the h4 visa is approved?

    Is there any new policy where I can get h4EAD sooner? And moved my F1 EAD to h4 EAD without any employment gap?

    Should I wait for the h1b result before applying for an h4 visa?

    What is the best scenario to switch from F1 OPT EAD to h4 EAD, without/minimum employment gap?



    Video URL

    Thursday, March 9, 2023 - 03:30

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


    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?


    Video URL

    Thursday, March 9, 2023 - 03:27

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


    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?



    Video URL

    Thursday, March 9, 2023 - 03:18

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


    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?


    Video URL

    Thursday, March 9, 2023 - 03:12

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


    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.



    Video URL

    Thursday, March 9, 2023 - 02:55

    Criteria for national interest waiver || NIW for physical therapists


    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?



    Video URL

    Tuesday, February 28, 2023 - 20:16

    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


    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?



    Video URL

    Tuesday, February 28, 2023 - 20:03

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


    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)?



    Video URL

    Tuesday, February 7, 2023 - 06:01

    Can certifications and courses qualify me for an H-1B?


    I am currently pursuing 6-month online certification program in "management" domain from the Indian Institute of Management (IIM) here in India and this IIM has been awarded the EFMD Quality Improvement System (EQUIS) accreditation by EFMD, the globally recognized international organization for management development. This institute has AACSB (The Association to Advanced Collegiate Schools of Business) accreditation in the US. I have bachelors in chemical engg from India and masters in chemical engineering from the US. I plan to use the H1B remainder option to come back to the US and would like to change careers.

    My question is as follows :
    1. Is the "online certification in management" that I am currently pursuing from the AACSB accredited institute as mentioned above considered valid and acceptable by the USCIS for changing careers from chemical engineering to managerial roles such as e-commerce/software domain on H1B?
    2. I have also done courses in management, data analysis, economics, computer programming and other math related courses at undergraduate level in chemical engineering and would like to know if these courses would be of any help to change domains as transcripts for bachelors and masters degree are requested during the H1B processing?



    Video URL

    Tuesday, February 7, 2023 - 03:10

    Risks and factors involved when H-1B transfer approved and not joining the new employer


    Question 1: If H-1B transfer is approved but not joining the new employer, then what all is required to be done to avoid any problems? - Is it required to withdraw all approved H-1B transfer petitions in that case?  What is the validity of H-1B transfer approval?

    Question 2: I am currently working for Company “A” on an L1A visa which is valid until 09/12/2024. I have my i140 approved that was filed by company “A” in EB2 with May 2019 as the Priority date. I am from India. Company “B” filed my new H1B.
    My new H1B petition (I 797A, notice of action) and accompanying request for a change of status got approved on Dec 21st 2022. Employer “B” shared with me the approval copy only on 29th Dec 2022. I 797A, notice of action says my new I 94 is valid from 12/21/2022 until 10/10/2025. Will my work authorization status in the US reflects as H1B only if I submit my new Form I-9 through employer B? or is it already effective from the date of H1B approval i.e., 12/21/2022?
    Is there a time limit within which I have to resign from my current employer “A”? What’s the maximum number of calendar days I can continue with my current employer “A” from the date of my new H1B approval i.e., 12/21/2022?



    Video URL

    Monday, February 6, 2023 - 02:09

    Layoff while on an H-1B visa - what if I cannot find a job in 60 days?


    1. I am on H1B VISA and was notified that my employment will end on January 20th. I am actively seeking new job opportunities. Can you please let me know what happens if I am still interviewing after 60 days and become out of status? 
    2. Do I have any other options to change my VISA status before/after my employment is terminated and I fail to secure a job before the 60-day period is over? 
    3. Does my VISA become invalid after the 60 days or can I still find a job and reactivate it if I get an offer after the 60-days?


    Video URL

    Monday, February 6, 2023 - 01:03

    Entering the U.S. on a visitor visa while green card is pending || qualifying for Visa Waiver Program (VWP) || Spouse visa through H-1, L-1, or O-1 || Any special visas for UK, EU, Singapore, Dubai or Australia


    Have any rules changed regarding getting a spouse visa through H1, L1, or O1? Also is traveling on a tourist visa to the US after marriage not ok, with a pending GC application? Finally, does the US have any special agreements with the UK, EU, Singapore, Dubai or Australia for visas that may qualify in this scenario?


    Video URL

    Wednesday, February 1, 2023 - 04:55

    U.S. Immigration work authorization act changes in 2023


    Is there a possibility of getting approval for H-4 visa work authorization act this year?


    Video URL

    Monday, October 25, 2021 - 05:39

    Is there a problem listing one location in a PERM application while living and working remotely in a different location?


    Was just wondering if there could be any issues with my prospective PERM application if I am living and working remotely in Minneapolis (consistent with my H-1Blocation) and my employer in Dallas files the PERM application using Dallas as the work location. I am open to eventually relocating to Dallas, so just wondering if this could cause any delays or RFEs for the PERM. Do you think it would be a better option to file an H-1B amendment with Dallas as the work location, and then go through with the PERM or it doesn't matter?



    Video URL

    Friday, March 1, 2019 - 03:35

    Doing business while on H-1B


    I saw your video on doing business on H1b and understood most of the things such as applying concurrent H1b if I want to be actively involved in the business. I have 3 questions related to the topic. I will open an LLC or any other type of entity that my CPA will suggest but
    1- I plan to start with a simple e-commerce business (selling online on a website and other platforms such as Amazon). How tricky is it to get approved for a Concurrent H1b for managing this type of business? I work in IT but I do have MBA and MS degrees from USA. I will be managing both the Technical and Management side.
    2- I remember that Concurrent H1b will have to abide by all rules of H1b. Will this means that I have to have start-up capital of more than yearly prevailing wage of CEO in the bank to qualify? I plan to start with 10-20K.
    3- Will this Concurrent H1b will be cap-exempt or I have to go through the lottery for this?


    Video URL

    Thursday, May 31, 2018 - 07:21

    Status of off-site placed STEM OPT extension students


    USCIS now interprets the 24-month STEM OPT extension rule from 2016 to require a STEM OPT worker to be placed only at a worksite of the employer. In other words, the USCIS now says that any offsite placement, including at a third-party worksite, is prohibited. Will this affect the H1B petitions filed by employers for such opt students, where they are working at an end client location (not employer location) and the H1B petition was filed with end client details.



    Video URL


    Wednesday, December 13, 2017 - 02:56

    When Does One Become H-1B Cap Exempt?


    I have read that in some cases of H1B as follows "They had H1 petition and H1B visa was stamped in 2012 but they never traveled to the US on that. And when a new employer applied for a cap-exempt H1B petition in 2017 they got it approved with change of status to H1 in May 2017...Whereas in my case I also didn't use this H1B visa and I even didn't travel to US i.e. My employer filed H1B in 2016 which got approved in Sep 2016 and after my resignation, they revoked H1B in Nov 2016 (which is > OCt, 1 2016), but I got a Denial. When contacted few attorneys they said I may get "Approvals" Or "Deny" in such cases, nowadays its more of details saying I am NOT cap exempt?


    Video URL

    Tuesday, December 20, 2016 - 10:26

    Change of Status to H-4 - effect on priority date; maternity leave on H-1


    1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months. 2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave? If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?


    Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1  and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.

    And the second part of the question was can I take maternity leave on H-1?

    Yes, absolutely. How much you can take that depends upon the State law, so the Federal law and the state law combined that's the best way to decide. So the maternity leave definitely allowed and sometimes if in addition to maternity leave if some have medical necessity and you need to take more time off , you should be able to do as well and you would be considered to be on H-1 and you don't need to convert to H-4   for maternity leave reasons but you can do that also and you can convert back to H-1 later on.  

    Tuesday, December 20, 2016 - 10:12

    What is new regulations for H-1 grace period, revocation of I-140 ?


    My I 140 is approved in 2013 and H1-B 5 year and 3 months are completed.
    I have important question , after 17 Jan 2016 , my any chance I loose my job and my employer revoke my H1-B and I 140.
    1. Will I get some time to find new job and new employee to transfer my H1-B ?
    2. after my employer revoke my H1-B what is time line I can still transfer my H1-B visa with new employer?


    Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

    Tuesday, November 15, 2016 - 02:34

    Converting from another work status (such as H-1) to H-4 EAD


    My spouse is currently working on F-1 OPT or H-1 status. How can he/she change to H-4 status and obtain H-4 EAD without a gap in the ability to work?


    We have received several requests about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

    The short answer, as of now (November 2016) is that here is no way to guarantee that there will not be any gap in a spouse’s ability to work.  The problems arise from the fact that there can be a gap between change of status to H-4 and receipt of EAD.  The law requires that EAD must be approved and the EAD card must be in hand for the H4 holder to work. 

    To illustrate some of the scenarios we have been asked to comment upon:

    Question: My spouse is currently working on F1 OPT or H1 status.  How can he/she change to H4 status and obtain H4 EAD without a gap in the ability to work?

    Answer: There is no way to ensure there will be no gap between the current employment authorization and the H4 EAD approval.  The H4 and H4 EAD petitions can be filed concurrently, but USCIS has not been adjudicating them at the same time.  First, USCIS adjudicates the H4 petition, after which they start working on the H4 EAD petition.  As the H4 EAD generally takes about 90 days to be adjudicated, it is best to anticipate H4 EAD approval about 90 days after the H4 approval.

    It is possible to request a future start date for the H4 status.  The hope would be that by the time the H4 status becomes effective, the H4 EAD is also approved.  But again, there is no way to guarantee the time frame. 

    Question: My spouse entered the US on H4 status.  How soon can the H4 EAD be filed and how long will it take before he/she can work?

    Answer: The H4 EAD can be filed as soon as the spouse has arrived in the US on H4 status.  Because, the USCIS is taking about 90 days to adjudicate the H4 EAD petition, your spouse is likely to be able to start working in about 3 months after the EAD petition is filed. 

    Question: We need to renew my H1 and my spouse’s H4 and H4 EAD.  Would it help the EAD to be issued faster if we file the H1 petition through Premium Processing?

    Answer: Possibly.  There is no Premium Processing option for H4 or H4 EAD, but as a courtesy, the USCIS often tries to adjudicate H4 and H4 EAD petitions at the same time as the Premium Processing H1 petition.  There is no guarantee that the USCIS will adjudicate the H1, H4 and H4 EAD at the same time.  It is possible that only the H1 will be adjudicated under Premium Processing, and the H4 and H4 EAD will be adjudicated in the normal queue.

    Question:  My H1 does not need to be extended, but my spouse’s H4 and/or H4 EAD do need to be renewed.  How can the petitions be filed so there is no gap in the H4 EAD authorization to work? 

    Answer: It is critical to file these petitions early.  The H4 renewal can be filed 6 months before the current H4 expires, and the H4 EAD can be filed 120 days before the current H4 EAD expires.  While it is not a guarantee that there will be no interruption in the work, early filing is the best option to provide the USCIS with enough time to process the petitions.

     Click here for Rajiv's blog entry on H-4 EAD Rule

    Monday, May 30, 2016 - 08:39

    Changing Jobs After I-140 Approval


    I have PERM approved and I-140 filed in regular processing by my current employer "A". I have got an opportunity from employer "B" and then told they will process my GC as fresh application. I have 17 months left on my H-1B visa.
    1. In pending approval of I-140. will I get the extension of 3 years from USCIS when employer "B" initiate the transfer ? OR Will I get the H-1B transfer extension till max out ?
    2. Is it recommendable to switch now in between of pending approval process of I-140?
    3. Will leaving in between of pending process impact me in future when employer "B" files my GC once again ?


    Video URL



    Saturday, May 2, 2015 - 11:44

    Exempt from the H-1B Quota


    I got my H-1B petition approved last year, it got extended as well. I have never used any of these visas to work in the U.S. though I have travelled few times to U.S. but on B-1 visa for meetings with the customers. So the question is when do I become exempt from the H-1 quota?


    In your situation when you are outside the USA, you become  exempt from the H-1 quota  when you get your visa stamped. So I think USCIS interpretation of law is faulty and  incorrect, because in my view as soon as H-1 is approved you should be exempt from the quota but USCIS has taken the position that unless you get the visa stamped from the consulate we will not consider you exempt if you are outside the USA. So it appears to me that  you should be exempt from the quota.

    Thursday, April 16, 2015 - 10:15

    H-1 Receiving Payments for Past Work/Bonus (1099)


    I worked for ABC Company for last 3 years. They extended my H-1B at the end of 3rd year. But during my 4th year (this year) I changed my employer and updated my H-1B too. At the same year, ABC Company was sold to another company. ABC Company decided to give bonus to its current and formal employees. I got a bonus

    check from ABC Company. Since, I was not on their payroll they issued me a 1099

    misc form for tax purposes for this tax year. My understanding is H-1B employee

    can file only W-2 form with current employee. If I file my tax with this 1099 misc

    form from ABC Company? Am I violating the H-1B rules?


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

    FAQ Transcript:
    I don't see any problem. The reason being, that payment even though they are paying you after you left the company is not the violation of your status. It is reflective of the amount already earned.  While you have H-1 with these folks you earned these amounts. Now, 1099 usually a bad idea but in your circumstances I don't see it as problem. Usually you can only do W-2 but in this particular case I am not quite sure how USCIS is going to look at it. What questions  they are going to ask you.
    But I can tell you this  in the ultimate analysis  after you have responded and made clear that , the money given as part of a bonus which  was earned  by you , you had a H-1 with that company . So it's not a new work. I don't think you will have any problem. So, legally you are in good position.

    Wednesday, April 1, 2015 - 05:30

    H-4 EAD Rule FAQ's


    1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

    2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently?

    3. I am currently on OPT ( from F-1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140
    Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD ?

    4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140.
    My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ?
    5. Can H-4 EAD can do business ?
    6. I am in USA on H1B and running my 5th year. but recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse?

    7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back?
    b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped?

    8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status?
    2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

    9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

    10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously. Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?
    b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?
    c. If YES, how long is this ‘grace period’ for OPT cap-gap extension?
    - If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?


    1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

    Answer: The H-4 EAD, like the EAD under AOS/I-485 is an opportunity, not an obligation. You can choose to get get an EAD and then not work at all. The EAD remains valid.


    2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently? 

    Answer: I-539, change of status has to be filed only if the derivative spouse is in a status other than H-4. If your spouse is already in H-4 status, you will file the I-765 only. If they are in a status other than H-4, such as F-1, you will file for change of status to H-4 using I-539 and you can concurrently file the I-765.


    3. I am currently on OPT (from -F1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140 Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD?

    Answer: I think we have plenty of clarity at this time. You can apply concurrently for H-4 COS and EAD on or after 26 May. You can also apply for H-4 COS now and EAD later. 


    4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140. My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ? 

    Answer: Good points. But H-4 EAD will still be good for people with no I-140 who are in 7th plus year H-1 extension. As to whether or not this is an easy task, depends upon whether they do it by memo (real easy) or regulation (time consuming). 


    5. Can H-4 EAD can do business ?

    Answer: H-4 EAD holders CAN do business.


    6. I am in USA on H1B and running my 5th year. But recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse? 

    Answer: Since you have received extension beyond 6 years of your H-1, I see no problem in your spouse obtaining her EAD.

    As to whether we can represent you, is more problematic.  Since we do not know the depth to which USCIS will examine the supporting documentation that goes with the H-4 EAD petition, we have no good way to decide what to charge. For instance, if USCIS starts asking questions about the status of H-1 holder, it could involve hours of our time.  But if they do not, it would be just a simple filing.  There is no fair method to assess the issues that can be raised.  One of the options you have is to file the Form I-765 with supporting documentation yourself, and then retain us only if an RFE is issued.  That way, in reviewing the RFE, we can assess how much work is needed and charge accordingly.


    7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back? 

    b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped? 

    Answer: a. In my view it is no, she does not need to go  for visa stamping if she already has a visa. Not working after getting her  EAD is  her right. Therefore, it is not a violation of her H-4 status if she decides not to work, work part time, or own a business, etc.

    b. No. She will need a visa. The H-4 EAD does not operate like an Advance Parole.


    8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status? 

    2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

    Answer: 1. I see no issue with changing employers as long as your eligibility is otherwise maintained (status/I-140 etc.)

    2. Yes you can. I have discussed this in the video on my blog.


    9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

    Answer: USCIS's position is that casual trips that are brief are permitted. If your husband leaves for a long time, you are not permitted to stay in the USA.


    10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously.  Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?

    b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?

    c. If YES, how long is this ‘grace period’ for OPT cap-gap extension? If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

    Answer: a. I see no reason why you must seek the help of your wife's employers.

    b. You will not get any new rights other than an H-4 EAD. 

    c. A timely filed H-4 petition will give you the right to stay in the USA awaiting outcome.

    Wednesday, March 11, 2015 - 07:39

    Enter USA while Green Card is Pending on B-1, B-2/H-1 Visa


    I am US citizen and planning to sponsor green card for my sibling. My sibling has already visited US in B-1/B-2 visa few times and holds that visa for another few years.
    I know that this kind of application takes 10+ years to approve. From this context in mind, I have few questions -<br>

    1) Can my sibling enter United States on the same B-1/B-2 visa after I apply immigration application?<br>
    2) Can my sibling apply for renewal or new B-1/B-2/H-1 visa while application is being processed?


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


    FAQ Transcription

    There really is no statute law that specifically prohibits such an entry. Well maybe there is something that says you must have nonimmigrant intent but the question is can they do it. Theoretically  yes they can enter on a b visa while the green card is pending especially when something is pending for 13-14 years they maybe allowed an entry but they can be disallowed an entry at any point of time. So there is no guarantee that the B-1/B-2 option either the renewal of the visa or entry at the airport will be permitted on a indefinite basis. You could be stopped any time.  However H visa, L visa, E visa and O visa are some of the visas that are not subject to the problem of green card pendency. These visas can be utilized. Also remember a green card can be filed through several different categories at the same time. So if your sibling qualifies for other categories they can apply under all the categories available for them. So H-1 visa is no problem b but B-1/B-2 no guarantee.

    Tuesday, March 10, 2015 - 09:03

    How Does H-1 Visa Quota System Work?


    I am an Indian and have been living in London for the last 6 years and currently in the process of getting British Citizenship, which I am hoping to get by April and subsequently British Passport by June. I work for a leading international bank in London.<br>

    My girlfriend is currently doing Masters in Illinois, USA, so, I am looking to move to US, but understand the H-1B visa is a bit complicated.
    My question is, how does the quota system work for H-1-B visa and when does the new quota start, and what's the best period to apply for one? So, If I am looking to move there in October 2015, when do I have to get an employer to apply for H-1B for me (provided an employer agrees to sponsor me)? or, is there a particularly good time to apply for H-1B visa?
    Also, is it easier to get the visa if I am there physically in the US or it doesn't matter?


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


    FAQ Transcript:

    Well you don’t have any time to lose. Apply right away. The way it works is your H-1 application must reach the USCIS on April 1st no earlier and usually no later. Sometimes they give us three to four days but normally April 1st is the day the quota opens and that’s pretty much the quota closes as well and there are usually more applications received by the government than they have visas almost two to one ratio maybe more sometimes and then there is a lottery held and if you get selected in the lottery then your H-1B gets approved. You go for a visa stamping and you can enter USA no earlier than 10 days before October 1st when your H-1B visa period starts.

    What is this thing about October 1st?

    The US government fiscal year begins on October 1st so all the quotas including green card and H-1’s they get reset on October 1st.  H-1 you can apply six months ahead of the start date  which is April 1st  so that’s why you file on April 1st  and you begin working on October 1st  but you can enter USA ten days ahead of October 1st.

    Friday, February 20, 2015 - 20:22

    Status of the H-4 EAD regulations


    Status of the H-4 EAD regulations


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


    FAQ Transcript:

    This FAQ is about H-1 quota, how does H-1 quota work?

    I think this is an issue important for many people.

    Question: I am on L-1 A, If I get H-1B this April, is it mandatory to work from October 1st. Can I continue on L-1A and then change to H-1B when I like.

    Answer: It can be done, sure. Here is how you do, when you apply for H-1, don't apply for change of status, its up to you. You can tell the employer and double check it,make sure you talk to lawyers. Just say I want an H-1 approval but I don't want change of status. That way from October 1st you don't automatically get on H-1, you stay on L-1 continue working on L-1. And whenever you are ready you can go outside, get your visa stamped and come back or apply for change of status within USA to H-1, which is like doing H-1 all over again but you are not subject to the quota. So that's how you do.  

    Tuesday, February 17, 2015 - 01:57

    When do I become exempt from H-1 quota


    I got my H-1B petition approved in 2008 and again got it extended in 2008 unto Jan 2011. Now, I have never used both these visa's to work in US. Though, I have traveled few times to US but on B-1 visa for meetings with customer. Today, one of my friend told me that I am eligible for cap exempt H-1B application if I get job in US. Also, what will be the processing time for this cap exempt H-1B. Can this be done in premium processing in 15 days ?


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


    FAQ Transcript:

    It is a very odd situation. I think the USCIS interpretation of when you become exempt from the quota is incorrect. But this is their current thinking at least as of last week. With them you never know. They felt if you are outside USA and you get an H-1B approval never go for visa stamping. You are not exempt from the quota. So if you never get visa stamped we don’t consider you to be exempt. If you’re in the United States and you get your H-1 approval but the employer who got the approval revokes your H-1 before October 1st you are not exempt from the quota. I think both the interpretations are incorrect. I would encourage you to try and take a chance and see if you can consider being quota exempt. Anyway if I were you I would certainly file a quota application in April just to preserve all my rights and if it does not get selected in the lottery file again and ask for quota exemption because of the reason that you have an H-1 from before.


    Tuesday, February 17, 2015 - 01:44

    Can I postpone H-1 status


    Currently I'm on L-1A status and it expires in *** hence my employer is planning to file new H-1B this April not change of status. Here are my questions...<br>
    1) If I get H-1B this April, is it mandatory to work on H-1B from Oct 01, 2015?<br>
    2) Shall I continue with L-1A status until it expires and then can I change to H-1B?


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


    FAQ Transcript:

    The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

    Tuesday, February 17, 2015 - 01:23

    H-4 EAD Rule


    My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions <br>
    1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently?<br>
    2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?<br>

    P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.


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


    FAQ Transcript

    As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

    There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

    So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

    Friday, December 5, 2014 - 18:36

    Work for Old Employer When New H-1 Transfer Approved


    I have a question on H-1B. I have an approved I-140 from company B and I'm currently working for company A on H-1B( valid till February 2015). Company B applied for H-1B transfer and also 3 year extension based on approved I-140.
    I'm expecting H-1B transfer process to be over by 10th Dec 2014( as it was a filed under premium processing ) but I would like to join them only after Jan 1st 2015. In the meantime I would like to continue to work for company B till Dec 31st 2014. My question is how long can I continue to work for company A after successful transfer of visa (H-1B) to company B ?


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


    FAQ Transcript

    The Answer to the question that is often asked: I am working for an employer on H-1B, my transfer to another employer, let's call other employer 'Y' gets approved. I am working for 'X', 'Y' gets approved and can I continue working for 'X'. The answer is 'Yes'.

    Under immigration law, approval of the second case does not over rule your previous H-1 approved. If you choose not to join them or join them 6 months later, I think it is OK. However, if you have signed any contract with employer 'B' or employer 'Y' in this case. Just make sure you are not violating any contract issue.

    Under immigration law, I don't see any problem for you to continue working for employer 'A'. How long that's very difficult question to answer.  I would say commercially reasonable period of time. Technically, under the law there is no limit to how long you can continue. If you have joined after 6 months, 7 months, 4 months or 5 months, USCIS can raise an objection, as to if the second employer really had the job through. Don't continue too long, there is no legal limit here established.

    Friday, December 5, 2014 - 17:06

    Error by USCIS Giving Time Beyond 6 Years on H-1


    Error in last H-1B extension- now I-140 approved and I have been working on H-1B since 2005. In between, I changed to -F1 and also spent time outside USA. Cumulatively, I would have completed six years of working on H-1B by March 30 2015, after excluding stays in USA on non-H-1B status and stays out of USA.I changed my job in Feb 2014 and have been working with this employer since then. At the time of change, the current employer filed for a H-1B petition and requested an extension for three years – from Jan-2014 until Jan 2017, even though, if I added up all the time of work on H-1B visa in USA, I would have completed six years by March 30 2015.
    My I-140 has been approved this month. Now I do not know whether my employer should file for an extension of H-1B (assuming that without the I-140 approval, I was allowed to work until I completed six years of H-1B in USA) or not file for H-1B extension, because, the last extension is valid until Jan 2017.


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



    FAQ Transcript

    What happens is sometimes, USCIS by mistake gives you more time than you are entitled soon for your H-1. Let's say your 6 years is getting over in one year and they give you 2 or 3 years by mistake.

    Can you use that time?

    And the answer is, that is very risky, don't do that because USCIS could say that you are deliberately misusing an error made by them. They can consider it to be a deport-able offense. It can be a mess. You should assume you have to go through whatever the correct date. You can even call USCIS, make notes of date and time of call etc. Ask them what they want you to do. This is something that your lawyer should be able to resolve. Have them talk with USCIS, protect yourself. Don't assume that because USCIS made an error and gave you more time, you can use it.

    Monday, November 24, 2014 - 00:08

    Unpaid Leave On H-1


    I have a question on the unpaid leaves when outside USA while on H-1. I am on H-1 and recently went to India for stamping which was completed without any problem. I had paid vacation of 2 weeks, which I had already used and stayed in India for a month which is not going to be paid. My employer is saying these will be unpaid leaves and won't be running paychecks for these leaves and is mentioning that this won't be a problem in future as this is legal. I want to take legal opinion from you regarding what the law says in the above situation. <p>
    1. If I am out of US on unpaid leaves and won't get paid, will there be any issues on my H-1 status in future for transfer or GC? <br>
    2. If due to unpaid leave, W2 is less than the LCA, will it be a problem? If yes, what documentation we can show to USCIS to clarify to them why it’s less?


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



    FAQ Transcript

    If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status? 

    Answer is NO. Unpaid leave is not a device to maintain status. However in this scenario  you have gone to gone to India and  got the stamping done and you got the paid vacation of 2 weeks , but you want few more weeks of unpaid leave and is this legal? 

    And the answer is YES. It’s when the employer gives you leave unscheduled, normally unpaid based upon your request not because you don't have a project, then for them not to pay you there is no problem. And for them not to pay you especially when you are outside the USA is absolutely no issue. 

    The only problem is, make sure for the green card purposes the employer is generating enough money to meet the ability to pay wages issue. This is something you have to talk to your lawyers about it. Just tell them make sure if I am unpaid for few weeks it does not affect my green card, ability to pay wages issue. H-1 is no problem but if W-2 is less than the LCA because you are outside USA  there is good explanation. 

    What documentation can you show? The facts that you are outside the U.S.A; so your boarding passes, any other evidences you have been outside the USA any email from you, something inviting or requesting that unpaid leave of absence for personal reason.

    Monday, November 24, 2014 - 00:00



    I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br>
    1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br>
    2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br>
    3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br>
    4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?


    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
    FAQ Transcript
    Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
    So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
    Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
    So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.

    Friday, November 14, 2014 - 07:08

    Withdrawal of Application for Admission at the Airport Under INA 212(a) (7)(A) (i)(I) & 235(b)(1)


    Iam a Indian National Married to A US PR holder She has cleared her N400 Interview .I have been last year Denied Admission (deported) from Airport after me being initially on Student (F-1) Visa & then on H1B (61/2 years previously) with Citations : 212(a) (7)(A) (i)(I) & 235(b) (1) .
    The questions I have for you are :
    Q) Do I have any 3 yr, 5 Yr or 10 yr ban on my entrance to USA ?
    Q) Do I need any waiver like I-212 or anything else for my future entry to USA ?
    My I-130 had been approved and I believe I can upgrade my I-130 by my Spouse sending her Naturalization Certificate & her passport copy to NVC(Kentucky)
    Q) Do you think I might have difficulties while facing this changed IR-1 Category Visa Interview and any other problems at the Port of Entry ?
    Q) What timeframe does NVC take to notify the Consulate & Can it be Hyderabad, India ? & Overall how much time will it take for me to get the Visa or the Conditional Green Card


    Video URL

    Tuesday, November 11, 2014 - 09:30

    Discrepancies In Date Of Birth Information


    Currently my I-140 is approved and now for the I-485 I need to present date of birth certificate. Problem is that DOB on certificate is correct and on all other documents including school, college, and passport and in all US records it is in correct. It started with wrong DOB in 10th certificate which was used in college, passport and finally all US documents. Now I went through all the channels and found the ways to change in passport and in all US documents. Question is what legal problems I should be prepared for and how it impacts my US records once it is changed. I am in US for last 7 years. I need to take decision on this as if it is worth doing it or just go back to India and may be forget about GC for this time. Really appreciate you taking out time for this kind of questions.
    Really appreciate you taking out time for this kind of questions.


    FAQ: Discrepancies In Date Of Birth Information

    FAQ Transcript

    First of all you don't need to leave USA and go away and the question regarding should I forget about Green Card?
    No, not at all. What you do is when you file I-140/I-485 make sure you mention your correct date of birth. Try to get your documents corrected, if you cannot get corrected have your lawyers file affidavit explaining what happened. But always go with correct date of birth.
    Have we done this in the past? Yes we have. Have we had the problems? Little bit. 
    We have to make sure that government understands it what the reason is and that we are just not being cute and trying to take advantage in some ways by creating the false identification. As long as government is convinced about that I usually see no further problems. So just don't give up, there should be detailed explanation, we should make attempt to make sure that you have corrected all the information about your date of birth on your passport, your school certificate. Whatever you can correct it, whatever you cannot correct document it. 
    So, yes you do need your correct date of birth and because the documents for immigration in the United States are all filed under the Penalty of Perjury, your information must be correct.

    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.

    Monday, November 10, 2014 - 18:12

    H-1B Visa stamping in general and in third countries like Canada


    My H1B petition got approved through my existing employer and became effective 10/01/14 (I was on F1 OPT before). Where am I eligible to go to for doing first time H1B stamping, other than my home country (Russia) – can it be done in Canada, Mexico, or other countries? I have Masters from an American university, and over a year of working experience in the US. Also I’ve heard that starting June Canada has suspended doing first time H1B stamping, can you please provide any clarification, and also could you please advise what all options are available to me?


    Thursday, October 2, 2014 - 14:02

    Volunteer work on H-4 visa


    Hello Sir,
    I am H4 visa holder and want to blog for hobby. If I get any money from blogging due to advertisements or page hits, I want to take all of that money and donate it to charitable organization. I want to know is this legal while in H4 status and if so I want to know the correct procedure to do what I have mentioned, so that I am still following the rules for the H4 visa.


    See clip from video recording by Rajiv for the answer to this question regarding volunteer work on H-4 visa status.


    Monday, September 29, 2014 - 07:54

    Concurrent H-1B for Part Time Job


    I am working for company X as a full time employee on H-1B visa. They have filed my green card and my I-140 has been improved. Company Y to hire me as a part time on W2 but I need to work as and when required. So sometime I have to work 20-3- hours in a week and sometime, I will not have work for months. I can work from home too during off hours. Company Y is going to file concurrent H-1B. I have few questions regarding my visa:
    1) Will it affect my current full time H-1B with Company X<br>

    2) Will it affect my green card process<br>

    3) Is it ok if I don't work for months for company Y without affecting Company Y's H-1B<br>

    4) If I get new I-94 through company Y, will it affect my current status?<br>

    5) Will company X know about H-1B filed by Company Y?


    This is not likely to work. Filing a concurrent H-1 is perfectly acceptable in this case and it does not affect your green card process, nor your current H-1. I dont know of any way an H-1 can be approved for an intermittent employment.

    Monday, September 29, 2014 - 07:35

    Do Not Have Copy of I-140 Approval Notice But Have Receipt


    I have my I-140 approved(in my 6th year of H-1). But my employer is not handing the approval notice to me. I have both Receipt Number and my Labor number (starting with A.). I have filed FOIA to get copy of I-140 approval notice. I wanted to know
    1) Can I transfer my H-1 to another employer by just giving I-140 receipt number to them?
    2) Can my new employer use this number to file my GC and keeping the PD based on this number?


    As long as your I-140 is not revoked BEFORE approval of H-1 extension/transfer, the receipt should be enough to get an extension with another employer. The priority date transfer is "automatic" and done at the USCIS level; that should not even need a receipt.

    Tuesday, September 23, 2014 - 07:04

    LCA for Singapore H-1B1


    Do we need to send an LCA for H-1B1 Singapore quota?


    Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA.

    Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA. - See more at: http://www.immigration.com/comment/14777#comment-14777

    Thursday, August 28, 2014 - 06:39

    H-4 Visa Holder Applying for Canada PR


    As a H-4 visa holder in the USA (my husband is on H-1B), and an Indian citizen, I plan on applying for Canadian PR via the federal skilled worker program, to eventually start working there. The question I have is if my PR does come through within a year, will my H-4 visa in the USA get affected or be void immediately? Provided I don't get a job in Canada by then, how long will my H-4 be valid after I get my PR in Canada? Can I choose to live in either country in that case?
    Also, while applying for the PR, they asked for sufficient funds. Since I am a H-4 dependent, can I show my husband's funds and income as a source? Because I am not earning here, I will have to have his money transferred. Will that be a problem?


    Your H-4 visa does not get affected by PR in Canada, and whether or not you stay in the USA or Canada. The visa stays valid through the date of its stamping, as long as your husband is maintaining status. US immigration laws also should not create any issues with a funds transfer, but check Canadian laws and US Tax Laws.

    Your H-4 visa does not get affected by PR in Canada, and whether or not you stay in the USA or Canada. The visa stays valid through the date of its stamping, as long as your husband is maintaining status. US immigration laws also should not create any issues with a funds transfer, but check Canadian laws and US Tax Laws. - See more at: http://www.immigration.com/comment/14325#comment-14325

    Wednesday, July 23, 2014 - 04:45

    H-4 visa employment


    When do you think the H-4 regulations giving EAD will become in operation? Will they be changed or will they remain the same?


    Timing is impossible to predict. It could be as early as September or so, or as late as the government wants it to be. Also, government CAN and often does change or modify regulations after comments from the public are reviewed. 

    Monday, April 14, 2014 - 06:03

    USCIS Updated Questions &Answers on the H-1B Employer-Employee Relationship


    Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?


    No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

    • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
    • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
    • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

    See more at: http://www.immigration.com/news/h-1-visa/uscis-updated-questions-answer…

    Friday, March 28, 2014 - 03:42

    Can H-4/F-2, etc. non-work visa holders volunteer?



    This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration.  I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.

    I intend to inform them that under US immigration laws, if the work is performed for NO remuneration or other benefits, it would not violate the law. This issue has been explored in my blog entry here.

    The problem, however, is that the Fair Labor Standards Act (Federal Law) does not permit for-profit employers to hire unpaid "interns" or "volunteers." See this link for FLSA standards according to US Department of Labor. There has been considerable litigation on this issue with employers on the losing side. So, please consult your employment law counsel before deciding on retaining the services of unpaid employees.

    Thursday, January 2, 2014 - 04:34

    Licensing of Foreign Persons Employed by a U.S. Person


    When is a foreign person considered an employee?
    If residing overseas, is the foreign person employee considered a broker?
    Should current authorizations be replaced or amended to be consistent with current guidance?
    Can multiple employees be covered under one authorization?
    How is an employee providing marketing services overseas identified in a license application?
    What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
    What value should be entered on the license application?
    How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
    Who should sign the DSP-83 for the transfer of U.S. classified information?


    When is a foreign person considered an employee?
    A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

    If residing overseas, is the foreign person employee considered a broker?
    If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

    Should current authorizations be replaced or amended to be consistent with current guidance?
    Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

    Can multiple employees be covered under one authorization?
    Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

    How is an employee providing marketing services overseas identified in a license application?
    If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

    What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
    This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

    Wha value should be entered on the license application?
    DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

    How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
    The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

    Who should sign the DSP-83 for the transfer of U.S. classified information?
    The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

    For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1


    Tuesday, December 17, 2013 - 06:58

    Social Security Number And Card


    How do I get a number and card?


    A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your number.If you are a noncitizen living in the United States, you also may need a Social Security number. For more information, see Social Security Numbers For Noncitizens (Publication No. 05-10096). If you are temporarily in the United States to work, see Foreign Workers and Social Security Numbers (Publication No. 05-10107).

    How do I get a number and card?

    To apply for a Social Security number and card:

    Complete an Application For A Social Security Card (Form SS-5); and

    Show the original documents or copies certified by the issuing agency proving:

    —U.S. citizenship or immigration status [including Department of Homeland Security (DHS) permission to work in the United States];

    —Age; and


    Then, take or mail your completed application and documents to your local Social Security office.

    Citizenship or immigration status: 

    The center accepts only certain documents as proof of U.S. citizenship. These include a U.S. birth certificate, a U.S.passport, Certificate of Naturalization or Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current U.S. immigration documents. Acceptable documents include your:

    Form I-551, Permanent Resident Card (green card, includes machine-readable immigrant visa with your unexpired foreign passport);

    I-94, Arrival/Departure Record, with your unexpired foreign passport; or

    I-766, Employment Authorization Card (EAD, work permit).

    International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

    Age: You need to present your birth certificate. (If one exists, you must submit it.) If a birth certificate does not exist, Social Security may be able to accept your:

    Religious record made before the age of 5 showing your date of birth;

    U.S. hospital record of your birth; or


    Identity: Social Security can accept only certain documents as proof of identity. An acceptable document must be current (not expired) and show your name, identifying information and preferably a recent photograph. Social Security will ask to see a U.S. driver's license, state-issued nondriver identification card or U.S. passport as proof of identity. If you do not have the specific documents asked for, Social Security will ask to see other documents including:

    Employee ID card;

    School ID card;

    Health insurance card (not a Medicare card);

    U.S. military ID card;

    Adoption decree;

    Life insurance policy; or

    Marriage document (only in name change situations).

    All documents must be either originals or copies certified by the issuing agency. Social Security cannot accept photocopies or notarized copies of documents. Social Security may use one document for two purposes. For example, Social Security may use your U.S. passport as proof of both citizenship and identity. Or, Social Security may use your U.S. birth certificate as proof of age and citizenship. However, you must provide at least two separate documents.

    Social Security will mail your number and card as soon as they have all of your information and have verified your documents with the issuing offices.

    What does it cost?

    There is no charge for a Social Security number and card. If someone contacts you and wants to charge you for getting a number or card, please remember that these Social Security services are free. You can report anyone attempting to charge you by calling our Office of the Inspector General hotline at 1-800-269-0271.

    Are there different types of cards?

    Social Security  issues three types of Social Security cards. All cards show your name and Social Security number.

    The first type of card shows your name and Social Security number and lets you work without restriction. Social Security issue it to:

    —U.S. citizens; and

    —People lawfully admitted to the 

    United States on a permanent basis.

    The second type of card shows your name and number and notes, “VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” Social Security issues this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work.

    The third type of card shows your name and number and notes, “NOT VALID FOR EMPLOYMENT.” Social Security issues it to people from other countries:

    —Who are lawfully admitted to the United States without work authorization from DHS, but with a valid nonwork reason for needing a Social Security number; or

    —Who need a number because of a federal law requiring a Social Security number to get a benefit or service.

    How do I get my child a Social Security number?

    It is a good idea to get the number when your child is born. You can apply for a Social Security number for your baby when you apply for your baby’s birth certificate. The state agency that issues birth certificates will share your child’s information with us. Social Security will mail the Social Security card to you. Or, you can wait and apply at any Social Security office. If you wait, you must provide evidence of your child’s age, identity and U.S. citizenship status. If you are filing an application on behalf of someone else, you must show us evidence of your relationship to, or responsibility for, the person for whom you are filing. You also must show us proof of your identity. Social Security must verify your child’s birth record, which can add up to 12 weeks to the time it takes to issue a card. To verify a birth record, Social Security will contact the office that issued it.

    Anyone age 12 or older requesting an original Social Security number must appear in person for an interview, even if a parent or guardian will sign the application on the child’s behalf.

    Adoption: Social Security can assign your adopted child a number before the adoption is complete, but you may want to wait. Then, you can apply for the number using your child’s new name. If you want to claim your child for tax purposes while the adoption is still pending, contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S Adoptions. For more information, see Social Security Numbers For Children (Publication No. 05-10023).

    What if my name changed?

    If you legally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected card. If you are working, also tell your employer. If you do not tell us when your name changes, it may:

    Delay your tax refund; and

    Prevent your wages from being posted correctly to your Social Security record, which may lower the amount of your future Social Security benefits.

    If you need to change your name on your Social Security card, you must show us a document that proves your legal name change. Documents Social Security may accept to prove a legal name change include:

    Marriage document;

    Divorce decree;

    Certificate of Naturalization showing a new name; or

    Court order for a name change.

    If the document you provide as evidence of a legal name change does not give us enough information to identify you in our records or if you changed your name more than two years ago (four years ago if you are younger than age 18), you must show us an identity document in your old name (as shown in our records). Social Security will accept an identity document in your old name that has expired.If you do not have an identity document in your old name, Social Security may accept an unexpired identity document in your new name, as long as Social Security can properly establish your identity in our records.

    Citizenship: Also, if you are a U.S. citizen born outside the United States and our records do not show you are a citizen, you will need to provide proof of your U.S. citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

    Your new card will have the same number as your previous card, but will show your new name.

    How do I make sure my records are accurate?

    Each year your employer sends a copy of your W-2 (Wage and Tax Statement) to Social Security. Social Security compares your name and Social Security number on the W-2 with the information in our files. Social Security add the earnings shown on the W-2 to your Social Security record.It is critical that your name and Social Security number on your Social Security card agree with your employer’s payroll records and W-2 so that Social Security can credit your earnings to your record. It is up to you to make sure that both Social Security’s records and your employer’s 

    records are correct. If your Social Security card is incorrect, contact any Social Security office to make changes. Check your W-2 form to make sure your employer’s record is correct and, if it is not, give your employer the accurate information.

    You also can check your earnings record on your Social Security Statement. The Statement is available online to workers age 18 and older. 

    To review your Statement, go to www.socialsecurity.gov/myaccount and create an account.

    What if my immigration status or citizenship changed?

    If your immigration status changed or you became a U.S. citizen, you should tell Social Security so Social Security can update your records. To get your immigration status or citizenship corrected, you need to show documents that prove your new status or citizenship. Social Security can accept only certain documents as proof of citizenship for new and replacement cards. These include your U.S. passport, a Certificate of Naturalization or a Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

    What if my card is lost or stolen?

    You can replace your card or your child’s card for free if it is lost or stolen. However, you are limited to three replacement cards in a year and 10 during your lifetime. Legal name changes and other exceptions do not count toward these limits. For example, changes in noncitizen status that require card updates may not count toward these limits. Also, you may not be affected by these limits if you can prove you need the card to prevent a significant hardship.To get a replacement card, you will need to:

    Complete an Application For A Social Security Card (Form SS-5);

    Present an unexpired original document with identifying information and preferably a recent photograph that proves your identity;

    Show evidence of your U.S. citizenship if you were born outside the United States and did not show proof of citizenship when you got your card; and

    Show evidence of your current lawful noncitizen status if you are not a U.S. citizen.

    Your replacement card will have the same name and number as your previous card.

    How can I protect my Social Security number?

    You should treat your Social Security number as confidential information and avoid giving it out unnecessarily. You should keep your Social Security card in a safe place with your other important papers. Do not carry it with you unless you need to show it to an employer or service provider.Social Security do several things to protect your number from misuse. For example, Social Security requires and carefully inspect proof of identity from people who apply to replace lost or stolen Social Security cards, or for corrected cards. One reason Social Security do this is to prevent people from fraudulently obtaining Social Security numbers to establish false identities. Social Security maintains the privacy of Social Security records unless:

    The law requires us to disclose information to another government agency; or

    Your information is needed to conduct Social Security or other government health or welfare program business.

    You should be very careful about sharing your number and card to protect against misuse of your number. Giving your number is voluntary even when you are asked for the number directly. If requested, you should ask:

    Why your number is needed;

    How your number will be used;

    What happens if you refuse; and

    What law requires you to give your number.The answers to these questions can help you decide if you want to give your Social Security number. The decision is yours.

    Contacting Social Security

    For more information and to find copies of our publications, visit our website at www.socialsecurity.gov or call toll-free, 1-800-772-1213 (for the deaf or hard of hearing, call our TTY number, 1-800-325-0778). Social Security treat all calls confidentially. Social Security can answer specific questions from 7 a.m. to 7 p.m., Monday through Friday. Generally, you’ll have a shorter wait time if you call during the week after Tuesday. Social Security can provide information by automated phone service 24 hours a day.Social Security also want to make sure you receive accurate and courteous service. That is why Social Security have a second SocialSecurity representative monitor some telephone calls.

    Wednesday, November 27, 2013 - 22:25

    Indefinite H-1 Extensions( on yearly basis) Based On PERM Appeal


    Can we apply for indefinite H-1 extensions( on yearly basis) based on PERM appeal as long as your case is still in appeal?


    As long as PERM appeal is pending (Not, MTR), you can apply for one-year H-1 extensions indefinitely, even beyond 6 years.

    Wednesday, November 6, 2013 - 07:50

    Foreign Labor Certification Questions and Answers


    1. What is the Foreign Labor Certification Process?

    2. How long will the employment-based visa process take?

    3. Are there any employment-based immigration fees?

    4. How do I find out the status of my permanent case?


    1. The actual process for the Foreign Labor Certification varies depending upon the program being used. This http://www.foreignlaborcert.doleta.gov website contains information regarding the process for filing for each of the programs under the Department of Labor's (DOL) jurisdiction. The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized in his/her behalf. In general the Department of Labor works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a Foreign Labor Certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

    2. Depending upon the nature of the program the process for filing could vary between months and years. To be of assistance, we have provided on our Web site the current processing times in the DOL regions and states. Currently, the process to obtain an employment based temporary labor certification (H-2A, H-2B) usually may take months through the state agency and the DOL regional office. However, H-1B processing usually only takes seven working days. The process to obtain an employment based permanent labor certification can sometimes take up to several months after completing the necessary recruitment steps and filing the application with the National Processing Center. The PERM Processing Times are updated monthly and available for view at http://icert.doleta.gov.

    For the employment-based permanent visa, the USCIS may take up to an additional 9 months to process the request. USCIS will provide"premium processing" for some visa categories with an additional fee.


    3. Most programs administered by the DOL do not charge fees for a foreign labor certification. Every program does, however, require fees be paid to the USCIS upon filing an application for a visa or greencard. See the individual program (H-2A) for details regarding DOL fees. See the USCIS site for details regarding USCIS fees.


    4. An employer should pro-actively and regularly, advisably once a month or less, monitor the status of an electronically filed labor certification application via the Permanent Case Management System, and compare its filing date, i.e., the date the application was submitted for processing, to the PERM processing times posted on the iCERT Visa Portal System (http://icert.doleta.gov/). If there is more than a 30-day difference between the employer's filing date and the PERM processing time, the employer may contact the National Processing Center (NPC) for a status update.

    An employer who filed a labor certification application via mail may contact the National Processing Center's Help Desk at 404-893-0101 for a status update.

    Tuesday, October 1, 2013 - 07:46

    Information on Printing I-94


    I do not have an I-94 from my last entry to the US in June, but I need it for my H-1B renewal. What should I do?


    Please refer to the following link for information on printing your I-94: http://www.immigration.com/news/general-nonimmigrant-visa/i-94-web-appl…

    Tuesday, October 1, 2013 - 07:39

    H-1B Petition for Extension


    When should my H-1B petition for an extension be filed?


    An H-1B petition for extension may be submitted to USCIS no more than 6 months prior to the expiration of the current H-1B status.

    Monday, July 22, 2013 - 07:18

    Status of H-4 Dependents When H-1B is Denied


    If my H-1B petition is denied by USCIS, or withdrawn by my employer, what happens to my H-4 dependents?


    If you are no longer in valid H-1B status, your dependents’ H-4 petitions will no longer be valid either.

    Monday, July 22, 2013 - 07:14

    H-1B Filed Under the Quota for the Year 2014


    My H-1B was filed under the quota for the year 2014 and recently approved. Am I now in H-1B status?


    A petition filed under the 2014 quota cannot have an effective date before October 1, 2013.  You cannot be in H-1B status prior to that date.

    Friday, July 19, 2013 - 06:22

    Applying for H-1B Renewal


    I am applying for an H-1B renewal. Do I really need to submit all of the same documents, diplomas, client letters, and so on, again?


    USCIS treats each petition as a new case and requires a complete set of documents, as if it is the first time you petitioned.

    Wednesday, May 29, 2013 - 06:02

    Moving Outside USA For A Year While H-1B Has Not Expired


    I have a valid H-1B until April 2014. I left my employment with my company March 2013 and we were in the process of applying for the GC. I did not have time to find another employer and file a GC application before entering my final year. Therefore even if I transferred my H-1B I still would have had to leave in 2014. Therefore I have decided to come back to England for a year and reapply when I have completed 365 days out. I have 2 questions:

    1) Does my time start from when I left the US or do I have to cancel my H-1B?

    2) If I go back to visit, I assume I just visit under the visa waiver?


    1. The one year out starts when you leave USA.

    2. It may be best not to visit during that year.

    Friday, March 22, 2013 - 03:05

    Applying H-4 Visa for Spouse During H-1 Processing


    My company is processing my H-1B application. Is there any information regarding dependents that will be accompanying H-1B applicant to US at the of filing petition ? What is the process to apply for dependent visa (H-4) for my spouse?


    If you are outside USA, only H-1 is processed here. H-4 is done at the consulate when you go apply for H-1 visa.

    Friday, February 1, 2013 - 11:16

    SSN for Non-working Purposes


    I am on H-1B visa and my wife just received her H-4B. She is not allowed to get SSN as this is only for people who allowed to work. I need to get her TIN (TAX Identification Number) but not sure where to start as I have been told she needs TIN for Driver licensing and open Bank account.


    You contact IRS for tax identification. Also, SSN can be given for non-work purposes if the law requires you to provide a non-work Social Security number to get a federal benefit or state general assistance benefit that you are otherwise qualified for.

    See this info TIN: http://www.irs.gov/Individuals/International-Taxpayers/Taxpayer-Identification-Numbers-(TIN)

    This for SSN: http://ssa-custhelp.ssa

    Tuesday, November 13, 2012 - 06:11

    Prevailing Wage


    Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?


    Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

    Thursday, May 10, 2012 - 05:28

    F-2 to H-4 Visa


    I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?


    If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

    Thursday, May 10, 2012 - 05:19

    Family Based F4 GC


    Currently on my third year of H1B visa. If my sibling were to begin a family based F4 GC petition for me now, and the priority date is 12 years away, is there any way for me to continue to stay in the US until the GC is approved after I have used up my 6 years maximum of H1B? Are there any extensions possible based on the pending GC application? Or do I have to go back to India after the 6 years of H1B and wait there until the GC is approved?
    Also, I should add that the above scenario is assuming that I don't have an employer-sponsored GC petition.


    Unfortunately, the law does not permit you to wait the 12 years in USA just because you have a GC pending. No H-1B extensions are available on this basis. You will have to wait outside USA. Of course, you can come back on H-1 once you have reset the time by staying outside for one year. By the way, it is permissible for a person to apply for green cards through multiple categories simultaneously.

    Monday, October 3, 2011 - 23:23

    H-1 transfer during pending extension


    My H-1 extension with the current employer is applied and is pending. My current H1 expires on 25th. If I apply for a transfer to another employer after 25th Sept., then is it necessary to have approved both extension and transfer in order to work with new employer, because I file transfer after my expiration of current H1?


    If, by the time your second H-1 is approved, the first H-1 is not, USCIS can approve the second H-1 only without an I-94.

    Tuesday, August 9, 2011 - 19:59

    Transfer of jobs under same employer


    I am working for a newspaper in the U.S. as a designer under the H1-B visa. I might be taking up a job as a reporter at the same newspaper in the same location for the same salary. The only thing that would change would be my job profile. What are the USCIS formalities involved in this particular situation? Would my employer have to file a whole new I-129? Would the entire petition process have to be undertaken again?


    The employer will have to file for an H-1B amendment. It is like doing an H-1 all over again, but the fees can be a lot lesser.

    Tuesday, July 5, 2011 - 05:20

    H-1B to B-2


    I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?


    You can and should apply for B2 for both.

    Thursday, May 19, 2011 - 00:05

    H-4 Visa and Status Validity


    My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012

    My questions :
    1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ?
    2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?


    Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

    Monday, April 18, 2011 - 15:48

    OPT - H4 - H1


    I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions:
    1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4?
    2) How difficult it is for an employer file for H1 from H1 and what is the process?
    3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?


    1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
    2. No different than filing a new H-1.
    3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


    Tuesday, April 12, 2011 - 09:09

    Business in the US, on H1B visa


    Fact "H1Bs cannot do their own business in US". So checking the legal limit with below scenarios.
    1. Can a H1b, while working for H1 employer, work for non US employer using options like work from home or other internet technologies and earn in their local currency without further documentation?
    2. Does anything changes if the non US employer has clients in US and the person in above position actually work with those clients under the payroll of non US based organization?
    3. Does it cross the legal H1B limit if we assume the H1b person in scenario 1 and 2 is also the owner of non US company and earns in local currency not USD?


    1. In my view, no.
    2. No. The critical thing is that the work is being performed on US soil.
    3. I believe this too would be illegal under immigration laws.

    Wednesday, March 16, 2011 - 04:36

    Switching Jobs after I-140 approval


    I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12,

    1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)?

    2.Can the current company (A) withdraw my application in such a way that I loose my priority date?


    1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.

    2. No.

    Friday, January 28, 2011 - 02:57

    H-4 Visa Stay in US


    My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?


    A few weeks absence should create no problems for your dependents.

    Friday, January 28, 2011 - 02:54

    H-1B Stamping


    I got my H1B approval on 31 Dec 2010, thus my visa status changed from F1 to H1B (I am currently going to grad school and graduating in April 2011). My company wants me to get my visa stamped. I have heard various stories about problems faced in Canada for first time stamping. Is this really an issue? Is there any law which prevents us to get first time stamping done in stamping done in Canada?


    H-1B stamping has been made difficult by consulates. There is nothing stopping you from applying in Canada, but your lawyers need to help you decide what is best.

    Tuesday, January 11, 2011 - 06:03

    H-4 rejected under 214(b)


    My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?


    In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

    Tuesday, January 11, 2011 - 05:59

    H-1 Extension


    I have filed for an Extension in the month of August'2010 as my Visa expires on Sep1'2010. I have not received anything yet. The Status is still in initial review. I have plans to go to India on Jan28. Should I convert to Premium now or shall I wait. My Case is with California?


    Personally, I have seen no correlation between premium processing and increased RFE's.

    Friday, January 7, 2011 - 07:58

    H1-B Visa Transfer


    I worked in US till August 2010 through my H1-B visa in some company. I had to come to India due to some problems. Now I am in India. My question is, can my visa be transferred when I am in India by some other US company so that I can again go back and work in US. My H1-B visa expires on 2013.


    The H-1 can be "transferred" - yes.

    Tuesday, January 4, 2011 - 02:04

    H-1 extension beyond 6 years


    My situation. I work for company A
    1. My 6th yr H1-B ends in Dec 2011
    2. Labor approved (PD May 2010) and I-140 (applied Sep 2010) pending - EB3
    3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014).
    After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).


    An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

    Thursday, December 16, 2010 - 02:28

    H1B interview travel cost reimbursement


    I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?


    Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.

    Tuesday, December 7, 2010 - 02:38

    Advance Parole


    Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?


    If her I-485 was pending, she would not be out of status.

    Tuesday, December 7, 2010 - 02:32

    H1-B to F-1


    I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?


    If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

    Friday, December 3, 2010 - 06:04

    H1 Renewal Denial/I 94 expired


    My H1 visa and I94 expired on 30th sept’10; we filed for a renewal but got an RFE in about 10 days for client letter. Replied to the RFE with client letter on October 29th, got visa denial on November 10th as client letter had project end date of 11/5. Current lawyer says I am ok to stay here 180 days from visa expiry, currently looking for new project with client letter to file for new H1 B visa and then go to India to get stamping and reenter. Am I ok to be here in the country or should I leave immediately? Will stamping and reentry be a problem? Is filing with the same company a good idea?


    In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.

    Friday, November 19, 2010 - 04:14

    Parents B-2 Visa


    My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches:
    a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems.
    b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.


    I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

    Wednesday, November 17, 2010 - 03:09

    Employer/Employee Relationship while H1B transfer


    I am currently working for company A as a contractor via a preferred vendor Company B, and my employer is Company C. Now my client company (Company A)has offered me a permanent position with them, thus would there be any hassles while doing an H1B transfer to my client company(Company A) from my employer(Company C) due to the employer/employee relationship memo?


    Working directly for the end-client eliminates the employer-employee issue usually.

    Monday, November 15, 2010 - 15:38

    AOS applicants applying for H-1 visa


    My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it.
    We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped.

    We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.


    We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

    Wednesday, October 27, 2010 - 06:06

    Can I apply for Social Security Number ?


    Can I apply for Social Security Number on basis of I -797. My license to work as a vet in State A in depended upon SSN. How long does it take to get a SSN. On what status will I stay until I get a SSN & a license & subsequently start my job.


    Generally speaking, when you get your H-1 approval, you can apply for SSN. If there is an urgency, SSA could expedite your application. I believe USCIS and SSA have said if you have the appropriate USCIS approval, you can start working even without the SSN. Check with SSA on the details.

    Monday, October 18, 2010 - 00:34

    H1B extension or EAD


    I am currently on my H1B extension and my employer filed a petition,I-140 under EB3 category which was approved. I cannot file for an adjustment of status at the moment so if my H1 B visa expires before I can file for the AOS in that case does my employer have to file for an extension for H1b or is it the EAD. I am confused if they are two diffrent things or one and the same. Please advise.


    EAD and H-1 are two different things. You will get your EAD only after you file the 485.

    Tuesday, September 28, 2010 - 03:45

    H-1 for Canadian PR with J-1 issue


    I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me.
    1. They have no clue abt H1B visa. How do I proceed?
    2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?


    If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html

    Thursday, September 16, 2010 - 04:45

    Self Employed while on EAD


    I am employed with H1-B and EAD. My wife has EAD through my petition. She is looking into working as an Independent Consultant (Self Employed). Is she allowed to be IC under EAD?


    I see no issues at all with the derivative beneficiary being self-employed on EAD.

    Thursday, September 16, 2010 - 04:42

    H-4 visa and age


    I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?


    The general rule is - we should not try to take advantage of an error made by the govt.

    Sunday, August 29, 2010 - 22:52



    Just would like to know that how soon can a spouse and children apply for a H4?


    There is no time limit. As soon as you get an H-1.

    Friday, August 6, 2010 - 02:44

    H1 Visa


    I have come to US through my company with my L1 Visa. I am currently working with my client. There is an agreement between my company and my client not to hire my company employees within 6 months after quitting. I cannot move to any other company here in US as i am on L1. My company is not willing to file H1 either. If I have to move to a different company I should have a H1 Visa filed.
    Recently my client offered me to join their company, but I don't have my H1 and i cannot join my client company even if i get my H1 because of the 6 months restriction. What are the different options to join my client.


    This seems to be an issue of contract only. Immigration law does not stop you from changing.

    Thursday, July 15, 2010 - 03:45

    E3 visa for LPN


    I already have a USA LPN license, was just wondering if its possible to get E3 visa to work in USA, I am an Australian citizen. What are the requirements?


    As far as I remember, most nurses jobs do not qualify for H-1/E-3 type visas because a US Bachelor's degree is not required for the jobs. If you can find a job where a Bach. degree is the minimum requirement, you can be eligible for E3 or H-1B.

    Monday, July 12, 2010 - 06:49

    US RN Graduate foreign national


    I am here on an H1B and completed my BSC Nursing as well as obtained my state licence. What is the best way to proceed to get a job/visa in the USA.


    Start with Optional Practical Training.

    Thursday, July 8, 2010 - 09:05

    H-1B and E-3


    I was working in US on E-3 visa before H1B. Which means I entered USA earlier. When does my 6 years clock starts?


    In that case, your 6-year clock begins to run on the date you converted (changed status) to H-1.

    Monday, June 28, 2010 - 01:10

    H1B Extension beyond 6 years


    I got my H1B in Feb 2005 however never entered the country for first 22 months as I did not get an opportunity to visit my company here in US. Eventually I came here in Jan 2007. When does my 6 year period start? Feb of 2005 or when I first entered the US in Jan 2007?


    H-1 starts on the date you ENTER USA.

    Thursday, June 3, 2010 - 03:39

    Visitors visa sponsored by H-1B holder


    I got my parents Visitor Visa stamped when I worked for Company A . But now I work for company B and I am planning to get them to US now. Do they need to go for stamping again?


    I see no need for a new visa.

    Tuesday, June 1, 2010 - 14:12

    Query about H1B Visa transfer


    I have my H1B through a consultant company in USA. I never traveled on this visa and never worked for this consultant company. Now I have a direct job offer from another employer. My new employer wants me to work for them directly instead of going through my current visa sponsor. Can I transfer my visa to my new employer and enter US on this new visa? What is required for this? And how much time shall it take?


    Sure. Have the new employer apply for H-1 for you. Apply for premium processing.

    Thursday, May 13, 2010 - 04:22

    H1B Validity Period


    My H1B got approved in Oct 2005 but I entered US in July 2006. Now 6 Years H1B Validity Period begins from the H1B approved date(Oct 2005) OR the day(Jul 2006) I entered this country.


    H-1B count down starts from the date of entry.

    Thursday, April 22, 2010 - 07:07

    Where to file complain?


    Some of my friends filed H1B through a Consulting company. They gave 1.5-2K USD each. All of the cases were rejected for some unknown reason. Now, that consulting company is not giving money back. Where should they file complain?
    The consulting company's mother company is listed in Bombay stock exchange.


    If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.

    Friday, April 16, 2010 - 07:33

    H1B Restamping


    My visa is valid till Sept,2011. I recently changed employers;have received my approved I-797 from the new employer.Iam planning to travel to India in May,2010. Do I need to go for re-stamping? Shouldn't the employer name on my visa and my I-797 be the same? If not,then what all documents should I be carrying with me to show to the Immi officer at the Port of Entry? Should the employer name on the visa match the employer name in my I-797? My visa is valid till Sept,2011. I recently changed jobs and my I-797 from the new employer has the new employer's name;however my visa has the old employers name.


    Generally speaking, if you have never been out of status, you can travel out of USA and back without changing the visa stamp on an unexpired H-1 visa, even though you have changed employers through a valid H-1 transfer while you were in USA.

    Friday, April 16, 2010 - 07:18

    Travel during H4 processing


    I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.


    If you travel during change of status, the request for COS is deemed to be abandoned.

    Monday, April 12, 2010 - 15:12

    L1B to H1


    I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.


    You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

    Tuesday, April 6, 2010 - 14:32

    G-4 to H1B


    1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B?

    2. Can they apply for a GC after I have an H1B approval?


    If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

    Tuesday, April 6, 2010 - 14:29

    H1B- denial


    I was approved for an H1B by USCIS There is a new I-160 form, electronic to the previous form. I want to be able to travel to my home country during this working period, but I have to go home to get it stamped. Could I still be denied the visa even though I obtained my H1B?


    Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.

    Monday, April 5, 2010 - 08:28

    EB-1 Visa Processing for medical doctors


    I am working towards filing under EB-1 green card, currently on H-1B. Is there a certain number of publications in peer reviewed journals, presentations at international meetings that would make the application more likely to go through than not?


    Number of publications, impact factor of journals and number of citations - that is what they look at these days.

    Monday, April 5, 2010 - 08:22

    L1A visa and H-1


    I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?


    That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

    Wednesday, March 24, 2010 - 04:27

    Outstanding researcher


    I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?


    I cannot think of any stage at which you cannot travel. Good luck!

    Tuesday, March 23, 2010 - 04:58

    Quickest way to get a GC


    I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?


    Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

    Monday, March 22, 2010 - 06:59

    H1B Pending


    I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?


    You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

    Friday, March 19, 2010 - 04:44

    F1 visa to business visa or H1/L1


    Which visa is easy to apply. Is it business visa or H-1 visa?


    If you qualify, H and L visas are certainly more secure than an F visa.

    Friday, March 19, 2010 - 04:30

    H-2B Visa


    I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?


    Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

    Thursday, March 18, 2010 - 07:23

    H1 working in University (non profit organization)


    My question is "what is the last date for applying academic H1" Is it april 1st or any time during the year.


    For university and other quota exempt positions, you can apply for an H-1 any time.

    Thursday, March 18, 2010 - 07:22

    Transfer to a startup company H-1


    I currently have an H1-B status supported by a large enterprise company. This visa is valid for another 2 years. In the next 2 months I would like to transfer to a brand new startup company that will only have 1 American employee and myself. Do you have any recommendations I need to watch out for when moving to a start up company like this. I guess I'm wondering if the government is more suspicious for these smaller companies than the large coorporations. I'm also looking for immigration lawyer to help me with this.


    These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.

    Thursday, March 18, 2010 - 07:19

    H1 approval and stamping


    I got H1 approval and they asked me to immediately go to home country for stamping. What is the best answer that I can give when they ask me about the gap where the status was illegal. My stamping is on March 9th 2010 in Chennai.


    There are too many variable for me to be able to respond meaningfully. The general answer to your question is that the response must be the truth. Before you leave, make sure you are not subject to the 3/10 year bar from coming back because of unlawful presence. There is an entry on my blog on this issue.

    Thursday, March 18, 2010 - 07:18

    H1 B question


    Can an individual be granted H1-B status if they are doing an internship (unpaid) or any type of volunteer position? If not, can anyone tell me how an individual would go about getting anything resembling this type of visa for an internship?


    H-1B is available only for paid positions. Generally speaking, unpaid internships could be undertaken on a B-1 visa. That would be at the discretion of the US consulate.

    Wednesday, March 17, 2010 - 08:47

    H1B renewal using an old I-140 from a previous employeer


    When I was working at Company A I filed for my I-140. Unfortunate I had to quit the company A and join company B. When company B filed for my H1B transfer in 2007, the I-140 from company A got approved and we were able to extend my H1B for 3 years. After a year I had to quit company B and join Company C. Now in Company C I filed for Labor through PERM in 2008 which got an audited once and I am waiting for my Labor to approve.

    My H1B is expiring in Sep 2010 and my company is not doing good. So if I change a job now, would it be possible to use the old I-140 and Renew my H1b for 3 more years.


    I cannot think of any reason why the same I-140 cannot be used for repeat H-1 renewals. By way of caution, do not change companies until the H-1 approval is in hand.

    Monday, March 1, 2010 - 06:43

    Employer change in 6th year before I-140


    My H1 is expiring (6th yr) in Sep 2010 and did not get labour approval till now (filed in Sep 2009) , Can I transfer H1 before Sep 2010 and before I-140 approval?


    Yes you can. But discuss the details with your H-1 lawyers.

    Wednesday, February 10, 2010 - 02:36

    Out of Status


    How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?

    I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock )

    (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )


    A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

    Wednesday, February 10, 2010 - 02:32

    H1B Status


    My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?


    As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

    Wednesday, February 10, 2010 - 02:26

    Must we withdraw a PERM application if the employee is laid off?


    I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes.
    My question:
    Q1. Do we need to withdraw PERM LC for him that was submitted 2009?

    Q2. Question from the employee, Mr. Smith:
    If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.


    A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
    You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
    Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
    Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
    The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

    A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

    Monday, February 1, 2010 - 05:50

    Importance of having continuity of employment/pay stubs


    Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.


    Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

    In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

    For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

    Friday, January 29, 2010 - 07:32

    Status change from F1 to H1b


    I got F1 in Jan 2009. Got H1b approval in May 2009. H1b approval means just got I797B form. I preferred to join Fall 2009 semester in University and came in USA in Jul 2009, got I94 with F1 and continued to fulfill F1 obligations.Now I want to change my status from f1 to H1b, and its seems my employer needs to file a petition with form I-129, will that means it should be applied April 2010 and all the balloting process and I will be able to start work after 1st Oct 2010. Will my existing unused H1b approval be able to be used and to exempt cap and and all things required? And can I get I797


    You are cap exempt and should be able to change status OR get H-1 visa stamping right away. No waiting till 1 Oct.

    Friday, January 22, 2010 - 04:18

    H1B layoff, H1B transfer-RFE raised, New H1B approved


    I was laid off by Company A on August 14th. I found a job with company B on October 14th. A transfer of H1B was filed by company B, but an RFE was raised asking me to prove that I had maintained my status. Since, I had no way of proving that I had maintained my status, a new H1B was filed by company B. The new H1B was approved. I have my stamping interview in 3 days. What kind of questions should I be prepared to answer? I am concerned that they might not approve my case. Please help!!


    Merely being out of status is no ground for visa denial in your circumstances. Tell the truth. You should be ok on the status issue.

    Thursday, January 21, 2010 - 07:07

    H4 to H1-B


    I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?


    Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

    Thursday, January 21, 2010 - 06:39

    H1B Visa Stamping


    My first term of H1B is going to expire in August 2010, is it possible that I will get the new visa stamped from Canada before expiration like in June or July?


    I think they will not stamp a new visa while the old one is still valid for some number of days (30 or 60, I forget). Email the consulate.

    Tuesday, January 19, 2010 - 04:35

    EAD - Job title change on the same job


    My wife and I am on EAD and also both have H1B (I am in my 8th year of H1B and wife is in 5th year as teacher). Our EAD is based upon my job in EB3 category in IT as System Analyst/Administrator, my priority date Aug'2003. Last year I have completed MBA in Finance and can now work as a Project manager within the same company. Can I change my title to Project Manager or IT Manager and also can I change my profile now to work in Investment Company or any other non-IT field in the same company I am already working. As these delay of getting green card are actually causing problem in my career.


    If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.

    Tuesday, January 19, 2010 - 04:28

    F1 visa to H1-b


    I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.


    Since the H-1 quota is over, OPT is your best option as far as I can tell.

    Tuesday, January 19, 2010 - 04:08

    Questions on AC21, EAD, losing job, etc.


    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?


    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.

    Friday, January 15, 2010 - 07:08

    Convert L1B Blanket VISA to H1B


    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?


    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)

    Thursday, November 26, 2009 - 04:58

    H4 to H-1


    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.


    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

    Thursday, November 26, 2009 - 04:52

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


    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.)


    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.

    Friday, November 6, 2009 - 00:55

    H1B extension for pending labor


    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.


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

    Friday, November 6, 2009 - 00:45

    H1B Visa


    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.


    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.

    Friday, November 6, 2009 - 00:26

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


    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?


    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).

    Tuesday, November 3, 2009 - 03:51

    Educational Qualification


    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?


    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.

    Tuesday, November 3, 2009 - 03:24

    H-1 denial - options


    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.?


    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.

    Thursday, October 29, 2009 - 05:20

    Prevailing Wage - H-1 and GC


    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.


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

    Thursday, October 29, 2009 - 05:15

    H1B exemption with I-131


    I am an H1B visa holder and married to a US citizen. I have read that if I do not use the EAD and keep my H1B valid through the Petition and AOS process, I could keep my H1B status and travel abroad without the approved AP (I131). Is that right? Or do I need anyway to file the I-131 and do not travel abroad while the parole arrives? My concern is because I need to travel abroad every 2 weeks, and I could not wait for the parole if it takes too much too arrive. We have not filed the petition yet. Should I include I7565 and I131? Can I keep my H1B status to travel abroad even if I file them?


    You are permitted to travel on either an H-1 visa, or an Advance Parole. You should file for AP also. That does not disturb your H-1.

    Thursday, October 29, 2009 - 05:11

    Stamping of H1B except for IT - Chartered Accountant


    I wish to understand from you, how difficult or easy it is to get an H1B stamped for people other than IT sector? I am currently pursuing CPA (certified public accountant) course and will be writing my exams soon. How difficult do you think can it be to get an H1B stamped after completion of this course? Is IT the only favored sector?


    The degree of difficulty has no quantitive scale. But generally speaking, all professionals should have the same degree of difficulty.

    Thursday, October 29, 2009 - 04:59

    Requirements (Degree/Education for H-1)


    1. I have heard that for H1B VISA application process the minimum educational qualification required is 16 years of education.A Bachelor’s degree from India is considered as only 15 years of education.
    I have done an Intensive Diploma in German Language from Delhi University(regular) - one year and Advance Diploma in German Language from Delhi University(regular) - one year.So, ideally a two years regular course from Delhi University - will this be recognised? this is in addition to regular B.Com (H) from Delhi University. Will this fullfill the educational requirement for H1B?

    2. How do i prove that i have actually been doing some/all of the tasks in my previous organisation? On my resignation, the company will provide me with an experience letter - but which is a very general one. Does not necessarily include the tasks performed.


    A1. When a person has less than a complete 4-year bachelors degree, then each year of college education that they are missing may be replaced by three years of relevant experience in the field in which they are seeking a job. For instance, if a person has a three years degree in Mechanical Engineering and they wish to obtain an H-1 visa, such a person must have three years of full time experience as a mechanical engineer in order to qualify as possessing the equivalent of a 4-year bachelors degree.

    A2. You should let your lawyers decide the best course of action. One option is to get affidavits from co-workers and/or past supervisors.

    Wednesday, October 28, 2009 - 08:53

    Applying for B-1 when laid off


    I went through your blog on H1 to B1/B2. My friend has a similar case, he has been laid off and last working day is 09/15/09. He spoke to a local attorney on the feasibility of transferring H1 to B1/B2. But that attorney mentioned that the transfer request will be rejected as there will be a clear immigration intent. Can you please help with this?


    From my blog, one thing should have been clear. Whether or not you get approved is irrelevant. A timely filed application puts you in authorized period of stay. That was the whole point. I do know what another lawyer said or in what context, but there is no evidence of clear immigrant intent unless an immigrant visa (I-140) was applied for.

    Wednesday, October 28, 2009 - 08:05

    H1B Processing


    I have applied for EOS H1B at the end of june but my case still shows as pending processing on USCIS website. However, it looks like several cases filed in July have already been approved. What can I do about this?


    Contact customer service of USCIS or convert your case to premium.

    Wednesday, October 28, 2009 - 07:40

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


    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?


    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).

    Wednesday, October 28, 2009 - 03:27

    Extending H-1B After Staying Outside USA for 365 Days


    If I stay outside the US for 365 days and return back on the same L1/H1B,will it reset the 5/6 year limit for the visa? Let’s say i max-out on L1B in Aug 2009 and have a valid H1B petition from Jan 2010-Dec 2010. If I go out of the US in Aug'09 and return in Sep 2010,when I re-enter and apply for H1B extension, will I get 6 more years on the same H1?(since technically,at that point,i would have already stayed outside US for 365 days and my H1B clock would start over fresh). If No,should I apply for a NEW H1B?If yes,will this new H1 be subject to the 65k cap?


    Once you have been outside USA for one year, there are two options. One, be subject to the quota and get 6 years of H-1. Two, if there was any H-1 period left, take the remainder and not be subject to the quota.

    Friday, October 23, 2009 - 09:12

    RFE H-1 without a client letter


    I applied for a H1 Transfer in May 09 as my client required me to be an employee of the preferred vendor.In aug 09 I received an RFE asking for a client letter.Could you please let me know if there is anyway to get the approval without the client letter or any other supporting document will serve the purpose. Please do the need full.


    Read my blog and my article on this issue.

    Tuesday, October 20, 2009 - 04:26

    H1B laid off while labor is pending


    I might get laid off. My labor is pending and I will apply for B1/B2. In the mean time if my employer recruits me back again, will I be able to continue with my PERM and rest of the green card process? Do I have to start from the beginning?


    There is no easy answer. It could be argued that the employer laid you off so the permanent job, which is the basis of the green card is gone. Hence, the process is fatally interrupted. Generally speaking, I think you should be able to continue.

    Thursday, October 15, 2009 - 03:08

    H1B Revival process (Extension while still abroad)


    I have valid H1b visa till Sep , and right now I am in India ....can you please help me guide through possible ways of visa extension.


    An extension can be had only if the employer can demonstrate that they have a definite job open for you. The rest is up to the lawyers and USCIS.

    Thursday, October 15, 2009 - 02:56

    H-1 Visa re-stamping


    I have valid H1B stamp till 2010 sept from employer A. Just after coming into US, transferred to employer B. My transfer is approved and got the I797 approval notice, which is valid until Sep 2010. Now I am planning to go India. Can I re enter US using my previous employer's Visa stamp and the new I797 or do I need to get visa stamped again? Is it true that if the previous employer has cancelled the visa, it would be a problem and the visa has to be re-stamped. It would be great if this can be clarified?


    An H-1 visa does NOT need to be stamped during its life even if you change employers. You can use the same visa to travel as long as you have never been out of status.

    Tuesday, October 13, 2009 - 04:48

    Unpaid leave on H-1


    What is the effect of unpaid leave for sick time or maternity leave on H1B status? I had to take about 3 months of unpaid leave and back to work for about two months now. I will have to file extension of stay H1B end of the year and want to know if it effects the extension of stay approval.


    As long as the leave is normal, or supported by documented necessity, you should have no problem.

    Thursday, October 8, 2009 - 02:59

    Divers Licenses, while H-1 extension pending


    How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?


    I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

    Wednesday, October 7, 2009 - 07:26

    Choices to work in USA


    I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .


    The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

    Friday, September 4, 2009 - 04:20

    I-485 AOS Pending, Employer's Bankruptcy


    My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business.

    1. How does it effect my H1B visa and GC application (filed I-485 - pending)?

    2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment?

    3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?


    1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

    2. An amendment should be filed, though it is debatable if it is required.

    3. In my view, AC21 port is easier.

    Monday, August 31, 2009 - 01:35

    Important questions on H-1, AP and Travel


    1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable?

    2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD?

    3. How long is AP processing taking these days?

    4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing?

    5. Please list out all the documents that I should carry while traveling?


    1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

    2. No. See answer above.

    3. It is impossible to predict times. Plan for a six-month turnaround.

    4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

    5. Advance Parole and Passport.

    Tuesday, August 25, 2009 - 04:20

    May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?


    May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?


    One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

    In the E visa context, this is what the govt says:

    (TL:VISA-404; 04-29-2002)
    An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
    So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.


    (CT:VISA-803; 04-27-2006)

    L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
    There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

    By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

    As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

    The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

    O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
    Pursuant to 8 CFR Section 214.2(O)(13)
    (13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

    TN is also not allowed dual intent, but are often not questioned on their green card pendency.

    Tuesday, August 25, 2009 - 03:50

    H-1 visa denial and investigation


    1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn.

    Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it."

    Please let me know what does it mean and does it mean something serious to take care of.

    2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application


    1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

    2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

    Monday, August 3, 2009 - 15:05

    Compensation for H-1 lay off


    My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension.
    If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.


    There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

    Tuesday, June 16, 2009 - 09:21

    F-1 visa stamp, H-4 pending


    I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April.
    In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India.

    Now we are very much concerned that what will happen to my H1 and her H4?

    1) Since she has F1, will it affect H1/H4 processing?
    2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same?
    3) Is it possible to have F1 and H4 both together at the same time?
    4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?


    1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

    2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

    3. Generally speaking, no.

    4. Let your employer know. They should be able to withdraw for you. If not, do it yourself as I have suggested.

    Thursday, June 11, 2009 - 08:44

    H-1 denial, appeal, MTR


    My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details.

    H1B/H4 filed: March 1st 2009
    RFE was issued in April
    RFE replied: May 6th 2009
    H1B/H4 denied: June 1st 2009
    Our H1B/H4 I-94 expired: Apr 10, 2009

    My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.).

    1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status?

    2) While new H1B is pending, what is my status? Am I considered to be in status?

    3) Can we file brand new H1B through the same company while appeal is pending?

    4) Can I work for my employer while appeal is pending, without filing new H1B?

    5) Can I work for my employer while new H1B is pending?

    6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition.

    7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.


    1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

    2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

    3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

    4) No.

    5) No.

    6) This is totally in the discretion of USCIS. They can "forgive" your being out of status if there are VERY good reasons for it.

    7) In your case, from the date of the denial. You were protected until the timely filed extension was pending.

    Tuesday, May 26, 2009 - 01:00

    Can H-1 be extended based upon family-based green card?


    I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?


    You cannot. This extension is available only to employment-based applicants.

    Wednesday, May 20, 2009 - 01:34

    Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B


    I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know
    a- Can they do it legally?
    b- What are my options including can i sue this employer despite being on EAD?


    Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

    Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

    H-1B and E-3 workers, go here:

    Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

    Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

    H-1B and E-3 workers, go here:

    To complain to ICE, go here:

    Monday, May 18, 2009 - 11:48

    From H-4 to F-1


    1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
    If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ?

    2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same?

    3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?


    1. No. An I-539 is used if you want to change status within USA.

    2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

    3. No one can predict that. Sorry.

    Friday, May 15, 2009 - 01:00

    What kind of company is good for H-1B processing


    Can you give us some tips on legally what kind of companies should one look for to process H-1.


    I think this is a timely question. I can give some pointers based upon my experience.

    H-1 approvals are easier:
    - for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and

    - for companies that do not have a negative history with USCIS. I do not consider investigations to be negative history. Investigations are a way of life. What I do consider negative is an adjudication of willful violation and/or a finding of misrepresentation in any prior case.

    As a rule of human conduct, a company that lies for you will also lie to you (the same is true for lawyers). So, stay away from companies who are "easy going" with the truth. While good advocacy and emphasizing the positive points in any case being filed are legitimate and desirable goals, misrepresenting truth is a crime.

    Also from my experience, there are plenty of honest, sincere people doing business out there. The laws are so complex that even with the best of intentions, employers can unknowingly be in violation. Usually, employers can avoid findings of willful violation by obeying the laws in good faith and not getting "cute" with the investigators, but not always. For a job seeker, this is all I can say. I will add to this note if I think of something else. Now I have to get some work done. Good luck!

    Friday, May 8, 2009 - 01:00

    LCA's for H-1 will probably take longer now



    New LCA Online System Beginning May 15th, 2009

    Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/.

    Our office will use the new iCERT Portal System (http://icert.doleta.gov/) to file LCAs online using the latest Form 9035.

    PLEASE NOTE: This new system can take up to 7 business days to process LCAs.

    Because of this extended processing time, we will no longer be able to instantly process and submit LCA Forms online. Therefore, please allow our team ample time to review and process your H-1B application.

    Please feel free to contact us if you have any questions.

    Wednesday, May 6, 2009 - 01:00

    H-1 Quota Count still at 45,000 as of 4 May 2009



    USCIS Updates Information on FY2010 H-1B Petition Filings
    Receipts remain relatively unchanged
    WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

    USCIS Updates Information on FY2010 H-1B Petition Filings
    Receipts remain relatively unchanged
    WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
    Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
    For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at www.uscis.gov/h-1b_count.

    Tuesday, May 5, 2009 - 01:00

    H-1 extension denied - status



    Quote: Hi Rajiv,
    Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.

    I have a situation: My current Employer had applied for my H1B extension in regular processing in January, 09 which was expiring on 29th, April, 2009. They got a query, asking for agreement between me and the employer and agreement between my employer and 'ULTIMATE END CLIENT' and complete itenarary of services. When, my employer applied for extension in Jan, I was working for a project in CA, and they submitted LCA showing, CA as my work place. But, by the time, they got RFE, my CA project was ended and i got another project in TX. Then, they replied to RFE under premium processing along with new LCA showing, TX as my work place. On 22nd April 09, USCIS denied my extension saying, they cannot accept new LCA with an old dated I-129. I had filed for my H1B extension with a new employer and USCIS received my application as of 27th April, 09. But now my new employer also got a RFE.

    Note: My I-94 is expiring on 09th May, 09. According to this, I can legally stay in country.

    Ans. This situation is a bit complicated. Do get together with your lawyers. I am giving you the advice that I can based upon what I see. The good thing about your situation is that you did not start working with a new employer. Since you continued working with the old employer, a strong argument can be made that you are still in status (despite the change in locations). When your employer (new or old) files an extension; that, if timely filed, keeps you in authorized stay and gives you permission to continue working for 240 days.

    Quote: My question is:
    Since my new employer got an RFE, now I will not have a decision on my H1 Transfer before 9th May, can I stay untill I get any decision?

    Ans. Yes, you can stay.

    Quote: If, I start working for my new employer and suppose I get a denial from them, will the duration I work for them will be legal?

    Ans. Yes.

    Tuesday, May 5, 2009 - 01:00

    H-1 Extension based upon spouse's 140; Child born in USA



    Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

    Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.

    Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

    Ans. No other way.

    Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

    Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.

    Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

    Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

    Tuesday, April 28, 2009 - 01:00

    H-1 Quota still open



    Here is the release from USCIS.

    April 27, 2009
    WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
    number of filings for H-1B petitions for the fiscal year 2010 program.
    USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
    65,000 cap. The agency continues to accept petitions subject to the general cap.
    Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;
    however, we continue to accept advanced degree petitions since experience has shown that not all
    petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are
    exempt from any fiscal year cap on available H-1B visas.
    For cases filed for premium processing during the initial five-day filing window, the 15-day premium
    processing period began April 7. For cases filed for premium processing after the filing window, the
    premium processing period begins on the date USCIS takes physical possession of the petition.
    USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be
    found on the USCIS’ Web site at www.uscis.gov/h-1b_count.
    – USCIS –

    Sunday, April 26, 2009 - 01:00

    PROPOSED Legislation to Reform H-1B Visa Program



    Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

    Thursday, April 23, 2009

    [WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.


    Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

    Thursday, April 23, 2009

    [WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

    “The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said. “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.”

    The Durbin-Grassley bill would mend the H-1B visa program, not end it, making reasonable reforms while not reducing the number of H-1B visas that are available. Congress intended H-1B visas to benefit the American economy by allowing U.S. employers to import high-skilled and specialized guest-workers when no qualified American workers are available. While initially successful, loopholes in the program have allowed foreign guest-workers to displace qualified American workers.

    Some claim that the H-1B program helps to create American jobs, but it is currently being used by some companies to outsource American jobs to foreign countries. Under current law, an outsourcing company can use American workers to train H-1B guest-workers, fire the American workers and outsource the H-1B workers to a foreign country where they will do the same job for a much lower wage. In fact, Indian Commerce Minister Kamal Nath has referred to the H-1B as “the outsourcing visa.”

    Employers can legally discriminate against qualified Americans by firing them without cause and recruiting only H-1B guest-workers to replace them. The U.S. Department of Labor (DOL) has said: “H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of a foreign worker.” Some companies that discriminate against American workers are so brazen that their job advertisements say “H-1B visa holders only.” And some companies in the United States have workforces that consist almost entirely of H-1B guest-workers.

    To address these problems, the Durbin-Grassley bill would, among other things:

    * Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers.

    * Prohibit the blatantly discriminatory practice of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders.

    Under current law, it is very difficult for the federal government to monitor the H-1B and L-1 visa programs. For example, the Department of Labor (DOL) is only authorized to review applications for “completeness and obvious inaccuracies.” DOL does not have the authority to open an investigation of an employer suspected of abusing the H-1B program unless it receives a formal complaint – even if the employer’s application is clearly fraudulent. Even if there is a complaint, the Labor Secretary must personally authorize the opening of an investigation. DOL’s Inspector General has concluded that the H-1B program is “highly susceptible to fraud.”

    To address potential fraud, the Durbin-Grassley bill would give the government more authority to conduct employer investigations and streamline the investigative process. For example, the bill would:

    * Permit DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;

    * Authorize DOL to review H-1B applications for fraud;

    * Allow DOL to conduct random audits of any company that uses the H-1B program;

    * Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

    The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. offices for up to seven years. Experts have concluded that some employers use the L-1 program to evade restrictions on the H-1B program because the L-1 program does not have an annual cap and does not include even the minimal labor protections of the H-1B program. As a result, efforts to reform the H-1B program are unlikely to be successful if the L-1 program is not overhauled at the same time. The Durbin-Grassley bill would institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.

    Durbin and Grassley introduced a similar bill last Congress.
    Note that this is just a PROPOSED legislation, not law. I have no issue with enhanced enforcement but I certainly have an issue with the hue and cry against outsourcing. I am not an economist, but common sense says if a company can get a job done cheaper in another country, why should they not? The world has become a strange place where capitalistic economies are spouting communist rhetoric and communist countries have embraced profit with gusto. We are in a global economy. We have to stay competitive. We can never compete with businesses that are domiciled in the low labor cost economies. China is an obvious case in point. I see "Made in China" on almost everything I buy. Is that virtual monopoly created because China restricts outsourcing? I believe the answer is no. It is because China is where manpower is cheaper and so is India and many, many other countries around the world. How can we compete with these businesses? In my view, we need to enhance our dwindling edge in science and technology. Instead of competing for low end jobs, should the emphasis not be on creating a more highly skilled US work force? Let the lower end jobs go where they will. Congressmen Durbin, Grassley notwithstanding, we cannot stop that migration. I see nothing in our policies that addresses the long term goals of enhancing our strengths. Instead, I see more knee-jerk responses that would cut US businesses off at the knees. I hope this administration and legislature will have the good sense to consider the long term repercussions of their blind law-making.

    Thursday, April 23, 2009 - 01:00

    H-1 without specific job/GC continuation without H-1



    1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

    Ans. USCIS has criminalized civil conduct. To my amazement, I saw a criminal indictment count against an employer (Vision Systems - recently in the news) alleging that to obtain H-1 without a specific job in hand is a crime. I think this is ludicrous overreaching and misuse of law. Nevertheless, it is not a good idea to file an H-1 unless there is a specific job in hand.

    2. My labor and I-140 is approved but if H1B extension is denied then I have to go back to Inida. Can GC processing be continued? If yes, In order to maintain my GC processing how quickly do I need to come back to US? What other options do I have in this scenario?

    Ans. The green card can go on in your absence, but I am concerned that USCIS may consider that since there is no permanent job available, the green card should be canceled. To the best of my knowledge, they have never done it so far and may not do it, but the risk remains. Not much I can say other than if you dont have a choice then you have to leave and we will deal with other issues when (or if) they arise.

    Tuesday, April 21, 2009 - 01:00

    H-1 Count 44,000 -- You can Still File



    From USCIS:

    WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
    USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
    Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
    For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
    USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count.

    Tuesday, April 21, 2009 - 01:00

    US employee working from India



    1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
    Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

    Ans. I see no problem with that from the immigration law perspective. I am not a tax expert, but the way it is done is the company pays you as an independent contractor. Since you are working in India, they do NOT need to deduct any US taxes. You are responsible for your own taxes to the Indian govt. Do double check the details with a CPA. Feel free to call our CPA. Anna o Suman ji can give you the number or anyone in accounting can.

    2. On their accounts they would show that they are paying me in India as a consultant, will that be okay? ( I won't be on their payroll here in the USA).

    Ans. Yes. That is fine.

    3. Is it sufficient to say that I was doing independent consultation or sub-contracting work for my current company from India?

    Ans. Yes. Immigration laws require nothing more.

    Wednesday, April 15, 2009 - 01:00

    H-1 holder aplying for H-4 visa


    My wife has been in US for 6 months on H1 and is going back to India.
    In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1?
    Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?


    The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

    Wednesday, April 15, 2009 - 01:00

    New H-1 employee returning -- rights and issues


    Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating:

    Q. What is the law regarding the benching of H-1 holding employees?
    A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench.
    i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS.
    ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA.

    If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?


    There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

    If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

    As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

    Tuesday, April 14, 2009 - 01:00

    Effect of Bankruptcy on immigration


    I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.


    Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

    Tuesday, April 14, 2009 - 01:00

    When is an H visa stamping required?



    1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

    PS: I do not have H4 stamping.

    Ans. I do not believe you need a new visa stamp because you already have an H-1 visa from another employer. You should be able to travel with the same visa (and a new H-1 approval). If you had ever been out of status, you would have been well-advised to get a new stamp. In your case, you appear to always have maintained status (albeit H-4 for a brief while). So, I see no issues. As always, double check with your H-1 lawyers.

    PS. I would be careful how I phrase my thoughts if I were you.

    2. In order to have a valid status I got married on Feb 15th?

    Ans. I know you do not mean that :-), but the govt might think otherwise.

    Monday, April 13, 2009 - 01:00

    H-1 visa stamping -- is it difficult?


    My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions.
    Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India.
    What is the procedure.


    The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.

    In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.

    Monday, April 13, 2009 - 01:00

    Unreasonable H-1 requests from CIS



    USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

    Quote: Submit evidence that clearly substantiates that the petitioner or petitioner's client's are legitimate business entities and employers. Evidence should include copies of the client’s most recent signed Federal Tax Return and quarterly wage reports for the last quarter. If the clients are publicly traded companies, provide a copy of their most recent annual report and a letter from the president of the company explaining what business they have with the petitioner. If the client is a government agency, provide the contract number and the name of the company that has the primary contract.

    As with most things dished out by USCIS, we are dealing with it.

    Thursday, April 9, 2009 - 01:00

    H-1 Quota Status



    USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

    USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.


    USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

    USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

    Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

    For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

    USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.

    Wednesday, April 8, 2009 - 01:00

    USCIS is continuing to accept H-1 filings



    USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

    When USCIS receives sufficient number of petitions to meet the caps, it will issue public notification that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

    To ensure a fair system, USCIS may randomly select (lottery) the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

    Monday, April 6, 2009 - 01:00

    GC future job; H-1 ext. revocation upon 140 denial, etc


    I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july

    I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.


    Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

    Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

    Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

    Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

    Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.


    Monday, April 6, 2009 - 01:00

    Converting from EAD back to H-1--Updated 6 April 2009


    Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.



    Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

    Ans. Yes.

    Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

    Ans. You will need to get an H-1 approval by having your new employer apply to USCIS any time you like (just like a new H-1 or an H-1 transfer. This is, of course, NOT subject to quota). After the approval you need to exit and reenter USA using your H-1 visa. You may use the old visa stamp if it is still valid and you have not been out of status or get a new stamp if you were out of status or the old stamp has expired.

    Quote: Rajivji,

    If I convert from H1B to EAD with my current sponsoring employer and they revoke the H1B as you have mentioned before being the best thing to do.
    1) Does the H1B revocation still mean that my H1 status is dormant?
    2) Would I be able to reactivate my H1 again with the current employer?
    3) Would my employer have to reapply for the H1 approval or the current approval that I have valid till Apr 2010 enough?
    4) I am assuming based on the answer to Q3 above, I will have to go out of the country and come back on my current H1 visa that I have stamped?

    Ans. Once revoked, the H-1 will have to be reapplied, will not be subject to the quota and will be valid for 1 or 3 years depeneding upon your situation. And, yes, you will need a visa stamping to activate the H-1.

    Friday, April 3, 2009 - 01:00

    Are H-1 holders being turned back at the airport?


    This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting.

    A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD.

    While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES!

    Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.


    If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

    Thursday, April 2, 2009 - 01:00

    Employers and Employees -- H-1 or EAD?


    Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction?

    Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.

    Just trying to find out what the possible advantages would be at this time with EAD.


     There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

    Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

     Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

    The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

    Wednesday, April 1, 2009 - 01:00

    H-1 and EAD



    Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
    Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

    Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
    Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

    Qo. After USCIS approves H1-B extension in this case, are we required to go immediately to India to get visa stamped or can we keep working on EAD and get the H1-B visa stamped when we like. My I-140 is approved and I-485 pending.
    Ans. You can go when you like.

    Follow up Qos/Ans

    Qo. Thanks a lot, Rajiv. Just one clarification related to H1-B visa stamping in the above case. Do you think the US embassy will ask me why I want to come back to H1-B after having worked on EAD for say 6 months or 1 year after 6 years of H1-B expiration at the time of applying for H1-B visa?
    Ans. It should not be any of their concern.

    Qo. what should be the response to their question?
    Ans. The truth.

    Qo. Also, God forbid, in a worse case scenario, if my I-485 is denied after my H1-B extension has been approved in the above case and then I go for H1-B visa stamping, w'd they still give me visa?
    Ans. That is legally uncertain. So it is wise to get stamping while the 485 is still "alive."

    Qo. On a different note, is there any basis other than a crime, misrepresentation, public health, or revocation of approved I-140 on which the I-485 can be denied?
    Ans. Sure. AOS is a discretionary process. It can denied for many reasons (but usually is not).

    Qo. If not, then will it still be more advantageous to work on H1-B instead of EAD? I am just trying to evaluate the benefit of coming back to H1-B as opposed to keep working on EAD. Your answers to the above questions will help me greatly in that direction.
    Ans. As I have commented several times, I like to keep both options open. So, work on H-1 while keeping your EAD in hand.

    Further Questions 

    Quote: Me and my spouse are working on H1B for two different companies. My spouse company is processing the green card and the process started in 2005 in EB2. We got married in 2006 and I-140 got approved before our marriage. We filed together for I-485 after marriage in August 2007. We got our EAD card in Nov 2007. We also got our second EAD card in Nov 2008 and it will be valid till Nov 2010.
    Though we had EAD card, we are using our H1B. Now, I got laid off from my company last week. I am looking for opportunities. I hope I could find one in a week or two. My questions are
    1. When I join my new company should I use EAD card or I do H1B transfer? Please advise.

    Ans. H-1 is the best option usually. You can try for a transfer. Usually, CIS declines transfer within USA (requiring you to go outside USA for a visa stamping) if there is any gap in status. But, it is in their discretion to permit it. Joining on EAD is no end of the world. You can start work on EAD and file an H-1. Gert stamping done whenever it is convenient. When you reenter on H-1 visa, you are back on H-1.

    Quote: 2. Also, if the market goes further bad and my spouse also got laid off, what will happen to me if I am using my EAD?

    Ans. If she uses AC21, you should be fine. Otherwise, if her 485 is void, so is yours. 

    Thursday, March 19, 2009 - 01:00

    GC Compliance for Employers


    Some of our employees' Green cards
    have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.


    Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

    Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

    Quote: (2) Do we need to notify anyone about their GC process and let them know that they are no longer working for us?

    Ans. There is no such requirement, but the better practice is to write to CIS revoking the I-140.

    Quote: (3) Can we re-hire them on their EAD after few (or several) months once they get a project on their EAD?

    Ans. Yes, but the question about "permanent job" remains.

    Quote: (4) Can we continue their Medical Insurance (and our company pays for it) even if they are NOT employed with us.

    Ans. I can see that as objectionable on several grounds.

    Quote: (5) Can they stay in USA if I cancel there H-1 and they have a valid EAD but they are NOT employed by anyone.

    Ans. Yes. Have them review the entries on my blog under I-485. You will still have unanswered questions about "permanent job."

    Quote: (6) Is there an alternative for them to apply for Consular Processing, under what circumstances should they do so, what are the benefits / disadvantages

    Ans. I see no advantage in CP. The basic question about a permanent job remains unanswered.

    Thursday, March 19, 2009 - 01:00

    When does CIS investigate fraud?



    The attached document explains the criteria.

    Thursday, March 19, 2009 - 01:00

    H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend



    1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

    Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

    2. For an exempt employee, where are not agreeing for Recruitment Efforts, Displacement and Secondary Displacement conditions, is it compulsory to do the Job Posting at the place of work ? How will be the approach of DOL at the time of auditing the LCA of an exempt employee, as we are maintaining the list of exempt employees as per DOL regulation in the public access file? Can we expect any kind of relaxation regarding the doing of job posting at the place of work, which is not always practical for the IT consulting companies? Nowadays we are listening to the stories, where the Officers from the Service Centers, Port of Entries and Consulates are questioning the employers or their clients regarding the recruitment efforts that were made in the case of exempt workers also. Then what is the use of hiring exempt employees?

    Ans. You are not required to show recruitment or non-displacement for exempt employees, but there is no exemption from posting. Your notices MUST be posted at the work site.

    3. In some cases, for the H1B employee who is entering into US for the first time, SSN is being issued after one month. Is it compulsory to put the new H1B employee on pay roll from the very next day he got admitted on H1B, by asking him to fill up the I-9 form before he gets SSN? Or Can we ask the new H1B employee to come and report after obtaining SSN? Is there any allowable waiting for the new H1B employee to report for his work after he got admitted into USA on H1B visa? If the new H1B employee enters into USA without informing the employer and starts living in the USA and the H1B employer comes to know about the H1B beneficiary’s stay in USA after some time, what kind of action the H1B employer has to take in this kind of scenario?

    Ans. An employee can start work even without the SSN. You are REQUIRED to start the payroll upon the earlier of the following two conditions:
    A. When the employee reports for the job; or
    B. No later than 30 days for employees coming from outside USA or 60 days for employees in USA. The days begin to be counted from the date of the H-1 approval.
    For "uninvited" employees, the better practice is to withdraw the H-1 immediately and document the fact that the employee did not report for the job. This document can be a detailed statement of an employee, such as HR, about the facts of the case with times and dates. Place the original of the statement (preferably notarized) in the employee's file.

    4. After taking the new LCA for the new work location, is it compulsory to file the Amended I-129 petition? If not, in what circumstances we need to file the amended I-129 petition compulsorily?

    Ans. An H-1 must be amended if the job location is changed to a place beyond normal commuting distance from the approved location.





    Friday, March 13, 2009 - 01:00

    L-2 EAD and H-1


    1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2?

    2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)?

    3. Does EAD allow one to be do multiple things as a free-lance professional?


    1.  Ans. It lapses upon change of status from the date the status is changed.

    2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

    3. Ans. Yes.

    Wednesday, March 11, 2009 - 01:00

    Starting business while in AOS/I-485/H-1/H-4


    1. Hi Rajiv I have a few questions about starting business in partnership.

    I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD.

    I will be the one who will be investing in this business but I won't be employed with that business.

    - Is this legal ?

    2. Can you be a passive investor on H-1?


    1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

    You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

    2. I think that should be fine. But passive means performing no work. Think of it as investing in IBM on the stock market. Just because you purchase a few shares, you do not get a seat at the Board of Directors of IBM. That is passive investing.

    Monday, March 9, 2009 - 01:00

    Employers questions on H-1 compliance



    1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

    Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

    2. Is it OK to give advances - besides paying LCA wages while the person in on project and then during the project break, run the payroll for LCA wages but recover the advances (post-tax obviously) and pay only balances if any?

    Ans. In my view, this is illegal for many reasons.

    3. Is it OK to pay all our consulting employees a wage of 60K or the LCA wage whichever is higher, irrespective of the skill set - by making this a standard wage policy in the company.

    Ans. As long as you are following the wage guidelines and paying according to the seniority level of the job, I see no issue with this arrangement. But you cannot pay level, 1, 2, 3, and 4 employees $60,000. The wage must be paid according to the job they perform.

    4. Further, is it OK to give discretionary bonuses above these levels to employees that the management considers are more valuable to the company?

    Ans. As long as you can objectively justify the salary variance, I see no issues with this.

    Friday, March 6, 2009 - 01:00

    How does the Stimulus Bill affect H-1b, L-1 and Green Cards


    What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?


    There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

    1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

    2. These requirements are already in place for employers whose workforce contains a substantial number of H-1 workers. These employers are referred to as H-1B DEPENDENT employers.

    3. The additional requirements that TARP accepting companies have to follow are:
    a. They must not displace U.S. workers in similar positions nor may they place H-1B employees at places where such displacement has or will occur (I can give more details to those who wish to know more. Feel free to send me an email through the contact form on http://www.Immigration.Com).
    b. They must have made good faith efforts to recruit US workers (there is a whole bunch of regulations on how we are supposed to do this. Again, feel free to send me an email through the contact form on http://www.Immigration.Com)
    c. TARP employers are bound by these requirements even if they hire exempt workers. An exempt worker is one who makes at least $60,000/year OR possesses a Master’s or higher degree in his/her filed. Normally the additional requirements of non-displacement and good faith recruitment do NOT apply with respect to exempt H-1B workers. Nevertheless, the Bill says, this exemption is not available for TARP recipients.
    4. This restriction on hiring H-1B workers will stay in effect for two years after the President signs the Bill.
    5. There appears to be no change regarding L-1 provisions.

    For those, who would like to read more on the laws, read section 1611 of referred to as “Employ American Workers Act.” This section refers to 8 USC 1182(n)(3). The full text of the American Recovery and Reinvestment Act of 2009 which I referred to is at http://www.house.gov/billtext/hr1_legtext_cr.pdf

    Regards to all. Rajiv.

    6 March 2009

    CIS has clarified that extensions of existing H-1 are not restricted by the new laws. 

    Friday, March 6, 2009 - 01:00

    H-1 Quota - what is acceptable evidence for degree



    When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

    USCIS has stated:

    Quote: We will accept the following so long as the degree requirements were completed prior to filing:

    A final transcript; OR

    A letter from the Registrar; OR

    A letter executed by the person in charge of the records of the educational
    institution where the degree was awarded.

    If the third option is utilized, then that person must show that they are authorized to issue such letters.

    Sunday, February 22, 2009 - 01:00

    Turning 21 - do I have to convert to F-1 from H-4?


    My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.


     I do not see any way around filing an F-1.

    Sunday, February 22, 2009 - 01:00

    What happens when an employer is under criminal investigation/indictment?


    What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?


    That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

    Sunday, February 22, 2009 - 01:00

    Do physicians have the right to an extension beyond 6 years for waiver jobs?



    1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
    Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

    Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

    2. How to leverage the I-140 to get H-1 extensions?

    Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

    3. Is an approved I-140 ground for an automatic denial of J visa?

    Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

    Sunday, February 22, 2009 - 01:00

    Employers responsibility in H-1 process



    Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

    a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

    b) We are having difficulty finding project for one of our h1b worker. As a small firm, we are unable to run a payroll while the candidate is on bench (so to speak). Should we need to withdraw the petition and send the candidate back home? or is it ok to accept a leave of absence from the candidate? She has a EAD also (as her husband has filled I485 in Nov 2007)

    Travel on H-1
    The rules on travel while on H-1 are fairly complex. Let me state the basic law.

    If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.

    If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.

    There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.

    Leave of Absence on H-1
    Regs do permit leave of absence if an employee genuinely needs it. But you must not use LOA as a pretext to bench employees. In my view, you must withdraw the H-1.


    Quote: I have a question regarding the h1b candidates who left our firm almost 2 years ago(there are two case). We didn't send the withdrawal form (as we weren't familiar with the case). If we send a withdrawal notice now (stating that they resigned in the 2006 or 2007) will there be any implications for us? Appreciate your help.

    I do not believe we have a choice. You MUST inform USCIS. In my view, the fact that we are stepping forward to correct problems voluntarily is in fact helpful to us.

    By the way, I think I am scheduled to do an employer-only phone seminar answering and discussing all compliance issues this Thursday at 2 PM. This may be more for our existing clients. But go ahead and send an email though the "contact us" form on our home page. Send email from your corporate account. We are not opening the seminar for anyone but employers. There is no charge, fo course.

    Thursday, February 19, 2009 - 01:00

    Is salary reduction possible/legal?




    1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

    Ans. Probably yes. That is the safest thing to do. The rule of thumb is, you can never pay an H-1 holder below the prevailing wage. You can also not pay them below what you pay other similarly employed professionals in the geographical location of the employment. So, if the 10% pay cut does not violate these two principles, the only other issue in immigration compliance is whether 10% cut in salary is a "substantial" change in the job. An H-1 amendment is always necessary when there is a substantial change. To be safe, I would recommend you amend.


    2. If an employee is on a GC processing (I140 or I485) they can have a reduction but need to be paid the amount equal to or greater that was listed on the GC petition on the day their GC is approved.

    Ans. Basically, yes.

    The main issue here is, if the salary being paid is below that expressed in the GC application, does the employer still have the ability to pay wages. This issue is usually not raised past the I-140 approval, but I see no law that says it cannot be raised after the I-140 approval. And in all cases before 140 approval, the salary shortfall must be balanced by showing an equal amount of taxable income or net current assets for each GC beneficiary (employee) still in the process.

    For example, you have to give a pay reduction to an employee on H-1. Assuming you have not violated the H-1 requirements we have discussed above, you will need to show continued ability to pay the GC salary. Let us say the salary stated on the GC application in $80,000. The employee is now making $75,000 after the pay cut.

    For GC, we will have to show $5,000 taxable income/current assets (or the proportion of salary that falls in that tax year). If there are 5 employees in the same situation, that amount would rise to $25,000.


    3. If an employee is on a GC processing and has a H1 they need to have their H1 revoked and work on their EAD for the #2 above to be accepted.

    Ans. You can do that as long as that employee is getting paid the same as others.


    4. Benefits that were listed as a part of an employees immigration processing cannot be decreased.

    Ans. There is no place where we commit to benefits or state them in the GC application as far as I know. The law does not require benefits.


    Wednesday, February 18, 2009 - 01:00

    If I-140 gets revoked/denied does my H-1 extension get canceled?




    If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

    Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.


    I really want to thank and appreciate the good work you and your team is doing.
    I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
    My question is if my present employer lays me off and terminates my H1,
    1. Can apply for H1B transfer to other company?
    2. Will I be consider out of Status under any condition?
    3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
    4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

    Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

    Tuesday, February 10, 2009 - 01:00

    Consequences of not using an H-1 visa


    I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.


    It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine. But I am pretty sure there is such a question and you have to get that answered truthfully.

    Tuesday, February 10, 2009 - 01:00

    Note! Employer subject to H-1 quota, but the job may not be


    My wife is on cap-exempt H1B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution.
    It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think, any chances here ?


    Difficult to say what the chances are, but read on.

    Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

    Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

    One case was for an educator who was doing trainings for a private company. The employer is obviously subject to the quota, but there was a large component of the job where she is assisting art education outreach for a university. H-1 approved.

    But this is never easy, simply because CIS itself does not understand its own law. The first set of cases were returned as unapprovable by CIS 4 times and finally approved. The second, returned once and then approved. I will not get into the amount of pushing we had to do to get the govt. to obey the law, but we did get them approved.

    Friday, February 6, 2009 - 17:19

    Leave US for job outside USA


    If you leave USA for job outside USA before using 6 years of H visa and work for 1 year, does the H1B clock reset for another 6 years and what happens to unused period of H visa?


    After one year abroad, you have 6 more years. The unused portion is ignored.

    Wednesday, February 4, 2009 - 01:00

    Employer not paying, may I tranfer H-1?


    At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have.

    Appreciate your help in this matter.


    It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

    You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:

    You can also contact the local WHD of DOL where you are:

    Not only will you most likely get your full salary for every day of H-2, you also well protected from any problems past or future due to non-payment. Good luck!

    Wednesday, February 4, 2009 - 01:00

    L-1/H-1 COS Issues


    I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa).
    1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1)
    What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1.
    2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?


    I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

    To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

    Tuesday, January 20, 2009 - 01:00

    What to do if an I-140 gets rejected?


    Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are:

    1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending?
    2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009?
    3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then?
    4. If at all everything is rejected what can I do to start residency in july if I match?

    If all else fails what are my options to continue working in the US?
    My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)


    Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

    But here are some things to consider.

    Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

    An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

    The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

    Tuesday, January 20, 2009 - 01:00

    Do advanced degrees help in marriage-based green card?


    I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose:

    1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application.

    2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference?

    3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his?

    4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?


     1. Advanced degrees do not help in a family-based green card.

    2. H-1 approval also does not help in the GC process.

    3. Check with your international students office about the OPT part. This one is difficult for me to comment upon.

    4. Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important. Regarding taxes, check with a CPA. You do not want tax advice from a guy who barely passed his Federal Tax exam in law school.

    If I were you, I would depend on my H-1, not OPT. The H-1 permits dual intent (Nonimmigrant and Immigrant) and is likely to be a strong visa for a person married to a green card holder

    Tuesday, January 20, 2009 - 01:00

    H-1 converting to H-4 and then (maybe) back again


    I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B .

    Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project.

    While working she have been paying taxes regularly.

    Pl let us know what needs to be done now:-

    * She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS ?

    * When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work?

    * If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?


    Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

    In my view, she will not be subject to quota unless she is outside USA for a year.

    The companies are required by law to revoke her H-1. I see no issues there.

    Saturday, January 17, 2009 - 01:00

    Can H-4/F-2 holders perform volunteer work?



    The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

    Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?
    A. Probably yes. The provisions of law noted below are vague and unclear. But it appears as long as you do not receive any money or other remuneration, you should not be considered to be violating any laws. If you do receive any “in kind” benefits, things get very tricky. Such benefits may be permitted if the H-4/F-2 holder did not ask for the benefits as a condition for volunteering, nor were they offered in exchange for the volunteer work, and if the volunteer would have performed the services regardless of whether he or she were to receive the in-kind benefits. Subsection (f) below defines “employee” as someone who works for an “employer” for “wages or other remuneration.

    Subsection (g) defines an “employer” as an individual or entity who engages the services or labor of an “employee” for “wages or other remuneration.”

    The problem clause is (h), which states that the term “employment means any service or labor performed by an employee for an employer within the United States.” This subsection makes no reference to wages or remuneration. So, is it legal to perform volunteer work without receiving any money in any form? My best GUESS is yes. Even though subsection (h) makes no reference to money and contains in its definition “any service or labor,” such work must be performed by an “employee,” who by definition (subsection (f)) is someone who works for an “employer” for “wages or other remuneration.”

    The Regulations

    Sec. 274a.1 Definitions.

    For the purpose of this part--

    (a) The term unauthorized alien means, with respect to employment of an alien at a particular time, that the alien is not at that time either:
    (1) Lawfully admitted for permanent residence, or
    (2) authorized to be so employed by this Act or by the Attorney General;

    (b) The term entity means any legal entity, including but not limited to, a corporation, partnership, joint venture, governmental body, agency, proprietorship, or association;

    (c) The term hire means the actual commencement of employment of an employee for wages or other remuneration. For purposes of section 274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when a person or entity uses a contract, subcontract or exchange entered into, renegotiated or extended after November 6, 1986, to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien;

    (f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

    (g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

    (h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

    INS Comments
    Back in 1989, INS had commented on the definition of "volunteer" in the context of the employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA).

    In an October 10, 1989 letter, Mr. Schroeder speaking on behalf of INS stated that while the INS regulations implementing IRCA define such terms as "employer," "employee" and """employment," they fail to define "volunteer." It is clear, however, that employer sanctions apply only to acts of employment, and referral or recruitment for a fee. The regulations, Mr. Schroeder continued, define an employee as a person employed by another for "wages or other remuneration." Any determination as to whether an individual is an employee or a volunteer is made on a case-by-case basis.

    Quoting from a hypothetical presented, Mr. Schroeder stated that an individual on an H-4 visa who does volunteer work for a theatrical group does not appear to fall within the definition of employee simply because he or she receives free tickets for the group's performances or is permitted to attend at no cost. Mr. Schroeder continued:
    Factors that the Service would examine in making such a determination would be that the volunteer work was entered into without any expectation of compensation, that the volunteer did not require the free tickets, nor were they offered, in exchange for the volunteer work, and that the volunteer would have performed the services regardless of whether he or she were to receive free tickets or attend performances at no cost.


    Friday, January 9, 2009 - 01:00

    L-1 - H-1 COS issues



    Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.


    Qo1. Can I continue working on my L1 visa? If yes, for How many months? Is it legal to work on L1 after 1st October 2008 as my H1 has already been approved? (I am not sure COS has been applied or not)
    Ans1. The key to this is COS. If you have obtained Change of Status (issuance of a new I-94 with your H-1 approval), you are on H-1 beginning October 1 (or whatever the date of H-1 approval and COS is.

    If COS was not given, you can continue working on L-1 and either get COS or H-1 visa when you want to begin working on H-1. Of course, CIS or consulates may need an explanation for how/why the H-1 employer is willing/able to wait for you to join.

    Qo2. Can my wife continue working on L2-EAD as long as I continue working on L1?
    Is it legal to work on L2-EAD after 1st October 2008 as her H1 has already been approved? (I am not sure COS has been applied)
    Ans2. The key again is COS. If you have it, she cannot work after 10/1 because she would no longer be on L-2 from the date forward.

    Qo3 My wife will be joining on a permanent position for a company C on L2-EAD
    shortly. Can she get her H1 transferred to company C from Employer B (Who applied for her H1) from 1st October 2008 ?
    Ans3. In my view, she can do the transfer even before October 1.

    Qo4. What would be the best options to continue our L1 and L2-EAD status for another 3-6 months ? By doing this would the H1 be Invalid ? Do I have to apply for new H1 considered under CAP ?
    Ans4. You will not be under cap no matter whether you join the new employer right away or not. Read on for the rest.

    Qo5. I read from some of the postings that staying out side USA (Canada, Mexico, India) on October 1st and re-entering USA after 1st Oct will enable L1,L2 status back (if COS has been applied for H1). Is this the only way to retain the L1/L2 status?
    Ans5. In my view this is the best way. Leave on or before Sept 30th (or a day before COS kicks in) and come back on or after October 1st (or the day on which COS kicks in).

    Qo6. .I entered US on a L1-B visa from a 'company 1' on a blanket Visa (L1-b) from India to USA in 2006.
    2.Filed for H1 through 'company-2' in mar 2008.Approved as COS starting Oct 1st.
    3.I did not/could not switch over to H1(company 2) till date due the lack of jobs matching my skills.
    4.Would like to get back in status on L1 (My L1 visa and ITS I-94 are both valid till Nov 09 ).
    5.Some people say that since L1 visa and its i-94 is valid, i can exit and re-enter the country with the L1 petition and that would put me back into status.
    6.Continuing on point 6, once back on L1, i can file for H1 through a different company in future and i wont be counted against cap,is this true?
    Would appreciate your responses as i am concerned that having been out of status since Oct1 would leave me with limited options.

    Ans6. Ideally, to get back into status, you should apply for a NEW L-1 visa and come back into USA. There is a law on the books as far as I remember that says if you are ever out of status (which you are), all your visa stamps are "considered" canceled. This law, however, being next to impossible to implement is largely disregarded. Therefore, a lot of people in your situation just leave USA and come back with the same L-1 visa stamp. Theoretically, at least, that is not a perfect solution.

    You will not be counted against the cap next time you apply for another H-1 as long as you have not been outside USA for one year.

    Monday, December 8, 2008 - 01:00

    H-1 related I-94 issue


    I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94.

    I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ???
    Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...


    Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

    Friday, November 28, 2008 - 01:00

    Start-up applying for H-1 and AC21 for employees


    If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer?

    How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue?

    Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.


     H-1 by Start-up Companies

    It can be really difficult for start up (or very small) companies to obtain H-1 visas. Doubly so, if people are being hired outside the U.S. Normally CIS asks you to prove:
    1. You are capable of paying wages
    2. You have sufficient amount of work
    3. You are a reliable company with proper staff, offices and equipment.
    4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1 holder will do and who will supervise them.
    YOU MAY SUCCEED If you can:
    We have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $250,000 line of credit is a healthy number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $500,000 should be OK.

    Having a solid, detailed business plan can help. There is mush software out on the shelves that can help you put together a good business plan.
    This will also help show how you have enough work for employees.
    If personnel are being outsourced, contracts from clients will help.

    Start up Companies Doing AC21
    There is no law on this issue. The current thinking of CIS appears to be that there is no problem in doing AC21 for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, CIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 (posted on my blog under AOS/485 section) shut that down stating that is not relevant.

    Start up companies starting new green cards
    This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.

    Wednesday, November 12, 2008 - 01:00

    H-1 Quota issues for students



    Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

    Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

    Ans. The regulations seem not to address this situation. If I were to decide purely based upon the language of the regs, I would guess that you can work.

    But, my GUESS also is, somewhere along the line, CIS will clarify that you cannot work under these circumstances. The new regs were put into place to eliminate gap in the employment that occurs when a student and their employer confront the gap in employment between expiration of the F-1 EAD and October 1st - start date of the H-1. This may not be applicable to universities who are quota exempt. In your case, you will be working for a private employer while the H-1 is pending through the university. Tough call as far as I can see.

    Do note, I have not spent a lot of time thinking this issue through. So you should ask your employer's lawyers to give an opinion in writing.

    Q. Also will it be possible for me to request the university to apply for a non-exempt visa for me? Is that an option?

    Ans. This would be an option if you were actually not working for the university, but with an unaffiliated entity. I do not see how the university can apply for a non-exempt H-1.

    Tuesday, October 21, 2008 - 01:00

    H-1 where there is no license in hand



    In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

    Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

    Thursday, October 16, 2008 - 01:00

    H-1 - how to revert to old employer


    My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond.

    Couple of questions, Can I switch back to Company A.
    1. Does he need to file with DOL (or) USCIS that I am switching back to company A
    2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay?

    Other Question is, Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A???

    If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.


    In my view, he cannot go back to company A without taking some additional steps.

    Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

    Hypothetically speaking and for the information of those of you who have a similar issue: if Company A had not withdrawn his H-1, he could have gone outside USA, applied for a new H-1 visa based upon the approval of H-1 by Company A. The consulate may have told him his visa is still valid and he would not need another. I would advise that such an applicant will need to inform them that they had worked after filing an H-1 transfer but now wishes to go back to old employer. Under the circumstances, having been technically out of status, they may need a new visa stamp. If the consulate says he does not need a new stamp (in fact he does), then there is no problem in reentering USA on the old stamp and starting work with A.

    Wednesday, October 8, 2008 - 01:00

    H-1 quota - the law



    People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

    The Law

    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
    `(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
    `(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
    `(B) a nonprofit research organization or a governmental research organization.
    `(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
    `(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.

    Higher Education Act
    § 1001. General definition of institution of higher education

    (a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
    (1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
    (2) is legally authorized within such State to provide a program of education beyond secondary education;
    (3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
    (4) is a public or other nonprofit institution; and
    (5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

    (b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
    (1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
    (2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.

    (c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.

    Tuesday, October 7, 2008 - 01:00

    H-1 transfer - what action is needed for H-4


    I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?


    If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

    Monday, September 22, 2008 - 01:00

    H-1 Quota


    I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2.

    Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again?

    Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.


    Ans 1.  In my opinion, you will not be subject to the quota again.

    Ans 2. You should not be subject to the quota.

    Thursday, September 4, 2008 - 01:00

    Multiple H-1 approvals



    I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
    I have the following questions

    Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
    Ans1. Yes. I usually recommend that all I-94’s be surrendered.

    Qo2. As I have two approved H1B's with company-A and company-B, Can I easily switch from Company-A to Company-B later time then to company-A , etc . For this do I need to inform USCIS. Is there any negative consequences in that ?
    Ans2. The law in this area is unsettled and unsettling. Not only is CIS inconsistent in its signals, USDOL has its own take on this situation. Bottom line advice – pick one company and stick with it.
    As per CIS regs, theoretically, you can have multiple H-1 approvals and all of them stay valid unless withdrawn or revoked. But there are DOL regulations that point in other direction. In appropriate cases, I may advise otherwise, but in this case, you better off picking one.

    Qo3. Can I apply SSN now using Company-A H1's approval then join in company-B from Oct 1st, 2008
    Ans3. I know of no law that says you cannot do this. So, I think you can.

    Monday, August 18, 2008 - 01:00

    How to get back to H-1 status?



    We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

    Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?
    Ans1.  No problem. A few months (upto six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.

    Qo2. Since he will be applying for L1 to F1 now, Will that automatically cancel the H1 I-94 (to be effective from Oct 1) or do we have to do something.
    Ans2.  In my view, nothing else needs to be done if changes status to F-1 now. Make sure he applies from L-1 to F-1 and attaches a copy of the H-1 approval also.

    Wednesday, July 30, 2008 - 01:00

    AOS Pending, Should H-1 be Renewed


    Should H-1 be renewed while the AOS is pending?


    Bottomline - I think H-1 should be renewed.

    A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

    One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

    Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

    While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

    All the above holds true, whether or not you intend to use AC21 portability.

    Sunday, July 6, 2008 - 01:00

    Filling DS 156



    I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

    Qo1. Question 30. Have you ever been Issued a US Visa - Yes, but for the second part it says When - Does this have to be the date when the first H4 was stamped or the date the second change of status H4 approval notification came through. My understanding is that is the visa date when it was stamped. Can you confirm?
    Ans1. The answer requires response only to the issuance of a visa – the stamp given by the US consulate. It does not refer to change of status. In your wife’s case, she came to US on H-4 visa. That is what they are asking about. The fact the she later changed to F-1 and then back to H-4 status (but no other visas were obtained) is irrelevant.

    Qo2. Also in the additional visa issuances section do we need to mention the change of status to F-1/H4 information (I would presume no since these were not visa stampings but change of status). Can you confirm?
    Ans2. Change of status is not a visa.

    Qo3. Question 36: Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf ? Yes since my wife's name was on the I-140 as per your previous post. For the Part where it says by ‘Who’ what should she enter - Spouses Company Name or Spouses name.
    Ans3. I would answer your name.