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Transcript: Working Outside USA While in Green Card or H-1 Process

April 17, 2012

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I have in front of me a couple of questions from two different people.  They’re related so I thought I would club them together.  The basic idea is this:

Can I, as an H-1 holder or as Green Card pending status individual, work outside USA instead of being inside USA?

I am just going to do a quick talk on the implications of a person working outside USA while he or she is an H-1 or a Green Card applicant.

The first question relates to somebody who has an EB-3 Green Card pending.  As you know, that’s a decade-long wait.  So, people have to make some plans about their lives.

So this gentleman says, actually, he’s one of our clients, both myself and my wife are working on EAD and traveling on Advanced Parole.  So they have got an I-485 pending but they are EB-3.  He is the primary.  She is the dependent.  The wife wants to move to India for longer than one year and is planning to come back before her EAD gets expired. 

First of all, is this okay?   Yes, of course.  As long your Advanced Parole is alive, EAD doesn’t matter if you are working outside USA with I-485 pending.  Only thing we care about is your Advanced Parole or your H-1 visa.  Under the circumstances, I would recommend Advanced Parole.  Keep it active.  Keep it alive.  For a derivative, there is absolutely no problem if they are working outside USA.  If you are the primary applicant for an I-485, things could be a little different.  Now, what happens is that there’s a decision tree. 

You can have two situations.  One, you are still working for your Green Card sponsoring employer, but you’re working outside USA.  The second situation is you’re working outside USA for somebody other than your sponsoring employer.  What happens then?  There is nothing illegal about it.  Both of these situations are allowed.  But there is a common sense rule here.  The government could say, “Why is it if you have a permanent job in USA, your sponsoring employer can get the job done without you?”  Now, there could be many reasons for this.  One of the reasons could be the nature of the job is such that could be done anywhere for the time being.  So the employer is willing to accommodate you.  But, whatever the reasons are, be prepared to be sensitive to that question.  Is there really a job?  They can ask you that.  The idea is that you could be working from anywhere.  That is not the main issue here.  The most important thing here is that there should be a good explanation that you have a job in USA that is ready and open for you. 

One of the issues here is keep in mind that certain technologies don’t allow people from outside USA to work.  Most people don’t know that.  I think there is some restriction, for example, on encryption technology.  I think certain encryption technology is considered weapons grade.  Just look into that.

Otherwise, just ordinary commercial jobs, ordinary software development, ordinary financial consulting, can be done from anywhere.  That is not an issue.  Remember whether or not you have proper work authorization in USA.  This is very important to also keep in mind.  For example, if you are working from, for example, India, it is not required that you have proper work authorization in USA.  I don’t care if you have an EAD.  That’s perfectly legal.  You are working on Indian soil, not on American soil.  I don’t care if you have an EAD.  I don’t care if you have an H-1.  And that will bring me to my next question in a minute or two.

It also does not matter whether you come to USA periodically or not, as long as the job is alive and well and waiting for you, you should be okay.  For the primary and the derivative.  For the derivative, it is absolutely no problem.  Her job is not implicated at all.  She can work from anywhere.  But, for the primary applicant, this idea that job is still there and waiting has to be kept in mind.  And don’t make things up, guys.  We’ve to be truthful about this.

The same situation for H-1 people.  I’ve got people who go to India or go to their home countries and get stuck in long, long adversarial processes that go on to three months, four months, five months, six months.  What should they do?  If you can get your job outsourced and you can work from your home country while the H-1 process is going on, it’s absolutely no problem.  You can continue working.  Now there can be tax aspects that you’ve got to figure out with your CPA’s.  How you do you get paid?  Where do you pay taxes?  Things like that.  But those are tax issues and they can be figured out.  People do it all the time.  In fact, our own office has a couple of employees from other countries.   I don’t think that’s a problem.  That can be worked out.

The more important question--What is the impact on my H-1?

For example, I am outside USA for more than one year.  What happens to your H-1 is that, after one year outside USA, you can reset the clock and have six years of H-1 all over again, or you can go with something like a remainder option.  It’s called the remainder option.  I’ll explain the rule in a minute.  The idea here is this.  If you are outside USA for more than one year, you get six years of H-1 back, but then you are subject to the H-1 quota.  If you’re outside, good news is six years back.  Bad news is quota.  If you don’t want to be subject to the quota, you have to give up your right to six years of H-1 and take whatever is remaining in your H-1 six years initially.  That’s called the remainder option.  Those are the choices you have.  There is nothing wrong in working outside USA.

Bear in mind these principals.  If a primary applicant, make sure there’s a job available.  If a derivative on an I-485, work from anywhere.  No problem.  If on H-1, you can outsource the job.  You can work from anywhere in the world.  Doesn’t matter where you are.  The only thing is, at some point, if it’s more than one year outside USA, you have to make a choice of either a remainder or resetting the clock and being subject to the quota.

I hope that explains things adequately, guys.  As always, it’s good talking with you.  I will speak with you folks soon.

6 May 2015: We are noticing a VERY disturbing trend: USCIS seems to have reverted back to the position (or are in the process of reverting back) that priority date will be lost if the I-140 is revoked, even if revoked by the employer, not USCIS.

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April  12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140.  USCIS has flip-flopped on this issue several times.

Let me first bring you to the news.  Right here it says.  If you look at the question number two.  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.  So the idea here is this:  even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.

The history of this interpretation is strange.  A few years ago, this was the position.  USCIS always said you can carry the Priority Date forward.  A couple of years ago, they started saying, “No, you cannot.”  We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider.  I advise you to think about this very carefully.  You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it.  There’s  a whole lot of people who went through this.  File a motion to reconsider.  Then USCIS started saying, “Well, you cannot do it.”  

Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long.  So Congress said, “We’ll put in AC-21.”  That will make it easier for employees to change jobs without losing their Green Card benefits.

This is excellent news, folks.  Once again, I am summarizing it for you.  You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation.

One more thing I wanted to add.  This is not good for H-1.  Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions.  You cannot.  If you want H-1 extensions beyond six years, you’ve got to have something else going.  You cannot rely on the revoked I-140.

That’s all I have to say on this issue.  I will speak with you folks soon.

Thank you for listening.

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I wanted to talk with you folks about requirements for naturalization for people who get their Green Card based upon employment and then have to stay outside USA for a certain period time.  Many of the criteria here are common to people who have obtained their Green Card through any other method such as through marriage or through political asylum.  Pretty much, it is the same law.  But I want to focus primarily on people who have gotten an employment-based Green Card, because those are the inquires I receive the most and I don’t want to miss anything, because N-470 typically does not apply to people in non-employment situations, except for missionaries.  I’ll get to that in a second.

So, first of all, let’s look at the requirements for somebody to get naturalized in USA.  What are the normal requirements?

Right here.  You must have received your Green Card approval five years ago.  Actually, it is a little bit more complicated than that.  You can apply 90 days before your 5th year anniversary of Green Card.  In case you got your Green Card through marriage, then it is three years, when you are married to a US citizen.  After that, you must have stayed in USA for at least 30 months physically.  2 ½ years.  Half the time.  You should not have visited outside USA for a year or more.  If you go outside USA for a year, your Green Card is gone.  It’s difficult to get it back.  Not impossible, but what you will have to do if you end up staying for a year or more outside USA is, you will have to go to the consulate and convince them that you have not abandoned your US permanent residence, your Green Card, and you can do that by a process called SB-1 (Returning Resident Permit).  I’m not going to go into that in too much detail, but just to give you an idea.  If you are outside USA for one year or more, for naturalization purposes, you have to start your five years all over again, except in the following two circumstances, I-131 and N-470, which are these.  I’ll get to that in a second as well.

So, physical presence of 2 ½ years, no visit outside USA for  a year or more, any visit outside USA for six months or more but less than one year, you have to explain.  Why were you gone that long?  So this is for people who have not filed these special forms called I-131 and N-470.  I also want to make a quick note about I-131 and N-470.

What is I-131?

It’s the same form you used for filing for Advanced Parole when you are in need of Advanced Parole during your Adjustment of Status.  It’s also the same form used for protecting your Green Card through a process called Reentry Permit.  So you use your 1-131 to apply for a Reentry Permit, which is typically given for two years at one go, and you can get that extended, depending on the circumstances.  Basically, the I-131 tells the government, “Look.  I am not abandoning my permanent residence.  I am just going outside temporarily.”  Once you file the I-131, things change for naturalization purposes.

Did you stay outside USA for one year continuously?

If you did, ordinarily, if you had not filed I-131, you would have to start five years all over again, if you have not lost your Green Card.  You could have even lost your Green Card.  But, if you had filed your I-131, you don’t lose your Green Card, and you also get a respite of one year.  When you come back, you have to establish your US residence for four years and one day instead of five years and apply after you have accumulated physical presence in USA for 2 ½ years.  It gives you one year off from those five years.  That’s an added advantage of I-131.  It protects your Green Card as much as humanly possible.  There’s more to it.  I would always advise you to talk with a lawyer before you take any steps of going outside USA for an extended period of time.  It also shortens the time of five years that you would have to otherwise accumulate for naturalization.

Did you stay outside USA for one year continuously after I-131?

If the answer is no, then these same requirements that apply to normal people will apply to you.  Physical presence of 30 months, no visit outside USA for a year or more, six months or more will have to be explained.

Then comes N-470.

N-470 is one of those tricky strange forms.  It’s applicable to a certain group of people.  I would strongly encourage you to read up on the instructions on N-470.  They’re pretty informative.

The way this works is, if you’re going to work for a US company abroad and, again, I am talking about employment context.  There are other reasons N-470 can be filed.  Read the instructions.  What  N-470 does is it allows you to stay outside USA for a year or more and not have a break that will restart your five years all over again.  Let me explain.  Let’s say I file I-131 and N-470.  I do it together.  Usually, in most cases, we do both forms together.  When you file I-131 and N-470 together, let’s say you stayed outside USA for 1 ½ years.  Normally, when you come back, you have to start that five-year period all over again, because you were outside USA for one year or, in case of I-131, you have to start the four year, one day period all over again.  But N-470 says, “We forgive your stay outside USA for one year or more for naturalization purposes.  We don’t forgive your requirement of 30 months of physical presence.”  But it stops the discontinuity that would normally restart the five-year clock or the four year, one day clock after having stayed outside USA for one year.  It is a clock-stopping device.  It is a very good device.  One problem though.  N-470 has one strange requirement.  You must have at least one year anywhere during your stay in USA as a Green Card holder where you did not travel outside USA for even for one day.  Makes no sense to me.  I don’t know why it is there, but it’s there.  Go figure, but keep that in mind.

I hope this has been informative.  I had told one of our posters.  Somebody had posted a comment on immigration.com wanting to know more about this.  And I told him that I’ll record something, but I’ve had some technical issues.  They’re working on our website developing some new material that will make it easier for us to post our videos.  I hope to be doing this a lot more, and I’ll continue to do so.

Thank you for being here.  I hope to speak with you very soon.

Can You Do Business In the USA on Your Current Visa?

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com. 

You can post comments and questions on immigration.com.  I usually respond within three or four days, sometimes a week.  I’m going to answer one of the questions someone asked us on immigration.com. 

Can I start a business on an H-1 visa?

The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file.  It must be a true employer/employee relationship.  How does that work?  What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay.  USCIS has indicated that is their present stance.  You must have an employer/employee relationship if you want to be able to start your own business on H-1.

In addition to that, remember H-1 is for a specific employer.  So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1.  One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.

Where does that leave us?  There’s a whole history behind this H-1.  I won’t go through the history.  USCIS has gone up and down.  “You can do it.”  “You cannot do it.”  There is a whole history behind this.  But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer.  Make sure you are not getting into a situation which is going to hurt your stance.

Here is another question I get asked. 

I have an EAD through 485.  Can I now start my business?

Sure.  On the side, you can, as long as you don’t leave your current job.  But, remember, you will then no longer be on H-1.  You will be on EAD if you start working for your own company.

I actually have a whole list of visas.

Can I do business on E-2?

Yes, of course.  E-2 visas, which are treaty investor visas, are meant to do business.  E-1, treaty trader, the same thing.  But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.

If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?

The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa.  B-1, which is the business visa, is a misnomer.  You start thinking, I have business visa; maybe I can start a business.  But you can’t do it on B-1.

Can I start a business on F-1 visa?

Of course not.  You are a student.

What if I am on my optional practical training and I have my F-1 EAD? 

Maybe, but only for the time you have the EAD.  Again, that is something to be explored.  Don’t just jump into it.  Make sure you understand the ramifications of what you’re doing.

What about on a G visa?

On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF.  They cannot do business, but what about their dependents?  I haven’t looked into it specifically.  I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that.  I’m just speaking off the top of my head.  I was primarily answering the H-1 question, but I want to share with you what I know.  So, G-4, probably yes. 

H-4?  Absolutely not. 

H-1?  As long as you can be fired. 

I visa?  No. 

J-2 visa?  Yes, as long as you have an EAD.  

K visa?  K visas are all work authorized, so, yes, you can do business. 

L-1?  No, because you’re working for a company.   

L-2?  Yes, because you get an EAD. 

M Visa?  No.

I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.

Thank you for listening.