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SCOPS Update – 07-13-2011
Filing location for concurrently-filed I-140/I-485 petitions
Unless there is an accompanying I-907 all I-140/485 concurrent filings must be filed at the lockbox addresses. Depending on the jurisdiction the filing must be sent directly to TSC or NSC.
Employers who are cap-exempt under INA § 214(g)(5)(A) or (g)(5)(B) filing H-1B petitions
Recording for March 28, 2024 Conference Call with Rajiv S. Khanna
Immigration.com
Nonimmigrant Visas
Discussion Topics:
FAQs: Staying outside the US on Re-Entry Permit Validity, Usage, and Multiple Entries for Green Card Holders || Unemployment Benefits for H-4 + EAD Holders with Previous H-1B employment
Impact of DWI conviction on H-1B holder's H-4 dependent visa stamping and future travel considerations
I got a DWI in January 2024 and was convicted of two misdemeanors (DWI+ Eluding police) in June 2024. I have an H1B petition valid until 2027, and my visa stamping has already expired in March 2024. I'm not traveling to India for now, but my wife and kid are going to India in December. Will there be an impact on H4 stamping, which will be dependent on my H1B petition? Do I have to send all papers to them, like the court decree, the court certificate of registration of actions, the charge sheet, etc.? I have a home in the USA, which I bought in November 2022. Can I also travel to India? What will be my future in the USA? Please advise if there will be an impact on visa stamping on my wife's visa.
A DWI conviction can lead to visa cancellation, requiring visa stamping upon re-entry. However, this may trigger an addiction examination, which can take months. If deemed to have an addiction problem, you could be excluded from entering the U.S. If a spouse's visa has expired while waiting for the primary applicant's visa stamping, it's unclear if they can still obtain their visa stamp.
Recording for August 22, 2024 Conference Call with Rajiv S. Khanna
Nonimmigrant Visas
Green Card
FAQs: EB-1A Use Case -- STEM OPT cloud solutions engineer at a nonprofit university || Layoff on H-1B, Changing status from B-1/B-2 pending to F-1 || Impact of layoff on green card status and future naturalization || H-1B laid off: Second B-1/B-2 visa extension
H-1B extension pending: Impact of traveling to India using old visa, returning with 2-3 days remaining on visa, etc.
My current I-797 and H-1B visa stamping is valid until 03rd December 2024. I have filed for an extension. Can I travel to India while my H-1B extension is pending? Does it have any impact on my I-797 approval and its validity period, as my I-94 will be changed upon my reentry to the USA?
I am traveling to India for Medical reasons in the month of September and will return on December 1st, 2024. If my H-1B is not approved by December 1st, Can I enter the USA with 2-3 days of Visa stamp validity, and what justification could I give with only 2-3 days of stamping validity?
If my H-1B is approved while I am out of the country or during transit, Can I enter the USA with the existing H-1B stamping?
My work is remote, and I can work from anywhere. Can you provide me with a better solution than the 2 options below?
1. If my visa is not approved by then, I will travel to India and return to the USA before December 1st.
2. I will continue to stay in India until I get my visa approved and get the stamping done before reentry to the USA. Premium processing is no option for me as my employer will not support citing RFEs as the reason.
If you have an H-1B visa from a previous employer that hasn't expired and your current employer has filed for an extension, you can travel outside the U.S. while the extension is pending. You can return with just a few days left on your old visa stamp. The visa is not tied to a specific employer, so as long as your old visa is valid, you should be able to re-enter the U.S.
However, it's important to carry proof of your pending extension when you return. While there is no official source confirming this, many individuals have successfully traveled under similar circumstances without issues.
H-1B options as an F-1 student on STEM OPT in a nonprofit university: Cap-subject vs. cap-exempt strategies and transitioning to cap-subject H-1B in the future
I am currently in my second year of OPT ( my stem OPT expires in December 2025), and I am working as a software engineer at a Nonprofit university.
Here is my plan for scenarios that might happen, and I need your help to tell me if I am on the right path or completely moving in the wrong direction.
My employer agreed to file an H1 at the end of the stem opt, but I plan to ask my employer (a non-profit) to file a cap-subject visa for me. Everything will be fine if they do and it gets picked. If not, I have a long-standing offer ( with a project ) from a consulting firm who will file for me.
- My question is, either way if lottery doesn't get picked i am planning to go with cap exempt route from my university.
- If I have an H-1B cap-exempt visa and my lottery gets picked any time in the future, the chances of the client waiting till Oct 1(visa start date) can be unpredictable. Is there a way to bypass this by moving to day one CPT or any other visa and starting working immediately with the client? I heard that it is practically impossible to move to cap subject if i have cap exempt visa and my priority is cap subject.
If an H-1B cap petition is approved, you could consider moving to Day 1 CPT to start working immediately for a client. However, since your H-1B won't take effect until October 1st, a better option might be to pursue a concurrent H-1B until then, allowing you to work immediately and transition to your permanent H-1B status later.
Recording for September 05, 2024 Conference Call with Rajiv S. Khanna
Topics for Discussion:
Can I use my USCIS case status approval page to extend my H1B visa beyond six years, or are there other ways to obtain my I-140 approval document? || H4 transfer, H4 EAD renewal, automatic extension of EAD || J-1 waiver and H-1B, what are my visa options? || H-1B transfer and PERM based GC || F1 CPT and change of status to H-4 visa || Travel on H-1B Visa || EB-2 and I-140 approval || Eligible to apply for citizenship? || Parallel COS application timeline from H-1 to F2 Visa || H-1B transfer to new employer || H-4 and EAD, automatic EAD extension
DOS Issues Cable on B-1 in Lieu of H
Please check the attachment to read the DOS cabel on "DOS Issues Cable on B-1 in Lieu of H".
Recording for September 26, 2024 Conference Call with Rajiv S. Khanna
Nonimmigrant Visas
Topics Discussed:
FAQs: EB-2 NIW I-140 portability for employer-sponsored cases || Concerns regarding nonpayment of wages and potential H-1B impact || Maintaining LPR status (Green Card) during extended absences for employment || Rising NIW rejection rates: Examining changes in eligibility criteria
Recording for October 10, 2024 Conference Call with Rajiv S. Khanna
Nonimmigrant Visas
Topics Discussed:
Concerns regarding nonpayment of wages and potential H-1B impact
I arrived in the U.S. in the last week of May 2024, and despite innumerable requests, my employer has not run payroll for the weeks since my arrival. Could this pose any challenges for future H1B transfers, extensions, or I-140 processing? Is there a risk of scrutiny or denial due to this issue? If yes, could you guide how to mitigate this please?
If your employer fails to pay you after starting your H-1B employment, it can pose challenges for future H-1B transfers. To address this:
- File a complaint with the U.S. Department of Labor's Wage and Hour Division.
- You can file online or by phone (search for "LCA complaint US Department of Labor").
- This complaint serves as evidence explaining the lack of pay stubs during future H-1B transfers.
- Employers must start paying when you're ready to work or within 30 days (if coming from outside the US) or 60 days (if already in the US), whichever is earlier.
- Filing a complaint may help you recover unpaid wages and protect your ability to transfer your H-1B in the future.
Recording for October 24, 2024 Conference Call with Rajiv S. Khanna
Nonimmigrant Visas
Green Card
FAQs: GC approval before AC21 Supplement J could be filed || H-1B grace period eligibility after second layoff and B-1/B-2 visa options for job search
H-1B grace period eligibility after second layoff and B-1/B-2 visa options for job search
I got laid off on H1B in my previous company but found and started a job in a new company within a 60-day grace period. Again, the current company has provided a notice period for layoff. Will I get a 60-day grace period again this time?
How easy it is to get a B1/B2 to find a job after a layoff.
If you experience a layoff while on H-1B status, you receive a 60-day grace period. If you secure a new H-1B approval and face another layoff, you'll receive a fresh 60-day grace period. This applies to H-1B transfers and extensions. As for obtaining a B-1/B-2 visa for job searching after a layoff, while there's no official measure of difficulty, the approval rates appear to be consistently positive, with no reported denials.
DOL FAQs on New Electronic Filing System for H-2B & H-2A Programs
The Department has posted the first round of Frequently Asked Questions (FAQs) addressing the implementation of electronic filing in the H-2B and H-2A labor certification programs through the Department's iCERT Visa Portal System. The FAQs are largely based on questions received from participants in the four webinar training sessions conducted by the Office of Foreign Labor Certification, and are published to assist program users in navigating electronic filing in the H-2B and H-2A programs.
Immigration Under Trump, November 7, 2024
Green Card
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
Starting A US company on OPT | Latest Immigration Updates - H-1B | OPT | Green Card
Nonimmigrant Visas
Green Card
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
Traveling Under Trump Administration | H-1B Updates, Immigration QnA, Jan 29, 2025
Nonimmigrant Visas
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
H-1B Visa | OPT | CPT - Latest USA Immigration QnA, Jan 30, 2025
Nonimmigrant Visas
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
Talent Visas Under Trump - EB-1A | O-1A | NIW/H-1B QnA, Feb 5, 2025
Nonimmigrant Visas
Immigration Law
Green Card
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
Increased Denials & Delays in some US Visa Categories, Rajiv in QnA, Feb 12, 2025
Nonimmigrant Visas
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
mmigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
DOL Notice on H-2A Program: 2013 Allowable Meal Charges and Travel Subsistence
The Department has published in the Federal Register a notice establishing the 2013 allowable meal charges and maximum travel subsistence reimbursement amounts. The 2013 allowable charge for providing three meals a day is set at $11.42 per day, although employers may petition the Chicago National Processing Center for a higher charge if justified by documentation of actual costs. Similarly, the 2013 minimum subsistence charge for meals during travel is set at $11.42 a day.
Gap in approval dates between change of status from one status to another
I applied for a change of status from an H1B to an H4 visa via I-539 in May 2024 as I got laid off, with my last working date being 3/19/2024.
The document was received by USCIS on 5/10/2024 and confirmed by I-797C, Notice of Action dt 5/20/2024.
On 12/26/2024, my case was approved. I received I-797A Notice of Action with Approval on 1/7/2025. The approval date shows the validity of H4 from 12/23/2024 to 03/13/2027.
On my I-539 I had asked for the change of status to be effective from 05/15/2024 as my 60-day period would run out on 5/19/2024.
However, the H4 approval shows the start date as 12/23/2024. So, my question is, what status was I in during the period 5/19/2024 and 12/23/2024, and will I face any problems if I go for visa stamping? Do I need to write to USCIS and ask for a date to be changed to 5/15/2024 to avoid issues in the future?
If you applied for a change of status (COS) while still in valid status—such as H-1B plus the 60-day grace period—you are not considered out of status while your application is pending. In this case, since you applied for H-4 within the grace period, the period between May (filing date) and December (approval date) is classified as an authorized period of stay, meaning it does not count as unlawful presence.
Even though the approval date is later, you are not subject to the three-year bar because you remained legally in the U.S. while the petition was pending. There are no negative implications for your status.
H-1B cap exempt visa pros and cons
I am on OPT, which started on 19th February 2024. I joined my first job on OPT on 8th July 2024 and lost one attempt at the H1B lottery. I work for a research foundation, and they can sponsor me for an H1B-exempt visa. I have a degree in computer science, and I ultimately want to work in corporate America, which means I need to get an H1B cap-subject visa.
My question is whether I should get this H1B exempt visa through my current organization or if I should try to switch to a different company and use my remaining two attempts at the lottery. I ask this because once I get the H1B exempt visa and change my status from F1 to H1B, I won’t be able to switch to a for-profit organization and would be stuck in H1B exempt visa category. H1B-exempt visa jobs are less and pay less. And though the option of an H1B concurrent visa is there but I feel in reality, it will be challenging to get a company to allow me to work for another company due to NDA requirements and also allow part-time work. (But I would appreciate your advice on this since you must have had client experience.)
Can you advise me on how to get the H1B exempt visa now? Does it have any advantage, given I want to transition to a corporate company? What options will I have if I switch to a for-profit organization? Also, I am currently funded through a grant, and it has runway till July 2026.
I have seen people saying not to get an H1B exempt visa as you will be stuck in that category, but I also feel that any H1B visa will be better than F1.
If you have the opportunity to get an H-1B cap-exempt visa through a research foundation, you should take it. Having cap-exempt H-1B status does not prevent you from continuing to apply for the regular H-1B lottery.
Additionally, you can hold both a cap-exempt and a cap-subject H-1B concurrently as long as you maintain your cap-exempt job. If you win the H-1B lottery through a for-profit employer, you can easily switch to a regular H-1B.
Taking the cap-exempt route ensures immediate work authorization and does not limit future opportunities. The idea that you’ll be "stuck" in cap-exempt status is incorrect.
Can an H-1B holder start a company with a full-time job?
As per the new 2024 H1B Rules, can an H1B holder start a company with 100% ownership (possibly working on out-of-office hours/weekends) while holding a full-time job at another company?
Yes, an H-1B holder can start a company while maintaining a full-time job, but there are key conditions:
- Concurrent H-1B: You must file for a concurrent H-1B for your own company.
- Ownership: You can own 100% of the company; USCIS allows majority ownership.
- Job Role: At least 51% of your work must be in your H-1B specialty (e.g., software development), not just as a CEO.
- Salary & Compliance: Your company must pay you a prevailing wage and follow all standard H-1B rules.
While legally possible, the process is complex and must be carefully structured to meet all H-1B regulations.