Nov 11, 2021 Free US Immigration Community Conference Call with Rajiv (Every Other Thursday)
Nonimmigrant Visas
Green Card
Discussion Topics:
Discussion Topics:
I was on L-1A and later switched to H-4 EAD 3 years back (working with the same Indian multinational company for 15+ years). I manage a large team here in the USA, and some of my reportees are in the U.K. Since the H-4 EAD extension is taking time, my company plans to move me to Canada for one year. As per the plan, I will be back to the USA on an L-1A visa, and then the company will file for my green card in the EB-1C category. I don't have any team in Canada, and I will mainly manage the same U.S. and U.K. team from Canada.
The USCIS will consider the broad range of your duties within the business context, including employees being supervised and managed in countries other than the USA (or Canada). In our experience, the USCIS looks at whether the benefit of the work you perform with your dispersed team flows to the petitioning employer and the corporate group, department, or division within the L-1/EB-1C equity/control relationship. But, of course, your particular facts need to be examined in context. So have your lawyers look at them very carefully.
Note: Where transcribed from audio/video, 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.
This is a question about after the return to normalcy from the pandemic. From an immigration perspective, are L-1B visa holders allowed to work remotely/work from home from within the U.S.? Does it matter whether the employee's house (where she will work from) is near the designated company office location or not?
And lastly, would you expect difficulty with getting the L-1B visa in the first place if the intention is to work remotely/from home (but within the U.S.)?
L-1B holders, unlike H-1B employees, are not geographically tied down. You can work from anywhere. Further, if you work and report in-house and not to a client, you should even be able to change locations without any amendments to your L-1B petition. Only L-1B visa holders who work at third-party sites are subject to certain limitations; the most important one is that you continue to be an "employee" under the company's control that petitioned for you. I can see no reason why the location should interfere with a visa at the consulate.
Note: Where transcribed from audio/video, 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.
I have reviewed the recent lawsuit settlement where the USCIS has agreed to consider H-4 holders to be eligible to continue working while their timely filed EAD extension is pending. Unfortunately, the settlement seems to state that the right to work is only co-extensive with your I-94 duration. Therefore, you do not have the right to continue working for 180 days; only till your I-94 expires. While it is better than nothing, the settlement is not everything that we would like to see.
We successfully responded to an H-1B request for evidence (RFE), questioning the beneficiary’s maintenance of status. The beneficiary’s previous employer (Employer A) had submitted an H-1B extension. While the petition was pending the beneficiary’s nonimmigrant status expired. An RFE was subsequently received by Employer A, and following the filing of a comprehensive RFE response, the petition was denied.
We assisted petitioner, a public accounting firm, in filing an H-1B petition for beneficiary for the position of staff accountant. We received an RFE requesting additional evidence that the position qualified as a specialty occupation by satisfying at least one of the four qualifying criteria for a specialty occupation. In our lengthy response, we argued that the job duties, as detailed in the petition, and as compared with OOH’s job description for staff accountant not only comports with but goes beyond OOH guidance in its uniqueness and complexity.
We filed an H-1B extension for a specialized medical practice on behalf of a physician who had completed a fellowship in this specialty. We subsequently received a Request for Evidence questioning whether his position satisfied the requirements for a specialty occupation and questioning his current immigration status.
We were approached by an employer in the health and wellness industry to respond to an RFE (Request for Evidence) for an Operations Research Analyst. The RFE indicated that the job duties were vague, and did not allow Service to ascertain the minimum requirements for the position, or determine whether it constituted a specialty occupation. We responded with considerable detail, elaborating on the job duties and providing considerable context about the employer and the strict FDA (Food and Drug Administration) regulations that they are required to operate under.
We assisted an employer in successfully responding to a Request for Evidence (RFE) received subsequent to the filing of an H-1B (specialty occupation worker) extension petition. The RFE requested additional information regarding the employer and the beneficiary’s qualifications. More specifically, the RFE questioned the evidentiary value of an education evaluation that was provided with the petition, requesting additional evidence regarding the qualifications of the college official who authored the evaluation.
We assisted a client company, who develops its own software products and provides related consulting services in filing an H-1B petition to employ a software developer. An RFE was issued requesting additional information regarding the employer, and additional documentation to show that the beneficiary was engaged in a valid curricular practical training (CPT) and was maintaining a full course study in a master’s degree program at a U.S. university at the time of filing.
I am on my H-1B and my wife is currently on her H-4. With the new bill does she still need to wait for my I-140 to be approved?
There is no new bill, just a policy clarification. And, yes, she will have to wait per the law.
Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com
I have plans of taking the FOREIGN PHARMACY EQUIVALENCY EXAM (FPGEE), I am from the Philippines what kind of visa should I apply for?
You will apply for B visa (B-1/B-2).
EOIR FY2010 Statistical Year Book, which includes a compilation of figures and tables on individuals who have appeared before an immigration judge or the Board of Immigration Appeals.
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.
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;
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.
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.
Discussion Topics, Thursday, October 17, 2019
FAQ: Filing I-485 through a new employer, if the old priority date gets current || Compelling Circumstances EAD || Converting from H-1B to H-4 and back again || How long is an I-140 approval valid?
OTHER: Public charge issues || L-1A, EB-1C issues correlation with H-1B || Expunged criminal conviction and naturalization || Changings jobs after getting green card || H-4 EAD || Traveling while Supplement J is pending || SOW MSA for H-1B || Reapplying after a denied H-1B || J-1 HRR || Changing employers while I-140 is pending || Public Charge || H-1B for a higher job || Buying health insurance. etc.
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?
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.
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).
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.