The H-1 quota cuts down 50% or more applications each year.
I am currently on F1 in OPT status and working for Employer A, my Employer A filed for H1b this year. and I am currently waiting for my H1b approval Approval. Can my Employer start my green card process when I am in F1 status?
Watch Video on this FAQ: Can a green card be started on F-1 status?
Video Transcript
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.
The travel bans necessitated by the COVID pandemic have created much flux and uncertainty. Synthesizing the information now finally available from various US government sources, it is clearer now that many intending travelers can seek and obtain an exemption from the ban under a series of provisions for a National Interest Exception (NIE).
You should be able to apply for an NIE to overcome the ban on travel to the USA if you meet any one or more of the following categories:
We are usually called upon by G visa holders for consultations. Click here to consult us.
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.
I am on my OPT period (June 1st, 2021 - May 31st, 2022) and am working for a company in the USA. I plan to travel to India for my sister's wedding from December 18th, 2021, to December 28th, 2021. The following are my questions for travel in these COVID situations:
1. I wanted to know the details for entering the USA. What documents should I have while entering the USA?
2. Does the USA allow OPT holders to enter?
A1: You will need to contact your DSO for endorsement on your I-20 to travel, evidence that you have been working (like pay stubs), and a letter from your employer confirming that you will be returning to your ongoing employment.
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.
1. My son is currently a student studying engineering at a 4 year public college in Illinois. I am working in the US on H1B, and my son is on H4. The issue is that he turns 21 next year before he would finish his final year in college, and since would age out of the H4 So what are the options he has left to continue his study Can he change to F1?<br>
2. What are the caveats to this? Can he do the adjustment of status in the US, or does he need to travel out of the country? I've heard that F1 visa processing takes a long time to process, and there is no determinate time - he has about 14 months for him to become 21 years as of now. When inquired the college said they are not processing the I-20s for Fall 2021 now, only for Spring 2021, and have asked him to wait, what are the consequences of this ?
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.
U.S. Citizenship and Immigration Services (USCIS) will transition from a paper-based model to a secure, electronic environment. This new user-friendly system is called the USCIS Electronic Immigration System (USCIS ELIS).
USCIS ELIS is an easy-to-use system designed to modernize the application process for immigration benefits. It will also provide more accurate, convenient, and secure customer service and allow USCIS to process cases with greater efficiency and consistency.
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.
Substantial transcription:
7th July 2012 at 05:16 PM
9.59 Minutes
What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act? Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut. So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise. Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.
What are the visas that are immune?
H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost. H and L are clearly immune by law and O by implication. With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.
On the other hand, there are notorious visas that are very susceptible to this problem:
B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible. A lot of physicians on J-1’s have had a visa denial on 214(b).
TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed. So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.
The biggest problem with 214(b) is it is extremely difficult to fight it. I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted. So she’s been a frequent traveler on a B visa. Her F visa denial is extremely unjustified, in my opinion.
Let me just very quickly go through the visa alphabets.
A visa (diplomats) will have no problem. They have no issues of a green card being denied.
B visa will have a problem.
C, D, and E visas will usually not have a problem.
The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree. In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.
G visa is ok.
H visa is ok.
By the way, H-2B visas can have a major problem with immigrant intent. These are people who are coming to U.S. for to perform skilled labor.
I, which is international journalists/media representatives, may or may not be ok.
J visa will definitely be a problem.
K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.
L visa is no problem.
M, which is folks who are doing vocational training, can have this problem.
P visa (performers, athletes, etc.) can have a problem but usually won’t.
Q visa (exchange visitors) can have a problem.
R visa usually won’t.
S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.
So what do you do if you get a 214(b) denial?
Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene. You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention. This typically is not helpful but you can try. If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to. Especially be careful when you talk with lawyers in your own country. This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff. They had some hook ups with consulates and ultimately got caught.
The biggest problem is with fraud or misrepresentation. If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.
Going back to 214(b) denials, you can ask the consulate to reconsider. Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times. For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)? My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud. So make sure you want to get married within 90 days after they enter the U.S.
One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country. That in my mind is a legal fiction. To demonstrate ties is very difficult. Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties. Having business is also not really a tie as a business can be sold. Hence demonstrating ties to your home country is usually a difficult thing to do.
This issue has come up several times recently. Feel free to ask me specific questions on the website, in a forum, or on a community conference call.
Immigration.Com has received the following question, which I think is important enough to be answered in a format accessible to all the people abroad interested in starting a business in the USA.
The Question
I am planning to start an IT company in USA which is registered in India. Currently I am planning to travel on B1/B2 visa for my company set up. Can I transfer my visa status from B1/B2 to L1 if required within USA? What are the possible chances of success? Kindly you please suggest me the best way.
There are several issues that should be examined before you can make an informed decision.
1. B visa or ESTA does not allow you to “work:”
1.I am in India and my I-20 has been terminated. What should I do to reenter in the United States?
2.Can I reenter the United States with an I-20 issued by a private university for a full time course and not by public university?
1. You will have to look for another school/visa.
2. As long as the school is authorized to issue I-20, you can apply for an F-1 visa. But make sure the school is not running into problems like Tri-Valley University did.
What is the SEVIS Form I-20?
Foreign exchange students will receive a Form I-20 from the DSO of the educational institution that accepted the student to study in the United States. That student must have a Form I-20 to apply for a visa, to enter the United States, and to apply for benefits.
Is a Form I-20 valid without a stamp?
Yes. A stamp is not required on the Form I-20. Some state and federal agencies require foreign students to present a Form I-20 to identify the end date for the student’s program. However, a stamp is not required for this purpose.
How will an unstamped Form I-20 affect applying for state or federal benefits?
An unstamped Form I-20 should have no negative impact on applications for state or federal benefits, including driver’s licenses and state-issued identification cards. USCIS is actively communicating with Departments of Motor Vehicles (DMVs) to ensure their understanding that a Form I-20 does not require a stamp to be valid.
What is an endorsed Form I-20?
The Form I-20 is endorsed when it is signed by a DSO, which allows the student to travel internationally or apply for employment authorization.
How does USCIS ELIS handle the Forms I-20 and DS-2019?
USCIS will accept a photocopy or scanned electronic version of a valid Form I-20 or DS-2019. If USCIS needs to review the original document, USCIS will ask you to provide the original document. USCIS will adjudicate the request electronically. Although the student will receive the approval notice (Form I-797) through the mail, the scanned copy of the Form I-20 will not be stamped and returned. As of Aug. 10, 2012, U.S.
[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Rules and Regulations]
[Pages 33699-33700]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13315]
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice 8348]
RIN 1400-AD21
Visas: Classification of Immediate Family Members as G
Nonimmigrants
AGENCY: State Department.
ACTION: Final rule.
-----------------------------------------------------------------------
Rajiv was a pleasure to speak with. His advice was genuine and he was very proactive. It was refreshing to speak with a lawyer who is a true professional and very considerate about his client's situation. Thank you for your help...