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Discussion Topics, Thursday, 28 January 2016:

FAQ: Conversion from H-1 to H-4 EAD and back to H-1 – H-1 quota; L-1B converting to H-1B change of status and quota; H-1 duration through a new employer after I-140 approved – starting a new green card – do job titles and job descriptions have to match; Reapplying for a B-2 visa after denial – importance of income; Filing B visa to maintain status – H-1 and H-1 extension durations when I-140 is approved – when I-140 is revoked – time USCIS takes to revoke an I-140; Visas for starting a restaurant business franchise in the USA. 
Other: Changing jobs after returning on N-470; PERM approval after MTR/Appeal on harmless error/typo; Consequences of old employer withdrawing I-140; Limit on number of times one can apply for H-1; Porting priority date from an approved I-140 that was revoked for error; Entering to do business on a prior approved B-2 visa; L-1A and PERM based green cards; H-1 quota based upon prior approval.

Discussion Topics, Thursday, 15 June 2017: 
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FAQ: Exemption from H-1 quota, Visa stamped, did not join employer || The best methods for spouse of a green card holder to enter the USA || Effect of revocation of PERM on an already approved H1 extension || Applying for H-4 status while H-1 is pending || How to reset H-1 six years || FAQ: Applying for H-1B visa when there was a status violation ||

Other: Filing Form N-600 || Correcting H-1B visa errors || H-1B visa stamping where client company was acquired || Traveling on advance parole or H-1B visa || Changing place of birth in immigration records || Supplement-J || understanding motions to reopen || Criminal conviction || Changing status to J-1 || Parents status expires while I-485 is pending || Can a green card holder enter the US on a non-immigrant visa? || The new regulations for I-140, etc.

Discussion Topics, Thursday, 8 September 2016:
FAQ: Am I exempt from H-1 quota if visa was not stamped? Does AC21 permit promotions and higher salary for same or similar job? N-400 naturalization/citizenship delays; Applying for parents green card, I-130, I-485, birth certificate, marriage certificate, etc; Continuing work outside USA despite approval of L-1A; 
Other: Quota impact of revocation of H-1; Green card filing and impact of Trivalley university; Travel on H-1 with just a few days left; Change jobs after green card approval; Transferring H-1B quota jobs; Surrendering reentry permit; Filing FOIA request to get H-1 and I-140/PERM papers; Cross chargeability - how to prove country of birth; Applying for H-1B and traveling on visa in an old passport; H-1B extension more than 6 months before expiration; H-1B visa stamping; etc.

Topics for Discussion:
FAQ: J-2 or J-1 with 212(e) HRR converting to F-1 student; FAQ: For PERM is formal certificate required or completion of degree is enough; Correcting dates on I-94; Travel while H-1 extension pending – change in I-94#; Changing employers - what immigration documents should I keep; FAQ: Maternity leave on H-1, FMLA and status.
Other: Multiple I-140 approvals; I-140 denial; Cap-gap extension; Effect of change in citizenship on H-1; PERM/AC21 and multiple I-485 filing; Family-based green card change in category; Child turning 21 – CSPA and derivative non-immigrant status loss; L-1A visa and EB-1C filing; Filing I-485 for spouse; PERM more than 50% different job; Cross chargeability; I-130 fraud by spouse; Maternity leave on H-1; AOS filing; F-2 COS; H-1quota, etc.

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.

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.  We are discussing with some of our clients the issue of what to do now that the H-1 quota has expired.  What are my options?

Well we can look at the options two ways or three ways.  Actually, there are several variables.

Variable one:  Can I continue to work?  The answer is yes, if you have the STEM extension option.  In this case, we are working towards 17 months of the STEM extension anyway.

What is the STEM extension?

Some people who are F-1 OPT can get further 17 months of OPT if they are in the discipline of Science, Technology, Engineering or Mathematics (STEM).  Any one of these disciplines, if you are in STEM, you can get a further 17-month extension.  

So can you continue to work?  One way is STEM extension.  If that is not an option, some people go back to school and they get something called CPT (Curricular Practical Training).  That is an option that I don’t advise.  Why?  Because this option has come under the gun.  USCIS has become very suspicious of it because the regulations say, if somebody wants to get a CPT by going back to school in the first semester itself, then the curricular practical training, the CPT, must be integrally related to the education.  In other words, you cannot really get a good education without that CPT and because of the “misuse” or the perceived misuse that government sees, they have come down hard upon universities that have been giving CPTs too liberally.  So CPT has become a suspect option, unless you are going to join a university that is well-recognized, a good university, or a good school that is fully accredited.  And I actually have a video on our website, our blog, on how to see if the school is accredited.  (http://www.immigration.com/media/eb2-green-card/accreditation-distance-…)

So 17-month STEM extension, CPT not recommended, but possible.  You can, of course, go back to school and stay until you are ready to file for the H-1 again.  If you have an option, for example, if your spouse is on H-1, you can convert to H-4, or L-2 if your spouse is on L-1.  That would be another option.  One option is to go back to your home country if the work can be outsourced to you.  It is perfectly legal for you to work for your employer from your home country and they can pay you either as an independent contractor or on a project basis or even as an employee.  You can work out the details with your CPAs, but that is certainly a possibility.

Now the last option that I see is there is a very fine distinction between what jobs are quota and what jobs are quota-exempt.  The interesting thing is the way that the government looks at it is even though the employer is a quota employer, but if the job is quota-exempt, you are not subject to the quota.  Let’s take an example of a quota-exempt job.  If you are working for a university in a research position or any academic position, you are quota-exempt.  But what if your employer places you to work in a university research facility?  Because the job is quota-exempt, that H-1 will be quota-exempt, even though your employer is a quota employer.  So look for a job that is quota-exempt.  That’s another possibility.

Those are the options as I see them.

Question--How do they go about applying for a STEM extension?

The way it works is the company that you are working for has to agree to be e-verify compliant.  That means they open an account with the government office for being an e-verify company.  You sign a bunch of contracts with them and you say every person that we hire, we will run them through the e-verify program, which is basically a way of ensuring that they have proper authorization to work in the US.  For larger companies, I would probably be reluctant to go e-verify, especially if you are a multi side company that has its own problems, so we need to assess that very carefully.  For smaller companies and one-side companies, it’s much easier to go through e-verify.  It’s not a problem.  E-verify basically involves agreeing to go through verification of every employee you hire from now on.  You have put them on the e-verify database. 

To get the STEM extension, they don’t have to go back to school.  They notify the school office, and the school issues new paperwork based on their existing paperwork.  They don’t have to go back to school.

If you already have your STEM extension, after that expires, you could take classes for CPT, work from your home country, try to convert to a spousal visa, find a quota-exempt job, or wait for next year’s quota.

One more question that people have asked me.  Is it okay for me to volunteer?  What if I want to work, but I don’t want to get paid for it?  I don’t want to lose all this experience that I have.

The answer is that that’s risky.  However, the way it works is, if the person volunteers, let’s assume they’re on H-4.  They work, but they neither expect to be paid nor do they have any benefits coming to them.  Health insurance, for example.  Then, it’s okay to volunteer.