J Visa
We have won several cases on extreme and exceptional hardship grounds in addition to the more routine J-1 waivers. We have also processed several J-1 changes of MUA location matters for physicians.
We have won several cases on extreme and exceptional hardship grounds in addition to the more routine J-1 waivers. We have also processed several J-1 changes of MUA location matters for physicians.
Question from one of our clients:
Here is a series of questions that should be relevant for many people:
Here is a question from clients.immigration.com, our clients-only extranet.:
WASHINGTON — The Department of Homeland Security (DHS) launched an enhanced Study in the States website Monday with four new features. The features enable the Student and Exchange Visitor Program (SEVP), housed within U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), to convey pertinent information to stakeholders about the international student process in a clear and interactive manner.
The new features include:
USCIS does not believe that a J-2 dependent of a J-1 foreign medical graduate can change to H-1B status, or any other employment-authorized nonimmigrant classification (with the exception of T or U status) until the principal Conrad State 30 waiver recipient has fulfilled his or her three-year employment obligations in a medically underserved area.However, USCIS is open to reviewing current regulations and considereing whether steps should be taken to enable such J-2 dependents to engage in employment while in H-4 status.
I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320
FAQ Transcript
Discussed: FAQ Dual intent visas and filing green Card in multiple categories simultaneously, CSPA, Denial of F-1 student visa, FAQ: H-1 Receiving payments for past work/bonus (1099), change of location H-1B amendment, AC21 green card portability, naturalization, J-1 waiver, H-4 EAD: travel, fingerprinting, reentry permit
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
Can a J-2 dependent (Canadian citizen) change to other working visa or have to change to H-4 when J-1 gets waiver and moves to H-1. Basically any hope for a spouse on J-2 to get work authorization (TN/H-1/investor visa) before the 3 year waiver is complete?
Yes, the J-2 can, UNLESS the J-1 holder is a physician serving the three years for J-1 waiver.
I was in US from 2003 on F-1. I finished my Ph.D. here and changed to J-1 Status. I want to travel during 2012 summer, but need to go for J-1 Stamping. Do you think it will be a problem? Is there a chance that I might be stopped because of 214(b)?
Immigrant intent is definitely a consideration for issuance of J visas. As to whether or not you may have a problem is impossible to predict. If you can have a safety net of an H-1 (if needed), you would be better off.
[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Proposed Rules]
[Pages 6263-6269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01555]
---------------------------------------
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice 8163]
RIN 1400-AD28
Exchange Visitor Program--Fees and Charges
AGENCY: U.S. Department of State.
ACTION: Proposed rule with request for comment.
I got my wife's I-94 corrected (it had expired for 10 days) by going to the EWR airport office
which was my wife's port of entry.
They had also put an incorrect classification of WT on the I94
instead of an H4 and as such corrected it promptly.
I want to thank your law firm and also Mr. Khanna in particular
for his proper guidance to me in this delicate and urgent matter.
I am realy happy in how your service anserd my questions.
Thank you!
I got a J-2 visa and my wife on J-1 recently in which we have never travelled to US yet. Now my employer is ready to apply a L-1B for me and my wife L-2. Is this possible? Or will I be subjected to 2 years home stay restriction which is applicable for J visa without travelling on J. Will it be a problem in US consulate when I appear for L-1 visa as me and my wife have J-2 and J-1?
If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.
For latest updates, watch this video with Rajiv from Dec 28, 2021.
Having plans to travel to India in last week of Sept 17 and with my visa stamp on passport expiring on 1st Sept 2017, need to go for visa interview & when I am filling my DS-160, came across the question : Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? Considering the above situation, could you please help with what to answer Yes/No. If Yes, what comments to be written in the EXPLAIN BOX .
This is a very generic statement. Do not depend on this as the last word on the subject. Generally speaking, the following two or three rules should be kept in mind. First of all, if you are ever in doubt you are better off saying yes, I was out of status and yes, I was unlawfully present and let the consulate deal with that issue. If you are not in fact not out of status and you are not unlawfully present there is no issue, but if you were out of status or lawfully present and you don't reveal that it can be construed to be fraud or misrepresentation which then becomes a permanent bar from entering the United States. It is a very painful situation. If you tell the truth, no issue. More...
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.
I would highly appreciate it if you could share any insights for my case. I hold H-1B working for MNC in Seattle, USA. I applied for Canada PR and it was confirmed. I will travel by car to Vancouver Canada and work in Canada remotely with a Canadian house address. At the same time I want to maintain my H1B visa. Is that possible and how? I got to know H1B is valid as long as we work on US soil.
Sure, but maintaining an H-1B simply means that your H-1B is not destroyed just because you are not working here all the time. Also remember that you can recapture the time spent outside.
For more on this topic please visit my author page.
https://economictimes.indiatimes.com/etreporter/author-rajiv-khanna-479254772.cms
---------------------------------------
Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.
USCIS now interprets the 24-month STEM OPT extension rule from 2016 to require a STEM OPT worker to be placed only at a worksite of the employer. In other words, the USCIS now says that any offsite placement, including at a third-party worksite, is prohibited. Will this affect the H1B petitions filed by employers for such opt students, where they are working at an end client location (not employer location) and the H1B petition was filed with end client details.
First of all to say that USCIS has changed its regulations and they do not allow off-site placements of STEM OPT extensions students is incorrect, because USCIS has said this from a very long time that they are not going to allow these placements. If you are in a situation, what can happen is you could be considered to be out of status for no fault of your own. So if you file an H-1B and if the government says well we think you're out of status hopefully that's all they can do, they can make you go outside the USA for a visa stamping.
I have read that in some cases of H1B as follows "They had H1 petition and H1B visa was stamped in 2012 but they never traveled to the US on that. And when a new employer applied for a cap-exempt H1B petition in 2017 they got it approved with change of status to H1 in May 2017...Whereas in my case I also didn't use this H1B visa and I even didn't travel to US i.e. My employer filed H1B in 2016 which got approved in Sep 2016 and after my resignation, they revoked H1B in Nov 2016 (which is > OCt, 1 2016), but I got a Denial. When contacted few attorneys they said I may get "Approvals" Or "Deny" in such cases, nowadays its more of details saying I am NOT cap exempt?
The first principle is if you are in the United States and you do not get a change of status you are not exempt from the quota. The second principle is if you are outside the USA and you don't get a visa stamp you are not exempt from the quota. Now in both these cases whether you join the job or not is irrelevant. So the third principle is whether you are joining the job or not is irrelevant.
If you are in your home country you must get a visa stamp if you don't, you are not exempt from the quota. If you are in the USA you must get a change of status otherwise you are not exempt from the quota. Hence principal number four is that if your approved H-1 is revoked before October 1st then you are still subject to the quota and the last principle is if your H-1 is revoked for error or for fraud or misrepresentation you are still subject to the quota.
SUBSCRIBE to Immigration.com YouTube Channel for further updates.
Immigration.com, Law Offices of Rajiv S. Khanna PC, US Immigration Attorney
Rajiv Khanna Blog: http://www.immigration.com/blogs
Twitter: https://twitter.com/immigrationcom
Facebook: https://www.facebook.com/immigrationd...
Linkedin: http://www.linkedin.com/in/rajivskhanna
YouTube: http://www.youtube.com/immigrationdotcom
Contact Us : (202)909-1110, help@immigration.com
Address: 5225 Wilson Blvd., Arlington, VA 22205
---------------
FREE US Immigration Help We host free community conference call every other Thursday. Anyone is welcome to call in. Details are at: http://www.immigration.com/us-immigra...
To post questions for community calls, visit our forums at https://forums.immigration.com/forums..
I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017.
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.
9. Can my employer continue to pay severance checks when I am on B-2 status?
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?
12. What other words of wisdom do you have for me?
If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.
Answer 1. Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.
However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government. I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.
Answer 2. Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2 or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.
Answer 3. No because you don’t have a job. If you use the same visa to come back in, that could be fraud.
Answer 4. The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.
Answer 5. That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer.
Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.
Answer 7. It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.
Answer 8. B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.
Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US. You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor.
You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.
Answer 9. Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working. In order for employment to be unauthorized there must be a payment or remuneration as well as work. If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.
Answer 11. There is no consistency. I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done for two or three months. Most of the times they are not tolerant of this issue at all.
Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. Exchange visitor (J) visas are nonimmigrant visas for individuals approved to participate in exchange visitor programs in the United States.
I was referred to Mr Khanna by a friend. I wanted some information on the J-1 visa waiver process. Mr Khanna was extremely gracious to reply to my email over the weekend and instantly asked his secretary to schedule an information call. It was a pleasure to speak with Mr Khanna. His depth of knowledge on the subject was very impressive. He was very patient in answering all my queries to my satisfaction. I am extremely grateful to Mr Khanna for providing me the legal guidance that I needed and putting my mind at ease. I will refer Mr Khanna to anyone who seeks a highly experienced and compassionate Immigration Attorney who actually cares for his clients.