The Office of Foreign Labor Certification has posted new and updated Labor Condition Application (LCA/ ETA Form 9035/9035E) Frequently Asked Questions (FAQs) for the H-1B, H-1B1 and E-3 programs.
For the new FAQs click here.
Below are questions I have on the H-1B Amendment and H-1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H-1B Amendment is in light of the new H-1B regulation that has been mandated by USCIS when there is a significant change in the Job Location of the beneficiary from the address mentioned in the initial Petition from the employer which was approved initially.<p>
1. Does the USCIS Last action rule apply in case of the below 2 being applied almost at the same time for the same beneficiary?<br>
a) H-1B Amendment with Current Employer<br>
b) H-1B Transfer to New employer while H1B Amendment is pending with Current Employer.<br>
2. If the answer for the above is 'Yes', then incase the H-1B Amendment Approval comes after the H-1B Transfer would the H-1B transfer to the new employer that was approved earlier be automatically nullified?<br>
3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H-1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H-1B amendment to dictate the latest H-1B for a given employer? (I believe we can request USCIS to withdraw/cancel the Amendment but is this something that the new employer/employee can do or only the existing employer who was filed for H-1B amendment has the authority to request any cancellation/withdrawal of the H-1B amendment?)<br>
4. Also does the current suspension of H-1B premium processing apply even for the H-1B transfers (with a new extension for 3 Years) or is it only for new H-1B extensions of Petitions from the current employer?
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
I went to the US in May 2014 on H1-B working for Employer A. In Feb 2016, I moved to work for Employer B (small US based company, on other offices) with H1-B transfer receipt.
The new job was remote work, so I started working from home for Employer B. I received RFE in April 2016 and I went to India the same month. While I was in India, the transfer got approved in June 2016 and I came back to the US with the approval notice as proof. My visa was getting expired in Sep 2016, so extension was filed with Employer B. The extension also got approved after RFE and extended till Sep 2019. <br>
Current Situation:<br>
Now, I came to India in Jan 2017 for my marriage. I went for visa stamping in Delhi with my wife (for H4) in Feb 2017. The visa officer asked me about my Role, client, and other common questions which I answered correctly. VO then collected my documents (I-129, client letter etc) and handed me 221(g) letter saying that he needs some time to review the documents. We left the embassy and the wait started.
In March 2017, I received an email from embassy asking for the latest LCA which I promptly provided.
After that there was no response for a few months, and I started working from India in US hours. Since my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process.
In July 2017 (after 5 months), I received a call to collect the passport. On collecting the passport, the stamping was not done and I received a letter stating that my stamping is being refused and visa is sent to consulate for revocation.
This came as a shock. I notified my employer, they were disappointed and did not know what can be done about this case. When I enquired, they said they don't want to spend more resources on this case and are fine with me continue working from India (reduced salary).
<br>1. Is it possible to have the case reconsidered and to know the exact reason for refusal? If yes, how would I go about it without the support of my employer?<br>
2. If this is only for stamping, how long will my extended visa be valid? Can I try the stamping again with this employer or find a new employer from India and use the same visa with them?<br>
3. What happens to my assets (personal stuff, bank accounts, etc) in US?<br>
4. If I can legally work for the same employer, how does it affect my taxes? Do I now pay taxes in India and in US both? Since when I can be considered liable to pay tax in India (when I came to India or stamping refusal date etc)?
Video Transcript
1. Not until a notice of intent to revoke is sent.
2. This case is going back to USCIS.
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.
What are the requirements to get a visa and green card as an international entrepreneur? Is the start-up visa effective?
Watch the Video on this FAQ: Current immigration/visa options for entrepreneurs
Video Transcript
A few options for Entrepreneurial Visas:
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.
In case of H1 transfer denied what other options one can have ? [provide that has 140 approved since many years]<br>
1. Can new H1 transfer with new employer can be initiated ? 2. Can one can apply for B1 [Visitor Visa] and remain in USA for valid period ?
Watch the Video on this FAQ: What can be done if an H-1B is denied while in the USA?
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.
I'm an Indian citizen on an H1B Visa. I'm an engineer. My Green Card is being processed and my I-140 . Being an EB-2 category I"m assuming that it is going to take anywhere between 5-8 years before I get my green card. The Situation: I'm planning on taking a work break for about 6 months to 1 year and do a few things that I've wanted to do but have been pushing indefinitely (like volunteering with a non-profit, spending time with my family, exploring options to start my own startup etc). I'm assuming there are 2 scenarios here - 1. My company gives me a sabbatical leave - I can leave the country for a year and come back and rejoin them. 2. My company refuses a sabbatical and I have to quit - In this scenario, I'm not sure what I should do in order to be able to come back after my break and still be able to work for any company? I would really appreciate your insights on this situation and would be glad to accept any pointers from you to research this further.
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.
Recently I got Consular visa, that my I-797 was approved without I-94 so I need to step out of the country to get H-1B visa stamped.
Got laid off from EMP A and took around 55 days for EMP B to file h-1 and now I’m with EMP C. Both I-797's from EMP B and EMP C, I got consular visa to step out for visa stamping.<br>
1. Usually, how much time I have to step out of US for stamping, if I go little after 3-4 weeks what’s the valid reason that I can give to Visa officer at interview time.<br>
2. How can I justify myself about the 55days of gap I have from EMP A to EMP B ( during the time I do not have H-1B status), my attorney suggested that I need to tell VO that “I was looking for a Job and my employer took time to file for H-1B “. I’m not sure whether I can say this. Can you suggest a valid reason to give VO.<br>
3. MY GC Perm Labor has approved and EMP C has applied for I-140 recently and it's still in processing status, during this situation If I get a full-time opportunity can I move with a new employer? OR I have to stay with current one until I get I-140 approved and then transfer with a new employer.
Watch Video on this FAQ: Applying for H-1B visa when there was a status violation
Video Transcript
1. Go as quickly as you can. It isn't an emergency, but it is something you should not take lightly.
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.
1. I have approved I-140, on 7th yr of extension and my current H1B Visa and I-94 valid with emp A until dec 31,2018 based on my latest approval I received in Nov 1st week.
I have another 1 month to apply for an extension and I am requesting my employer to apply in premium processing.
1)If my extension is applied in Premium before I-94 expiration but pending beyond my expiration date 12/31/2018,
I will be 'out of status' even though 'authorized to stay' until decision is made. Is this correct that this may affect my future H1bs in case it is denied
and attract NTA(notice to appear) in future because of my 'out of status' from date of expiration to date of denial or while leaving the country upon denial.<br>
2. Is it better if I leave the country on the last day of my I-94 expiration(Dec 31, 2018) while my H1B extension is pending in order to avoid 'out of status' or 'unlawful presence' scenarios by staying here.
If I leave the country while extension is pending in above scenario, is it possible for me to go for consular processing, get VISA stamped after it is approved and enter the US legally?
or
is h1b extension is considered as abandoned?
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.
My sister's family lives in Sydney. They own a restaurant business. Can they move here with E class visa and open their restaurant here in States? She is not a citizen of Australia yet, but her husband and son is.
There are three kind of E visas: E-1, E-2 and E-3. You are probably thinking of E-2. Please read up on them. The primary applicant must be a citizen or national of the country in question. Their family can come as derivative beneficiaries.
E Visa company registrations - It is advisable for “E” visa companies to update “registration” files at post every year although there is no specific regulation.
Following-to-Join for adjustment cases - An applicant who is the principal alien and whose spouse or child now needs to follow to join can now continue to deal directly with posts in paths:
I was wondering if the "Employ American Workers Act" applied to people who apply for the E-3 visa ? The act, from my understanding has restrictions on the H-1B and companies that have taken TARP funds.
As far as I recall, TARP focuses only on H-1 employees. See my blog article with links to the law: http://forums.immigration.com/blog.php?b=94
My husband and I came over on E2, he was partners as a mortgage broker, due to economy the business did not make a good profit and attorneys have said that we will not get E2's renewed. So rather than keep throwing money away the business has closed its doors. We have approx $600k invested in the US in property. This is owned outright. I have been to college an got a diploma, with a 98.6GPA. Apparently this is of no consequence when it comes to staying in the US. Any advice of what else we can do. We need to act quickly. We are looking at losing over $200k to move back to UK. Due to economy.
You can apply for B visa to stay for a few more months. You cannot do business on that visa, but at least you will be able to sell when the time is better. Details are on my blog.
Are E - 3D visa holders allowed to work as freelancers?
To the best of my knowledge - no. You need an employer.
I am in the US from Australia and just lost my job as an Engineer. I was on an E3. My wife has an H1B and is employed. Since E3 restrictions give about 10 days grace period, our immediate option is for me to go to an H4. Does anyone know how long this process usually takes if I am currently in the US and what I may have to do.
Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.
Yet again, great advice and counsel from Mr Rajiv Khanna, P.C. He is more than an attorney. He comes across as a deeply concerned and compassionate human beling eager to listen to one's situation/s and (immigration)circumstances. He's provided me plenty of legal ammunition and warewithal to resolve my son's immigration quandary. I am eagerly looking forward to paying him a courtesy call to express my profound thanks and gratitude. I hold him in high esteem for his eminence and knowledge of the US immigration laws and system.
Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.
This is fair comment Me and my family had a past few unlucky months. We spend a lot of money for consultations with other attornies but in vain, we thought of consuting Rajiv.We thought as Rajiv is top notch attorney in US for immmigration cases, he would charge stupenduos amount of money but he totally understood our situation and gave a wise advice regarding the COS of my wife,the consultation was free. Very hard to believe that some of the desi people out there do consultations not for the benifit of themselves but for the society. Rajiv still remebers of the old days where he had to struggle in the early 80's for maintaining his status and paying money to attornies. His advice is very helpfull and words can express our gratitude towards him. Thanks Rajiv for putting so much effort to rejunivate lives of some of the critical situations in the immigration law.
I had an accident and am on disability while my green card adjustment of status application ( form I-485 ) has been pending for over 4 years. My I-140 had been approved about 5 years back but my case has been caught up in the visa backlogs at USCIS and Department of State. I wanted to know if there was any provision for help in the immigration laws, in case I am sent for long term disability or my employment is terminated before I receive my green card. I learnt that employment and disability are subjects to be discussed with a benefits or employment attorney. The only immigration benefits are via AC 21 or via a private bill. Also, that one should not loose the advance parole anytime while the AOS is pending. I want to thank Mr. Rajiv Khanna for his generosity with time and expert guidance. Over the phone I found him to have a very pleasant personality. he had me feel comfortable and didnt seem money minded at all.
As an australian actor/singer and teacher...would an E3 work for me and could an agency act as an employer in that case?
E-3 visas are available only for those jobs that demonstrably require a bachelor's degree in the field of work you will be performing. We recently provided assistance in an E-3 visa for a Shakespearean actor and teacher who was coming to teach acting classes in USA. He would probably not have qualified as an artist under E-3 visa, because to be an actor, a bachelor's degree in performing arts is usually not required. But as a teacher, a bachelor's degree was indeed required.
I was working in US on E-3 visa before H1B. Which means I entered USA earlier. When does my 6 years clock starts?
In that case, your 6-year clock begins to run on the date you converted (changed status) to H-1.
I am Australian Citizen with Accounting Degree and looking forward to apply for E-3 Visa. Do I need to have job offer letter from the employer. How big the employer should be?
You do need a job. The company does not have to be a specific size, but it should be large enough to require a professional accountant (not just a book keeper).
My discussion with Mr. Rajiv Khanna was very reassuring for staying on extended time for personal care of my physically challenged son (F1) pursuing his Masters. I hope we get the extensions as we go forward with our stay.