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Working under EAD

I have worked under H1B Visa for the same employer (who applied for my green Car
d) but recently changed to EAD because I started working part time for a second
employer. My question is if it would be risky to terminate employment with the c
ompany that initially filed my green card before I receive the green card. My pr
iority date is December 2005 and cut off date is now August 2005. Would it be be
tter to continue with my current full time employer until the green card process
is completed?
User's Location: Weehawken, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 11 Apr 2011
A.
If you leave your current green card employer, what company will continue your s
ponsorship for your green card?
There is always a risk to your green card process if you leave the current compa
ny that has sponsored you for the green card. Do you have a new employer willing
to offer you a permanent full-time position and take over your green card proce
ss? Would you qualify under 485 portability provisions to have that new employer
take over your green card process?
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com

Cross Chargebility
I am on h1b visa and have an approved I140 under Eb2 category. I am an indian na
tional and my priority date is Dec 2010.
I got married in Feb this year and my wife is on h4 visa. My wife was born in ba
hrain but she holds an indian passport
as they don't give citizenship in Bahrain.
I was wondering can i apply I485 for Bahrain qouta under Cross Chargebility rule
s. Since the priorty dates are current for bahrain, I hope to get my EAD/green c
ard much faster.
p.s My wife was not mentioned on I140 as i was not married when it was filed.
Thanks
User's Location: Washington dc, Virginia, United States of America
Category: Employment-based Green Card
Posted on 11 Apr 2011
A.
Cross-chargeability allows the visa number for a principal applicant to be charg
ed to the country of birth of the accompanying spouse. Under cross-chargeability
provisions, you should be able to proceed with your green card process under yo
ur wife's country of birth. This would make your EB-2 case current as there is n
o priority date backlog under EB-2 cases for her country of birth.
You should be able to proceed with 485 filings for you and your wife now using h
er country of birth.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Expedited Naturalization under 319 (b)


I am a LPR married to a US born citizen. My husband is an active duty soldier cu
rrently deployed to Afghanistan for a year. I read via online about expedited na
turalization and I think I could qualify under 319(b). I heard that because he i
s a soldier in a warzone, the part of 319(b)of me having to join him there withi
n 45 days is waived because I'm not allowed to go to a warzone. We have been mar
ried for 14 months and I've been in the US since Feb. 2011. Am I eligible to nat
uralize under 319(b)?
User's Location: Seattle, Washington, United States of America
Category: US Citizenship and Naturalization
Posted on 06 Apr 2011
A.
In general, spouses of U.S. citizen service members who are (or will be) deploye
d may be eligible for expedited naturalization in the United States under Sectio
n 319(b) of the Immigration and Nationality Act (INA).
In general, an applicant for naturalization under section 319(b) of the INA must
:
Be age 18 or older
Establish that his or her U.S. citizen spouse is deployed abroad as a service me
mber
Be present in the U.S. pursuant to a lawful admission for permanent residence (g
reen card holder) at the time of examination on the naturalization application
Be present in the U.S. at the time of naturalization
Declare in good faith upon naturalization an intent to reside abroad with the U.
S. citizen spouse and to reside in the U.S. immediately upon the citizen spouse’s
termination of service abroad
Be able to read, write, and speak basic English
Have a basic knowledge of U.S. history and government (civics)
Have been, and continue to be, a person of good moral character, attached to the
principles of the U.S. Constitution and well disposed to the good order and hap
piness of the U.S. during all relevant periods under the law
You can also find a good overview from Cyrus mehta at:
http://www.ilw.com/articles/2006,0525...
I have not seen anything that waives the 45 day rule in joining the spouse. You
may want to consider making an INFOPASS appointment with your local CIS office t
o inquire about this issue. See https://infopass.uscis.gov/info_lang.php?...
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com

Replacment for my lifetime waiver granted in 1996.


I have recently found out that a replacement for my lost lifetime waiver for the
US is available,Form I-824? Since losing the original,(stolen wallet), I have h
ad one 5 year waiver,(I-194) that was granted to me. Will this form I-824 provid
e me with a replacment letter for the lifetime waiver? It will save the cost of
reapplying for 5 year waiver every 5 years.This of course is a waiver for multip
le entries for business or pleasure. I lost the lifetime waiver card in 2003 and
was told that I had to apply for I-194 which was granted in 2004 for 5 years. I
later found out on my re-application of the I-194 that I can apply for a replac
ement of my lifetime waiver by submitting form I-824. Is this true or not?
User s Location: Canada
Category: All Other US Visas
Posted on 04 Apr 2011
A.
I am aware of your issue and the old lifetime waiver/card for Canadians. Not too
many people have these old waivers/cards anymore.
There had been some confusion in the past about the continuing validity of those
waivers. Immigration was looking at plans to revoke them and some border offici
als thought they were no longer valid. They do remain valid today though and I h
ave not seen any recent plans to revoke them.
If you lose the lifetime waiver/card, it has been my understanding that you then
must apply for new non-immigrant waiver. I am not aware that you can replace th
e lifetime waiver through an I-824 filing, but I have never had to look at thhat
specific issue.
We do handle a lot of waiver issues for Canadians. Please e-mail me directly at
awilson@srwlawyers.com and I will follow-up with you by e-mail to address your u
nique question.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Visitors Visa to the United States
I am a professional football player (Canadian citizen) in the CFL (Canadian Foot
ball League), and next winter I am looking to obtain a Visitors Visa so that I c
an train December 2011 through May 2012 in Arizona.
One- How far in advance should I begin the application process if I wish to be l
iving in the United States from December through May?
Two- How difficult will it be to obtain the visa? The sole purpose of this is to
train outdoors and live with an American friend. I would not be collecting inco
me, rather just living off of my earnings made from the past football season whi
le renting a condo/town home with friend. The Canadian climate is not cohesive w
ith my training regiment and living in Arizona would aid my training/career imme
nsely.
Thank-you!
User s Location: Canada
Category: All Other US Visas
Posted on 04 Apr 2011
A.
As a Canadian citizen youy are visa exempt. You may apply as a visitor directly
at the port of entry (airport or land border) w/o the need to obtain an actual v
isa at a consulate.
You may apply for admission as a visitor the day you are coming to the U.S. You
will need to show strong ties to Canada (employment, residence, family, accounts
etc.) and provide details of your reason to visit/train in the U.S. for 6 month
s. You will need to provide information on where you will stay, where you will t
rain, financial ability to cover your expenses etc. Lastly you want to provide i
nfo/proof on when you will return and when your season starts back in Canada.
You bring all of the above docs/info to the port and apply for admission as a vi
sitor. If you provide info that your stay will be temporary, that you will not w
ork, that you have financial ability to cover yourself and that you will return
to Canada for the next season, you should have a good chance for success for adm
ission.
Our offfice is right on the border in Buffalo and we handle many NAFTA matters f
or CDN citizens. If you would like assistance with your case please contact me a
nytime.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
H1B Petition Un-Used
I am Physical Therapist and a consulting company filed my H1B in 2010 (H4 to H1B
) but I never got on payroll as employer wanted to wait for my SSN. Now I got my
SSN but employer want me to work in “home health” area (which was not mentioned to
me before filing H1B) and sign new employment agreement, which has more stringen
t terms, esp. for ‘breach of employment’ than were in offer letter. Employer is givi
ng me option to not start work with them and leave without any penalty.
a) Is employer legally bound to employ me in above case? Can I take any legal ac
tion against employer for falsifying and wasting my one year?
b) If current H1B remain unused:
1)Would there be any risk if I file new H1B petition this year?
2)If I leave US (with H1B unused), can I re-enter on my valid H4 stamp?
User s Location: Chicago, Illinois, United States of America
Category: H1B Visa (Work Visa)
Posted on 02 Mar 2011
A.
I am sorry that you are having problems with your employer.
Your first question listed under "a)" is really more of an employment law issue.
You should consider having an employment law attorney review your offer letter
against the employment laws of your state to see what remedies you may have avai
lable. It may be impermisisble to add additional terms to your employment after
the offer letter is sigend and agreed upon.
With respect to immigration issues, if the terms/conditions/location setc. of yo
ur employment will be different than what was listed on your H-1B filing, that m
ay trigger a need for an amended or new H-1B filing to record those changes.
If you do not commence employment under the H-1B with this employer, one big que
stion is whether your H-1B was approved with a change of status request and when
? If your H-1B was approved with a change of status request, you would no longer
be considered in H-4 status. If it has been a long time (weeks/months) and you
do not have any paystubs, it may be difficult to change back to H-4 because CIS
could consider you as not maintaining any H-1B status if you are not being paid.
You could argue that the employer s failure to abide by LCA rules and payment d
oes not mean you are not maintaining H-1B status, but that may be tough.
You can either fielto change sttaus back to H-4 from within the U.S., or depart
and return using your valid H-4 visa in your passport and showing marriage certi
ficate and approved H-1B and recent pay stubs for spouse.
Please note that there are certian rules though about when the employer must sta
rt employing/paying you after the H-1B is approved. The American Competitiveness
and Workforce Improvement Act of 1998 amended section 212(n)(2) of the Immigrat
ion and Nationality Act providing that it is a violation of the wage attestation
requirement for an employer to fail to pay the wage for nonproductive status "d
ue to a decision by the employer," such as lack of work assignments. Promulgated
regulations of the DOL implementing ACWIA further clarify the no-benching rule
under the H-1B program.
Employers are not excused from paying H-1B workers in cases of annual plant shut
downs or holidays or other events, which affect both US and H-1B workers, even i
f the US worker is not paid.
The only exceptions are when the nonproductive period is due to reasons unrelate
d to employment and at the bequest of the employee. The employer is not required
to pay if the nonproductive period is due to "conditions unrelated to employmen
t" at the employee s "voluntary request and convenience" (such as caring for a s
ick relative or touring the US) or due to circumstances such as maternity leave
that render the employee unable to work, provided the period is not subject to p
ay under the employer s benefit plan or under other statutes.
This “no benching rule” becomes effective after the H-1B worker has entered into emp
loyment with the employer, but in any event, no later than 30 days after the wor
ker s date of admission to the US (if entering the US pursuant to the petition)
or 60 days after the date the worker "becomes eligible to work for the employer"
(if already in the US when the petition is approved).
The employer s obligation to pay the H-1B worker ends only if there has been a "
bona fide" termination of the employment relationship. The preamble to the DOL s
final rule suggests that a "bona fide" termination will be deemed to have occur
red only when the employer notifies CIS of the termination, the H-1B petition is
cancelled and the return fare obligation is fulfilled.

For the DOL regulation see 20 CFR 655.731(c)(7)(i) and (ii):


http://www.dol.gov/dol/allcfr/title_20/Part_655...
You may want to look into a complaint with the DOL if you feel one is warranted.
See:
http://www.dol.gov/compliance/guide/h1b.htm...
Regards,
H1B(I-129) Approved but extension of my stay Denied
My Company Filed H1B extension In April 1st week and USCIS received date is Apr
13th.My H1b Expiry date is Apr 21st.On Apr 21st my application suspended due to
insufficient Funds. My Company send back cashier check to USCIS and USCIS resume
d my application on May 3rd.On May 19th My I-129 approved and extension of stay
denied.EOS denied reason is H1 Alien Expiry date is April 21 but H1 Alien Proper
ly Filed On May 3rd. H1b Alien expiry is out of status from April 21st to May 3r
d thats why my EOS and H4 Denied.Here are my Questions
1.If i file MTR Can i stay in US Until I get status
2.If i get denied is there any problem for my green card or any stamping in futu
re.My Labor and I-140 approved
3.After Filing MTR Can I work in US.
4.Whatever USCIS is saying i am out of status 10days is it ok
User s Location: QUINCY, Massachusetts, United States of America
Category: H1B Visa (Work Visa)
Posted on 26 May 2011
A.
I am sorry that you are in this position.
In general, CIS views a proper filing as one that includes the correct filing fe
es. If incorrect filing fees are provided or funds are not available, they may c
ertainly view that as an improper filing and not accept that as the filing date.
If CIS views the proper filing date with correct fees as May 3rd, that is after
your prior expiration and they could deny the extension of status request for th
at reason.
You do not have any status to be in the U.S. now and do not have any work permis
sion. Filing a MTR does not change that and you still would be accruing unlawful
presence and still would have no work permission. Also, under a strict reading
of the law, I am not sure a MTR would be successful.
Again, filing MTR does not provide you any permission or status to remain in the
U.S. It does not provide any work authorization in the U.S. You would continue
to be here w/o any status and would continue to accrue unlawful presence.
The prudent thing may be to depart the U.S. and obtain a new H-1B visa based on
this approval notice. You otherwise risk remaining here w/o status and affecting
your eligibility for a green card based on your current approved I-140.
Regards,
Overstayed in US - H1b stamoing in Delhi,India
I have overstayed in US for a less than a month (27 days) after my H1b extension
got denied(with expired I94).I applied for new H1B from new company within thes
e 27 days. Now I am in India and need to apply for H1B stamping (and H4 for spou
se) in India based on new approved H1B visa.
1. What potential issues overstay can cause during visa stamping in India and/or
entry into USA, and how to address these issues?
2. What reasons/documents are helpful in justifying the overstay? My wife is pre
gant and there was a test pending before we left.Would that help?
3. Specifically, how to respond to following question in DS160:"Have you ever be
en unlawfully present,overstayed the amount of time granted by an immigration of
ficial or otherwise violated the terms of a U.S. visa?
User s Location: India
Category: H1B Visa (Work Visa)
Posted on 19 May 2011
A.
Thank you for your questions. Please see my reposnes below:

1. What potential issues overstay can cause during visa stamping in India and/or
entry into USA, and how to address these issues?
Staying 27 days past the H-1B extension denial notice should not be a huge issue
for your visa application process. The denial notice may have had a time frame
of 30 days in which you must depart the U.S. Also, 27 days does not come close t
o triggering any unlawful presence bars. If you explain that you needed 27 days
to organize everything, including personal issues, move forward with new H-1b fi
ling and to plan your departure, I do not think 27 days should be a huge problem
.
2. What reasons/documents are helpful in justifying the overstay? My wife is pre
gant and there was a test pending before we left.Would that help?
That absolutely is a valid reason for having to delay your departure. You can ex
plain that you need a little time to organize your personal and professional iss
ues before departing. Your pregnant wife staying to complete a test is a reason
you can provide why your departure was delayed a little bit.
3. Specifically, how to respond to following question in DS160:"Have you ever be
en unlawfully present,overstayed the amount of time granted by an immigration of
ficial or otherwise violated the terms of a U.S. visa?
I cannot advise on how to answer a specific question on the DS 160.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
H1B extension and transfer at the same time
Current:H1B with company A(Started:Oct,2010,expire:Sep,2011), this is my first H
1B, I was on OPT before that.
Company A: Filed H1B extension in Apr 2011 and has gotten a three year approval
on the new LCA for me. Now is going to file the petition.
Company B: Sent me a job offer which I have accepted. Now they are preparing my
H1B transfer.
Question:
1.Will there be any conflict between my H1B extension with company A and H1B tra
nsfer with company B?
2.If company B starts filing the H1B transfer petition now, when should I be abl
e to start working for this company?
3.Is there any potential problem for me to move from company A to company B in m
y case?
User s Location: Parsippany, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 19 May 2011
A.
Thank you for your questions. Please see my reponses below:
Question:
1.Will there be any conflict between my H1B extension with company A and H1B tra
nsfer with company B?
It does not sound like there should be any conflict. Company A and Company B cou
ld have H-1B extensions filed for you and pending at the same time. Also, Compan
y A s H-1B extension for you could be approved and you could still move forward
with an extension request through Company B.
2.If company B starts filing the H1B transfer petition now, when should I be abl
e to start working for this company?
If you qualify under H-1B portability provisions, you could start after their H-
1B for you is properly filed and receievd at the Service Center. (You may want t
o wait for receipt notice) If you do not qualify under H-1B portability, you nee
d to wait for the approval notice through B. If possible, you may want to premiu
m process through B and have that approval in hand before leaving A. You do not
want to leave A and then have your H-1B through B denied.
3.Is there any potential problem for me to move from company A to company B in m
y case?
See above.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
H1 - Transfer in process and Travelling Abroad
Current Status: H1 (visa stamp expires Sept 2011)
Citizen-India
Currently employed: Company A (Has filed for h1 extension on May 1 under normal
process)
Future: Company B (Has filed for Transfer under Premium Processing as of May 6,a
s of now LCA is under process)
Company B start date- June 6
I plan to resign on May 21 with A and travel abroad to Dubai the same day. Will
be back on June3 to USA
>Can i travel abroad even if my transfer petition is under process?
>Will I be able to enter with Showing Transfer Petition in process Receipt at PO
E?
> Can i enter with Company A visa stamp? Do i need re-stamping of B?
>Any issues if current employer informs USCIS about my resignation?
Its a emergency travel i cannot avoid. What needs to be done to make my trip?
User s Location: Houston, Texas, United States of America
Category: H1B Visa (Work Visa)
Posted on 17 May 2011
A.
You may travel under current/unexpired H-1B approval notice and current/unexpire
d visa through as long as when you return on June 3rd you plan to continue worki
ng for Company A.
If your start date at B is June 6 and you will return to work for B and not A, y
ou do not want to use the H-1B approval from A for entry. You would want to use
your H-1B approval from B and your unexpired H-1B visa in your passport.
You could potentially use onkly your receipt notice from B along with H-1B appro
val notice through A and H-1B visa, but I have heard anecdotally that not all CB
P officers recognize travel permisison under H-1B portability provisions. For th
at reason, it is much better if you have approval through B in hand.
Best case scenario is to return with new H-1B approval through B along with curr
ent unexpired H-1B visa. Second best option is to return under portability provi
sions showing receipt for H-1B through B, prior H-1B approval through A and unex
pired H-1B visa in your passport.

221(g) yellow form asking CLIENT LETTER


Am in India from 11/15/2010,working remotely for client,IBM,PA as JAVA developer
.Am working with IBM from 9/18/2008.My H1 B employer is NY based.My H1B extensio
n filed on 07/31/2010,USCIS issued RFE asking client letter.IBM policy NOT to is
sue client letter for the contractors,so we submitted PHOTO ID, timesheets and e
mails from the client manager for RFE.USCIS has approved H1B extn on 03/11/2011.
WITH OUT a client letter,I attended visa stamping at Hyderabad consulate on 05/0
5/2011.Visa officer issued a 221(g) yellow form asking client leter.But IBM WILL
NOT issue ANY sort of proof or emails related to client leter.So now,can I subm
it a NEW CLIENT letter or can I submit my employer s internal project as client
leter as response to my 221(g)?pls advise all possible options left out for me.
User s Location: India
Category: H1B Visa (Work Visa)
Posted on 11 May 2011
A.
This is a common problem for those working for IT consulting companies. Not only
does your employer need to address the Neufeld employer/employee memo at the Se
rvice Center, but the same issue arises when you apply for a visa at a U.S. Cons
ulate. In addition to I-129 adjudications at CIS Service Centers, the Neufeld me
mo’s reach has also started to affected visa processing at U.S. consulates. The gu
idance of the Neufeld memo is now being used by the DOS in adjudicating non-immi
grant visas. Again, it is employees of IT consulting companies who are starting
to receive additional scrutiny and documentation requests for proof of control b
y the employer and proof of the project and end user. This is leading to additio
nal delays with visa processing and additional visa denials by the consulates. T
herefore, addressing the Neufeld memo at the Service Center may not be enough, a
s the same issues and hurdles may again arise at the U.S. consulate during visa
processing. This is particularly true for Indian nationals who are employees of
IT consulting companies.
Travel by foreign national employees needs to be closely monitored to ensure the
re will not be any interruptions to work because of visa processing delays. Empl
oyers should know though that delays and more thorough background reviews in the
visa process are becoming more common these days. I have noticed more delays wi
th visa processing over the past 12 months, particularly for citizens of China a
nd India. These delays can last 6-8 weeks or longer and can be a huge disruption
to important work projects.
I would provide the same evidence to the Consulate that was provided to the Serv
ice Center for the RFE. I would also provide any other updated info or anything
comparable that proves the project, including contracts, SOWs etc.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor shoul
d it be construed, as legal advice. This post does not create any attorney-clien
t relationship between us. For specific advice about your particular situation,
consult an attorney.
Posted on 11 May 2011
Q.
Sir,
As I already mentioned it is not possible to get any sort of emails/ letters/ do
cuments etc etc from the IBM. Also my project at IBM may end as remotely working
is not feasible anymore. I can say that IBM is not an option any more. So takin
g this in to account, please let me know all the best possible options that are
left out to me in order to respond to my 221(g).
Thank you very much
Posted on 12 May 2011
A.
If the project, location, assignment listed in your H-1B petition is no longer f
easible and this is not what you will work on when you return to the U.S., that
in and of itself is a problem for your H-1B visa process. Your H-1B petition pap
erwork will list the work location, assignment etc. that was the basis for the H
-1B approval. If you will now have a new work assignment, location etc., that ma
y require a new or amended H-1B filing by your employer. You need to confer with
your employer whether you will now have a new project and if that will require
a new or amended H-1B filing.
If the proposes assignment was lisetd on your H-1B filing, then you need to prov
ide proof of client letter, SOW, contracts etc. for that client and that assignm
ent. Assuming that IBM was the only assignment listed on your H-1B, you may need
to have a new or amended H-1B filed for you.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Lost and Expired I-94
I came back to the US from a short vacation to India on 02/15/2010. My H1-B exte
nsion was under process then so I got the documents mailed by my company to my h
ome address in India. I-797 came with the I-94. On my arrival to the US on 02/15
/2010, the cbp officer stamped my passport expiry date on the new I-94 (12/20/20
10).
I realized last week that I had to renew my I-94 and I can t even find it now. Y
es, I lost it.
Now am I out of status? Or since my I-94 that came with my I-797 still has a dat
e of 05/31/2012 am I still in status? I m going to apply for a green card pretty
soon. Should I consider myself safe with the I-94 that came with my I-797 or sh
ould I have to request USCIS for a new I-94 using form I-102 with I-94# from I-7
97? Pls advice my next course of action. Thanks plenty!
User s Location: Silver Spring, Maryland, United States of America
Category: H1B Visa (Work Visa)
Posted on 11 May 2011
A.
The expiration on your I-94 when you last entered is generally what dicates your
authorized stay to remain in the U.S.
Was the expiration of 12/20/10 based on your passport expiration or was it a mis
take?
This is a serious issue that needs to be analyzed by an experienced immigration
attorney. If the expiration date on your I-94 was an error, it may be able to be
corrected at an airport here in the U.S. If it was correct based on your passpo
rt expiration, you may have a serious unlawful presence problem.
You should have an immigration attorney review your paperwork as soon as you are
able.
Please contact me anytime if you would like to scheduel a consultation to review
your issue.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Do I need to do COS from H1 to H4 for joining school full-time?
I am on H1 (I-94 valid till 2013). My wife is on her H1 (I-94 valid till 2012).
I am joining B-school FULL-TIME this Aug. My GC is in process and I-140 is appro
ved, waiting to apply for I-485. Hence, I cannot do a COS to F1 visa. I was init
ially thinking of doing a COS to H4 (dependent of my wife) to join the B-school.
However, I saw this USCIS memo from 2009 (pls see the link for details)(http://
www.uscis.gov/portal/site/uscis/menuitem...). My question is:
1. Do I HAVE to do a COS to H4 or can I pursue Full-time study on H1? If I can,
should it be considered as an illegal status since I wont be employed anymore?
Pls advice on my best possible option.
User s Location: Bellingham, Massachusetts, United States of America
Category: H1B Visa (Work Visa)
Posted on 09 May 2011
A.
You first need to check with the school to determine whether you may attend full
-time as an H-4 or whether F-1 status would be required. If F-1 would be require
d, that would be an issue because a change of status to F-1 would not likely be
approved with your green card paperwork pending. I believe you should be able to
attend school full-time as an H-4.
In general, you cannot attend school full-time under H-1B status. If you are her
e in H-1B status, this needs to be your primary reason for being in the U.S. Att
ending school would need to be incidental to your H-1B employment. If you will n
ot be employed anymore, you could not remain in H-1B status and attend school.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
H1 to H4 to H1
I have exhausted my full H1B 6 yrs in Oct08 and since my labor application(EB3)w
as filed quite late in Aug08,I was not eligible for a 7th year H1B extension.Con
sequently,I had to come on H4 (H4 was stamped in India,Wife is on H1).My I140 ap
plication was also been approved Apr 10,while I was on H4.My Ques. are
1)Is it possible for me to get back to H1 with a 3 year extension on the ground
that I have an approved I140 application?If yes,what are the exact mechanics,cos
t and paperwork involved 2)Currently,I have a job offer from an employer other t
han the one who originally filed my GC application.Can I still use
my approved I-140 as above and file a 3 year H1 extension with this new employer
OR only the employer who orginally filed my GC application can file for my H1 e
xtension as well?
User s Location: GRAND RAPIDS, Michigan, United States of America
Category: H1B Visa (Work Visa)
Posted on 04 May 2011
A.
You should be eligible to change back to H-1B under AC21 and request new H-1B ti
me based on your approved I-140. The process is basically filing H-1B paperwork
and requesting a change of status from H-4 to H-1B. You also need to include I-1
40 approval and docs that show eligibility for H-1B time beyond 6 years under AC
21.
You may obtain H-1B extension beyond 6 years under AC21 for employer that is dif
ferent than the one sponsoring you for permanent resident process. You may obtai
n H-1B through Company B under AC21 based on green card paperwork through Compan
y A.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

I am on an H1B and applying for an H1B transfer


I am currently on an H1B working visa and I applied to another company. My last
day with my employer A was last Friday but unfortunately the lawyer who was supp
osed to file for a transfer of visa for my next company failed to submit my appl
ication earlier. I applied to company B two months ago and gave the lawyer all t
he required documents. His secretary just informed me awhile this afternoon that
my petition has not yet been filed. Company B has already given june 6 as my st
art date so I already resigned from company A.
Will this mean I will be out of status since they still have not filed my petiti
on? I am an occupational therapist and how long does it usually take before an H
1b transfer gets approved?
User s Location: tyler, Texas, United States of America
Category: H1B Visa (Work Visa)
Posted on 04 May 2011
A.
Normal H-1B processing right now is about 2-4 months.
There is premium processing available where CIS will adjudicate the H-1B within
15 calendar days for an additional filing fee of $1,225.
Your new H-1B filing could be an issue if you do not have recent pay stubs whene
ver the H-1B is actually filed. CIS will want to see recent pay stubs from prior
employer to prove you were maintaining your H-1B up until the time your new H-1
B was filed. If your pay stubs are 3-4 weeks old, or if prior employer submits l
etter to CIS of your last day of employment, that could be an issue for your new
filing.
At this point you need to determine when your H-1B will be filed. Technically yo
u are not maintaining any status or permission to remain in the U.S. if you left
prior employer and have not had new H-1B paperwork filed for you.
If employer wants you to start by June 6, you need to either look at premium pro
cessing or review with your attorney whether you can still start under H-1B port
ability provisions.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
H1 to H4 While H1B 221G Admin Processing in pending
My wife was in H1B working for consulting firm. Recently she went to India to at
tend H1B Visa interview in India at Chennai visa consulate and was issued 221G B
lue form asking for additional documents. I am currently in US on H1B. Can I app
ly H4 to my wife while her H1B 221G RFE is pending? Do we need to withdraw her H
1B petition to apply for H4? How long do you suggest to wait for applying H4 whi
le H1B in pending ? Lets say if she she is back to US on H4, do we have any opti
on to change her status to H1 and use old H1B assuming 221g processing was posit
ive ? Is it advisable to apply for H4 when H1B is in pending ? Please advice the
safest way to proceed.
User s Location: Chantilly, Virginia, United States of America
Category: H1B Visa (Work Visa)
Posted on 02 May 2011
A.
Thank you for your questions.
This is a pretty common scenario.
In many cases, depending on the reason for the additional review for visa proces
sing, it may take about 4-8 weeks to have the H-1B visa process completed. That
is just a range, and in some cases it can take longer.
I believe the options now would be to continue with the H-1B process or withdraw
the H-1B visa process and apply for an H-4 visa.
If possible, I would think it makes sense to simply wait for adjudication of the
H-1B visa. Hopefully processing will fall within 4-8 weeks, and if her visa is
approved, she may enter to work on her H-1B. If denied, she may apply for an H-4
visa to return to the U.S. to be with you. (Of course, the reason for H-1B deni
al may affect her H-4 process, but as long as it is not a specific inadmissibili
ty issue to her, but raher an issue with her H-1B paperwork, she should still be
eligible to obtain an H-4 visa.)
In general, it is possible for an individual to file for a change of status from
H-4 to H-1B from within the U.S. Whether it is possible in her case depends on
the proposed employer, position offer, factors of her H-1B visa process etc.
Regards,

Priority Labour / I-140 date Portability.


What is excat rules related to Labour portability and I-140 portability.My H1B,6
year limit is due Nov-2012.With my Current employer(A) I have Labour approved i
n 2009 and I-140 filed in Oct-2009 but not approved yet.If I switch to a new emp
loyer(B) to whom I can transfer my H1B visa and subsequently proceed my GC can m
y priority date attached to my earlier employer s(A) labour application be porte
d to the new employer s(B) GC proceedings?or do I have to wait for my I-140 to g
et approved with earlier employer(A) for the the original Labour application dat
es to be portable to new employer(B).Also is it true that I have to wait 6 month
s after my I-140 gets approved with current employer(A) to move to a new employe
r(B) so the original priority dates can be ported.What to take care B4 I switch?
User s Location: Richardson, Texas, United States of America
Category: H1B Visa (Work Visa)
Posted on 28 Mar 2011
A.
Your I-140 was filed in october 2009 but it has not been adjudicated yet?
Your priroity date does not lock in until your I-140 is approved. if your I-140
has not yet been approved, you techncially do not yet have a priorityd ate for y
our case from the initially filed labor certification.
If possible and if you are applying for H-1B extension beyond 6 years under AC21
through the new Employer, it may be prudent to obtain the new H-1B approval thr
ough the new company before leaving your current company. One risk in general is
that the new H-1B through the new company is denied and you already left your c
urrent company. Another risk is that your current company withdraws your approve
d I-140 before the H-1B through the new company is approved, and that could affe
ct your H-1B extension eligibility under AC21. You therefore may want to conside
r premium processing for the new H-1B filing.
If you have not been able to file 485 paperwork because your priority date is no
t yet current, you cannot take your current green card paperwork with you to the
new company under AC21 and file 485 portability paperwork. You will have to sta
rt a new PERM process through the new company, but you should be able to retain
your priority date even if your current company withdraws your I-140 as long as
the I-140 has been approved.
Under applicable CIS and field manual guidance, an individual may use the priori
ty date from an approved EB-1, EB-2 or EB-3 I-140 petition for a subsequently ap
proved EB-1, EB-2 or EB-3 petition as long as the earlier approved I-140 was not
revoked for fraud or misrepresentation.
CIS updated the Adjudicators Field Manual (AFM) in 2005 and 2006 to clearly conf
irm that if a foreign national’s I-140 is approved, the foreign national retains t
hat priority date for future I-140 petitions unless the prior approved I-140 was
revoked due to fraud or willful misrepresentation. Interim guidance on this iss
ue was provided in an Interoffice Memorandum (HQPRD70/6.2.8) dated September 23,
2005 from William R. Yates, Associate Director, Operations. This interim guidan
ce to revise Chapter 22.2(b)(5)(A) of the AFM reads:
(A) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority is the earliest date
upon which the labor certification application was filed with DOL. In those case
s where the alien’s priority date is established by the filing of the labor certif
ication, once the alien’s Form I-140 petition has been approved, the alien benefic
iary retains his or her priority date as established by the filing of the labor
certification for any future Form I-140 petitions, unless the previously approve
d Form I-140 petition has been revoked because of fraud or willful misrepresenta
tion. This includes cases where a change of employer has occurred; however, the
new employer must obtain a new labor certification if the classification request
ed requires a labor certification (see the section on successorship in interest)
.
CIS finalized its update and officially revised Chapter 22 to the AFM through an
Interoffice Memorandum (HQPRD70/23.12) dated September 12, 2006 from Michael Ay
tes, Acting Associate Director, Domestic Operations. The Aytes memorandum revise
s the AFM, which is binding on adjudicators pursuant to AFM Section 3.4. This me
morandum revised Chapter 22: Employment-based Petitions of the AFM to read:
(1) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority is the earliest date
upon which the labor certification application was filed with DOL. In those case
s where the alien’s priority date is established by the filing of the labor certif
ication, once the alien’s Form I-140 petition has been approved, the alien benefic
iary retains his or her priority date as established by the filing of the labor
certification for any future Form I-140 petitions, unless the previously approve
d Form I-140 petition has been revoked because of fraud or willful misrepresenta
tion. This includes cases where a change of employer has occurred; however, the
new employer must obtain a new labor certification if the classification request
ed requires a labor certification (see the section on successorship in interest)
.
The current version of the applicable provision of the AFM at Chapter 22.2(d) no
w reads:
(1) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority date is the earliest
date upon which the labor certification application was filed with DOL. In those
cases where the alien’s priority date is established by the filing of the labor c
ertification, once the alien’s Form I-140 petition has been approved, the alien be
neficiary retains his or her priority date as established by the filing of the l
abor certification for any future Form I-140 petitions, unless the previously ap
proved Form I-140 petition has been revoked because of fraud or willful misrepre
sentation. This includes cases where a change of employer has occurred; however,
the new employer must obtain a new labor certification if the classification re
quested requires a labor certification (see the section on successor in interest
).
Further guidance on the proper interpretation of retention of priority dates is
provided by in the Foreign Affairs Manual at 9 FAM §42.53 N3.5 Subsequent Petition
in Employment-based Classifications:
a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a prio
rity date accorded by approval of an employment-based first, second, or third pr
eference petition is retained by the beneficiary for any other first, second, or
third preference petition approved subsequently for the same beneficiary. In al
l cases, the beneficiary of multiple petitions is entitled to the earliest of th
e filing dates of the various petitions.

You therefore should be able to retain your priority date as long as the I-140 h
a sbeen approved, but you will need to start a new PERM process through the new
company.
If you have the receipt notice for your I-140 approval, you can go online to CIS
web site and print out a screen shot of that 140 approval. If you file a Freed
om of Information Act (FOIA) request, you may be able to obtain documents confir
ming your priority date and preference as well.
If the current company is not willing to provide a copy of the 140 approval noti
ce, I think your best options are to print out a screen shot online and do a FOI
A.
You can switch to a new employer anytime they are willing to file the new H-1B p
aperwork for you. You do not need to wait 180 days for any reason. There is a 18
0 day wait after filing 485 paperwork to qualify for 485 portability, but that d
oes not apply to your case.
Regards,
Andrew M. Wilson, Esq.

H4 to H1 transfer using previous H1


Hi,
I worked in US on two long term assignments previously:
1)From Mar 2005 to Jan 2006 on L1 Visa - went back to India after assignment.
2)From Jan 2007 to Oct 2007 on H1 Visa - went back to India after assignment.
This H1 petition was valid from Dec 2006 to Mar 2008.
I came to US 3 months back in Jan 2011 on H4.
My question : I am on H4 currently. Will I be able to do a H1 Transfer and start
working immediately, provided I find suitable job/employer? Will the quota be a
pplicable in my case?
Thanks in advance
User s Location: San Jose, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 12 Apr 2011
A.
You should not have to worry about the H-1B cap if you previously had an H-1B ap
proved within the last 6 years under a cap. Assuming your prior H-1B was approve
d against a cap, you should not need to worry about the cap for your new H-1B fi
ling.
CIS has taken the position that you cannot use H-1B portability and start workin
g after the new H-1B is filed unless you are currently in H-1B status. If you wi
sh to file for a change of status from H-4 to H-1B, CIS takes the position that
you cannot use H-1B portability because you are not in H-1B status now.
If you want to start work sooner, you will likely need to file with premium proc
essing.
Regards,

Working under EAD


I have worked under H1B Visa for the same employer (who applied for my green Car
d) but recently changed to EAD because I started working part time for a second
employer. My question is if it would be risky to terminate employment with the c
ompany that initially filed my green card before I receive the green card. My pr
iority date is December 2005 and cut off date is now August 2005. Would it be be
tter to continue with my current full time employer until the green card process
is completed?
User s Location: Weehawken, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 11 Apr 2011
A.
If you leave your current green card employer, what company will continue your s
ponsorship for your green card?
There is always a risk to your green card process if you leave the current compa
ny that has sponsored you for the green card. Do you have a new employer willing
to offer you a permanent full-time position and take over your green card proce
ss? Would you qualify under 485 portability provisions to have that new employer
take over your green card process?
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Stay on B1 visa effects H1?


I have a query regarding the H1B visa.
Right now I am in US on a B1 visa.I was in US from Feb 2011 and my B1 is stamped
for 6 months (untill July 2011) and my employer is planning to apply my H1 this
year in July or August.
I heard that staying in US on B1 visa for 6 months continously(though I 94 is st
amped for 6 months) will effect my chances of getting my H1B visa.I want to know
how far it s true.In case if there are chances that my rejection of H1 increase
s because of my stay here in US on B1 for 6 months, I will plan to leave US this
April.In case staying on B1 for 6 months and rejection of H1 are not related, I
am planning to stay in US for 6 months.
Please help me to take the correct decision for my H1 visa to be granted.
User s Location: New Jersey, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 31 Mar 2011
A.
If your I-94 is valid for 6 months and you have been authorized to stay in the U
.S. for 6 months, I do not believe that in and of itself should be an issue for
your H-1B filing. I do not not knowif there are certian facst in your case that
make it a problem, but in general it should not affect a person s eligibility fo
r H-1B.
One issue may be the H-1B cap and that if your H-1B is subject to the cap the H-
1B start date could not be until October 1st. You would need to depart the US pr
ior to your B-1 I-94 expiring and obtain an H-1B visa to return on October 1st (
or as early as 10 days prior to October 1st).
You may have an H-1B filed for you and staying the full six months on your B-1 e
ntry should not affect the adjudication of your B-1. You will need to review H-1
B cap and timing issues with your proposed employer, but in general staying on t
he B-1 should not affect your eligibility for the H-1B.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
H1B
1. How much do you charge to transfer a H1B visa?
2. How much is the government filing fee to transfer a H1B visa?
3. Can a H1B worker get paid hourly?
4. Can a H1B worker get paid overtime?
5. Is there a limit to how hour many hours a H1B worker can work in a week?
User s Location: Seattle, Washington, United States of America
Category: H1B Visa (Work Visa)
Posted on 31 Mar 2011
A.
Thank you for your questions. Please see my responses below:
1. How much do you charge to transfer a H1B visa?
This really depends on the type of H-1B, type of employer, immigration history e
tc. I am happy to review your matter and provide my recommendations.
2. How much is the government filing fee to transfer a H1B visa?
This again depnds on the size of the company, but in general if there are more t
han 25 emplyees and this is the first H-1B for you through that employer, filing
fees are $2,325. Premium processing would be an additional $1,225.
3. Can a H1B worker get paid hourly?
Yes.
4. Can a H1B worker get paid overtime?
Yes.
5. Is there a limit to how hour many hours a H1B worker can work in a week?
I am unaware of any limit. Guidanc eis usually on working less than full-time su
ch as guidance from AILA/VSC Practice Pointer: Strategic Use of the Part Time H-
1B:
Cite as "AILA InfoNet Doc. No. 09111960 (posted Nov. 19, 2009)"
A few things to keep in mind when filing part-time H-1Bs:
1. There is no minimum number of hours required under the regulations to qualify
for part-time H-1B status. Part-time employment is anything less than 35 hours.
As a practical matter, a beneficiary should be either making at least a living
wage or the petition should be accompanied by proof that the beneficiary has suf
ficient means to support himself/herself.
2. The number of hours worked may be listed as a range, such as "15-20 hours per
week" or as "flexible."

Regards,

1B status
I am on H1B status in US with a IT Consulting firm, I have an opportunity to wor
k in Brazil on a 2 year contract. The contract for this opportunity will be betw
een my H1B employer and the end client is a company in Brazil. I intent to work
in Brazil for 6 weeks continuous followed by 1 weak remote work from home in US
and this repeats for the entire duration of 2 year contract.
1) Can I maintain my H1B in the above scenario?
2) If I can maintain my H1B do you see any potential problems in getting a H1B s
tamp on my visa and any issues at port of entry every time I enter US after 6 we
eks of work in brazil to work from home in US?
3) If h1b is ruled out then what other visa options do I have to come back to US
for a short stay to visit friends (Kindly note my I-140 has been filed)
User s Location: Los Angeles, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 30 Mar 2011
A.
Does your current H-1B list your home address as a work address? Is your home ad
dress listed on the LCA that was used for your LCA and was a prevailing wage det
ermination obtained based on your home office?
If you are working for a U.S. employer who controls your work and falls under th
e "employer" definition of the Neufeld memo, and you will perform work in the U.
S. through a home office, this technically still should work for an H-1B. If thi
s scenario and your home office are listed in your current H-1B paperwork, you m
ay be able to continue with your current H-1B paperwork. If not, new or amended
H-1B paperwork may need to be filed for you. Obviously your particular issue nee
ds to be reviewed by the attorney handling your H-1B and green card paperwork.
If you are maintaining your H-1B and working in the U.S. for your employer, you
should be able to obtain an H-1B visa in your passport and have no issues travel
ing back and forth. (Of course this is difficult to predict with consulates and
CBP when traveling back into the U.S. Each CBP officer may have a different take
on your situation.) It may be helpful to travel with a letter from your attorne
y confirming your continued H-1B eligibility.)
Trying to come back to the U.S. as a visitor would likely be difficult if you ha
ve I-140 paperwork filed. It would also be difficult when employed by a U.S. ent
ity and your residence is still in the U.S.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Immediate conversion to H4
I just had a lay off and employer told that they have applied for my H1b revocat
ion. I want to immediately convert to H4
1) Can I travel to San Diego, CA and from there walk to Tijuana on Mexico side a
nd walk back to US side and get new I94 with H4 status on that I94.
2) I read in different forums that the CBP officer are providing I94 only when a
sked. Will CBP officer provide me I94 with H4 status.
3) In which case will the officer not provide me I94 with H4 status
4) Can I use this H4 I94 to apply for new H1 visa if an employer is willing to e
mploy me?
5) If my husband accompanies me while crossing to mexico and then back in US sho
uld he request new H1 I94 too or he can keep his current I94?
6) Instead of all this, is it better to fly out from US to Canada and fly back i
n US ?
User s Location: SAN JOSE, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 23 Mar 2011
A.
Thank you for your questions. Please see my responses below:
1) Can I travel to San Diego, CA and from there walk to Tijuana on Mexico side a
nd walk back to US side and get new I94 with H4 status on that I94.
It is difficult to comment on travel issues w/o seeing any paperwork. What is yo
ur nationality? Do you need a visa to enter Mexico? Would you qualify to enter t
he U.S. under automatic visa revalidation to return and be issued new I-94 with
H-4 designation? These issues should be reviewed by an attorney.
2) I read in different forums that the CBP officer are providing I94 only when a
sked. Will CBP officer provide me I94 with H4 status.
If you are eligible and able to go this route, CBP will issue you a new I-94 wit
h H-4 designation. You would need to provide marriage certificate, proof of spou
se s H-1B approval and status and copies of pay stubs of spouse to prove still m
aintaining H-1B status.
3) In which case will the officer not provide me I94 with H4 status
You should be provided a new I-94. It would be out of the ordinary not to be pro
vided a new I-94.
4) Can I use this H4 I94 to apply for new H1 visa if an employer is willing to e
mploy me?
If you are back in the U.S. in H-4 status, you may apply for a change of status
from H-4 to H-1B if you have new employment opportunity.
5) If my husband accompanies me while crossing to mexico and then back in US sho
uld he request new H1 I94 too or he can keep his current I94?
He would either be given a new I-94 or allowed to use his current one if it was
not taken when he departed the U.S.
6) Instead of all this, is it better to fly out from US to Canada and fly back i
n US ?

Again it is difficult to comment on travel issues w/o seeing any paperwork. What
is your nationality? Do you need a visa to enter Canada? Would you qualify to e
nter the U.S. under automatic visa revalidation to return and be issued new I-94
with H-4 designation? These issues should be reviewed by an attorney.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
H1b non cap to cap
Hi, I have a cap-exepmt h1b visa approval in september 2010. This h1b was a COS
from f-1 to h1b. I applied for a cap-subject transfer on dec 2010 and got approv
ed on earlier last week. This was a transfer from h1b cap exempt to h1b cap subj
ect.so I have 2 approvals now but I wish to continue with the first h1b (cap exe
mpt) and not the recent approval (cap subject). I want to add that I have no sta
mpings yet as I did not leave the country after any approvals. My questions are:
1) Does the approval of cap subject visa means my cap exempt visa is terminated?
2) Can I continue with the cap exempt visa, even after the approval of the cap s
ubject h1b, or do I have to join the latest approval ( cap subject visa) as it t
he most recent approval?
User s Location: New York, New York, United States of America
Category: H1B Visa (Work Visa)
Posted on 23 Mar 2011
A.
Thank you for your questions. Please see my responses below:
1) Does the approval of cap subject visa means my cap exempt visa is terminated?
No. You do not need to leave your current H-1B cap exempt employer. The approval
of the cap subject H-1B does not terminate your H-1B cap exempt approval. You d
o not need to commence employment with H-1B cap subject employer and you may con
tinue working for cap exempt employer with that still valid cap exempt approval
notice.
2) Can I continue with the cap exempt visa, even after the approval of the cap s
ubject h1b, or do I have to join the latest approval ( cap subject visa) as it t
he most recent approval?
No. You do not need to leave your current H-1B cap exempt employer. The approval
of the cap subject H-1B does not terminate your H-1B cap exempt approval. You d
o not need to commence employment with H-1B cap subject employer and you may con
tinue working for cap exempt employer with that still valid cap exempt approval
notice.
Also, since you have now had an H-1B counted against a cap, you should not have
to worry about the cap for potential future filings.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

H4 Visa Processing
My Wife wants to Join me on H4 Dependent Visa in US, But she is currently work i
n India and has valid H1B petition(Not Stamped Yet) from her employer. She wants
to take a vacation from her employer and come over here to US in H4 Visa. Does
she needs to carry any documents from her employer for the H4 visa stamping.
User s Location: Hartford , Connecticut, United States of America
Category: H1B Visa (Work Visa)
Posted on 16 Mar 2011
A.
If you are maintaining valid and unexpired H-1B status, your wife should be able
to obtain an H-4 visa through the U.S. Consulate in her home country. Each cons
ulate has different procedures, so check their web site for documents required a
nd the application process.
Since she is not coming into work and cannot work on her H-4 admission, she shou
ld not need any docs from potential U.S. employer. She may be required to explai
n whether she plans to ever depart and obtain H-1B visa in order to start work o
n that H-1B approval.
If she does plan to work for that employer that filed an H-1B for her, she would
likely need to depart the U.S. and obtain an H-1B visa at the consulate first.
Regards,
H1 B transfer
I am working in company A and accepted offer of company B. Now company B has fil
ed for my H1 transfer premium processing. Couple of days before I got another be
tter opportunity from company C. I want to join company C now but have concern t
hat my H1 transfer to company B will probably get approved next week. If I get m
y H1 transfer approval for company B then can I still choose not to join company
B and start another H1 premium transfer process from company A to company C wit
hout any issues OR I have to join company B once my H1 get transferred to them a
nd then transfer H1 from company B to company C ?
User s Location: San Jose, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 14 Mar 2011
A.
If you continue to work for Company A and maintain your H-1B status through Comp
any A, you should be able to file new extension paperwork through Company C and
not have to worry about your H-1B filing and/or subsequent approval through Comp
any B. As long as you are still with A and maintaining your H-1B status through
A, you would not need to join B. You could continue to work for A and file new H
-1B paperwork through C.
You can file paperwork through C while still working for A w/o having to join B
for any reason.
Regards,
Andrew M. Wilson, Esq.
H1B flying from Toronto
I am on H1B visa and living in Buffalo, NY. I want to fly to India from Canada.
I have a valid visitor visa to Canada.
Can I drive to toronto from buffalo and fly to New Delhi from there? Will it be
ok to enter US back driving back from toronto. Do I need a new I-94 or not.
Precisely below is what I am trying to do:
Drive from Buffalo --> Toronto :::: Fly from Toronto --> New Delhi
Fly from New Delhi ---> Toronto :::: Drive from Toronto --> Buffalo
Kindly let me know if it is allowed or I am required to fly from US only.
Also is it advisable to do these days.
User s Location: Buffalo, New York, United States of America
Category: H1B Visa (Work Visa)
Posted on 08 Mar 2011
A.
I am afraid that part of your question involves Canadian immigration. I suspect
that you would be allowed to enter Canada as a visitor with your visa for a flig
ht to India and then be able to return from India with your visa to then come ba
ck to the U.S., but I do not get involved in Canadian immigration issues.
There is a Canadian Conuslate in the HSBC Tower in downtown Buffalo. I would con
tact the consulate to inquire whether your specific visitor visa could be used a
s a "transit" visa to fly out of Toronto.
If you have a valid H-1B visa in your passport as proof of your ability to be re
admitted to the U.S., this may not be an issue. But again I would confer with th
e Canadian Consulate to see if your specific visa may be used for "transit" purp
oses.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
H1B visa stamping in Canada
I received an approved H1B petition which extended my H1B till Sep 2013. (Same E
mployer)
My Current H1B visa and I-94 Card are valid till June 29,2011.
My wife has a H4 visa and I-94 Card which is valid till June 29,2011.
I am planning to travel to Canada for H1B/H4 stamping on 15 March,2011.
My question is if my H1B visa gets rejected in Canada.
will I be permited to re-enter the US or I will need to return to India from Can
ada.

Please advice.
User s Location: Madison, Michigan, United States of America
Category: H1B Visa (Work Visa)
Posted on 04 Mar 2011
A.
If you still have valid H-1B/H-4 visas in your passport, and they are not revoke
d for any reason as part of your new visa aplication, you should be abel to retu
rn on those visas even if your current visa application is denied. As long as yo
ur current visas remain valid, you should be able to continue to use them even i
f current visa application process was denied.
You may want to inquire thoughh whether your passports would be held for any rea
son for additional administrative review and therefore restrict your travel back
to the U.S. during that delay. Some individuals may be more prone to visa delay
s based on name, nationality, countries visited, position, industry, prior milit
ary training etc.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

H1-B AMendment
I am currently working on H1-B (9th year) and my existing H1-B is uptil Jan 2012
. I am planning to change job roles INTERNALLY within my current company next mo
nth and this will need amending my H1-b. Please clarify:
1)Is it safer to file the amendment and wait for it s approval, before changing
job role? if their is no decision on the h1-b amendment request, before the list
ed start date in the amendment, should i still move to the new role on that new
date?
2)In case there is any RFE (or denial in the worst case) for the amendment reque
st, will it impact my existing status of H1-B? Can i still continue in my curren
t role till Jan 2012?
Please clarify the safest way to proceed with this h1b amendment. CHange of role
s is INTERNAL to the company and is same location.
User s Location: Richmond, Virginia, United States of America
Category: H1B Visa (Work Visa)
Posted on 14 Feb 2011
A.
First, the company/immigration attorney should review your current H-1B paperwor
k and proposed new role to determine whether a new or amended H-1B filing is req
uired.
If the roles are different so as to represent a material change in your employme
nt, either a new or amended H-1B may be filed. In general, a new LCA and the new
or amended H-1B filing should be submitted before you change roles within the c
ompany. You should not need to wait for the approval and should be able to accep
t that new role after the new or amended H-1B paperwork is filed.
If the new or amended H-1B is denied, you should still be able to fill the posit
ion listed in the current H-1B approval valid until 2012. The deneid new or amen
ded H-1B filing should not affect current H-1B approval as long as you would con
tinue with or change back to the position listed in your current H-1B approval.
You also need to see whether this new role affects your green card paperwork and
whether the proposed permanent position offer is still accurate. If no, you may
need to look at 485 portability options if applicable or whether a new PERM pro
cess should be evaluated.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson

ERM > H1or H1 Transfer + PERM or COS F1


Hi,
Following is my Scenario:
- h1 transferred (current): 4 months ago
(promised for PERM and GC. Due to un avoidable reason, company is about to be so
ld in 1 yr)
- H1 Exp: Oct 2012 - 6yrs
Found a new employer who is ready for my H1 transfer also positive about PERM +
GC. However, this is a new small company (LLC), about 15 months in business, wit
h good turnover
I want to take most favourable decision this time with options in mind:
File PERM from new CO. (future employment) and initiate H1 transfer once PERM is
approved
Q1: Is it possible?
File H1 Transfer and PERM concurrent
Q2: Is it possible?
Forget H1 transfer this time and COS to F1
Q3: Will I be granted F1, if I have an approved I130 (waiting for PD to be curre
nt)
Please help,
Rub E
User s Location: Birmingham, Alabama, United States of America
Category: H1B Visa (Work Visa)
Posted on 11 Feb 2011
A.
Please see my responses below:
File PERM from new CO. (future employment) and initiate H1 transfer once PERM is
approved
Q1: Is it possible?
This is posisble. You do not need to be working for a company in order for them
to sponsor you for a PERM filing. If you feel it is beneficial or advantageous i
n any way, you may maintain current H-1B employment through one employer and hav
e a different employer sponsor you for a PERM. After the PERM is approved, you m
ay join them on a newly filed H-1B.
File H1 Transfer and PERM concurrent
Q2: Is it possible?
This is posisble. You may file new H-1B through new employer to start work there
now and at the same time start a new PERM process through that same employer as
well.
Forget H1 transfer this time and COS to F1
Q3: Will I be granted F1, if I have an approved I130 (waiting for PD to be curre
nt)
Pursuing a change to F-1 may be difficult after being here for so long in H-1B a
nd with an approved I-130. There could be a conflict with the temporary intent r
equirement of the F-1.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson

H1B VISA STAMPING


Dear Sir,
My employer in America got the H1B work permit for me in 2009(for3year). My visa
stamping along with my wife(H4 visa) and my son(H4 visa)was rejected in the sam
e year by New delhi consulate.At the time of rejection they returned our passpor
ts but did not give us any written letter as to why our stamping was rejected? T
here was no rejection stamp on our passports too.Why? Further Questions:
1) In the absence of any rejection letter, is my original visa application still
open or is it officailly rejected?
2) Is it advisable to go with my family this time at the consulate for the visa
interview(the job offer is still open)?
3) What additional documents will my employer has to prepare to get the Visa sta
mping?
4) What is the chance of getting the Visa stamped?
Thanks
User s Location: India
Category: H1B Visa (Work Visa)
Posted on 01 Feb 2011
A.
I am sorry that it sounds like your H-1B visa was denied. If your sponsoring com
pany is an IT consulting company, those cases are becoming even more difficult w
ith the influence of the Neufeld employer/employee memo.
In general, the consulate is required to provide you reasons for the denial of y
our visa application.
In response to your specific questions:
1) In the absence of any rejection letter, is my original visa application still
open or is it officailly rejected?
If your visa application was back in 2009, it sounds like your visa was likely d
enied. You should have receieved documentation with the reason for your visa den
ial.
You may want to e-mail the consulate with your info requesting the basis and rea
son for your denial.
2) Is it advisable to go with my family this time at the consulate for the visa
interview(the job offer is still open)?
If the job opportunity still exists and the company still wishes to offer you th
e same position, location etc. as listed in the H-1B paperwork, you may again ap
ply for an H-1B visa. You way wish to contact the consulate to obtain the basis
for your earlier denial, but in any event you are allowed to apply again.
3) What additional documents will my employer has to prepare to get the Visa sta
mping?
Minimally you will need to have an updated letter from the U.S. sponsor with cur
rent info on the job offer, location etc. and confirm that they still wish to of
fer you the same position as what what was listed for the H-1B approval.
If your U.S. sponsor is an IT consulting company, you may also need to provide d
ocumentation as listed in the Neufeld employer/employee memo including a letter
from end client, statement of work, agreements etc. What documentation you will
need to provide really depends on the type of U.S. employer and your position.
4) What is the chance of getting the Visa stamped?
This is impossible to say as I do not know the reason for your earlier denial, t
he type of company sponsoring you, the position offered etc. I can say that if i
t is an IT consulting company and you will work at an end client site, those cas
es are heavily scrutinized. You may need to provide thorough documentation to pr
ove the issues as outlined in the Neufeld employer/employee memo.
Regards,
nternship on H1B visa
I am working on my H1B visa and also pursuing evening MBA. I am very interested
in doing a summer internship. Could I do an internship for 3 months with a for-p
rofit employer on H1B visa by doing an H1B transfer?
What are my other options to pursue an MBA internship? Please provide me guidanc
e on all of my possible options.
User s Location: Ann Arbor, Michigan, United States of America
Category: H1B Visa (Work Visa)
Posted on 28 Jan 2011
A.
I think some options include:
(1) File a concurrent H-1B petition through new employer so that you keep curren
t H-1B approval though current employer and obtain new concurrent H-1B approval
to work for new employer for 3 month internship (The position at the new company
would need to be H-1B caliber though);
(2) File new H-1B through new internship employer (again if H-1B caliber) If you
leave current employer though, what will you do after 3 month internship is ove
r?
(3) Change status from H-1B to F-1 to pursue MBA full-time and then see if it is
possible to work on internship based on approved Curricular Practical Training
(CPT) from the school;
(4) Change status to J-1 (Make sure it does not trigger the 212(e) two year home
residency requirement. Also, again what will you do after 3 month internship is
over?)
Regards,

Can H1-H4-H1 work on receipt?


Hi
My wife previously was working for a company A till 2008 December on H1B. From J
anuary 2008 to Till date she is on H4. Recently she got a job offer and employer
will be filing for her application for H4 to H1. Her previous H1 is valid till
May 2011.
Now our question is Can she start working on receipt of the Application or does
she got to wait till she gets her H1B approval notice.
Thanks in advance.
Babu
User s Location: AVENEL, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 27 Jan 2011
A.
Babu,
Right now CIS takes the position that H-1B portability does not apply to someoen
coming off H-4 status. CIS takes the position that H-1B portability is only app
licable when going from one H-1B employer to another H-1B employer.
I do not believe this is the correct interpretation or application of the law. T
he way that H-1B portability reads, an individual who previously held H-1B statu
s (not necessarily in H-1B status currently) should qualify for H-1B portability
.
In your wife s case, given CIS current view, it may be prudent to not work unti
l H-1B is actually approved. (May need to file under premium processing.)
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
7th Year visa stamp if new employer hasn’t started the GC proces
I am working for IT consulting company on H1B for a direct client.I am in 6th ye
ar of H1B that will be ending on 3/17/11.I have I-140 approved in EB3I from my c
urrent employer.My client who wants to hire me applied for my H1B transfer and 3
year extension in January 2011 based on my current employer’ I-140 and got it app
roved in PP. I will be joining my client as direct hire on 2/16/11 and will be g
oing for visa stamping in New Delhi on 3/01/11.My client has not started my GC p
rocess but they plan to. My question is regarding my visa interview: will I have
any issues in stamping because my employer won’t have started my GC process altho
ugh I would be in 7th year H1B with only I-140 approved from previous employer?
What should I answer if VO asks: has your employer started your GC process?
User s Location: Beaverton, Oregon, United States of America
Category: H1B Visa (Work Visa)
Posted on 26 Jan 2011
A.
You should not have any issues or problems with your new H-1B visa process becau
se your new employer has not started a green card process for you as of yet. Tha
t should be seen as irrelevant to your H-1B approval and H-1B employment with th
e new employer.
You were allowed to obtain an H-1B extension beyond six years through the new em
ployer based on pending green card paperwork from prior employer. That H-1B vali
dity is not affected by whether your new employer has started any green card pap
erwork for you yet.
If the VO asked, you simply answer accurately and honestly. Whether they have or
have not started the green card process, or whether they ever will, should not
affect your H-1B visa process. There are likely to be more questions about where
you will work, what you will do etc. associated with the H-1B employment.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Possibility of H1B transfer after cancellation and exit from US
Is it possible to transfer my H1B, which is currently cancelled, to a new employ
er for the duration of the unused time period on the visa? If not what is the ri
ght process for me to get work authorization again in US?
My situation is that I left US upon resigning from my last US job in Oct 2010 af
ter which I assume that my ex-employer filed for a H1B cancellation. (However no
te that the expiration date of my H1B is 22 Sept 2012) Thereafter I successfully
applied for a 10-year US visitor visa from US embassy in India; during this pro
cess the embassy stamped my H1B visa with cancelled without prejudice.
Now I have new US job offer. Will I able to use the remainder portion of my canc
elled H1B (i.e. time period till 22 Sept 2012) by applying for H1B transfer?
Thanks for your help
User s Location: New York , New York, United States of America
Category: H1B Visa (Work Visa)
Posted on 25 Jan 2011
A.
From what you provided, it sounds like the new potential employer in the U.S. ne
eds to file new H-1B paperwork for you.
If you are in the U.S. in B-1/B-2 status, you may consider whether it is prudent
to have the H-1B paperwork filed with a change of status request from B-1/B-2 t
o H-1B. If the H-1B petition and change of status is approved, you may stay in t
he U.S. and start working on that H-1B approval.
If you are outside of the U.S. or a change of status is not requested, you will
need to obtain a new H-1B visa at the U.S. Consulate after the new H-1B petition
is approved.
It does not sound like there is anything you can use from your prior H-1B approv
al or prior H-1B visa. You need to have a new H-1B petition filed for you and if
travel is needed, a new H-1B visa at the consulate.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson

1B to H4 Transfer.
I’m in US on H1B status from Jan’06 Till date. My I-797 is valid till Jul’11. I donot
have any pay stubs on the current employer as I did not work since Aug’08. I want
to change my status to H4 as my spouse is working. Spouse employer is asking for
my paystubs and incase I donot provide, they say RFE will be issued.
1) Incase I apply for H4, RFE is issued, can I show my spouse’s paystubs? Or what
will be a better option.
2) I need to check if my H1B is Valid/Revoked as I’m not in touch with my employer
. In USCIS website, currently case status is in “DECISION” step and stating that cas
e is approved on Aug’08. Does this mean my H1B status is still valid? Let me know
if there is any other way to find out my status.
Any suggestions would be appreciate.
User s Location: Fremont, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 04 Jan 2011
A.
It may be very difficult for you to obtain a change of status from H-1B to H-4 i
f you have not been working since August 2008. If you do not have pay stubs, CIS
may take the position that you have not been maintaining your H-1B status and t
herefore you have no status to change from to H-4.
Without evidence that you have been maintaining your H-1B status, a change to H-
4 from within the U.S. may be very difficult. You may need to depart and obtain
an H-4 visa at a U.S. Consulate. You may receive questions about your prior H-1B
employment, when it ended and why you stayed in the U.S. so long w/o working an
d w/o changing to a different status.
Your spouse s pay stubs are irrelevant to whether you were maintaining your H-1B
status. They help show that he is still maintaining his H-1B status, but they d
o nothing to show your maintenance of status issue.
It is impossible to determine whether your H-1B was withdrawn by your employer b
ased on the CIS online info you provided. In general though, if you have not bee
n working since 2008 and do not have any pay stubs, you may not qualify for a ch
ange of status from within the U.S. You may need to look at options to depart th
e U.S. to obtain an H-4 visa and analyze any risks with that option vs. remainin
g here w/o maintaining any status.
Regards,

End date H-4 visa


I changed from F1 to H1B in 2008 while in US. End date on my I-797 and I-94 was
5/31/2011.
Filed I-539 for wife and kids (same petition) for H4 visa.
Approved - but end dates were as follows:
Daughter #1 - 11/23/2010 (because she turned 21 on that date.
But Wife and Daughter #2 also got same end dates 11/23/2010 and NOT 5/31/2011 wh
ich was given to primary H1B visa holder.
Did the USCIS make mistake for wife and daughter #2? I filed I-102 for correctio
n. But it has been 7 months no decision from USCIS. Someone told me that all apl
icants on same I-539 will get same date. Is this true? What do I do now?
User s Location: Omaha, Nebraska, United States of America
Category: H1B Visa (Work Visa)
Posted on 21 Jan 2011
A.
It is not necessarily true that all H-4 applicants should receive the same expir
ation date on their H-1B approval notice and attached I-94. Your one daughter tu
rning 21 and the restriction on her expiration should not have affected your wif
e and other child.
Right now you have to worry about them being here w/o status and acrruing unlawf
ul presence.
It may be easier and faster to resolve the issue by having them depart, obtain H
-4 visas and then return in H-4 status.
You should make inquiries into the Service Center to see if they are going to be
able to resolve this issue soon. If not, since they would likely be seen as her
e w/o status and accruing unlawful presence right now (your daughter may not be
accruing unalwful presence depending on her age, but she would likely still be s
een as here w/o status), you may want to look at having them depart and obtain n
ew H-4 visas and returning to the U.S. to obtain new I-94s.
Regards,
H1B Transfer Process
I am working H1-B and i got an offer from a company B, i have accepted their off
er and signed the required documents. Company B got my H1B transfer receipt for
premium processing. Now i got the offer from another company C and i accepted th
eir offer and i want to join the company C and not the B. I have the following q
ueries
My joining date in company B is 18-Jan-2011 on offer letter & they ask me to joi
n on 24-Jan so do i need to say them no before 18-jan? Any problem after saying
no after 18-Jan?
will there be any legal issue if i say no to them and don t join their company?
Can there be any legal issue or problem in filling H1B transfer with company C?
Can company B sue me for any issue and ask me for visa transfer fees? Please let
me know if i can have any issue in this proc?
User s Location: Milford, Connecticut, United States of America
Category: H1B Visa (Work Visa)
Posted on 18 Jan 2011
A.
You should be able to file new H-1B paperwork with an extension request through
Company C.
If you will simply remain working for your current company under that valid H-1B
and will never join B, you may remain working for your current company and then
file new H-1B with an extension request through C. The fact that you never work
ed or joined B should not be an issue for you. Never joinig B should not affect
your eligibility to file an H-1B extension through C.
if you have started to work for Company B under H-1B portability, you may want t
o make sure you have the H-1B through Company C approved before leaving Company
B. This will likely make the bridge from B to C easier for extension of status p
rocessing, and also be prudent for you because you do not want the H-1B through
C denied and then not have anything still available with B.
I do not believe B could sue you for H-1B expenses as those are normally the res
ponsibility of the employer and should not be recouped from the foreign national
.
Regards,
Andrew M. Wilson, Esq.
Automatic Visa Revalidation - Expired Visa/Expired Passport
Indian. 7th Yr H1B, EB3 Labor/I140 Approved. H1B 7-9 yr extension in 2010. Going
to Canada from USA for PR Landing(less than 30 days). Expired H1-B Visa stamp i
n EXPIRED Passport.
Questions:
1) Do not have enough time to go for new US Visa stamping in Canada, can I use A
utomatic Visa Re-validation to enter US again?
2) If I use Automatic Visa Re-validation Will it be a problem that Expired H1-B
Visa Stamp is in an EXPIRED PASSPORT? I have a valid New Passport as well (No US
visa stamp on new passport).
3) What documents should I carry?
4) Plan to go by air, Where will they check my Visa? In Canada before I board th
e flight or after I arrive in USA?
5) What happens if something goes wrong? Will I be allowed to go back to Canada
and apply for a Visa at the US consulate?
User s Location: Delray Beach, Florida, United States of America
Category: H1B Visa (Work Visa)
Posted on 14 Jan 2011
A.
Thank you for your questions. As an FYI you can find some useful info on automat
ic visa revalidation at:
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c...
http://cbp.gov/linkhandler/cgov/travel/id_visa/...
http://travel.state.gov/visa/laws/telegrams/tel...
If you are a citizen of India, have a new approved H-1B and I-94, a valid passpo
rt and an expired H-1B visa in an old passport, and are traveling to Canada or M
exico for less than 30 days, and will not apply for a visa on that trip, you sho
uld qualify for automatic visa revalidation. It should not be a problem that you
r previous expired visa is in your expired passport as long as you have that exp
ired passport and expired visa to show at the port of entry.
You should travel with your current H-1B approval notice, I-94, current passport
, old passport and old visa.
If flying in from Canada, they have pre-flight inspection at most airports and y
ou will be inspected prior to departure.
OPT EXTENSION EXPIRING SHORTLY AND H1B FILING IN APRIL 2011
Hi,
My OPT EXTENSION IS GOING TO EXPIRE IN JUNE 28,2011.My Employer is sponsoring my
H1B in April 2011.If My H1B is Approved, H1b starts from OCT 2011.CAN I WORK BE
TWEEN JUNE 2011 (I.E. EXPIRATION OF OPT EXTENSION ) AND OCT 2011(H1B BECOMES EFF
ECTIVE, IF MY H1B IS APPROVED).PLEASE RESPOND AS EARLY AS POSSIBLE..............
..i WILL BE WAITING FOR YOUR REPLY.
Thanks,
Kumar
User s Location: ROCHESTER, New York, United States of America
Category: H1B Visa (Work Visa)
Posted on 16 Jan 2011
A.
Your employment authorization should be extended under cap gap provisions. See:
http://www.ice.gov/doclib/sevis/pdf/cap_gap_fa...
http://www.ice.gov/doclib/sevis/pdf/supp_capgap...
http://www.uscis.gov/portal/site/uscis/menuitem...
In general, H-1Bs must be timely filed on behalf of an eligible F-1 student. Tim
ely filed means that the H-1B petition (indicating change of status rather than
consular processing) was filed during the H-1B acceptance period, while the stud
ent s authorized duration of status (D/S) admission was still in effect (includi
ng any period of time during the academic course of study, any authorized period
s of post-completion OPT, and the 60-day departure preparation period, commonly
known as the “grace period”).
Once a timely filing has been made, the automatic cap-gap extension will begin a
nd will continue until the H-1B petition adjudication process has been completed
. If the student’s H-1B petition is selected and approved the student’s extension wi
ll continue through September 30th unless the petition is denied, withdrawn, or
revoked. If the student’s H-1B petition is not selected and approved, the student
will have the standard 60-day grace period from the date of the rejection notice
or their program or OPT end date, whichever is later, to prepare for and depart
the United States.
If your OPT expires in June 2011 and a cap subject H-1B is filed in April 2011,
your employment authorization should be extended until October 1, 2011 as long a
s your H-1B filing is approved or remains pending. Your employment authorization
is not extended I definitely, only until September 30, 2011, so you want your H
-1B to be approved by that date.
If your H-1B is denied prior to that date, your employment authorization may be
ended at that time.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

switching jobs on H1B status without the stamp


Hi,
I am currently working in the US on a H1B status. I graduated last May and was w
orking on my OPT. Recently, my H1B was filed by my company and I am currently on
the H1B status. However, I haven t got the visa stamped.
My question is, can I switch jobs now that I am on a H1B status? Will I have to
get the visa stamped before I switch jobs? And can the company that I am applyin
g to transfer the H1B status?
User s Location: Chicago, Illinois, United States of America
Category: H1B Visa (Work Visa)
Posted on 13 Jan 2011
A.
I assume your currnet H-1B was approved with a change of status request from F-1
to H-1B so that you are in H-1B status now. If your change of status request wa
s approved and you are in H-1B status now, there is no need to travel and obtain
an H-1B visa in order to work under that H-1B approval.
If you file an H-1B extension through a new employer and that H-1B petition and
extension request are approved, you may remain in the U.S. and work on that H-1B
aproval w/o needing to travel to obtain a visa. If your H-1B petition is approv
ed but the extension request is denied, you will need to depart and obtain an H-
1B visa before working under that H-1B approval.
If you have a new job opportunity, and you have recent pay stubs from your curre
nt employer showing you have been maintaining your H-1B status, you should be el
igible to have an H-1B extension filed for you through a new employer.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

PERM Audit
Hi i am on H1B with a Drug company applied for EB3 PERM(eventhough i qualify for
EB2 but company applies EB3 only) /my PD is jan08 ,audit Feb08 replied Mar08 an
d still pending.My company lawyers say that DOL keeps telling them to wait,and m
y company won t reapply if i get denied.
My 6th year ends in Feb 2012
Is there another option besides waiting.
What are the chances of getting approved after such a long wait
Can i transfer to another city (same state) with same company while pending audi
t
If i transfer to another company and transfer my h1b come feb 2012 can they reap
ply for another h1b term once the current one expires or i have to leave the cou
ntry.
any suggestion
thank you
User s Location: Orlando, Florida, United States of America
Category: H1B Visa (Work Visa)
Posted on 29 Dec 2010
A.
Do you know if it was a business necessity audit, regular audit or something spe
cifc the DOL was requiring.
Most audits, including a busines s necessity audit, are resolved within about 18
months after the response is filed. The DOL does have processing times on its w
eb site for PERM filings and audits. See:
http://icert.doleta.gov/
Your case does seem to be lagging and I wonder if there is a special issue in yo
ur matter. It is impossible to speculate as to chance of success or denial based
on how long it is taking w/o knowing anything about the audit and response.
There is not much that can be done other than following-up with the DOL. You may
obtain one year extensions beyond six years under AC21.
You may work at another location/opposition under a newly filed H-1B while your
PERM is pending. Your current employment, location etc. is dicatated by your H-1
B. The green card process is propspective so you may work in one location under
H-1B and have company sponsor you for a different permanent location at another
location.
Depending on what happens with your PERM, a different company can obtain an H-1B
extension beyond six years if you still qualify under AC21 based on your curren
t green card paperwork. A new company can obviously start a new PERM process for
you. If all went well, 12 months should be enough time.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
h1b question
Hi,
I got laid off from a company and December 15 was my last day at work. Now a uni
versity is offering a postdoc position. It looks like the university will be app
lying for an H1B academic.
1) The university HR does not know much about the procedure and I need to direct
them. What should I tell them and what are the steps to getting an H1B?
2) I am still in the country. Do I need to go back to my home country to get a v
isa or can I just get the visa receipt and start ?
3) Will I be considered out of status meanwhile ?
User s Location: San Jose, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 28 Dec 2010
A.
If you have a new H-1B emplyment opportunity, the university will need to file n
ew I-129/H-1B paperwork for you. Every H-1B case is different so there are no "s
et" steps to follow, but a prevailing wage will need to be obtained, an LCA file
d and certified through iCERT and your H-1B paperwork prepared and filed with CI
S.
If you file with an extension request, you should not need to depart the U.S. an
d return with a valid visa if the H-1B and extension request are approved. If yo
u do not request an extension or one is denied, you will need to depart the U.S.
and return with a valid H-1B visa. Your case should be analyzed to see whether
it is feasible/advisable to file for an extension request depending on when the
H-1B is filed and your last day of employment/last pay stubs. 9if your extension
request is denied, your H-1B visa would be invalidated and you would need to de
part and obtain a new H-1B visa based on the new H-1B approval.)
If you file the H-1B extension quickly and you have recent pay stubs, you may st
ill be able to pursue an H-1B with an extension of status request. You would not
be considered in status, but you could start work with the new employer under H
-1B portability if you qualify. You would not be in status though and some indiv
iduals do run into issues while waiting for the extension request. (Most do not
run into issues but you should know you technically would not be in any status w
hile you wait for new H-1B to be adjudicated.)
You of course could have a new H-1B filed through premium processing and w/o an
extension request. You would then need to depart the U.S. and return with a vali
d H-1B visa and your new H-1B approval notice.
The H-1B process has become even more complex recently. The university should co
nsider utilizing an attorney who is experienced with the compliance and substant
ive issues involved with an H-1B.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
h1
I currently work for company A om H1 till today
COMPANY b OFFFEREFD NEW JOB AND STARTED MY H1 TRANSFER APPLICATION but I have no
t left company A YET
USCIS SENT REQUEST FOR ADDITIONAL DOCUMENTS (PAYSTUBS) ,IF I happened to had dis
agreement with company b and I do not want to move to them , therefore if I do n
ot provide those missing paystubs
since H1 transfer to company B was not approved neither deniedcan I stay at comp
any A and continue to work for COMPANY A
SECOND,if for we provide the necessary pYstubs and the petition is approve
can I stay with company A as long as I never left them or do I have to move to b
if I can stay with A, do I have to exit and reenter the country using I-797A fro
m company a ( I am Canadian,no visa stamp)OR Can i just ignore approved transfer
?
User s Location: washignton, District of Columbia, United States of America
Category: H1B Visa (Work Visa)
Posted on 21 Dec 2010
A.
If your H-1B through A is still valid and unexpired, and you are filling the pos
ition at the location listed on the H-1B paperwork through A, you should be able
to continue working through A while any H-1B through B is pending. If you do no
t wish to join B, you may simply continue working with A.
You may want to request B to withdraw their H-1B if you do not wish to work for
them because you want to avoid an H-1B denial under your name. You could also pr
ovide docs/info for the RFE request and then decide on what you want to do if/wh
en the H-1B through B is approved.
In general though, while your H-1B through B is pending, if your H-1B through B
is approved or if your H-1B through B is denied, you may continue working for A
while that H-1B remains valid and unexpired.
If your H-1B through B is approved, you do not have to join them. You could deci
de to remain with A under that valid and unexpired H-1B approval. You could cont
inue to work and travel with your valid H-1B approval through A.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor shoul
d it be construed, as legal advice. This post does not create any attorney-clien
t relationship between us. For specific advice about your particular situation,
consult an attorney.
Posted on 21 Dec 2010
Q.
thanks so much for your replu
so just to confirm: I am ok to not go to COMPAMY B after even the h1 transfer ap
proved
and I do not have to exit the country and reenter the country
I will ask them to withdraw the transfer but I do not know if they will or not ,
they willl not tell me they did it because they will be mad , in this case how
do i guarantee I am safe and I am not violating anything
Posted on 23 Dec 2010
A.
You do not need to join Company B even if the H-1B through them is approved. You
do not need to leave the U.S. and may simply continue working with Company A un
der their H-1B approval for you.
You should minimally obtain the receipt # for your H-1B filing through B so you
can track it online and see if it is withdrawn, approved or denied.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Job Change on the 6th year of H1b, I-140 approved


I m on the 6th year of my H1b. Since my I140 was approved for my current employe
r, I got the H1b extension for the next 3 years. Currently I m in the long wait
for filing 485 because the EB3 priority date is not current yet. I m planning to
switch jobs and have the following questions:
* Is it possible to switch employer at this point? I know that I have to restart
my green card process, but is there any issue in the visa transfer?
* Can my new employer get the H1b for another 3 years?
* I m currently in the EB3 queue because I did not have 5 yrs experience when I
joined my current employer. After the job change, would it be possible to switch
to EB2 now that I have 8 years of experience? Will I be able to maintain my pre
vious priority date?
User s Location: Sunnyvale, California, United States of America
Category: H1B Visa (Work Visa)
Posted on 15 Dec 2010
A.
If possible and if you are applying for H-1B extension beyond 6 years under AC21
through the new Employer, it may be prudent to obtain the new H-1B approval thr
ough the new company before leaving your current company. One risk in general is
that the new H-1B through the new company is denied and you already left your c
urrent company. Another risk is that your current company withdraws your approve
d I-140 before the H-1B through the new company is approved, and that could affe
ct your H-1B extension eligibility under AC21. You therefore may want to conside
r premium processing for the new H-1B filing.
In general, you may obtain a three-year H-1B through a new company based on pend
ing green card paperwork through current company.
If you have not been able to file 485 paperwork because your priority date is no
t yet current, you cannot take your current green card paperwork with you to the
new company under AC21 and file 485 portability paperwork. You will have to sta
rt a new PERM process through the new company, but you should be able to retain
your priority date even if your current company withdraws your I-140.
Under applicable CIS and field manual guidance, an individual may use the priori
ty date from an approved EB-1, EB-2 or EB-3 I-140 petition for a subsequently ap
proved EB-1, EB-2 or EB-3 petition as long as the earlier approved I-140 was not
revoked for fraud or misrepresentation.
CIS updated the Adjudicators Field Manual (AFM) in 2005 and 2006 to clearly conf
irm that if a foreign national’s I-140 is approved, the foreign national retains t
hat priority date for future I-140 petitions unless the prior approved I-140 was
revoked due to fraud or willful misrepresentation. Interim guidance on this iss
ue was provided in an Interoffice Memorandum (HQPRD70/6.2.8) dated September 23,
2005 from William R. Yates, Associate Director, Operations. This interim guidan
ce to revise Chapter 22.2(b)(5)(A) of the AFM reads:
(A) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority is the earliest date
upon which the labor certification application was filed with DOL. In those case
s where the alien’s priority date is established by the filing of the labor certif
ication, once the alien’s Form I-140 petition has been approved, the alien benefic
iary retains his or her priority date as established by the filing of the labor
certification for any future Form I-140 petitions, unless the previously approve
d Form I-140 petition has been revoked because of fraud or willful misrepresenta
tion. This includes cases where a change of employer has occurred; however, the
new employer must obtain a new labor certification if the classification request
ed requires a labor certification (see the section on successorship in interest)
.
CIS finalized its update and officially revised Chapter 22 to the AFM through an
Interoffice Memorandum (HQPRD70/23.12) dated September 12, 2006 from Michael Ay
tes, Acting Associate Director, Domestic Operations. The Aytes memorandum revise
s the AFM, which is binding on adjudicators pursuant to AFM Section 3.4. This me
morandum revised Chapter 22: Employment-based Petitions of the AFM to read:
(1) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority is the earliest date
upon which the labor certification application was filed with DOL. In those case
s where the alien’s priority date is established by the filing of the labor certif
ication, once the alien’s Form I-140 petition has been approved, the alien benefic
iary retains his or her priority date as established by the filing of the labor
certification for any future Form I-140 petitions, unless the previously approve
d Form I-140 petition has been revoked because of fraud or willful misrepresenta
tion. This includes cases where a change of employer has occurred; however, the
new employer must obtain a new labor certification if the classification request
ed requires a labor certification (see the section on successorship in interest)
.
The current version of the applicable provision of the AFM at Chapter 22.2(d) no
w reads:
(1) Determining the Priority Date. In general, if a petition is supported by an
individual labor certification issued by DOL, the priority date is the earliest
date upon which the labor certification application was filed with DOL. In those
cases where the alien’s priority date is established by the filing of the labor c
ertification, once the alien’s Form I-140 petition has been approved, the alien be
neficiary retains his or her priority date as established by the filing of the l
abor certification for any future Form I-140 petitions, unless the previously ap
proved Form I-140 petition has been revoked because of fraud or willful misrepre
sentation. This includes cases where a change of employer has occurred; however,
the new employer must obtain a new labor certification if the classification re
quested requires a labor certification (see the section on successor in interest
).
Further guidance on the proper interpretation of retention of priority dates is
provided by in the Foreign Affairs Manual at 9 FAM §42.53 N3.5 Subsequent Petition
in Employment-based Classifications:
a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a prio
rity date accorded by approval of an employment-based first, second, or third pr
eference petition is retained by the beneficiary for any other first, second, or
third preference petition approved subsequently for the same beneficiary. In al
l cases, the beneficiary of multiple petitions is entitled to the earliest of th
e filing dates of the various petitions.

You therefore should be able to retain your priority date, but you will need to
start a new PERM process through the new company.
If you have the receipt notice for your I-140 approval, you can go online to CIS
web site and print out a screen shot of that 140 approval. If you file a Freed
om of Information Act (FOIA) request, you may be able to obtain documents confir
ming your priority date and preference as well.
If the current company is not willing to provide a copy of the 140 approval noti
ce, I think your best options are to print out a screen shot online and do a FOI
A.
You can switch to a new employer anytime they are willing to file the new H-1B p
aperwork for you. You do not need to wait 180 days for any reason. There is a 18
0 day wait after filing 485 paperwork to qualify for 485 portability, but that d
oes not apply to your case.
You may be in a position to qualify for an EB-2 case through your new employer d
epending on the position offered, requirements etc. You can use any experience g
ained with current company to meet requirements for new position offer through n
ew company.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com
DS 160 form H1B and H4 questions
For H1B DS 160 qs (before on h1 with company A and now with company B from 1.5 y
rs and still 1.5 yrs left, medical doctor h1b in hospital)
1) Are you applying in same category of visa?
2)Are you applying in the same country where above visa is issued and is this co
untry your principal country or residence?
Qsts for H4 in DS 160 (was IT H1 before for 5 yrs now H4 since March 1 2010)
A) What is primary occupation? Select Home maker or select unemployed due to h4
clause of visa?
B)Are you applying in same category of visa? (before h1 and now on h4 visa)
C)Are you applying in the same country where above visa is issued and is this co
untry your principal country or residence?
Do we need to send PIMS verfication for h1 and h4 to chennai india consulate?
Thanks,
User s Location: metuchen, New Jersey, United States of America
Category: H1B Visa (Work Visa)
Posted on 13 Dec 2010
A.
1) Are you applying in same category of visa?
If you previously applied for an H-1B visa before coming to the U.S., I assume y
ou are applying in the same category. If you came as an F-1 or some other catego
ry, I assume you are not applying in the same category.
2)Are you applying in the same country where above visa is issued and is this co
untry your principal country or residence?
This depends on where you applied for your last visa and whether it was at a con
sulate in your home/nationality country or main country of residence.
Qsts for H4 in DS 160 (was IT H1 before for 5 yrs now H4 since March 1 2010)
A) What is primary occupation? Select Home maker or select unemployed due to h4
clause of visa?
If the indivdiual will not be working, N/A or unemployed is fine.
B)Are you applying in same category of visa? (before h1 and now on h4 visa)
I assume this answer is no considering it is a different classification.
C)Are you applying in the same country where above visa is issued and is this co
untry your principal country or residence?
This depends on where you applied for your last visa and whether it was at a con
sulate in your home/nationality country or main country of residence.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor shoul
d it be construed, as legal advice. This post does not create any attorney-clien
t relationship between us. For specific advice about your particular situation,
consult an attorney.
Posted on 13 Dec 2010
Q.
Hi,
Thank you for your reply.
Just one last follow up question. My wife is on H1 visa and I am on h4 visa and
so only above questions.
Which address we should use on DS 160 form?
We are living for 3 yrs in usa on h1, h4.
Should we fill USA address on India address on DS 160 form?
Thanks,
Posted on 15 Dec 2010
A.
You can list your current U.S. residence on the DS-160 form as your place of res
idence/address.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com

H-1b Transfer
Currently working for Company A who applied for my h-1b in Nov and Got approved.
Now I have permanent job offer from Company B who would like to apply for H-1b
transfer. Company B would like to apply my H-1b in Jan but want me to start work
ing from Feb
Q1. Is it safe to change the employer right after getting approval from Company
A.
Q2. If I get H-1b approval(Premium Processing) from Company B in Jan. Can I stil
l work for Company A until Jan end and join Company B in Feb.
Q3. Can Company A put me in trouble since they paid for my h-1b. I didn t sign a
ny contract.
User s Location: New York , New York, United States of America
Category: H1B Visa (Work Visa)
Posted on 09 Dec 2010
A.
Thank you for your questions. Please se emy replies below:
Q1. Is it safe to change the employer right after getting approval from Company
A.
As long as you have maintained and continue to maintain your H-1B status and emp
loyment with Company A until at least minimally a new H-1B through B is filed, i
t should not be an issue with immigration that you are changing employers so soo
n after your recent H-1B approval through A.
You may want to request premium processing and not depart A until the H-1B throu
gh B is approved, but that is not required. It would just be prudent for you tha
t you do not leave A and then your H-1B through B is denied.
Q2. If I get H-1b approval(Premium Processing) from Company B in Jan. Can I stil
l work for Company A until Jan end and join Company B in Feb.
Yes. You can continue to work for A and then start with B afterward. That timeli
ne does not look to be an issue.
Q3. Can Company A put me in trouble since they paid for my h-1b. I didn t sign a
ny contract.
They certainly may not be happy if you leave so soon after they sponsored you fo
r an H-1B, but as long as an H-1B through B is filed before A has a chance to wi
thdraw then you should not have an issue.
Regards,
Reinstating Revoked H1
Hi ,
I am in the US on H1 since 2003. I have a 140 Approved with my previous employer
.
I transferred my H1 to current employer in June 2009.My wife went for H4 stampin
g and it got rejected.
I tried checking the reason and it was found that my H1 is reoved from Jan 2010
.
My employer says he never got an intent to revoke notice
He has been running payroll till date consistently. My passport has stamping val
id till 2011 with previous employer
I believe this is an unlawful situation .
What are the options available to get this corrected ?
If i change to a new emplyer and apply for H1, is there a change that it will ge
t approved
Is there any way to reinstate an H1 already revoked
Will i be asked to leave country immediately ?
User s Location: Atlanta, Georgia, United States of America
Category: H1B Visa (Work Visa)
Posted on 09 Dec 2010
A.
Was her H-4 visa denied because the consulate believes the H-1B through your cur
rent employer was revoked?
Have you checked your receipt number through the CIS online system? What does th
at show?
Do you know if the H-1B was revoked by anyone?
There is obviously a concern that you have been in the U.S. and working w/o stat
us if your H-1B was revoked.
The first thing you need to do is check to see if your H-1B was revoked. You can
check online or have your employer call the 1-800 number to inquire as to the s
tatus of that H-1B.
If it was revoked, you may have an unlawful presence or maintenance of status is
sue that needs to be addressed. If it was revoked but not by your employer, they
may need to initiate a reopening or inquiry as to what happened.
You first need to figure out what is going on with your current H-1B before purs
uing a new H-1B because you have to determine if you have an unlawful presence p
roblem.

Regards,

Starting a New company while working on H1b with other company


I am on H1B with XXX Company and Planing to start my own YYY company (LLC or INC
). I will be managing the company but will not paid any salary/wage from my comp
any. I will be managing my business parallel to my Job, that means I will be wor
king 40 HRS per week with XXX company and will be paid my salary from XXX compan
y.
I am trying to understand that starting my own company YYY while under H-1B with
XXX is violating my H-1B status or unauthorized employment?
Is there any way i can start my own business while I am working on H1B.
Thanks
User s Location: Richmond, Virginia, United States of America
Category: H1B Visa (Work Visa)
Posted on 03 May 2011
A.
Hello and thank you for your questions.
Under the terms of your H-1B status, you can work only for your sponsor employer
. Passive investment in a company is not considered work; however, managing a co
mpany would certainly be considered work and you would not be able to do it with
out specific work authorization.
Frankly, the options for you working and managing your own company while on H-1B
are very limited. Having your own company file for your H-1B is risky and diffi
cult since the Neufeld Memo.
Best regards and please do not hesitate to contact me if I can be of any further
help.

Dimitar Michailov
Immigration Lawyer
Capitol Immigration Law Group LLC
(888) 878-4721
www.cilawgroup.com
Disclaimer: This information is general in nature and is not intended, nor shoul
d it be construed, as legal advice. This post does not create any attorney-clien
t relationship between us. For specific advice about your particular situation,
consult an attorney.
Posted on 08 May 2011
Q.
Thanks for the reply.
In case if I hold LLC but if i am not involved in operations,mgmt activities, I
have two reliable employees who are GC holders and willing to work full time for
my company on salary. In this case do i have any problem to my H1b just owning
a company but not involving into operations or managing business. But I want to
take the profits from busins as profit from business.
Posted on 09 May 2011
A.
This scenario would work, assuming your only involvement with the company is pas
sive investment (and profit-taking).
Best regards and please do not hesitate to contact me if I can be of any further
help.

Posted on 23 May 2011