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FAQs: H1-B Status
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Q: What happens if an employee takes advantage of the H-1B portability provisions and the petition is denied? How long can one remain in the U.S. after a denial?
A: If the H-1B petition is denied, employment authorization with the petitioning employer is revoked. The employee can return to work for the previous H-1B employer if a job opportunity continues to exist and the previous employer has not revoked the previously approved H-1B. If the employee does not return to the petitioning employer, the employee may remain in the U.S. during an appeal process. If no appeal is filed, the employee should exit the U.S. The law does not address how long one can remain in the U.S. if the petition is denied.
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Q: Can an individual wishing to take advantage of the H-1B portability provisions travel internationally and commence employment with the new H-1B petitioning employer upon return from the international trip?
A: Yes. To return to the U.S. in this situation, the requirements are as follows:
- Applicant is otherwise admissible;
- Applicant possesses valid passport and H-1B visa;
- Applicant can show that s/he was previously in H-1B status (I-94 or I-797 with the original petitioner); and
- Applicant must have the USCIS filing fee receipt of new petitioner. Applicant must show the petition was timely filed (i.e. filed while in status and the burden is on the applicant to prove this - suggest applicant carry copy of entire filing which shows eligibility for EOS).
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Q: Can employers file "incomplete" H-1B petitions with USCIS to obtain the receipt as quickly as possible, particularly when there are LCA delays by the Department of Labor?
A: Yes, William Yates, the USCIS Deputy Executive Associate Commissioner for the Immigration Services Division, advised the American Immigration Lawyers Association's USCIS Benefits Liaison Committee in a March 21, 2001 meeting that USCIS will, at least for the time being, continue its long-standing practice of accepting H-1B petitions filed with only a copy of the labor condition application and proof of its filing with the Department of Labor. Also as is the current practice, USCIS will send a request for evidence to obtain the certified LCA before it completes processing of the petition. Mr. Yates agreed that, because such petitions would continue to be considered properly filed, beneficiaries of change of employer petitions may take advantage of the AC21 section 105 portability provision upon the filing of a petition in this situation. He acknowledged a discussion in the Department of Labor regulation that suggests that a certified LCA would be necessary for portability, but noted that the issue is under USCIS ', not DOL's, jurisdiction. Mr. Yates did indicate that the policy of accepting H-1B petitions without certified LCAs is under review at USCIS and could be changed in the future, but that such change would not take place without a notice in the Federal Register, and would be prospective only if it occurs.
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Q: What happens if my 6 years is reached?
A: One can remain in the U.S. in H-1B status for an aggregate period of six years. You can also remain in the U.S. beyond six years if you filed for adjustment of status with the USCIS , your employer filed a Labor Certification or I-140 more than one year before your six years is up and it is still pending with the USCIS , or the I-140 Immigrant Petition on your behalf has been approved but you are awaiting your priority date to be current before you can file for adjustment of status. If none of the above apply, you will be required to depart the U.S. You can start the 6 year clock again after you have been outside the U.S. for one year or more.
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Q: Do I count only H-1B status time or does my time in another status also count? (B1, H4, F-1, J-1, E-2, L-1 status)?
A: Only time in H-1 or L-1 status count towards the 6 year limit. (As of 12/5/06, time spent in H-4 or L-2 no longer count towards the 6 year limit.)
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Q: Can my spouse/child work?
A: No, unless they can secure their own work authorization.
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Q: Can my spouse attend school?
A: Yes, but your spouse cannot work on campus.
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Q: How do I get my new spouse over to US?
A: Your spouse is eligible for H-4 status. To apply for the H-4 visa at the Consulate, s/he will need the following:
- Your original H-1B approval notice;
- Certified copy of the H-1B petition filed on your behalf (sent to you along with the original H-1B approval notice);
- Complete copy of your passport;
- Copy of your marriage certificate;
- Copy of your spouse's birth certificate;
- Spouse's passport valid for 6 months beyond the expiration of your H-1B approval notice;
- Completed form DS-156 (visa application form);
- Form DS-157 for male applicants between ages 16-45;
- One passport size photograph of your spouse; and
- OPTIONAL: Affidavit of support (form I-134), letter confirming current employment with your employer including current salary, or a copy of your recent paycheck stub.
Please also visit the Embassy web site to ensure that your spouse has all needed documents. Start with http://www.immigrationlawgroup.net/links.html
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Q: How can I get my driver's license extended?
A: Submit the request to the Department of Motor Vehicles with a copy of the extension receipt.
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Q: Can I buy a house?
A: Yes, but typically it is often hard for a non-immigrant to secure a home loan.
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Q: Can I get my parents to come to US?
A: If they qualify for a B2 visa, they can enter as visitors for pleasure for a limited time.
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Q: Can I travel freely?
A: You can travel internationally so long as you have a valid H-1B visa to return to the U.S. To return to the U.S. you need the following:
- Valid passport with valid visa (except for Canadian nationals);
- Valid I-797 issued to your current employer on your behalf; and
- Most recent paystub.
It is important and mandatory that you monitor your non-immigrant status each and every time you travel internationally. Be sure to look at your Form I-94s (white entry card) each and every time you enter the U.S. and note the expiration date. USCIS should grant you entry through the validity date of your H-1B approval notice. If not, please bring this to their attention at the time you enter the U.S. to have it corrected immediately as errors on I-94s may not be correctable after entry. If you fail to take monitor your authorized period of stay and over stay in the U.S., you may be barred from returning to the U.S. for 3 or 10 years if the overstay exceeds 6 months or 1 year, respectively.
The following memo from Immigration and Naturalization Service (USCIS ) Assistant Commissioner Michael L. Aytes clarifies USCIS 's policy on the continued validity of certain nonimmigrant business visas (i.e., H, L, O and P visas) when a beneficiary changes employers. According to this directive, a visa remains valid during its validity period regardless of whether a beneficiary changes employer.
Validity of Certain Nonimmigrant Visas July 8, 1997
This office has received a number of inquiries from the public and Service officers concerning the validity of certain nonimmigrant visas where the beneficiary changes employers but remains in the same nonimmigrant classification. This issue has generated a substantial amount of correspondence between the Service and the Department of State (DOS). The purpose of this memorandum is to provide you with the current policy of the Service and the DOS with respect to this issue. The issue arises where, for example, an alien enters the United States as an H-1B nonimmigrant on the basis of a petition filed by "Company A." After commencing employment, the alien receives a more attractive job offer from "Company B." Company B files a new H-1B petition in the alien's behalf which is approved by the USCIS . The alien then begins employment with Company B. The alien subsequently leaves the United States and then applies for admission as an H-1B nonimmigrant alien to work for Company B presenting the H-1B visa issued to him based on Company A petition. Be advised that the current Service and DOS policy is that, in the case of an H, L, O, or P nonimmigrant visa, the visa remains valid during its validity period regardless of a change in the beneficiary's employer. As long as the alien remains in the same nonimmigrant classification, the visa is considered to be valid up until the date of its expiration. An H, L, O, or P nonimmigrant alien who changes employers in the United States, but remains in the same nonimmigrant classification, may use the previously issued visa to apply for admission to the United States if it is still valid.
The policy will continue until further notice. This memorandum relates only to the H, L, O and P nonimmigrant classifications. In addition, service officers are again reminded that H-1B and L-1 nonimmigrant aliens should be admitted for the validity period of the supporting petition, if otherwise admissible. Officers should not arbitrarily limit the admission period of an H-1B or L-1 nonimmigrant alien.
Michael L. Aytes
Assistant Commissioner
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Q: How do I get a H-1 visa to travel and return to the U.S.?
A: In order to apply for the H-1 visa stamp through a U.S. Consulate or Embassy you will need the following (please note: processing times will vary depending upon the Consulate or Embassy you visit):
- Form I-797 (original approval notice);
- A certified copy of your H-1 petition;
- A passport valid for 6 months beyond the expiration of your H -1B petition;
- Passport size color photograph;
- Completed nonimmigrant visa application - Form DS-156 (available at the U.S. Embassy);
- Form DS 157 for male applicants between ages 16-45;
- Copies of your diploma(s);
- Letter of support from your employer;
- Copies of recent paycheck stubs;
- Copies of all U.S. tax returns filed in connection with any U.S. employment.
You should make contact with the U.S. Embassy to determine their hours of operation and procedures for obtaining the H-1 visa stamp and to confirm their documentary requirements. http://www.state.gov
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Q: Can I apply for the H-1B visa via Canada or Mexico?
A: Yes, so long have you have not overstayed the terms and conditions of your I-94. However, the Embassy does have the discretion to issue or deny the visa based on the fact that you are a third country national (non-national of Canada/Mexico). Please check with the Canadian/Mexican Embassy for visa requirements. You may call 1-900-451-2778 (from Canada) or 1-900-443-3131 (from the United States) to schedule an appointment with the U.S. Embassy. You may also schedule on-line at www.nvars.com.
Prior to April 1, 2002, non-immigrant aliens who left the U.S. for less than thirty days to a "contiguous territory" (Canada and Mexico, plus adjacent islands for students or exchange visitors) may re-enter the U.S. with an unexpired I-94 card, and valid passport. Such aliens were allowed readmission in the same classification as their previous visa classification or in a new classification authorized by the USCIS prior to their departure. This provision was commonly referred to as the "Contiguous Territory" rule.
Due to the need for greater security screening, effective April 1, 2002, this rule will change significantly in two ways. First, if any foreign national, regardless of nationality, goes to a U.S. consulate in Mexico or Canada and applies for a visa and the visa is not issued for any reason, the applicant will not be allowed re-entry into the U.S. without a valid visa.
Secondly, citizens of countries identified as "state sponsors of terrorism" will no longer benefit from the Contiguous Territory rule. The Department periodically publishes a report, Patterns of Global Terrorism, updating designations of countries considered state sponsors of terrorism. Currently, the designated countries are Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba.
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Q: If my employment is terminated, how long can I remain in the U.S.?
A: There is no regulation on this issue. USCIS looks at this on a case-by-case basis. Please refer to our FAQs on the topic of Reduction in Force.
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