Work Visa Lawyer
A work visa lawyer at Law Offices of Mathew M. Chacko, PC represents individuals seeking E3, H-1B, L-1A/B, J-1, R-1, and TN employment visas.
The Role of a Work Visa Attorney
A work visa is a type of non-immigrant visa. It allows an individual to work and live within the United States for a certain period of time.
Foreign nationals are allowed to engage in employment under many temporary immigration categories. It is generally necessary to have a specific employment offer through a U.S. employer or sponsor.
In order to legally work in the U.S., it is also necessary to have a work permit or Employment Authorization Document (EAD card). An experienced immigration lawyer at the Law Offices of Mathew M. Chacko, PC, can guide you through the process of obtaining a work permit or work visa.
Types of Work Visas
The United States does not have a generic work visa for individuals who wish to come to the U.S. to find jobs. Foreign nationals generally need to obtain a visa at a consulate abroad, based upon a petition filed by a U.S. employer. Those who are already in the United States may be able to change their statuses to employment-based categories, with appropriate employer support.
Employment-based immigrant visas include, among others:
- E3 (Australian specialty occupation),
- H-1B (specialty occupation),
- L-1A/B (intra-company transferee),
- J-1 (exchange visitor),
- R-1 (religious worker),
- TN (NAFTA professional worker).
E-3 Visa (Specialty Occupation Workers from Australia)
This visa is for Australian specialty occupation workers performing services in a specialty occupation. E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the United States. There is no limit to the number of E3 visas that an applicant may hold over the course of their life.
H-1B Visa (Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models)
H-1B is a non-immigrant visa category for foreign workers. The occupation they engage in should be a “specialty occupation.” A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The category is also applicable to fashion models of “distinguished merit and ability.”
H-1B visas are subject to a numerical cap of 85,000 per fiscal year. 20,000 are for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. Certain H-1Bs are cap-exempt. H-1B visas are typically given with a validity period of 3 years initially. It can be extended for an additional 3 years for a period not to exceed a total of six years.
H1-B transfers are allowed for foreign workers. The employer has to comply with I-9 requirements upon hiring H-1B foreign worker under portability provisions. The employer is also not allowed to “bench” the foreign worker and will be required to pay the foreign worker the required wage for bench time.
A foreign worker under H-1B is allowed to exhibit a non-immigrant and immigrant intent (Dual Intent) and therefore may apply for permanent residency. The foreign worker does not have to maintain a foreign residence during their period of stay in the United States. If the employer were to terminate the foreign worker during H-1B classification status, the employer could be liable (continues only during the H-1B status i.e. the change of status to permanent residence or any other status which then absolves the employer of this liability) to pay the return fare to the foreign worker’s last place of foreign residence.
The foreign worker is allowed extension beyond the six-year limit on H-1B as long as the worker has a labor certification application that has been filed and is pending for at least 365 days (in such case, only a one-year extension is permitted) or if an I-140 has been approved on behalf of the worker (in such case three-year extensions are permitted). Such extensions are permitted until a decision is made on the immigrant visa application.
Foreign worker's family members (spouse and unmarried children under 21 years old) are admitted to the United States in the H-4 category for the same period of time for which the H-1B foreign worker is admitted or may alternatively be admitted in other nonimmigrant categories for which they qualify. The H-4 dependents may undertake studies during their stay while remaining in the H-4 category. Currently, H-4 spouses are allowed to work provided their spouse on H-1B visa is eligible for the 7th year extension or the H-1B spouse has an I-140 petition approved.
H1B1 Visa (Specialty Occupation Workers from Chile and Singapore)
This category is for foreign workers from Chile and Singapore engaging in specialty occupations. The position must be a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources.
The worker must have a post-secondary degree involving at least four years of study in their field of specialization. A worker cannot be self-employed or an independent contractor. Also, the period of employment in the U.S. must be temporary, so the worker must demonstrate non-immigrant intent.
H1B1 visas are multiple-entry and valid for a maximum of 18 months. Extensions and renewals are allowed.
H-2A Visa (Temporary Agricultural Workers)
The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. To qualify for H-2A nonimmigrant classification, the petitioner must offer a job that is of a temporary or seasonal nature besides demonstrating that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work. An employer must also show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
H-2B Visa (Temporary Non-Agricultural Workers)
The H-2B program also allows U.S. employers or U.S. agents meeting specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. There is a statutory numerical limit, or “cap,” on the total number of foreign nationals who may receive H-2B nonimmigrant classification during a fiscal year.
H-2B petitions may only be approved for nationals of certain countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.
To qualify for H-2B nonimmigrant classification, the petitioner must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and its need for the prospective worker’s services or labor is temporary. An employer’s need is considered temporary if it is a(n) one-time occurrence or seasonal/peak load/intermittent need.
The H-2B classification is usually granted for up to the period of time authorized on the temporary labor certification which may be extended for qualifying employment in increments of up to 1 year each for which a new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in the H-2B classification is 3 years. A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.
The H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. They are not eligible for employment in the United States while in H-4 status.
L1 Visa (Intracompany Transferee)
There are two types of L1 visas: L1A and L1B.
L1-A Visa - Executive or Manager Transfers
L1-A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L1-A also enables a foreign company that does not yet have an affiliated U.S. office to send a professional / specialized employee to the United States with the purpose of establishing one.
The named employee for L1-A must generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and enters the United States to provide service in an executive capacity (ability to make decisions of wide latitude without much oversight) or managerial capacity (the ability of an employee to supervise and control the work of professional employees and to manage the functions and components of the organization without direct supervision of others) for a branch of the same employer or one of its qualifying organizations.
To qualify for L-1 classification, an employer must:
(1) have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations);
(2) currently be, or will be, doing business (regular, systematic, and continuous provision of goods and/or services by a qualifying organization) as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States on L-1 visa.
It does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. There is no requirement that an employer must be engaged in international trade.
However, the business of the employer must be a viable one.
L-1B Visa - Specialized Knowledge Workers
L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge (either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures) relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. For L1-B, the employee should seek to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. For an employee to qualify for the L-1B classification the employer must show that the employee will not be principally controlled or supervised by such an unaffiliated employer; and the work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.
For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that the employer has secured sufficient physical premises to house the new office and it has the financial ability to compensate the employee and begin doing business in the United States.
For establishing a new office, the employer must show that it has secured sufficient physical premises to house the new office; the employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and the intended U.S. office will support an executive or managerial position within one year of the petition being approved.
An L1-A or an L-1B employee entering the United States to establish a new office is allowed only a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For an L-1A employee, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.
The employee’s family members (spouse and unmarried children who are under 21 years of age) may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. The L dependent spouse is automatically authorized for employment as a matter of status upon entry into the U.S. There is no specific restriction as to where the L-2 spouse may work.
R-1 Visa (Nonimmigrant Religious Workers)
The Religious Worker (R) visa classification is for persons seeking to enter the United States to work in a religious capacity on a temporary basis. Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation. The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S. The religious denomination and its affiliate, if applicable, must be either exempt from taxation or qualifies for tax-exempt status.
The applicant should show that he has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant should be planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).
There is no requirement that applicants applying for “R” visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary.
The applicant should reside and be physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.
Family members of a religious worker like a spouse and unmarried children under 21 years of age are issued an R-2 visa. They may study, but may not accept employment in the U.S. Therefore, evidence of their financial support while in the U.S. will be necessary at the visa interview.
TN Visa (NAFTA Professionals)
TN category was created as part of economic and trade relationships for the United States, Canada, and Mexico under The North American Free Trade Agreement (NAFTA). TN category provides a general exemption from the visa requirement. It allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.
The professionals include accountants, engineers, lawyers, pharmacists, scientists, and teachers. The Canadian or Mexican citizen should have a prearranged full-time or part-time job with a U.S. employer (no self-employment is allowed) and also have the qualifications to practice in the profession in question. NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying profession.
The initial period of stay allowed under TN is 3 years. The citizen may depart from the United States before the date of expiration of status. Once abroad, he or she may apply at a CBP-designated U.S. port of entry or at a designated pre-clearance/pre-flight inspection station using the same application and documentation submitted initially for admission as a TN nonimmigrant.
Canadian citizens (not Mexican citizens) are generally eligible for admission (without a visa) as nonimmigrants and are not required to apply for a TN visa at a U.S. consulate. The eligibility for TN classification is sought at the time of admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. Canadian citizens must provide to the CBP officer proof of Canadian citizenship, a letter from a prospective employer detailing items such as the professional capacity in which the citizen will work in the United States, the purpose of employment, length of stay, educational qualifications, and credentials evaluation (if applicable), together with any applicable fees.
Mexican citizens are required to obtain a visa to enter the United States as a TN nonimmigrant for which the citizen should apply directly at a U.S. embassy or consulate in Mexico. Upon approval, the citizen may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.
The citizen’s spouse and children under the age of 21 may be eligible for TD nonimmigrant status. Spouses and children are not permitted to work while in the United States, but they are permitted to study. The TD status is not granted for any longer than the period of time granted to the principal TN nonimmigrant.
How Can Immigration Lawyers Help?
U.S. immigration law is incredibly detailed, and there are many types of work visas available. Work visas come with varying conditions, requirements, and authorized periods of stay. That’s why it’s important to have an immigration attorney by your side. They can help you file for the appropriate visa and adhere to its terms.
If you have more questions on the work visa application process, reach out to the Law Offices of Mathew M. Chacko, PC.
E-3 visa classification applies only to nationals of Australia as well as their spouses and children. The spouse and children need not be Australian citizens.
No. E-3 visas are only available for Australian nationals. If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.
No. It is solely to work in a “specialty occupation.”
The job will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation.
E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.
U.S. Code of Federal Regulations 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years’ experience in the field you are applying to work in. During visa interviews, applicants should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.
E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the United States. There is no limit to the number of E3 visas that an applicant may hold over the course of their life.
Yes. Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less. You need not come back to Australia for changing the employer.
Yes, you can travel on the VWP if you meet the requirements. If you do not meet the VWP requirements, you may be eligible to travel on B1/B2 visa. However, you must leave the United States before applying for E3 visa.
No, the employer in the United States is not required to submit a petition to USCIS as a prerequisite for the E3 visa. However, the employer must obtain a Labor Condition Application (LCA), from the department of labor.
Yes. E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (USCIS).
The validity of the visa will not exceed the validity period of the LCA, nor will it exceed the reciprocity period of 24 months established by the Department of Homeland Security. Any validity period extensions will be based on LCA extensions.
A maximum of 10,500 E-3 visas are issued annually during each fiscal year, which runs from October 1st to September 30. Spouses and children of applicants do not count against the quota, nor do applicants extending their E3 visas whilst still in the U.S. and working for the same employer.
E-3 status provides for entry on a non-permanent basis into the United States. Similar to E-1 and E-2 visa applicants, the E-3 must satisfy the consular officer that you intend to depart upon termination of status.
E-3 visa is a multiple-entry visa, so provided you have not changed employers or extended your status you may travel outside the United States and re-enter on a valid, unexpired E-3 visa. If you have a change in status and exit the United States, you will need to obtain a new E-3 visa at a U.S. Embassy or Consulate abroad before you may re-enter.
The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. The 65,000 does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.
Certain employment is exempt from the need for a cap number. This is referred to as cap exempt. Cap-exempt employment includes employment “by” or “at” universities and their nonprofit affiliates, as well as nonprofit entities related to or affiliated with institutions of higher education, and governmental research organizations.
As you are applying for the H1B for the first time you are subject to the cap. The same goes for a student on EAD or H4 applying for the H1B.
You cannot get the details from USCIS as the petition was filed by employer. Note that H1B is your employer’s petition and not yours. Only employer or its attorney can contact USCIS.
Within last 90 days of the start date.
H1B cap is counted by USCIS when approving the H1 visa. You can get the stamping done.
It depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. Individuals, who have only held H1B status with cap-exempt employers, like universities or nonprofits associated with institutions of higher education, are not deemed to have already been counted against the H1B quota.
No, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
Yes. But each employer must file a petition.
No. All fees pertaining to filing the H1B petition must be paid by the employer. Try not to enter into a reimbursement agreement with the employer.
The job title, educational and work experience requirements, job duties, and job location.
H-1B visa is initially granted for three years. The maximum number for H-1B visa is six years. One has to stay outside for at least one year before reentering.
If a labor certification, I-140 or employment-based adjustment application has been filed for more than 365 days, prior to the expiration of his current period of H-1B status, petitioner can request further extensions. Even though the labor certification or I-140 was not filed before 365 days of expiration of the 6-year term but if an I-140 is approved, the worker may still get the extension either for one year or three years depending on certain circumstances. The I-140 does not have to be from the same employer.
You may choose to file for H-1B status while in your practical training itself. If you file your H-1B petition aiming at the October 1st start date while in the practical training, you will have your H-1B ready by the time you are out of training.
No. You should have all requirements of the degree completed. It is not necessary to have the physical diploma in one’s possession. After completion of all requirements of the degree you may obtain a letter of completion from the school and apply for H1B if the quota is still open. One should not apply for the masters’ cap if the degree requirements will not be completely fulfilled by time the H1B application is submitted.
Yes, you must stop working upon the expiration of the EAD or the OPT if an H1B cap case petition was not filed requesting a change of status prior to the expiration of the completion of the school program or end of OPT indicated on EAD card. If a petition for a change of status is timely filed for an October 1st start date (i.e. filed before the OPT period ends), then one may continue working between the expiration of the employment authorization and start of the H1B status (October 1st). If the petition is denied then one will no longer be eligible to remain and work in the U.S. pursuant to cap gap.
Note: You will not receive a new I-20 or be able to renew your EAD card. You should, however, keep the DSO at the school updated as to the status of the cap case and provide with copies of receipts and approval notices so that the SEVIS records can be properly maintained. Also note, if your H1B petition requesting a change of status is filed within the 60 day grace period that follows the conclusion of OPT employment or the F-1 academic program, you may legally remain in the U.S. until the start of the H1B but will not have employment authorization. If the H1B is denied then you will have to depart the U.S. If you are unable to file the H1B cap case and request a change of status petition prior to the conclusion of your F-1 status or 60 day grace period, you should try to maintain status by enrolling in another program or changing to another non-immigrant category, such as H-4, in order to remain in the U.S. In these circumstances you should depart the U.S. prior to the expiration of your status and be prepared for consular processing. Upon approval, the U.S. consulate abroad will be notified where you may apply for an H1B visa. If your petition and change-of-status request are approved (from F-1 to H1B), then the approval notice will have an I-94 card attached at the bottom.
It depends on whether you have completed six years of H1B in U.S. In such cases, the six-year clock in H1B status is not reset unless one leaves the United States for at least one year. Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap.
H1B portability provisions allows a nonimmigrant worker who was previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B petitioner when the new employer files (USCIS must have received it) H-1B petition for the alien. The foreign worker must have been lawfully admitted into the U.S. Subsequent to such lawful admission; the foreign worker must not have been employed without authorization. The new employer must have filed a ‘non-frivolous’ petition while the foreign worker was in authorized period of stay.
If you are currently in H1B status with another company, then you may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, you generally must await an approval of the H1B petition and a change of status.
No. You are only authorized to work at the specific location or in the metropolitan area listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL) and filed with the H1B petition. There must be a certified LCA for each location at which you will work, attesting that the employer will comply with the prevailing wage requirement for that local area.
Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work. As long as the prior employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior company. When to join is up to you and your new employer. You do not have to tell your current employer about the new filing.
No, unless you have an H1B approved or at least filed (USCIS must have received it) by Company B.
H-4 is a non-working status. An H-4 spouse can start working after obtaining employment authorization from USCIS if the primary H1-B holder has an I-140 petition approved or has filed an H1-B extension beyond six years.
If the H1B was approved with the change of status you are not in L1 status anymore. You should not work after the H1B start date on L1 as it constitutes unauthorized employment.
A passport valid at least for six months as on the date of interview; documents sent by your employer including the approval (I-797) notice, complete copy of H-1B petition filed with USCIS, current dated appointment letter from Employer, current Federal Tax Returns of the employer, copy of the official evaluation of your degrees and all original transcripts, and work experience letters, if applicable.
If your previous employer’s H1 visa stamp has not expired, you could use that visa stamp along with the new employer’s H1B petition and approval to travel back into U.S.
No, as you must have the new company’s H1B petition approved through the USCIS, since each H1B petition is employer specific. This applies to any company for which you might work, whether or not you already hold H1B status. However, if your visa has not expired in the passport, but now has a new H1B petition approved to work for another employer, it is possible, in most cases, to use the old H1B visa and show the new employer’s H1B approval notice to obtain a new I-94 card at the POE. The new I-94 card should have an expiration date that matches the expiration date on the new H1B approval notice.
NOTE: Sometimes POE officials make mistakes and issue an I-94 card valid until the expiration date of the visa. In such case you should request at that time that the officer indicate the correct date.
It is possible to file for an H1B transfer before October without paystubs from the first employer. There is no guarantee of approval and risks associated with it are high. USCIS can consider it as benching. If you are on an H1B you need to be paid and will need pay stubs for the H1B transfer.
No. Using Company X’s approval and last few pay stubs, and receipt from Company Y, you should be able to get the transfer to Company Z as long as you are in valid status.
Generally, yes, this may be possible. Safest bet is to avoid travel. The timing of your trip can complicate the situation as there have been changes in USCIS’s interpretations affecting those who travel abroad while a petition is pending.
Yes. It is recommended that dependents accompany you for their visa interview at the same time you got for stamping. Mother cannot get H4 as she is not considered as a dependent of the principal applicant.
If your son is on an H4 he does not need an F1 to study. Dependents can attend school and study on H4.
Yes as consulates makes exceptions in such cases. However, you may have to fill an application form for newborn baby accompanying its parents for interview and carry birth certificate of child.
Yes. If in the U.S. she can apply for change of status using Form I-539. If she is outside USA, she needs to get an H4 stamping on her passport.
H4 non-immigrant classification is not employer specific and hence H4 holders remain in valid status which is contingent on the continued validity of the H1B principal applicant’s status.
Yes, you may apply for Change of Status to another non-immigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another non-immigrant status, if you apply for change of status.
If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. You will not be able to change your status to any other visa in such case. However, if you decide to follow the petition , the better practice is to request the USCIS for forgiveness for any short period or request for approval of the petition subject to the condition that you would go for consular processing (go out of the country for interview and visa stamping). You may also find a new employer within 60 days getting laid off and file an H1-B transfer provided you have a valid I-94 and has not entered into any unauthorized employment. However, USCIS may not approve the new H1B petition with an I-94 attached to it.
As per the law, you should get paid from day one you are employed and cannot be without a salary unless you are on unpaid vacation or sick leave. If you are not able to find another employment quickly, it is advisable to leave the U.S. You can complain to Department of labor (DOL) for payment of back wages if your employer refused to pay your salary.
Yes. But note that DOL may take a stand that you were never terminated by company A and may ask A to pay back wages for the period you never worked for A.
It is advisable to use EAD and secure an employment without your new employer having to file an H1B immediately. You will remain in authorized period of stay since you have an I-485 pending even if you are unable to find employment. As long as you chose to remain in valid H1B status you can have your new employer file the H1B petition and start working as soon as it is submitted.
Yes, for the 4 months you were not paid. You must have been working for the petitioning employer and getting paid the salary that was agreed upon as per the Labor Condition Application and H1B petition.
Your employer is required to pay you only as long as the employer-employee relationship exists and not until USCIS revokes the petition. They need to pay you till your last day of work. You are considered out of status the day you stopped working. Sometimes USCIS does not look into any gaps of the pay stubs and you may be lucky filing an H1B with a new employer with the pay stubs you received as part of the severance package. But there is no guarantee.
Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition with USCIS (USCIS must have received it) on your behalf.
Since the company no longer has a job for you are no longer in H1B status. You should file H4 using Form I-539 as soon as possible.
If you are terminated there is no grace period. You may also find a new employer within 60 days getting laid off and file an H1-B transfer provided you have a valid I-94 and has not entered into any unauthorized employment. However, USCIS may not approve the new H1B petition with an I-94 attached to it. If you cannot find another employer, it is better for you to change your status to B1/B2 and find a new job. Then change back to H1B once a new employer has a job for you and files the petition.
USCIS normally takes time to act on the revocation letter. You should find a new employer who could file a petition for you as soon as possible or you should change your status to some other status like B1/B2. If you did not continuously maintain status you may not be able to get an I-94 authorizing additional stay. In that case, you may have to get the visa stamped from abroad.
An employer is considered H-1B-dependent if it has: 25 or fewer full-time equivalent employees and of which at least eight are H-1B non-immigrant workers; or 26 – 50 full-time equivalent employees and of which at least 13 are H-1B non-immigrant workers; or 51 or more full-time equivalent employees of whom15 percent or more are H-1B non-immigrant workers.
Yes. An employer whose dependency is not readily apparent or is borderline may use the “snap-shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is dependent, the employer must then fully calculate its dependency status. If a large employer’s calculation exceeds 15% of its workforce, that employer must fully calculate its dependency status. This full calculation must take into consideration the total number of H-1B workers (a “head count” of both full-time and part-time workers) and the employer’s total work force in the United States (including both U.S. workers and H-1B workers) and must be measured according to full-time equivalent employees.
Willful violator or willful violator employer means an employer that meets all of the following standards:
A finding of violation by the employer is entered in either of the following two types of enforcement proceeding:
A Department of Labor proceeding under the Immigration and Nationality Act (INA) § 212(n)(2); (8 U.S.C. § 1182(n)(2)(C); OR a Department of Justice proceeding under INA § 212(n)(5); (8 U.S.C.§ 1182(n)(5).)
- The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations; and
- The agency’s finding is entered on or after October 21, 1998.
Yes. A willful violator employer must comply with additional attestations under any LCA it files within five years of the willful violation finding. The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers. Willful violators and H-1B-dependent employers which file an LCA must meet the following additional requirements:
- The employer has not displaced a U.S. worker at the time of filing an H-1B visa petition;
- Before placing an H-1B worker at a secondary employer’s work site, the employer has inquired as to the secondary employer’s intent to displace a U.S. worker;
- The employer has taken good faith steps to recruit U.S. workers; and
- The employer has offered the job to any equally or better qualified U.S. worker who applies for the job for which the H-1B worker is sought.
Note: Willful violators are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. Also, the Wage and Hour Division maintains a current list of such H1-B willful violators.
Yes. There are two new ‘displacement’ attestations that apply to H-1B dependent employers: the employer has to attest that it did not displace and will not displace as U.S. worker employed by it within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application. It also has to attest that it will not place the H-1B worker with another employer where no such disclosure was made.
File a complaint against the employer and report the violations to the Department of Labor’s Employer Standards Administration.
Most changes will not affect your H-1B status as long as you continue to work on H1B for the employer. You may change H-1B employers without affecting status for which your new H-1B employer must file a new I-129 (Petition for Non-immigrant Worker), before you start working for him. Any merger/sale of your H-1B employer’s business should not affect your status However, due to the change if you are working in a capacity other than the specialty occupation for which your employer petitioned, it is a violation.
There is no need to be concerned if the visa in your passport has expired and not the H-1B status. You would need to apply for another visa at a U.S. consulate abroad the next time you travel outside the United States. Your legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as it is valid and you continue to work for the sponsoring employer under the terms of the petition, then you should be fine. If your status has expired then you should contact an attorney immediately your options.
She is subject to the 3-year or 10-year bar for failure to maintain lawful status beyond 180 days. She should contact an experienced U.S. immigration attorney immediately.
If you wish to work for your own company a new H-1B petition must be filed. Note that the H-1B petition may not be successful because the petition may not be able to establish the existence of employer / employee relationship. This relationship must be present and often it may be difficult to establish in a closely held corporate entity. USCIS will seek evidence of the petitioner’s (your company’s) right to control the beneficiary’s (your) employment. Based on the new updated guidance from USCIS, it may be possible for an entrepreneur to qualify for H-1B classification. Also note that you may be able to passively invest without filing an H-1B petition.
Show that the company has specific H1B-level work for consultants at the time of filing. For consultants working at back office on a project, provide detailed information on the project, including its technical specifications, the end-product, and a business plan / market analysis (potential market targets, expected revenue source, anticipated project length, etc.). Ensure that company has other means to pay wages of consultants if the project will not earn revenue in a relatively short period of time. For consultants placed off site / end clients, the location should be stated in the H1B petition as well as in the certified labor condition application (LCA) that accompanies the petition. Besides, provide strong evidence of the specific project that is immediately available to consultant at the time of filing the petition or the requested start date by submitting contracts, purchase/work orders, end client/vendor letters, and other supporting documentation to demonstrate that there is an H1B position available to the consultants and that the consultants services are needed for the entire duration of time requested in the H1B petition. For more than one work location or project, provide a detailed itinerary/schedule indicating when the consultants would be working on the specific projects at each location. Further, provide complete evidence for each project or assignment that consultants would be assigned in order to evidence that there is a bona fide specialty occupation available for period requested in the LCA.
One cannot generally change locations and file new LCAs in response to RFE or while a petition is pending with the USCIS. If there is a location change after a petition is approved, or other details of the employment change, one may need to file an H1B amendment petition.
As an employer you are liable for “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is terminated before the end of the period for admission. You should notify USCIS of the termination.
Yes, you may apply for Adjustment of status while on H-1B visa. You may be the beneficiary of an immigrant visa petition or take other steps towards Lawful Permanent Resident status without affecting H-1B status. Under the law you could exhibit both immigrant and non-immigrant intent (dual intent) at the same time.
During the time your application for Green Card status is pending, you may travel on your H-1B visa even if you have not obtained advance parole.
There is no requirement that a petition first be filed with the USCIS. Chileans and Singaporeans may apply directly at a U.S. consulate for an H1B1 visa. A petition may be filed with the USCIS to change status to H1B1, or to extend H1B1 status. As with the H1B visa, a labor condition application (LCA), certified by the U.S. Department of Labor, is required.
H-2A & H-2B Visa
A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer can file petition on a prospective worker’s behalf.
The employer’s need is considered temporary if it is a(n):
One-time occurrence (Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker) OR
Seasonal need (traditionally tied to a season of the year by an event or pattern; and of a recurring nature. Note: Employment is not seasonal if the period during which the service or labor is needed is Unpredictable; Subject to change; or Considered a vacation period for the employer’s permanent employees) OR
Peak load need (regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation) OR
Intermittent need (has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods).
Generally, USCIS may grant such classifications for up to the period of time authorized on the temporary labor certification. Such classifications may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A/H2-B classifications is 3 years. A person who has held H-2A/H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A/H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A/H-2B time.
Yes. Petitioners of H-2A/H-2B workers must notify USCIS within 2 workdays if any of the following occur:
No show: The worker fails to report to work within 5 workdays of the latter of the employment start date on the petition, or the start date established by the employer;
Absconding: The worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;
Termination: The worker is terminated prior to the completion of the H-2A/H-2B labor or services for which he or she was hired; OR
Early Completion: The worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the petition.
Yes. You may enter the United States up to 10 days before your employment is authorized to begin as indicated on your Form I-797 (Notice of Approval). However, you may not work in the United States except during the validity period of the petition.
Yes, if you can show that you have worked for the new employer’s foreign branch continuously for one year during the last 3 years of applying. You can also change employer by changing your status to an H-1B.
Spouse and/or children under the age of 21 can receive a derivative (L-2) visa to accompany you in the United States.
Yes, if the marriage creating the stepchild relationship occurred before the child’s eighteenth birthday. Your child’s application materials must include a copy of your marriage certificate establishing the stepchild relationship.
Yes, spouses in derivative L status are automatically authorized employment upon entry into the United States.
Yes. But you need to show control and management of the employee. The work location can be changed as long as the job duties remain the same. However, you must notify the USCIS by filing an amendment petition.
There is no grace period and you are out of status the day you are without work. You may have to immediately find a job or change to B1/B2 or another nonimmigrant category.
No. However, you may have problems with Department of Labor if you pay lower wages. As an employer you should make sure that reasonable wage depending upon the structure, size and business practices is paid to the transferee.
If you are on L1A, the max is 7 years and if you are on L1B, the max is 5 years. Usually, the initial approval is granted for three years or less. You then need to apply for a renewal.
It may not be difficult as establishing the new office category has certain set of rules. These provisional rules are designed for such new office which at the time of filing is not fully established or able to support a full-time manager or executive. You may have to show office lease, business plans etc. to show that company will develop in future so as to afford such a managerial position. However, the initial duration of such L1A will be given only for one year.
Probably yes, if your corporation is a business that frequently uses L1 visas a lot and is a large multinational with 3 or more branches, subsidiaries or affiliates. You need to show one or more of the following: combined US annual sales of $25 million; a US workforce of 1,000; or has received at least 10 L petitions approved in last 12 months.
One can work for five years in R1 status. Usually it is granted in two periods of 30 months. An R1 visa holder who has spent five years in the United States must have been physically present outside the United States for one year to be readmitted.. However, if R1 visa holder was outside of the United States for any period of time during the five years, he or she could recapture the number of days spent outside of the United States.
An onsite inspection may be conducted by USCIS as a condition for approving the R1 status to see whether the sponsoring organization is genuine and a job for the religious worker is available. Inspection may also be conducted to see whether the religious worker is indeed working and is getting paid the wage offered.
R2 visa holders are not permitted to work.
Yes, only if an onsite inspection was conducted on the religious organization by USCIS earlier.
No, you need a religious organization to file it.
There is no cap.
The denomination should provide the religious denomination’s requirements for ordination to minister, a list of duties performed by virtue of ordination, the denomination’s levels of ordination, if any, and evidence of the religious worker’s completion of the denomination’s requirements for ordination.
Yes. However, they should immigrate or adjust to permanent resident status before the sunset date.
Yes for the special immigrant category. Note: for R1 nonimmigrant visa, the two years of denominational membership need not be immediately/before the fining of the I-129 petition.
Yes. However, a break in the continuity of the work during the preceding two years will not affect eligibility so long as the foreign national was still employed as a religious worker; the break did not exceed two years; and the nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the foreign national must have been a member of the petitioner’s denomination throughout the two years of qualifying employment. Note that for the two years the religious worker must have worked after the age of 14, either abroad or in lawful immigration status in the United States.
No. You can apply it only after the approval of I-360 petition.
The non-immigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers.
No. Only citizens of Canada/Mexico are eligible for TN visa.
Citizens of a NAFTA country may work in a professional occupation in the U.S. provided the profession is recognized under NAFTA; and the alien possesses the specific criteria for that profession; and the prospective position requires someone in that professional capacity; and the alien is going to work for a U.S. employer. If all of these conditions are met, then a TN may be issued.
It depends on the profession you plan to work in United States. With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. In some professions, an alternative to a bachelor’s degree is listed. For some professions, experience is required in addition to the degree.
“TN” status will only be granted if the period of stay is temporary. You cannot exhibit immigrant intent. If CBP or consular officer comes to know that you have an immigrant petition filed, you may not get a TN visa or may not be eligible to get an extension.