Q. What is an H-1B work visa?
A. An H-1B visa allows a professional to come to the United States to work temporarily in a specialty occupation. The position is considered a specialty occupation if it requires a Bachelor’s degree or higher and specialized knowledge. A U.S. employer is required to file a Labor Certification Application with the Department of Labor before hiring an H-1B worker and submit the certified application ("LCA") with the USCIS along with H-1B petition.
Q. What is the cap for the H-1B visa petition?
A. The term “cap” refers to the limit of H-1B visas issued every fiscal year. There is an annual limit of 65,000 for H-1B workers, subject to certain exceptions. Additionally, first 20,000 H1-B petitions filed for foreign nationals who have a U.S. Masters’ degree or higher are exempt from the 65,000 issued during the fiscal year.
Q. When can an H-1B cap petition be submitted to the USCIS?
A. An H-1B petition can be submitted to the USCIS six months prior to the start date of employment. It is advisable to submit the H1-B cap petition in the first week of April when USCIS opens window to accept new 65000 H-1B visa petitions.
Q. How long can an employee stay in the United States on H-1B status?
A. Generally, an H-1B visa professional can stay in the United States for a period of six years. However, under certain circumstances the worker may be eligible to extend the H-1B visa beyond six years.
Q. What is the current policy on 7th year H-1Bs?
A. An H-1B professional may be eligible to extend their H-1B visa beyond six years based on a Labor Certification Application which is pending for 365 days before the end of the six years, or if the professional has an approved I-140 petition.
Q. I currently hold H-1B status in the United States. My adjustment of status application has also been filed with the USCIS. Recently, I received an Employment Authorization Card. Do I still need to maintain H-1B status?
A. It depends on the facts of your case. However, it is always advisable to maintain H-1B status, especially if your adjustment of status application has been pending for less than 180 days.
Q. I was just laid off. What is the grace period I have after the lay off before I am considered out of status? Do I have a grace period to find another employer?
A. There is no grace period for an H-1B worker after your employment is terminated by your employer. Please note that your H-1 B status ends with the termination of your employment. However, you should consider promptly finding a new employer. We have obtained approvals in such situations where the new employer files its H-1 B petition within two weeks post termination of employment.
Q: Does the employer have any liability under immigration law when there is a termination of an H-1B employee?
A: Yes. The employer must notify USCIS in writing before the termination that a termination is about to occur. After termination of employment, the employer must notify in writing the USCIS to withdraw the H-1B petition. Please note that in certain circumstance the employer must offer the H-1B worker return transportation to his last place of foreign residence.
The USCIS and DOL are increasing their enforcement activities and focusing on employers and employees who are not in compliance with the law.
Q. I am currently on F-1 Status. My OPT will expire this July. If my H-IB petition is timely filed prior to expiration of my OPT employment authorization, will I be covered in cap-gap provisions and continue employment on OPT? Am I entitled to stay in the United States post-expiration of my employment authorization?
A. As long as your H-1B visa petition requesting change of status is timely received by the USCIS, you will qualify for a cap-gap extension. The cap-gap provision will automatically kick off in your situation and will continue until your H-1B petition adjudication is completed. If your H-1B petition is approved, your cap-gap extension will continue through September 30. However, if your H-1B petition gets rejected, you will have a 60-day grace period from the date of the rejection notice to leave the United States.
Q. What is benching?
A. The term “benching” in context of H-1B means when an employer places the H-1B worker in inactive status and no employment relationship exists during the time between the contracts or shut downs. However, it is pertinent to mention here that if the worker is not working because of his own needs, such as sick leave, vacation etc. the worker is not considered to be out of status because of inactivity as long as the employer-employee relationship continues.
Q. My spouse is a U.S. citizen and I am currently visiting him on a visitor visa. Can I apply for adjustment of status in the United States?
A. Yes, you may apply for an adjustment of status while being present in the United States. You may be eligible to file an immigrant visa petition and adjustment of status application simultaneously.
Q. I entered the United States on a visa waiver program. I am now married to a U.S. citizen. Am I eligible for adjustment of status?
A. In general, foreign nationals who came to the United States under a visa waiver program are ineligible for adjustment of status. Since you are married to a U.S. citizen, you are eligible to adjust your status only if the adjustment of status application is filed within 90 days of your authorized stay.
Q. I am 23 years old. I came to the United States with my parents when I was 6 years old. I graduated in 2011. I am a single mom of a 10 month old son who is on public assistance. I believe I am eligible under DACA. Is it a negative discretionary factor that my son is on public assistance?
A. You may be eligible under the Deferred Action for Childhood Arrivals (DACA) program. This may be a negative factor, but it is not bar to DACA if a U.S. born child is receiving public assistance.
Q. I am a U.S. Citizen. My father came to the United States on a visitor visa. He has lost his I-94 but has a valid visa. Can he file for adjustment of status without the I-94?
A. He may be eligible for adjustment of status without an actual I-94. If he has an entry stamp in his passport, that’s enough for adjustment purposes. The USCIS adjudicator has ability to research the system to verify his entry into the United States. Alternatively, your father may file Form I-102 which will serve as a substitute for the missing I-94.
Q. I was granted an asylum in the United States by the Immigration Judge. My spouse is currently in the United States illegally. Can my spouse get derivative asylee status through me in the United States?
A. Yes, Asylee status is conferred on your husband in the United States regardless of his status.
Q. I have been a Lawful Permanent Resident of the United States since 2000. I have a felony domestic battery 'charge' but was 'convicted' only of misdemeanor ‘disorderly conduct'. I have successfully completed my probation in 2007. May I be eligible for naturalization?
A. We have had clients who were able to obtain naturalization despite the fact they had been convicted of a domestic violence charge. You should speak to an immigration lawyer to evaluate your specific situation.
Q. I entered the United States on a B-2 Visa in 1998 and never left. My sister is a U.S. citizen who filed an Immigrant petition for me in March of 2001 which is now current? Can I file for adjustment of status?
A. Generally, if a foreign national is not an immediate relative of a U.S. citizen, they must show that they always maintained status if they want to adjust status based on F-4 category. However, you may be eligible for adjustment under INA 245(i), which has several complicated requirements. One requirement is that one must show that one was physical present in the United States in December of 2000.
Q. I have filed my adjustment of status application based on an approved U Visa. USCIS has recently sent me a notice asking for a new “re-certification” that I am being helpful in the investigation. I had already submitted the certification at the time my U-Visa was approved. Am I required to resubmit new re-certification?
A. One of the requirements of U visa adjustment is that you show the victim has not unreasonably refused to cooperate in the time after the initial U visa application. You may submit a new certification, but it’s not an absolute requirement. You may include your statement in response to the USCIS notice.
Q. I am a U.S. citizen. I met a woman on line and I plan to marry her. Recently I visited her in Russia and we became engaged. I would like to know how much documentation of the relationship is required to send in with the I-129F.
A. There are a set forms and documents that needs to be submitted along with the fiancee petition. Basically, you need to provide evidence that you personally met your fiancée within two years at the time of filing the petition and have intent to marry within 90 days of her entry in the United States.
Q. I came to the U.S. on K-1 and married within 90 days but am now outside the 90 days and have not yet filed an adjustment of status application. May I be eligible to file the adjustment of status application more than 90 days from entry?
A. As long as you are married before your K-1 status expires (90 days), you are allowed to remain in the U.S.while your I-485 is pending. You should have no problem proceeding with the adjustment of status more than 90 days from entry because you married within the 90 day requirement.