Wednesday, August 21, 2013

Lawyer Q&A for H1B and OPT Candidates

We have a lot of employees now and we use a lawyer for our H1B cases and other issues that come up.

Here is a list of Q&A that our employees have come up with and the answer that our lawyer has given.  Hopefully it will help others that are looking for answers:

Question 1:

I am right now in India and need some advice from you regarding my H1B stamping.

I have received my H1B approval notice on January 23rd, 2013 with a valid date from 11/08/2012 to 09/30/2015, while I was working at client A.

The H1B got approved with location at San Jose, CA, Client A.

Later on Feb 11th 2013, I moved to Austin, TX, Client B. with same duties and same  position title. 

My employer applied LCA for Change in previously approved employment and mentioned location change to Ausin, TX. I received LCA Certification validity from Feb 11th 2013 to Feb 10th 2016.

Do I need to do H1B Amendment now with Client B details for Visa stamping? I am with the same employer till date.

Answer 1:

Hi, tough question.

According to CIS, there is no need to file amended petition. What he needs is a valid LCA which he has. See the attached. But the Consulate most likely would like to see the amended H1B petition. So, he better ask his employer to file it. 

Here is the Shotwell Memo  that clarifies this:

Here is a link to download the Shotwell Memo:

Question 2:

When I go for H1 stamping, I will be on F1 status and my MBA degree will be in progress and I am on F1-CPT currently. As I will be applying to change the status in middle of degree, can this act of mine raise 'Conflict of interest' issue in eyes of US Consulate? Any suggestions to respond to this situation ? What should be my response if asked about changing status when I haven't completed my degree yet?

Answer 2:

No, H-1B holders can pursue degree in the US

Question 3:

My mother in law has a green card. She left for India and it’s been more than 6 months (about 8 months). Green card requires at least 6 months stay in the US every year (not sure what the exact law is). She expects to stay in India for a longer period.

So, wanted to know what our options now are to keep the green card alive.

Answer 3:

She needs to come back before the end of one year.  She will not have any issue to come if she comes back before the end of one year.  If she has trouble in the airport, tell her to not sign anything; instead, insist to have hearing with the court. Once here, file re-entry permit, which allows her to stay in India for two years. before re-entry permit expires, come back and file another one for another 2 years. After that, she has to live here 6-months a year. 

Question 4:

As discussed, I have got an emergency trip to India next week, while my L1B to H1B Change of status is in process what are the outcome of action If I go ahead with my trip?

 Answer 4:

He can go, but his change of status from L1 to H1 will be automatically denied. Then, after his H1 approval, he has to go again to apply for a new H1 visa to come back. Or, you may upgrade his H1 to premium, and after H1 approval, he can go and come back on L1.

(So the basic answer for anyone that applied for an H1B in April and needs to go out of the country needs to wait until the H1B is approved before they go.  In this instance he needs to wait for the H1B approval and  then he can go and come back on his L1 and his H1B will be active from October 1)

Question 5:

Our recent employee says that his I-140 is approved and but his old employer is not willing to give the approval notice.  He was in USA recently for 4.5 years and his new H1B with us got approved for 1 year, and he wants to know how to proceed.

Answer 5:

If his I-140 is approved, he can get 3-yr H1B forever in the future. But if he cannot the the I-140 notice, then he can, file a Freedom of Information Act with CIS to get I-140 Copy which will show his case # and date of approval.

Question 6:

I got an H1B approved with a new company, but I have a Stamping done when I was with my old company. Do I need to get stamping done again before I come to USA.

Answer 6:

Do you mean you have valid visa stamping of H1b from old company? If yes, you are safe, just show your passport and your new I-797 approval from new employer.  See the attached documents. But do NOT show this unless you have trouble, and then insist to talk with the supervisor, and then show the attached.

Here is what you need to show: