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Most Common Q & A

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  • Q1.My wife was offered a job on H-4 status. When can she begin working?

    Dependents on H-4 visas are not permitted to work for pay under any circumstances. H-4 dependents may work even when there is no pay, though. For instance, if your wife receives an internship offer with no payment other than credit, she might be permitted to accept the position. Another illustration may be if your wife volunteers at the library or shelter in your community.

    Your wife would be able to change her H-4 status to that of an H-1B when her sponsor employer submits the necessary papers to the USCIS if she accepts a job that will sponsor her for an H-1B visa.

  • Q2.Does H-1B Status impact my travel to and from the US?

    When an individual is on an H-1B visa, there are important guidelines to follow when entering and departing the U.S. Failure to comply with these guidelines may jeopardize the validity of the H-1B status.

    If you are applying for an H-1B petition as a change of status, traveling outside the U.S. will automatically invalidate your request to change to H-1B status. If the petition is later approved by USCIS, you will need to apply for an H-1B visa at a U.S. Consulate before entering the U.S. with H-1B status. It is not recommended to travel while an H-1B transfer is pending.

    If you are applying for an H-1B extension, you can travel outside the U.S. without applying for an H-1B visa. However, you must notify USCIS to have the new Form I-797, Notice of Approval, mailed to you overseas. It is important to use the latest approval notice when entering the U.S. to ensure the I-94 is also extended.

    If you are applying for an H-1B transfer, you can travel outside the U.S. if you have a valid passport, H-1B visa, and Form I-797, Approval Notice of H-1B. If your H-1B visa expires before your reentry to the U.S., you will need to stay abroad until your new visa is approved.

    It is crucial not to travel during the 240-day automatic extension of work authorization after the current H-1B period has expired. Traveling during this time will require you to stay abroad until the extension is approved and apply for a new visa to reenter the U.S. in H-1B status.

    During the H-1B renewal process, travel plans depend on processing times, which vary depending on the location of the applicant and where the H-1B petition was filed. It is advisable to check the processing times on the USCIS website for the specific filing location. While the process is pending, you can travel, but it is recommended to take necessary precautions before leaving the U.S. It is important to present the latest approval notice upon reentry to ensure an I-94 is issued with the updated expiration date. Therefore, notifying USCIS to have the new approval notice sent to you overseas is necessary.

    Please note that these are general guidelines for traveling with a pending or transferring H-1B visa. It is highly recommended to consult with an attorney who can provide personalized advice based on the specific circumstances of each case.

  • Q3.Is it common for a derivative beneficiary (H-4 spouse, child) to not receive approval of application at the same time as the principal with premium processing?

    The premium processing of derivative beneficiaries' applications is only expedited by USCIS as a courtesy.

  • Q4.After a second RFE, is my H-1B petition less likely to be approved?

    No, multiple RFEs are not rare. It does not mean your petition will not be approved.

  • Q5.Can premium processing be implemented towards an H-1B amendment?

     At this moment, premium processing is only for cap-subject H-1B filed for “extension without change”.

  • Q6.Am I allowed to be a student while on an H-1B visa?

    Yes, you can definitely attend school, just as long as you maintain your job position that your visa is based on.

  • Q7.Is an itinerary necessary if H-1B employee is on a client site?

    Only when there are multiple work locations.

  • Q8.Do I need to wait for USCIS to provide a change-of-employer reception notice before switching jobs while I am in H-1B status?

    Work for the new employer can begin as soon as USCIS receives the change of employer petition, but you can wait until you receive notification that your petition has been approved if you want to be safe.

  • Q9.Can I stay in the US if my H-1B extension is rejected and I have an I-485 pending at the same time?

    You would be in a "period of authorized stay" [for how long?] even though you would no longer have H-1B status (assuming your current H-1B status has expired; if it is still valid, you would remain H-1B until the expiration and then).

  • Q10.I am in H-1B status with an approved I-140. Can my spouse file for employment authorization immediately?

    If your I-140 is up to date and legitimate and your H-1B status is still in effect, your spouse may immediately submit an application for employment authorization.

  • Q11.I entered through land border while I was in H1-B status, however CBP did not stamp my passport when I returned to the US?

    This frequently occurs near land borders; it shouldn't be a problem until [potential scenarios?  Existing difficulties with status; is a record of travels required?]

  • Q12.What effect does it have on my extension application if my employer wishes to file an H-1B petition for me as [E category] before I apply for my STEM OPT extension?

    The petition will not influence your extension application.

  • Q13.What is consular processing for an H-1B petition?

    This simply implies that as opposed to petitions submitted on behalf of a beneficiary within the US, the beneficiary of the petition will utilize the permission to apply for a visa at a US consulate.

  • Q14.How should I react to an RFE regarding my travel dates and maintenance of status that I received after my H-1B cap case was filed and I had to leave the country for an emergency?

    Sadly, any trip while a status change is pending results in the cancellation of the request.  There is no way to respond to the RFE in a way that would prevent the cancellation, even if the H-1B is authorized for consular processing.

  • Q15.Do I have a problem since I applied for a change of status from [current] to [H-1B] and my [current status] I-94 is about to expire but my H-1B is still pending?

    While your application for a change of status is processing, you will typically be in a period of allowed stay. 

  • Q16.Would contacting my Congressperson make a difference in my employment-based I-485 case, which is still pending after I had an interview for it some time ago?

    Contacting the office of your Congressperson may be beneficial if your priority date has remained current; USCIS is not faultless and occasionally loses track of applications.

  • Q17.I am on an H-1B visa, and my employer has several locations. Initially, I only worked at one of the locations, but now they wants me to work at another. Does this call for a fresh LCA?

    A new LCA won't be required if the extra work site is within a reasonable commute of the previous location; but, if your hours or job tasks significantly alter, an H-1B amendment will still need to be submitted.  But if not, you'll likely need to submit a new LCA as well as an amended H-1B petition.

  • Q18.What is the status after my company filed an appeal after my H-1B extension was rejected and my I-94 expired?

    Your employer's filing of an appeal does not grant you any status; you are currently out of status and may be present illegally.  Any additional petitions or applications submitted after you lose your immigration status should be for consular processing only, excluding the appellate procedure.  If you choose to stay in the US, you will probably receive a Notice to Appear, which is the first step in removal proceedings. You should then decide how to move forward by speaking with a lawyer.

  • Q19.Can I leave the US and re-enter on a B1/B2 visa in the event that my current H-1B extension is rejected?

    Although this seems like a reasonable course of action, you should be aware that there may be issues. For example, if your H-1B extension request is denied, you may end up in the US illegally.  Additionally, you should be aware that Customs and Border Protection may be more likely to refuse your admission as a B1/B2 visitor if you have been in the US for an extended period of time in an H-1B status.

  • Q20.What will happen if my amendment is rejected when I'm in H-1B status with a pending amendment and my I-94 expiring at [future date]?

    You ought to be permitted to continue working through the expiration date of your first H-1B petition if your job is still open.  Rarely would USCIS deny an H-1B amendment application based on a negative "status" determination; in that instance, you would be in the US illegally and would need to depart.