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DISCLAIMER: The information provided below is of general nature
and may not apply to specific circumstances. It should not be construed
as legal advice and it is not intended to create an attorney-client
relationship.
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Frequently Asked Questions
 If
an employer petitions for me to obtain an H-1B visa and I am currently
in the United States on a F-1 visa (valid for 3 years), can I remain
legally in U.S. without maintaining my full time student status
while awaiting approval of the H-1B petition? Will I be able to
work and earn a paycheck during that time?
If you are currently in the U.S. legally on an F-1 visa, you
must maintain that status until your H-1B petition is approved.
To maintain F-1 status, you may not accept employment during your
first academic year, unless it is on-campus. After that, you are
limited to accepting on-campus type employment permitted under your
F-1 status or practical training. You would not be able to work
for and earn a paycheck from the employer that is petitioning for
your H-1B visa until your petition is approved.
What
should I tell my employer regarding what is required of them during
my green card process?
An employer's legal risks in sponsoring
you for your green card are very limited. The employer guarantees
that you will be paid the prevailing wage for the position for which
you are being hired during the time you are employed. Further, the
employer is free to withdraw the petition for any reason during
the application process. Once your petition is approved, and you
have received your green card, the employer may fire you at will.
If you are petitioning for a relative to live permanently in
the United States, you must accept legal responsibility for financially
supporting them. You accept this responsibility and become your
relative's sponsor by completing and signing a document called an
affidavit of support. This legally enforceable responsibility lasts
until your relative becomes a U.S. citizen or can be credited with
40 quarters of work (usually 10 years.)
Applicants should generally apply for a student visa at the
U.S. Embassy or Consulate with jurisdiction over the place of their
permanent residence. An applicant for a student visa must present:
(1) an application Form DS-156 (blank forms may be obtained at all
U.S. consular offices); (2) a passport with a validity date at least
six months beyond the applicant's intended stay in the United States;
(3) a 37x37mm photograph (which shows full face without head covering
against a light background); (4) Acceptance Forms: the applicant
must obtain an acceptance form from an educational institutiona
approved by the Immigration and Naturtalization Service (INS). Academic
and language students ("F" applicants) must obtain Form
I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) Student
Status for Academic and Language Students. Vocational students ("M"
applicants) must obtain Form I-20M-N, Certificate of Eligibility
for Nonimmigrant (M-1_ Student Status for Vocational Students. (5)
evidence of sufficient funds (applicants must prove that they have
sufficient funds to cover all expenses for their first year of study
and that adequate funds will be available for subsequent years of
study) Also, a student visa applicant must demonstrate that he/she
has binding ties to a residence in a foreign country which they
do not intend to abandon, and that they will return to that residence
upon completion of their studies in the United States.
During the first year of studies, an F-1 student may not engage
in off-campus employment. After teh first year, the INS may grant
teh student permission to accept off-campus employment. The student
may accept on-campus employment even without the permission of the
INS. An M-1 student may engage in temporary employment for for the
purpose of pratical training but he/she may not accept other types
of employment.
A Green Card provides evidence of your status as a lawful permanent
resident with a right to live and work permanently in the United
States. It also is evidence of your registration in accordance with
United States immigration laws. The Green Card (Permanent Resident
Card) is also called INS Form I-551.
Nonimmigrant visas are for those persons who wish to come temporarily
to the United States for a specific purpose. Nonimmigrant visas
are generally given to tourists, business people, students, temporary
workers, and diplomats.
Yes. All family members who qualify should file a separate application.
If either spouse is selected, both can receive green cards.
Parents of H1B holders may only visit the U.S. as tourists.
If the child becomes a U.S. citizen, then he/she can petition for
his/her parents to come to the U.S. as permanent residents.
A nonimmigrant working temporarily in the United
States on an H-1B visa may, at the same time, lawfully seek to obtain
permanent residency. However, a pending adjustment of status application
does not relieve the H-1B nonimmigrant from the obligation to respect
the terms of their nonimmigrant status.
General Procedure
Specific requirements for obtaining a green card
through employment vary depending on the employment category. There
are three main steps, however, that apply generally to each category.
First, a Labor Certification must be filed with
the state labor department office in the state of the employer's
place of business. The purpose of the Labor Certification is to
prove that there are no qualified Americans available for the position
being offered.
Second, the immigrant petition for alien worker
needs to be filed with the regional service center having jurisdiction
over the employer's place of business. Lastly, the applicant would
need to apply for adjustment of status in the U.S.
Travel while adjustment of status application
pending
An H-1B nonimmigrant may travel outside the United
States while his or her adjustment application is pending, without
seeking advance parole, provided that, upon returning to the U.S.:
(1) he or she remains eligible for H status; (2) he or she is coming
to resume employment with the same employer for whom he or she had
previously been authorized to work as an H-1 employee; and (3) he
or she is in possession of a valid H-1 visa and the original I-797
receipt notice for the adjustment application.
Persons who change their status to H-1B while in
the U.S. or have their H-1B status extended or amended and wish
to travel outside the U.S. before renewing their visa in their passport
may encounter difficulties upon re-entry.
A nonimmigrant who travels outside the U.S., after
having changed his or her status to an H-1B, may re-enter the country
without a renewed H-1B visa in his or her passport provided he or
she:
(1) Is in possession of an I-94 showing an unexpired
period of initial admission or extension of stay;
(2) Is applying for readmission after an absence of no more than
30 days after traveling to Canada or Mexico;
(3) Has maintained and intends to resume nonimmigrant status;
(4) Is applying for readmission within the authorized period of
initial admission or extension of stay;
(5) Is in possession of a valid passport; and
(6) Does not require authorization for admission under INA 212(d)(3)
This "automatic extension" does not apply
to nationals of countries designated as supporting terrorism or
to persons who have applied for a new visa while abroad.
If traveling to Canada or Mexico for more than
thirty days, or if traveling anywhere else, a valid H-1B visa in
the person's passport will be needed for re-entry, unless he or
she is a Canadian.
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