ASK VISALAW.COM N.G. writes with a question regarding about changing employers on an H-1B visa. His optional practical training expired on April 30, 2000 and the first employer obtained an H-1B with a starting date of October 1, 2000. He has received another job offer, and would like to work for the second employer. He wants to know whether a new H application needs to be filed, or whether the H that has already been approved can be transferred. He also wants to know when he can begin work for the second employer.
First, we have to assume that the H application filed by the first employer was filed in time to keep N.G. in status. Earlier this year, when the INS announced that the cap was about to be hit, it also announced that it would extend the duration of status of F and J visa holders for whom an application for an H-1B visa had been timely filed. In this case, the application would have to have been filed before the expiration of the optional practical training. It appears that this is the case, as an H-1B was approved with a starting date of October 1, 2000.
The second employer does need to file for a new H-1B, and on the I-129, Part 2, they would need to check box 2A, indicating that the application is being filed for new employment, and box 4C, to extend or amend stay. Although this is considered new employment, because an H-1B has already been approved for the beneficiary, the new application would not be counted toward the cap.
As for when the beneficiary could begin work, in no case could he begin before October 1, 2000. Because it is a petition for new employment, the beneficiary cannot begin work for the second employer until the new application is approved, which, if it was filed now, in mid-August, would likely be in mid-November.
*********
M. wants to know about changing status from a B-2 visa to an F-1 visa. Two weeks after entering the US on a B-2 visa, she obtained an I-20 and admission letter for the fall semester.
Changing from a B to F visa can often be very difficult. The INS is suspicious of such requests, taking the view that the prospective student entered the US on a B visa to avoid going through the F visa process at their home consulate. The shorter the time period between the initial entry to the US and the application for the F visa, the more suspicious the INS is. However, it is possible to obtain such a change of status. First and foremost, the student must provide a reason, satisfactory to the INS, for not seeking a student visa before coming to the US. The student must also show adequate financial resources to cover educational and living expenses, because the INS might otherwise believe that an F visa was not sought at a consulate to avoid the financial documentation requirements. If possible, she may want to avoid the intense scrutiny the INS will give the F visa application and seek the visa at a US consulate in her home country.
*********
J. wants to know how he can obtain a work visa in the US. He has a two-year degree in graphic design and a one-year certificate from a Canadian college. He has received job offers from several US businesses.
He has two options - an H-1B visa, or a TN visa. The H-1B visa may, however, not be possible. To get an H-1B visa, the beneficiary must have a bachelor’s degree, or, lacking that, qualifying work experience. J. has three years of education, which means he must show three years of qualifying work experience to make up for the fourth year.
If J. cannot qualify for an H-1B visa, he may still qualify for a TN visa, assuming, based on the fact that he has a certificate from a Canadian school, that he is a citizen of Canada. If he is not a citizen of Canada or Mexico, the TN visa is not available. Graphic designers fall under Schedule 2 of the North American Free Trade Agreement. For a graphic designer to qualify for a TN visa they must have a baccalaureate or licenciatura degree, or a post-secondary diploma or certificate and three year’s experience. It seems that J. would, if he has three years experience, qualify for a TN visa through the certificate and experience route.
*********
S.N. writes with questions regarding the application of section 245(k) of the Immigration and Nationality Act. He has been told that this section will allow a person who has an approved I-140 but no current priority date 180 days after the expiration of their H-1B visa in which to wait for their priority date to become current and then file for adjustment of status.
This is not entirely accurate. Section 245(k) allows employment-based immigrants in the first, second and third preferences to adjust their status to permanent resident within the US if, on the date of filing the adjustment application they are in the US pursuant to a lawful admission and have not had more that 180 days since that lawful admission in which they have failed to maintain status, engaged in unauthorized employment, or in any other way violated the terms of their admission.
To an extent S.N. is correct – an employment-based immigrant can be out of status for 180 days and still file for adjustment of status, however, given the near impossibility of predicting when priority dates will become current, it would be unwise for a person to use the 180-day grace period of section 245(k) to wait for that date to become current. < Back | Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. |
