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Under the new H-1B law, how soon can I start working if I am switching to a new employer? What happens if my new H-1B is not approved?
If you are currently in H-1B status and are changing employment, you can start working for the new employer as soon as it files a non-frivolous H-1B change of status petition for you. The conservative approach is to wait until receiving a receipt notice from the INS before starting work with your new employer. However, the statute states that the individual can start work “upon filing” a new petition, which suggests that you can start working as soon as the petition is submitted to the INS. In this case, it would be advisable to keep some evidence of the actual filing date, like a FedEx receipt or certified mail receipt, to document the commencement of your work authorization with the new employer.
If your H-1B petition for the new employer is not approved, your employment authorization for the new employer ends. You will need to obtain another temporary visa status to stay and/or work in the US or return to work with the first employer.
Can you clarify the meaning of Section 245(i)? Will it help me get my green card faster? Can I use it to legalize my status?
Generally, individuals who have been out of status or unlawfully present are not eligible to adjust from a temporary status to permanent resident status in the US. Instead, their application must be processed at the US Consulate in their home country. Sometimes, this can present a problem for individuals who have been unlawfully present in the US for a period of over 180 days because if they leave the US to consular process abroad, they could be subject to either a 3 year or 10 year bar to reentry. Section 245(i) allows individuals (1) who were physically present in the US on December 21, 2000 and (2) who have filed a family-based or employment-based petition for permanent residency on or before April 30, 2001 to adjust status in the US by paying a 00 fee at the time their I-485 is filed, even if they normally would not be able to do so because of status problems. Section 245(i) does not do anything to shorten the time it takes to process a green card, nor does it do anything to legalize your status while your green card application is being processed. Also, it is not an “amnesty” that will get you a green card if you do not meet the requirements for a green card category (such as having a qualifying family relationship or going through the green card process with an employer).
Do I qualify for 245(i) if I filed a diversity visa lottery application last year?
No. Section 245(i) only applies to individuals who have filed a family-based or employment-based petition for permanent residency with the INS (Form I-130) or an application for labor certification with the Department of Labor (ETA 750) on or before April 30, 2001. A diversity visa lottery application, which is technically considered an application for permanent residency, does not trigger Section 245(i) because it is an application made to the Department of State, not the INS or the Department of Labor as required by the statute.
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