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I am an H-1B visa holder. A few weeks ago, I was laid off from my job and I have been out of status since that time. If I get another job, will I have to wait for my H-1B petition approval before starting work for the new employer, or can I still take advantage of the new H-1B "portability" provision and start working upon the filing of my new petition?
Under the new law, an individual can start work for a new employer upon filing an H-1B petition as long as (1) the petition was non-frivolous, (2) the individual had previously been granted H-1B status, and (3) the petition was filed while the individual was in a period of unexpired status. Since any new H-1B petition you file will be filed while you are technically out-of-status, it appears you would not be eligible for the benefits of the portability provision. However, the INS has yet to issue its regulations implementing this portability provision, and it is possible they will address this issue in more detail when their regulations are released.
After six months of marriage to a US citizen, I obtained "conditional" green card status. If I get divorced within the 2-year "conditional" period, but have been married for slightly more than 2 years, will this jeopardize my permanent resident status?
Under the concept of "Conditional Residency," a person must remain married for a period of two years from the date conditional residency was granted (not from the date of marriage) or else INS will presume the marriage was fraudulent. If the marriage is terminated before the end of the two-year conditional period, the alien has the burden of proving the marriage was not entered into for the purpose of evading any provision of the immigration laws if he or she is to avoid deportation.
My spouse is currently outside the US. Will my spouse’s pending H-1B petition be affected if she comes to the US on an H-4 visa while we await approval of the H-1B?
Your spouse’s travel in the interim could possibly create problems in certain circumstances. For example, if the INS approves her H-1B on Feb. 26, 2001 but she enters as an H-4 on Feb. 27, 2001, without knowing that the INS approved her H-1B petition, then she has superceded her H-1B visa with the H4, and will not be authorized to work. She would have to travel outside the US and come back on the H-1B visa, or would have to start the process all over again. This scenario results from the last action rule, which holds that the last I-94 issued to an individual is the one that governs their status.
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