 ASK VISALAW.COM
by Marc Topoleski, Partner in SSHD's Detroit, Michigan office.
My spouse and I both are working in the US on H-1B visas. If one of us gets laid off, can the other change to H4 immediately to be in status? If so what is the procedure?
Yes, it is not only possible to do this, but it would be advisable to do so prior to your actual lay off as a means to remain in status. The spouse being laid off should file a change of status application (Form I-539) with the INS requesting a change of status from H-1B to H-4. Once the laid off spouse is able to find a new job, he/she could cancel the change of status application and file for a new H-1B petition with the new employer. As long as the spouse remained in legal status (by filing the change of status application BEFORE being laid off), the spouse could start work immediately with the new employer upon filing the new H-1B petition. I am working here in the US on an L-1 visa, but I am intending to return back to my home country shortly. If my employer is interested in sponsoring me for a green card, do I need to remain in the US in order to apply?
You do not need to live in the U.S. to apply for a green card, nor do you need to remain in the US while the process runs its course. As long as an employer in the U.S. is willing to sponsor a person for a full-time, permanent position in the US, that person can apply for the green card and/or await its processing from anywhere in the world. Is it possible to change from a B visa to an H-1B visa without leaving the US?
While this is possible, it can be quite risky especially if you are applying for the change shortly after your entry into the US. Generally, an application for a change of status within 90 days after entering the US can cause the INS to question the validity of your original intent when applying for the B visa. In a case where a person applies for a change from a B to an H-1B visa shortly after entering the US, the INS will normally assume the person applied for a B visa only as an attempt to circumvent the normal H-1B filing process, unless the person can show otherwise, bearing a heavy burden of proof. If the INS determines this is the case, they will likely reject the individual’s change of status application and revoke their B visa.
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