If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
*
1) QUESTION – I would like my sister to attend a private high school. International students have never applied for admission at this school before and so the school has never issued an I-20 to anyone. If they accept my sister, who lives overseas and is not an American national, what INS requirements would the school have to meet in order to be able to issue an I-20?
ANSWER – The school needs to apply for approval with the INS to issue I-20s. You can find a helpful memo on this subject at the INS web site at http://www.ins.gov/graphics/howdoi/hdiforeign.htm. Good luck.
*
2) QUESTION – I got selected for lottery (DV 2003) from Africa region with case number above 43,000. Recently I read the DV-2003 results and have a question: The total for all registered cases for Africa region is about 39000 whereas my case number is beyond that. How is that possible? I will appreciate if you can help me try to understand this.
ANSWER – Congratulations. More people are notified than slots are available. This is because it is assumed that many people who win the lottery will not pursue a green card. This may be because they decide not to immigrate, it is found they do not qualify or they find another means to immigrate.
*
3) QUESTION – I am a software consultant working project based. I have an H1B through a consulting company. I didn’t have a project for last couple months, so I didn’t get paid. I got my last pay check on January 15, 2002. But my employer didn’t terminate me, didn’t cancel my H1B, because we were hoping to get a project soon. Recently I got an offer from another company as an employee. I like to join them. But I heard that I may have a problem with H1B transfer. Because I didn’t get paid last couple months, the pay stubs that I will give to INS will be old. And it said that I may even be out of H1B status. Can I do a H1B transfer? Am I really out of status because I didn’t get paid? We continued our employee-employer relationship with my consulting company, we were doing for interviews for some projects. Will that count? Thank you very much for your help.
ANSWER – Unfortunately, it appears you are out of status. Benching is no longer legal for employers and if you have not been working and being paid the prevailing wage, you are violating the terms of your H-1B visa. You can seek an H-1B change of status and not provide pay stubs and perhaps the issue will not arise. However, the INS may ask for these papers. At that point, you might be approved for H-1B classification, but not an H-1B change of status. You would need to leave the US and apply for an H-1B visa at a consulate. And you would have to explain to a consular officer why you were out of status and why you will not violate it again. This, of course, is not a pleasant task.
*
4) QUESTION – I am currently on H1-B. My new employer has just filed a transfer last week to the INS. The new job begins August 1st. My new employer is going to start processing a green card for me as soon as I start in August (it is a tenure-track faculty position in biological sciences). My question is can we start now by submitting the Labor certification application even before the INS approves the H1-B transfer? I know that I can start work immediately due to the new H1-B portability law.
ANSWER – Absolutely. There is no reason why you cannot begin the labor certification process in advance of your beginning the job. In fact, the Department of Labor has griped over the years that the labor certification process is used almost always for people already on the job when this need not be the case.
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. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.