Published on and the Epoch Times on August 26, 2016

Q & A 1. 2. 3. 4.

Q&A 1.

H-1B Transfer

Could you please clarify my below queries regarding H1B petition transfer? Currently I am in US (landed 2 months back). 1. My role is "web developer" in my current petition with my current employer, if I want move to a new employer with a different role (ex: electrical engineer) then will I get any problems like rejection etc. 2. If I have only 1 US pay-stub, then what other proofs can I submit for safe petition transfer? 3. My current employer has filed a petition amendment request for a new location and it’s still pending, in this case if I do a petition transfer with my new employer can it cause some problems?

Mr. Lee answers:

If you wish to move to a new employer with a different role, that entity must sponsor you for H-1B transfer and extension. U.S.C.I.S. will make a new adjudication dependent upon whether it believes that the position in your company is a specialty occupation and that you have a relevant degree. If you have only one U. S. pay stub, you could try to obtain more before the new H-1B is filed. Because your employer is now filing a petition amendment further complicating your transfer, you may wish to stay on board this company until the time that your new H-1B transfer petition is approved. At that point, your employer can withdraw the petition amendment. 

Q&A 2.

Is the Rule of 365 Days Out-of-US Rule Still Applies When I Am Switching From H-1B to J-1 and Then to J-1 Waiver As I Will be on H-1B Status During J-1?

I came to US Sept 2010 on H1B for residency. After completion did 1 yr. work and the joined a fellowship in a University Program. Never filed for labor certification/green card. As I am running out of 6-yr term of H1B, filed for J-1 switch which is still pending (which I am hoping any day from now). Currently I am searching for a J1-waiver (2yr-home-country rule) job. While doing that, the question came up that whether I have to maintain the 365 days out-of-US rule even if I get a J1-waiver job. As you know while doing the J1 waiver job, I will be on H1B status. So the question is do I have to be out of US before I start J1 waiver job for 1 yr. ? Is the any way I can start working on J1 waiver job without going out of the country?

Mr. Lee answers:

If you are seeking a change of status in the U. S. from H-1B to J-1, you are allowed to remain in the U. S. but not work during the pendency of the U.S.C.I.S. adjudication. If U.S.C.I.S. approves your change of status, you can work under J-1 status without leaving the country. You are not subject to a 365 day during the J-1 status job, but the rule kicks in if you wish another stretch of time under H-1B status.  You and your potential H-1B employer may consider starting a labor certification for you ASAP.

Q&A 3.

Will a Non-US Citizen be Able to Enter the US After 10 Years Committing a Misdemeanor?

If a minor committed a shoplifting at a department store 10 years ago would be able to enter the US on a visitor’s visa?

Mr. Lee answers:

An act of shoplifting is not an excludable offense. Neither does it have a 10 year bar. The non-US citizen can apply for a visa to come to the US, and an American consular officer will look at all factors to determine whether he or she should be given a visa in the exercise of discretion. Officers generally look to see whether individuals have ties and bonds to the home country and whether they are able to support themselves in the US without working in making the determination of whether to issue visiting visas. Other types of visas have other factors that consular officers look at.


Q&A 4.

H-1B1 Visa

My friend received H-1B1 visa and she was told in the embassy that she can work with it. Is that possible even though it is a tourist visa?

Mr. Lee answers:

I do not understand how an H-1B1 visa is a tourist visa – the two are completely different types of visas. Perhaps you are confusing your friend's H-1B1 with a B1/B2 visa which most individuals use for touring purposes.



Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.


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