1. What To Do If I Leave My Present H-1B Employer and Two Other Companies Want My Services?
I am with company A, but plan to leave it soon for different reasons. Company B IS ALREADY GIVING ME A JOB OFFER AND PRESSURING ME TO JOIN AS SOON AS POSSIBLE. I BELIEVE THAT I WOULD BE MORE COMFORTABLE WITH COMPANY C WHICH HAS NOT YET COMMITTED. IF I HAVE COMPANY B PUT IN THE H-1B TRANSFER FOR ME, WHAT HAPPENS IF I ACCEPT THE FUTURE OFFER OF COMPANY C AND IT ALSO PUTS IN H-1B TRANSFER PAPERS FOR ME WHILE COMPANY B’S PETITION IS STILL PENDING?
I BELIEVE THAT THE SITUATION THAT YOU DO NOT WANT TO BE IN IS ONE WHERE COMPANY C’S H-1B PETITION IS APPROVED FIRST, AND THEN COMPANY B’S. UNDER THE LAST ACTION RULE, YOU WOULD BE BEHOLDEN TO WORK FOR COMPANY B unless you are working for both employers. TECHNICALLY YOU COULD WORK FOR BOTH, BUT WOULD HAVE TO WORK FOR COMPANY B. TO AVOID THE SITUATION, YOU COULD REQUEST COMPANY C TO PROCESS YOUR CASE UNDER PREMIUM PROCESSING ASSUMING THAT THE SERVICE IS AVAILABLE WITH U.S.C.I.S. (DURING THE H-1B cap SEASON, THE AGENCY TRADITIONALLY STOPS PREMIUM PROCESSING H-1B CASES). ONCE APPROVED, YOU COULD INFORM COMPANY B THAT YOU ARE NO LONGER INTERESTED IN WORKING FOR THE COMPANY AND REQUEST IT TO WITH DRAW ITS H-1B PETITION. THAT IS UNFORTUNATELY NOT FOOLPROOF AS THAT DEPENDS UPON THE COMPANY CARRYING OUT YOUR WISHES. ANOTHER WAY WOULD BE FOR COMPANY B TO PREMIUM PROCESS YOUR CASE, AND COMPANY C COULD THEREAFTER PUT IN A REGULAR CASE WHICH WOULD NORMALLY RECEIVE AN ADJUDICATION AFTER THE PREMIUM PROCESSED CASE. THAT IS ALSO, HOWEVER, NOT FOOLPROOF AS COMPANY B’S PREMIUM PROCESSED CASE MAY RECEIVE A REQUEST FOR FURTHER EVIDENCE, AND THE TIME TO ANSWER COULD BE LATER THAN THE NON-PREMIUM PROCESSED CASE. THE USE OF PREMIUM PROCESSING GIVES MORE CONTROL IN THESE SITUATIONS, NOT CERTAIN CONTROL. YOU COULD CONCEIVABLY WIND UP IN A SITUATION IN WHICH COMPANY C’S H-1B TRANSFER IS APPROVED AND SHORTLY THEREAFTER COMPANY B’S WITHOUT YOUR HAVING AN OPPORTUNITY OF ASKING COMPANY B’S WITHDRAWAL. ALL DOES NOT APPEAR TO BE LOST, HOWEVER, IN THESE SITUATIONS AS THE LAST ACTION RULE ONLY AFFECTS PRESENT STATUS IN THE US. CAUGHT IN THE SITUATION, YOU COULD GO OUTSIDE THE US AND REENTER UNDER THE CORRECT I-797 APPROVAL WITH OR WITHOUT (IF CANADIAN) HAVING THE NEED TO INTERVIEW FOR THE VISA WITH AN AMERICAN CONSULATE ABROAD.
2. H-4 Employment Card
I AM BEING APPLIED FOR BY A UNIVERSITY TO TEACH UNDER H-1B VISA STATUS. MY WIFE WANTS TO WORK AND HEARD THAT SHE IS ELIGIBLE TO DO SO UNDER AN H-4 EMPLOYMENT RULE. CAN YOU TELL ME MORE ABOUT IT AND HOW IT CAN BE DONE?
PRESENTLY H-4 DEPENDENTS ARE ELIGIBLE FOR EMPLOYMENT AUTHORIZATION APPROVALS WHERE THE H-1B PRINCIPALS EITHER HAVE I-140 PETITION APPROVAL OR WILL BE EXCEEDING THE SIX YEAR H-1B LIMIT AND 365 DAYS HAVE PASSED SINCE THE FILING OF A LABOR CERTIFICATION APPLICATION OR THE DATE THAT AN I-140 PETITION WAS FILED. IF YOU HAVE THESE CIRCUMSTANCES, YOUR WIFE CAN FILE CONCURRENTLY WITH YOUR H-1B PETITION OR THEREAFTER FORM I-539 APPLICATION TO CHANGE OR EXTEND STATUS AND AN I-765 APPLICATION FOR EMPLOYMENT AUTHORIZATION. U.S.C.I.S. WILL FIRST ADJUDICATE YOUR H-1B FOR APPROVABILITY, AND UPON A POSITIVE ADJUDICATION, BEGIN THE DETERMINATION ON YOUR WIFE’S I-539 AND I-765 APPLICATIONS. I NOTE THAT THE H-4 RULE IS PRESENTLY UNDER ATTACK BY THE TRUMP ADMINISTRATION, AND THERE ARE STRONG INDICATIONS THAT THE ADMINISTRATION WILL ATTEMPT TO NEGATE THE RULE BEGINNING early this year. IN SUCH CASE, THE CONTINUATION OF EMPLOYMENT AUTHORIZATION FOR THOSE WHO ALREADY HAVE IT OR HAVE APPLICATIONS PENDING WILL DEPEND ON THE LANGUAGE IN THE RULE AND ANY LITIGATION IN THE COURTS TO PRESERVE THE RULE.
3. Can I Get an H-1B With Bachelors In Accounting?
I graduated in December with a bachelor’s degree in accounting, and I expect my OPT to begin sometime in February 2018 and end one year later. How can I best ensure that I can have an H-1B approved if I am selected under the April cap? What do I do if I am not selected? Can I apply again in April 2019?
This past H-1B season, U.S.C.I.S. appeared to be focusing on two issues – whether the job itself is a specialized occupation requiring a specialized degree, and whether a job can be truly professional where employers pay a level I wage. We assume that those 2 issues will continue to predominate in this coming season. Joining an accounting firm or a large company that requires an accountant is probably the best way to demonstrate that the occupation is specialized. Obtaining level II wages would overcome the stigma that U.S.C.I.S. has placed on occupations offering level I pay. That being said, your petitioner’s attorney should be prepared to argue if U.S.C.I.S. sends a request for further evidence under the above circumstances or even less favorable ones. If you are not selected or are denied, you will still have the OPT until sometime next February. With the 60 day grace period, you will be allowed to stay as long as the 2019 H-1B petition is filed before the grace period runs out. Unfortunately U.S.C.I.S. will not allow you to legally work until at least October 1 assuming that the 2019 H-1B petition is approved.
4. How Can My Wife Come Back To The U.S. After Being Sent Back On Entry Two Years Ago?
MY WIFE, A TAIWAN NATIONAL, USED THE VISA WAIVER PROGRAM TO ENTER THE US AND OVERSTAYED HER VISIT BY A WEEK (97 DAYS) IN 2013. SHE CAME BACK TO THE US IN 2015, AND WAS CHALLENGED BY AN IMMIGRATION OFFICIAL AT THE AIRPORT BECAUSE OF HER OVERSTAY. DURING HER QUESTIONING, SHE CONFESSED THAT SHE HAD WORKED SOME OF THE TIME WHEN SHE WAS HERE IN 2013. SHE WAS NOT BARRED, BUT SENT BACK ON THE NEXT PLANE. SHE THEN TRIED TO GET A VISA FROM THE AMERICAN INSTITUTE IN TAIWAN (AIT), BUT THEY SAID THAT THEY COULD NOT DO ANYTHING. I AM A US CITIZEN AND MARRIED HER IN 2015. WE HAVE A ONE-YEAR-OLD CHILD, BUT TO SEE HER, I HAVE TO TRAVEL TO TAIWAN. HOW CAN I GET HER BACK TO THE US?
ASSUMING THAT SHE WAS NOT BARRED, YOU CAN APPLY FOR HER IMMIGRATION ON FORM I-130 PETITION FOR ALIEN RELATIVE, AND ONCE THAT IS APPROVED BY U.S.C.I.S., SHE CAN BEGIN CONSULAR PROCESSING THROUGH THE NATIONAL VISA CENTER AND THEN THROUGH THE AMERICAN INSTITUTE IN TAIWAN. IF EVERYTHING GOES WELL, SHE WOULD RECEIVE AN IMMIGRANT VISA AND COME TO THE US IN APPROXIMATELY ONE YEAR. A CONCERN IS THAT THE AIT MAY FIND THAT SHE IS INADMISSIBLE FOR MISREPRESENTATION FOR HER WORKING IN THE US IN 2013 WHEN SHE WAS ONLY SUPPOSED TO BE VISITING. THE DEPARTMENT OF STATE RECENTLY BROUGHT OUT NEW GUIDELINES UNDER WHICH ANY CONTRARY ACTIONS TO THE SUPPOSED INTENT OF THE VISIT WITHIN 90 DAYS OF ENTERING THE US BRINGS ON A PRESUMPTION OF MISREPRESENTATION. IF there is a finding of misrepresentation, SHE WOULD BE ASKED TO FILE AN I-601 APPLICATION FOR WAIVER OF INADMISSIBILITY IN WHICH THE STANDARD FOR ADJUDICATIO