Q&A’s published on the World Journal Weekly on March 1, 2020 1. What are the new H-1B procedures for this year? 2. How can I stay in US when my H-1B employer will be firing me? 3. J-1 exchange visitor – am I subject to two-year home residence requirement even though my paperwork says that I am not? 4. Do I do change of status to F-1 or go outside US and interview for F-1 visa at US consulate?

1. What are the new H-1B procedures for this year? 

I am interested in applying for the H-1B this April, and my employer wants to sponsor me. However, this will be the first time that he is sponsoring anyone, and he wants me to find out the procedure. I hear that there are some changes for this year. Can you tell us what those are?

Mr. Lee answers,

USCIS has implemented a registration system for employers under which any employer that wishes to sponsor cap H-1B’s (those that traditionally go in during the first five business days of April) must register themselves and the persons that they wish to sponsor with USCIS. Upon registration,USCIS will conduct the random selection and only those that are selected will have to submit an H-1B petition with supporting documentation. From what we know so far (and subject to change),

  • USCIS will use the my USCIS online portal for the registration and accept the payments through itsgov portal.
  • There is a $10 registration fee for each registration.
  • The initial registration period will be 3/1/20 – 3/20/20.
  • Employers can use one filing to register as many persons as they wish to sponsor.
  • They are allowed to submit additional registrations within the filing period.
  • Employers are not allowed to edit a registration after it has been submitted, but it appears that the registration may be deleted, and then redrafted and resubmitted prior to the close of the registration.
  • If the employer needs to withdraw one of 10 names, there is currently no guidance as to whether the system would force the employer to withdraw all 10 names and resubmit the other nine names.
  • Payment can be made from a bank account, checking or savings, credit card, or debit card. The registration system will allow for batch payments to pay the fee for multiple registrations submitted simultaneously.
2. How can I stay in US when my H-1B employer will be firing me?

I am on H-1B with three years left, but the company is dismissing me, although they will try to be flexible so that I can have time to find another employer. They are willing to stretch out my pay until the middle of next month to help me out. Is there anything else that can be done?

Mr. Lee answers,

USCIS foresaw this situation and, for people like you, it now allows you to remain in legal status for 60 days after the date of quitting or dismissal for you to prepare to leave, change employers, change status, or for any other legal purpose. If the employer does not know of the 60 day rule, it should be informed so that it can consider its options with open eyes. Where an employer is dismissing an H-1B employee, it continues to have liability for payment of salary in accordance with the H-1B until it notifies USCIS of the termination, properly notifies the employee, and pays for the transportation back home.

3. J-1 exchange visitor – am I subject to two-year home residence requirement even though my paperwork says that I am not?

I am on a J- visa, and want to file for my I-485 adjustment of status application based on my wife’s employment. I am originally from China, but spent three years in Germany as a scholar before receiving my J-1 visa in Frankfurt and coming to the US. Neither my passport nor DS-2019 form says that I am subject to a two-year foreign residence requirement. Although I have not taken any type of governmental or intergovernmental financing, I am on the skills list of China. I am not a medical doctor. What should I do?

Mr. Lee answers,

From your account, it is questionable whether you are subject to the two-year foreign residence requirement because of the time and status that you held in Germany. Undoubtedly the American consulate in Frankfurt considered your situation before putting the markings on your visa and DS-2019 form. I suggest, however, that you request an advisory opinion from the Department of State prior to filing the I-485 application. A favorable advisory opinion would settle the matter with USCIS. If the opinion is negative, however, and you are deemed subject to the requirement, you may seek other channels to avoid the two-year home residence requirement, including asking for a no objection statement from your home government.

4. Do I do change of status to F-1 or go outside US and interview for F-1 visa at US consulate?

I was given six months to stay under my tourist visa and am in my fourth month and found a school that I want to study at. The designated school officer said that I could either try to change my status with USCIS or take the I-20 admission form and apply at the consulate in my home country. What are the considerations that I should take in account in making my decision?

Mr. Lee answers,

Your decision may depend upon a variety of factors. The first is that under current USCIS rules, you must maintain your legal status at all times until the agency adjudicates your change of status to student. Because you have only two months left, you will most probably have to also file for a B-2 extension during the time that your F-1 student change of status is pending. Another factor is that the change of status by USCIS once approved is only on a piece of paper. If you must leave the US at any time in the future, you would have to interview for the F-1 student visa at a US Embassy or Consulate before being allowed back into the US as a student. Against those factors is the common perception that obtaining an F-1 student visa at a US consulate or embassy is usually more difficult for many than obtaining a change of status by USCIS.