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Kerwin Ross

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Everything posted by Kerwin Ross

  1. Kerwin Ross

    Not received H1B receipt after 1 month

    Just FYI , someone I personally know filed for H1B Transfer with new employer Within 15 days he received the receipt number from USCIS. The petition was sent to Vermont Service Center. This is what the text on USCIS Website Says "On October 21, 2018, we received your Form I-129, Petition for a Nonimmigrant Worker, Receipt Number xxxxx, and sent you the receipt notice that describes how we will process your case. Please follow the instructions in the notice. If you do not receive your receipt notice by November 20, 2018, please call the USCIS Contact Center at 1-800-375-5283." Your immigration team may want to get in touch with USCIS and check the case status if it is in their system already with a receipt number that may have been lost in transit or track your application packet since you had originally mentioned "we are redirecting your application to regular processing", did they mean they were moving it across different service centers. If I find any other information that I think which may add value and be of any help I will return and keep you posted.
  2. Kerwin Ross

    Out Of Status H1B VISA stamping

    You may want to consult with your immigration attorney with your employer and get the situation documented in writing that will help convince the officer that it wasn't your fault. By the word of mouth, it is easy for us to blame someone else for such actions where we face the consequence. If I put myself in your place the first thing that came to my mind is the DS-160. There is one question Have you ever been unlawfully present,overstayed the amount of time granted by an immigration official ... My suggestion is to not lie on your DS-160 form with the fear of negative consequences. After you give your finger printing go to https://ceac.state.gov/ceac/ and put in your DS -160 Number, if you see a case number then the system has already identified you as a potential 221G candidate and prepare well for the officer to scrutinize your unlawful presence. Everyone has a friend who has a friend who has a friend who has been through this situation. I have a friend who took a written apology from the immigration team stating that due to clerical error they apologize for the inconvenience that he was going through and produced the same to the officer at the time of interview and successfully cleared and got H1B Stamped.
  3. Kerwin Ross

    Not received H1B receipt after 1 month

    We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if: The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and We did not take adjudicative action on the case within the 15-calendar-day processing period. https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays Since this is a H1B transfer case, I am assuming that you have transferred to a new employer. You may want to follow up regularly with your new employer's immigration team and seek answers because it jeopardizes your existing H1B status. Not to scare you but you may want to research options if any of going back to your previous employer if this transfer was messed up. Since you had mentioned "H1b fee check was not cashed by USCIS", are you aware that they sent two checks one for I129 which is your H1B Transfer fee and one for Form I-907 which is for premium processing fee and only your premium processing fee has been returned and not your transfer fee. You may also want to understand this process better, please see https://www.murthy.com/2017/04/20/h1bs-cannot-be-transferred-misconceptions-around-h1b-employment-change/
  4. Kerwin Ross

    Case was not revoked or cancelled by uscis status

    Would it be possible to specify which type of case is this.
  5. Kerwin Ross

    H1 Extension Pending: Post 240 Days

    If you google 8 CFR 274a.12(b)(20) This is what it states "(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), (b)(19), (b)(23) and (b)(25) of this section whose status has expired but on whose behalf an application for an extension of stay was timely filed pursuant to § 214.2 or § 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision;"
  6. Kerwin Ross

    H1 Extension Pending: Post 240 Days

    If the H-1B petition is simply an H-1B extension (not an H-1B transfer), the H-1B employee is authorized to work for up to 240 days beyond the expiration of their current period of stay (i.e. beyond the expiration listed on their most recent I-94 card). That means that once the 240 day period has passed, the H-1B employee is no longer authorized to work (see 8 CFR 274a.12(b)(20)). However, the H-1B employee is permitted to remain in the US while the timely filed H-1B extension petition is pending, even beyond the 240 day mark If an H-1B employee has an H-1B transfer petition pending, there is room to argue that per the AC21 statute, the employee may keep working even beyond the 240 day mark. However, because there is not clear guidance on this (at least as of right now), the H-1B employer and employee should seek counsel from an experienced immigration attorney if they are coming up on the 240 day mark. One of the reasons USCIS has suspended premium processing is "Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark" --https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions There is a possibility that if your attorney reaches out to USCIS they would treat your case as premium and adjudicate your case however if you go through https://www.uscis.gov/forms/expedite-criteria Expedite Criteria USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. USCIS may expedite a petition or application if it meets one or more of the following criteria: Severe financial loss to company or person; Emergency situation; Humanitarian reasons; Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.); USCIS error; or Compelling interest of USCIS.
  7. Kerwin Ross

    Traveling to India after h1 lottery picked

    Do you happen to know in which service center is your case being processed in. California Service Center Nebraska Service Center Vermont Service Center https://egov.uscis.gov/processing-times/ Assuming California Service Center at current the normal processing time is about 6.5 Months to 8.5 Months for H-1B - Specialty occupation - B Because of this huge backlog, they have suspended Premium Processing "Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months" - https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays However if you need to travel to India on an urgent basis which you haven't disclosed for personal reasons, I hope you are aware that there are certain exceptions, if you think you meet any one of these exceptions, you may want to consult with an immigration attorney to expedite your case as Premium given that you satisfy one of the Expedite Criteria. USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. A. Expedite Criteria USCIS may expedite a petition or application if it meets one or more of the following criteria: •Severe financial loss to company or person; •Emergency situation; [For example, the applicant is gravely ill.] •Humanitarian reasons; [For example, outbreak of war in the home country.] •Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; [For example, an organization broadcasting in regional areas to promote democratic interests.] •Department of Defense or national interest situation; [The request must come from an official U.S. government entity and state that delay will be detrimental to the government] •USCIS error; or •Compelling interest of USCIS. https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-PartA-Chapter12.html#footnote-2 If none of these apply in your case, then the only option left is to wait and watch how things turn out for you. All the best, hope everything turns out in your favor.
  8. Kerwin Ross

    Regular H1b FY2019 Denied after submitting RFE Response

    If you have the patience to read this, I am sure it will help. Background of the Specialty Occupation RFE The specialty occupation issue is not new. One of the explicit requirements for each H-1B petition is that the petitioner prove that the offered position is “specialty occupation” which is defined to as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Showing specialty occupation is not a new requirement and We all have seen such RFEs for many years. The motivation behind this increase in this kind of RFEs is likely the March 31, 2017 policy memorandum “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer-related positions'” which seeks to clarify that not all computer positions are presumed to require a bachelor’s degree for entry into the occupation and the April 18, 2017 Executive Order “Buy American and Hire American” to seek to “strengthen” the H-1B program. What Are the Criteria for Specialty Occupation for an H-1B POSITION? 8 CFR 214.2(h)(4)(iii)(A) requires for H-IB petitions involving a “specialty occupation” that the position meet at least one of the following criteria: a. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; b. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that only an individual with a degree can perform it; c. The employer normally requires a degree or its equivalent for the position; OR d. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. At least one of these four criteria must be established (legal standard is “preponderance of the evidence” which means that something has been shown that it is more likely than not) in order to meet the specialty occupation standard. An important note, discussed in more detail below, it that it is not enough that the position merely requires attainment of a bachelor’s degree. The degree must be in a “specific specialty” or field. Bachelor’s Degree or Higher in a Specific Field A trend in adjudications of specialty occupation RFEs has been that USCIS adjudicators focus on requiring that even if a position is shown that it requires a bachelor’s degree, it must be in a specific field related to the position. In other words, proving that a position normally requires a bachelor’s degree is not enough; rather, it must be shown that the position requires a bachelor’s degree in a specific field or a very narrow list of fields. This has proven to be a significant challenge to employers who, due to the nature of their business or services, are able to leverage professionals from various fields. For example, a Management Consultant position can easily require a bachelor’s degree or higher in management, computer science, law, public administration, and many others. This makes it extremely difficult to make a case that a bachelor’s degree or higher in a specific field or higher is normally required. What Kind of H-1B Petitions Are Most Likely to Get the Specialty Occupation RFE? It is safe to say that few, if any, employers and positions are safe from the specialty occupation RFE. Generally, physicians, professors, engineers, accountants, attorneys, and similar professional occupations are less likely to be scrutinized. These RFEs are being issued for both in-house and for third-party worksite positions. USCIS consults the Occupational Outlook Handbook (“OOH”) Occupational Outlook Handbook and positions which do not explicitly state that a bachelor’s degree or higher is always required are subject to specialty occupation scrutiny. Similarly, positions which may require bachelor’s degree or higher but may accept a wide array of fields of study are also subject to specialty occupation scrutiny. For example, the OOH page for Computer Systems Analysts (SOC 15-1121) indicates that most employers require a bachelor’s degree or higher; however, OOH also indicates that, Some employers prefer applicants who have a master’s degree in business administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate. Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere. As a result, an H-1B petition filed under this category is likely to see specialty occupation scrutiny, although, as there are many legal and factual arguments that can be made in an initial filing and during an RFE response to make the case and obtain an approval. Best Strategies to Handle Specialty Occupation RFEs The specialty occupation RFE requires a somewhat subjective judgment by the USCIS adjudicator which means that approvals are impossible to guarantee. Below are some arguments and documents which may be helpful to defend a specialty occupation RFE. Stating the obvious, the suitability of these points and argument depend on each individual case and should be altered and adjusted to fit each case’s particular details. OOH, O*NET Online and Other Occupation Databases. One of the key legal arguments is to carefully analyze the relevant position and occupations databases. OOH, and O*NET Online are two of the key databases which are used by USCIS adjudicators and often they contain a lot of useful information to demonstrate that a position normally requires a bachelor’ degree or higher in a specific field. For example, OOH contains a section describing what are normal educational requirements for an occupational category and what are the advancement requirements. Similarly, O*NET Online provides statistics on how many percent of people employed in a specific occupation have a bachelor’s degree, master’s degree or others. Also, O*NET Online describes the normal educational requirements, together with normal training and supervisory requirements. These pieces of information often allow building a legal argument that a bachelor’s degree is a normal requirements. Project Documentation Demonstrated Complexity of Position: It is helpful to include information and documentation of the project(s) on which the H-1B employee will work. This can include marketing and business plans, brochures, technical specifications, requirements, budgets, project timelines, and similar. The goal of providing these documents is to explain how the offered position fits within the needs of the employer’s projects and to establish the complexity of the position. While project documents are often vague and do not name the beneficiary, they help set the stage and describe the beneficiary’s position in more detail. End Client Letters and Related Documentation. For H-1Bs involving third-party placements you should seek to get documentation from the end client (or middle vendors, if applicable) which would not only be helpful to establish right of control, employee-employer relationship and duration of placement (all points normally applicable to third-party placements) but also to the end client’s requirements for the position and, specifically, that they would need someone with a bachelor’s degree in a specific related field. Detailed Position Description and Duties Breakdown. This one of the key documents in making the case that the position is sufficiently complex to require, at a minimum, bachelor’s degree in a specific field. Many H-1B petitions include a job description which often includes generic terms and duties; providing a detailed job description is the petitioner’s opportunity to describe the position in detail. We all normally provide an extremely detailed and nuanced breakdown of each job duty with specific tasks that are performed as part of each job duty. We all then take each task and, to the extent possible, tie it to how the task is so complex to require a bachelor’s degree in a specific field. Example of how you would take a job duty and expand into detailed job tasks: General Job Duty: Determines operational objectives by studying business functions; gathering information; evaluating output requirements and formats. Detailed Tasks: Extract data structure and data types stored in current and proposed database; create data dictionaries that specify data input/output formats; present the data dictionary to Project Tech Lead and Database Architect for approval; Conduct interview sessions with stakeholders from various business function and Subject Matter Experts(SMEs) to understand current business practice and their interactions with the current system; Gather and document shareholders’ feedback about current processes along with other identified improvement opportunities, and present those to business function leaders for them to make final decision regarding operational objectives. Industry Requirements – Job Postings and Announcements by Similar Employers. Another avenue to show specialty occupation is to demonstrate that when similar employers hire for a similar position they normally require a bachelor’s degree in a specific related field. Providing job postings or announcements from similar companies help make this arguments. However, for this point to work it is important to ensure that the employers are similar to the petitioner (type of business, industry, employee size), that the position is similar to the sponsored H-1B position, and that the educational requirements are bachelor’s degree or higher in a specific field (or list of fields) that match. CAUTION: It is very important to avoid job listings which hurt the case for specialty occupations. We all have seen USCIS specialty occupations denials where an employer included job listings which include a non-specific list of fields, or that a degree lower than a bachelor’s degree is required. For example, a position requiring “Bachelor’s degree in Computer Science, Engineering, or Business Administration” will probably doom this argument because Computer Science, Engineering and Business Administration are simply too unrelated to be deemed “specific field.” Employer’s Hiring Practices and Standards. USCIS allows an employer to point to its hiring practices and standards to make the case that in the past (and currently) when they hire for the same or very similar position they normally require a bachelor’s degree or higher in a specific field. An adjudicator would expect to see educational documents (diploma, transcript, and an evaluation for foreign degree), evidence that the jobs are similar (job description, job offer, position announcements or ads, employment verification letter, petition support letter, and similar), and evidence of hire (W-2, pay records, performance evaluations, and similar this can be a very strong and successful argument for proving specialty occupation. Third-party Expert Opinion. An additional piece to establish industry hiring practices is an opinion from a subject matter expert. This opinion letter (from someone who is expert in the relevant field – usually an university professor) makes the case that the position’s duties are sufficiently complex to require a bachelor’s degree or higher in a specific field. A good expert letter would discuss the employer and its particular business but then would specifically focus on analyzing the detailed position job duties and make the case that (and how), based on the expert’s experience and knowledge of the industry, the duties are consistent with bachelor’s degree in specific field (or narrow list of fields). CAUTION: It has been found that including an expert letter is helpful for specialty occupation cases to show broader industry practices, sometimes USCIS rejects third-party expert letters because, according to USCIS, the author is not familiar enough with the specifics of the employer and the position. So the third-party expert letter has to be presented for what it serves best – to show broader industry practices and not employer practices. Also, USCIS may reject expert letters when there is information in the case record which is inconsistent with the findings of the expert. As a result, it is important to make sure that the expert letter findings match other key case details in the initial H-1B petition and other RFE response items. Final point of caution – many good agencies which provide such expert letters have seen tremendous demand and workload with some expert opinions taking over a month to produce. If an expert letter is being sought for an RFE response I may recommend ordering it early. Salary Paid Exceeds Normal Industry Pay. One of the somewhat unconventional arguments We all often try to make is that the position is sufficiently complex relative to other jobs because the offered salary is higher relative to certain percentage of other similar positions within the same occupational category. This argument works when the offered salary is in the top tier (at least 50th percentile) of salaries in the same occupation. You should rely on statistical compensation data for the occupational classification from a variety of government and private industry sources. Obviously, this argument would not apply to all H-1B cases but when it applies, this argument helps you show the complexity of the position relative to other similar job. Wage Level I Salary & Specialty Occupation. The Wage Level I salary issue was first raised during last year (summer 2017) H-1B cap season. At that time USCIS questioned, as a separate major point, whether the position described in the position is suitable for a Wage Level I salary in the LCA which is essentially for entry-level positions. The Wage Level I issue has since not disappeared completely but is now most often included into the specialty occupation RFE issue where USCIS questions whether the entry-level position is consistent with a position requiring a bachelor’s degree or higher.
  9. Kerwin Ross

    I140 approved transfer h1 to new employer

    Depends. There is no minimum. It all depends on the availability of the employment opportunity, validity of the petition and the time left on your tenure. Consult with an immigration attorney or you will have a chance to speak with the immigration team of your new company whom you intend to transfer too, based on the paperwork submitted with the transfer petition your case would be adjudicated and your approval notice will let you know how many years your new H1B status with your new employer is valid. There is always an uncertainty of the duration of the approval. You may want to refer this article on Murthy Law Firms website https://www.murthy.com/2018/01/15/h1b-frequently-asked-questions/ I am working for Employer A in H1B status. Employer B filed an H1B change of employer petition for me. Can I start working for Employer B right away? Ordinarily, if an H1B beneficiary is in valid H1B status, s/he is legally allowed to start working for the new employer upon the filing of an H1B petition requesting a change of employer. If the H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), one may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If the H1B petition is approved with no I-94 card attached to the approval notice, one may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consular post abroad, and be readmitted to the U.S. in H1B status before being authorized to continue working for the H1B employer. Status issues can be complicated and, if there is any question as to whether one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.
  10. Kerwin Ross

    I140 approved transfer h1 to new employer

    Please read this article posted on Murthy Law Firms website that would give you a better idea and would answer your questions https://www.murthy.com/2016/10/17/job-changes-may-impact-approved-140/
  11. Kerwin Ross

    H1b Transfer RFE, please respond.

    Are you saying that this is the exact text in your RFE ? Request your employer to share the RFE document with you. Usually employers are not legally obliged to do that, however for faster and better processing of the case, employers share the document with their employees so that they can review it and understand what concerns USCIS has raised about the petition and appropriately provide a response. If the document has your employers company specific details which are being challenged or questioned, in my experience I have noticed in such cases employers do not share that doc since it has company related confidential information that they are not comfortable sharing with the employees. My employer filed for h1b transfer ? You mean to say your new prospective employer has filed a petition for H1B Transfer and not your current employer. It's confusing. Consult with your Employer and their Immigration Team. You can even consult private immigration attorneys at your own expense if you feel that your immigration team is not of much help to better understand the situation you are in. This may add value on how the transfer process works , please take some time out and read this Murthy Law Firm's article https://www.murthy.com/2017/04/20/h1bs-cannot-be-transferred-misconceptions-around-h1b-employment-change/
  12. Kerwin Ross

    Work for new employer with H1B receipt!

    If the employer is not willing to file another H1B, can I stay in US and find a new employer who can file H1B tansfer? Given that the previous filling is denied, would that still be a transfer or completely new H1B? You may want to research about the H1B 60 days grace period if you are not aware about it.H1B 60 days Grace period meaning > DHS allows a grace period of up to 60 days for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, if they are laid off due to the circumstances beyond their control. The H1B 60 days grace period means that you will not be considered “out of status” for almost 2 months following your unemployment. This will give you the opportunity to look for other employer or apply for a visa change of status. Can I stay in US until my I94 is valid and search for other jobs who can file H1B? H1B Maximum 60-Day Grace Period after job loss. On loss of employment, the non-immigrant worker has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter / whichever date comes first – to be sponsored for a change of employer, apply for a change of status, or simply prepare to leave USA. How to Request H1B 60 days Grace Period? There is no official form for requesting the grace period. You can file a standard H1B transfer (change of employer or change of status) during the grace period. If you want, you can add a cover letter with your application explaining the situation. But, it's not required officially. If the employer is willing to employer is willing to hire me in my home country and file a new H1B again, would that go into a new H1B quota? That is a dangerous step to take, if the same employer is able to employ you offshore to perform the same job and duties then USCIS would need additional information on why the employer is requesting for H1B Status or Visa to perform the same activities that can be performed from India . However you are CAP Exempt not sure about how many years you have used of your current H1B and if your I-140 is approved. Under the American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee if certain requirements are met. If the employee is not currently in H-1B status, he or she cannot change employers or begin working until USCIS approves the Form I-129 petition. - If the H1B transfer gets denied, can the new employer file another H1B?  If you satisfy conditions 1 and 2 below The H1B transfer bill approved in the Senate and House (bill S.2045) now has rules that enable valid H1B visa holders to change jobs upon the filing of 1. a new petition by the new employer as long as the individual is in lawful status at the time of filing and 2. has not engaged in any unauthorized employment since his or her last lawful admission. Under the H1B portability rules of the American Competitiveness in the 21st Century Act (AC21), an H1B visa holder may transfer to start work (a new H1B job) with a new employer, provided that the new US employer follow the procedures to file an H1B transfer visa application on behalf of the worker. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94. However, please see this article will explain employer transfer process: https://www.murthy.com/2017/04/20/h1bs-cannot-be-transferred-misconceptions-around-h1b-employment-change/ Can the attorneys file any justification and fight for approval on the same denial? > That is referred to as a MTR Motion to Reopen your case but that is like a dead end that no one wants to drive through, filing a brand new petition is the trend now-a-days, like wipe the slate clean, and start over again from the lessons learnt from the previous denied petition. The role in the new company is director reporting to C level exec, does it play any role in approval vs denial? May or may not be, depends on how you classify this role and responsibilities as specialty occupation.
  13. Kerwin Ross

    H1B Extension in Premium

    Premium Processing Remains Available for Certain H-1B Petitions The suspension does not apply to: Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to: Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129). If you satisfy condition 2, you are eligible for Premium processing. Please refere USCIS's memo : https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays
  14. Kerwin Ross

    company acquired Issue (Need Urgent Help)

    Company A is holding my H1 and it's valid till 2021 > Does this mean that you have a valid H1B Visa Stamp in your passport until 2021 and your I-94 expiry date is same as H1B Visa Expiry date. Travelling While an H1B Transfer is Pending An H1B applicant is permitted to travel during the pendency of the transfer of H1B employers. The H1B applicant may continue to use his or her original H1B visa stamp for entry into the U.S. as long as he or she also has an I-797 receipt notice from the USCIS or other evidence that a new petition was timely filed, in addition to the old H1B visa stamp, when the applicant applies for entry at a U.S. border. After the new petition has been approved, the visa holder must present an approval notice from USCIS evidencing the approval of the change of employer in addition to the visa. If you plan to travel during the pendency of your H1B transfer, it is absolutely critical that you contact an immigration attorney prior to leaving the country. There are many factors that could have significant consequences on your immigration status while in the United States that may be at play and are easy to overlook. Below are some questions that every H1B visa holder who is changing employers or planning to change employers should ask themselves before leaving the country. Has my new employer filed the petition yet? In cases where the H1B applicant no longer works for their previous employer and is currently in his/her 60 grace period,the applicant will be ineligible to port to a new employer if they depart the U.S. before a new H1B petition has been properly filed with USCIS . In order to qualify under AC21’s portability rules, the applicant must be physically present in the U.S. when the application is filed. If you return from your voyage abroad and your departure stamp reveals that the petition was filed after the date USCIS received the petition and issued a receipt notice you may be denied entry and your H1B petition will be denied as you were ineligible at the time the petition was filed. Can I afford to wait for the Receipt Notice before traveling? Many employers have definite start dates and are in dire need of the H1B applicant’s services. While it is certainly tempting to travel home to see family and friends prior to starting your new position, you should be careful when making travel arrangements and consult with immigration counsel to make sure you are not jeopardizing your immigration status and employment. If you have already stopped employment with your prior employer and are in a grace period, ideally you should wait to get the receipt notice for the new petition before traveling. If you travel before you get a receipt notice and a procedural issue occurs with the filing, such as USCIS losing the file or rejecting application due to something like insufficient filing fees, you would not be able to re-enter the country, as you would not have a receipt notice or proof of filing for the new petition and you would also be ineligible for portability while outside the U.S. Additionally, a receipt notice may get lost in the mail, or be issued late, or may be issued with the wrong receipt date. If you decide to travel without the receipt notice in-hand, you should be aware that an unanticipated delay could result in an extended vacation. If your new employer has set a rigid start date, you should plan for this accordingly. Do I have a flexible End Date with my old employer, and Start Date with my new employer? A great way to prevent any issues while traveling during the pendency of a transfer of H1B employers is to, well, not travel with a transfer petition pending. Many H1B applicants often underestimate the flexibility they have at their current position to stay onboard and travel while still employed with the old employer, and pushing back the filing of the H1B transfer until after he/she returns from the trip. You should explore this possibility if you are planning to travel to avoid any unforeseen or incidental consequences to your immigration status.
  15. Kerwin Ross

    H-1B transfer

    May I ask is this reason related to your H1B Petition Denial or a RFE. Since you haven't mentioned other specifics or background of the circumstances that led USCIS to deny your H1B petition. The United States Citizenship and Immigration Services (USCIS) says it reserves the right to change the duration of H-1B visa grants: When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship. The USCIS adds: “The updated policy guidance aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers. Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.” This change in policy from the USCIS isn’t necessarily shocking. Last March, the agency asked its officers to better identify specialized workers within the H-1B program. At the time, it said in a memo that “an entry-level computer programmer position would not generally qualify as a position in a specialty occupation.” Please refer to this USCIS memo https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf
  16. Kerwin Ross

    h1 b approved for 3 weeks

    Do you know why was your H1B approved only for 3 Weeks. I am assuming that USCIS adjudicated your H1B petition based on the paper work provided while petitioning for H1B which may include that your project end date as 11/02/2018. I am sure they would not pick a random date out of no where and approve until that date. This date should be somewhere on the paper work that they used as an end date for approving this I-129 H1B Petition. Now given these facts that your client has offered you an extension of 3 more months, and if you use the new date that is 11/02/2018(Current End Date) + 3 Months = 02/02/2019 Lets look at the happy path : You file for an extension in premium processing using new documentation from your client with new project end date as 02/02/2019, best case scenario is you get a new approval until 02/02/2019 and again have to start off early filing for another extension. I am not aware of your current employment situation and your relationship with your client or if there are any vendors in between that consolidate you into a EVC Employer Vendor Client model, may be your vendor should be able to issue you a Purchase Order or Work Order that explains the fact that your project as been extended until mm/dd/yyyy and then also annotate "As a point of clarification, the end date listed on the work order/ client letter ......as Vendor Name negotiates new contracts with the client every quarter. We do hope that you (Mr. xyz ) will be part of our effort on this long term project as you have already received x no. of 3 months extensions in the past. " You may want to consult with your client to see if they could add some material to the client letter that would indicate that the project that you are part of may be extended year on to year. If these cases do not apply then you may want to find a stable project that is long term. Usually H1B employees if have a chance to choose from prospective project joining opportunities, they would choose the one with a longer term contract rather than a 3 -month short term contract. In the long run to avoid your self from such situations you may want to re-evaluate your contingency plan in you are ever again in such circumstances. My personal suggestion is be open and reach out to your employer, client, manager ... etc, whom ever you think may be able to better assist you (proper documentation) to sail across this big tide (H1B Extension) that you fear you would not be able to accomplish easily. Keep in mind since the new no RFE memo is in place https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf and review this checklist to see if you have all necessary documents ready https://www.uscis.gov/i-129Checklist
  17. Kerwin Ross

    h1 b approved for 3 weeks

    You may want to read a similar scenario . The change in client and/or worksite can be disclosed in your new H1B Extension petition instead of filing a separate Ammendment. Consult with your employer and your employer's immigration attorney to weigh these options.
  18. Kerwin Ross

    h1 b approved for 3 weeks

    Please accept my sincere apologies if these seems to be rude. USCIS lets you apply for H1B visa extension 6 months before the expiration. What it means is, let’s say your H1B visa is expiring October 1st, 2018then you can apply your visa petition anytime after April 1st, 2018. The question arises is, How soon should you start the H1B renewal process ? It depends, the sooner the better. Ideally, USCIS takes two to three months for processing the H1B visa petitions. If you are not applying for premium processing, you should apply at least 3 months before your H1B is expiring. It gives enough time for USCIS to process the application. There are cases where they take longer, but at least you planned ahead of time. What it means is, you should talk to your employer and attorney at least 4 months before your H1B visa is expiring and get the ball rolling. They may need some documents and you might need some time to gather them. You should have started the process well in advanced instead of regretting the possibility of you falling into immigration issues due to a tight time line. Did you discuss this issue with your employer ? Every employer either have their own legal representatives or contract with a immigration law firm. You may want to consult your employer first and notify them about the immigration issues that you may experience and collectively together decide on a Plan B such as paid time off until the receipt arrives in the mail or bear an out of pocket expense and file for premium processing if you satisfy the eligibility of premium processing https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays Weren't you aware that you may face such an issue as your H1B End date started getting closer. "ignorantia legis neminem excusat " (Latin for "ignorance of law excuses no one) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content. However at the same time, I am not aware of your current personal situation such as you may be on bench and your employer kept you waiting until you found a new project and then file for an extension. There should be a suitable outcome of this situation, best suggestion is to discuss with your company's immigration team.
  19. Kerwin Ross

    Online Work

    I recently started watching this show on Netflix its called 'Ozark' and it's very interesting about how they move money around legally and illegally. The first question that popped up into my mind is the method of payment, will they issue you a W-2 or 1099's , I went to Udemy's website and this is what I found Q: Does Udemy need to issue my 1099-MISC? A: For payments made through third party networks like PayPal and Payoneer, it is the responsibility of these payment processors themselves to issue any tax forms. Other platforms like TaskRabbit and Uber follow this practice. PayPal and Payoneer only issue Form 1099-K to payees who received over $20,000 and more than 200 transactions in a given year. Udemy pays instructors twelve times a year, so payments from Udemy alone would not qualify you to receive this form from PayPal or Payoneer. Then I researched the consequences of 1099-K on H1B , Please see this related Murthy law firm forum post The simplest answer to this question is NO Why? H-1B nonimmigrant status has so many restrictions, you may be surprised to learn how nonrestrictive the rules are when it comes to the number of hours you can work, and the number of employers you can work for in H-1B status. Practical limits exist, of course—you probably don’t want to take on five half-time jobs in the United States. But as far as the H-1B rules are concerned, you can work full- or part-time for one, two, or several employers, as long as each job qualifies as an H-1B occupation and each employer is willing to take on the H-1B obligations. The H-1B rules specifically require an employer-employee relationship. You should, therefore, insist that you be on the employer’s payroll and receive a W-2 to prove it, as you may well need to show this later on in extending your H status or applying for a green card. An argument could be made that the method of payment doesn’t determine whether an employer-employee relationship exists, but frankly, this isn’t an argument you’d want to have to make to USCIS. The wise course is to insist on W-2s and reject 1099s. This flexibility creates interesting possibilities as well as some procedural puzzles. How H-1B Pay Requirements Apply to Each Part-Time Job The U.S. Department of Labor requires employers to pay H-1B workers at least the going rate (“prevailing wage”) in their area for the type of work they do, and more if the employer pays more to other workers doing the same job. This requirement applies to part-time as well as to full-time jobs. Thus, though you can work any number of hours, and a variable number of hours per week or per month, each employer must pay you at an hourly rate that satisfies this wage rule. The wage rate and hours for part-time jobs can be tricky to represent in the H-1B paperwork; you and your employer might want to consult an immigration attorney for help. Though you can work any number of hours in H-1B status without offending the H-1B rules, a change from full- to part-time work or any other significant change in the number of hours you’re working for a given employer requires filing an amended visa petition with USCIS. How the H-1B Six-Year Limit Works for Part-time Workers Your overall stay in H-1B status is generally limited to six years (though important exceptions apply if your employer has started the green card process for you. It would be nice if part-time work counted proportionately against this six-year limit, so that, for example, you could stay 12 years if you worked only half-time. But that isn’t the way it works: What counts is your actual period of stay in the U.S. in H-1B status, not how much H-1B authorized work you’ve done. However, if you have actually been staying outside the U.S. part of the time, coming to the U.S. periodically to work in H-1B status, then you can add the time you were outside the U.S. back onto the end of your authorized stay to stretch it beyond six years. What is more, if your H-1B job is seasonal or intermittent, or if you spend less than six months out of a year in the U.S., then you can maintain your H-1B status in the U.S. indefinitely, without regard to the six-year limit.
  20. Kerwin Ross

    H-1B transfer

    1.Am I still in grace period till Nov 14th, so that I can file transfer with other company? H1B 60 days Grace period meaning > DHS allows a grace period of up to 60 days for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, if they are laid off due to the circumstances beyond their control. The H1B 60 days grace period means that you will not be considered “out of status” for almost 2 months following your unemployment. This will give you the opportunity to look for other employer or apply for a visa change of status. H1B Maximum 60-Day Grace Period after job loss.On loss of employment, the non-immigrant worker has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to be sponsored for a change of employer, apply for a change of status, or simply prepare to leave USA. How to Request H1B 60 days Grace Period? There is no official form for requesting the grace period. You can file a standard H1B transfer (change of employer or change of status) during the grace period. If you want, you can add a cover letter with your application explaining the situation. But, it's not required officially. 2. Can any other company apply for my h1b now? Under the American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee if certain requirements are met. If the employee is not currently in H-1B status, he or she cannot change employers or begin working until USCIS approves the Form I-129 petition. The question here is what is your current status, did your Employer A revoke your H1B petition? The H1B transfer bill approved in the Senate and House (bill S.2045) now has rules that enable valid H1B visa holders to change jobs upon the filing of 1. a new petition by the new employer as long as the individual is in lawful status at the time of filing and 2. has not engaged in any unauthorized employment since his or her last lawful admission. Under the H1B portability rules of the American Competitiveness in the 21st Century Act (AC21), an H1B visa holder may transfer to start work (a new H1B job) with a new employer, provided that the new US employer follow the procedures to file an H1B transfer visa application on behalf of the worker. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94. 3. As I had h1b of which I have not used the entire period (Expiry: Sep 2019), am I cap exempt in order to file h1b with other company? If so, can they file only next April? Straightforward answer is yes you should be CAP Exempt, However, please see this article will explain how and why there is a possibility of you not falling into the CAP or CAP-Exempt Scenario in the future if you happen to leave the United States https://www.murthy.com/2017/04/20/h1bs-cannot-be-transferred-misconceptions-around-h1b-employment-change/
  21. Kerwin Ross

    h1 b approved for 3 weeks

    I am not sure if this is applicable to H1B Extensions, but in my situation where I was transferring to my H1B to a Fortune 500 Company, the in house immigration team offered be different options which included the FedEx Tracking number. This is often not advisable, but it's a possibility that you may want to explore based on the tight time crunch you are in. About Premium Processing based on the recent PO https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays Premium Processing Remains Available for Certain H-1B Petitions The suspension does not apply to: Point 2 is applicable in your case which is stated as below (2)Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to: Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129). Even if you do not wish to proceed with Premium Processing the 240 day rule is applicable 240 Day Rule:This is the H1B visa 240 day rule where an individual can continue to work for the current employer for up to 240 days after the current H-1B visa expiration if he/she is waiting for the USCIS decision. 8 C.F.R. § 274a.12(b)(20) (20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§214.2 or 214.6 of this chapter.These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.Such authorization shall be subject to any conditions and limitations noted on the initial authorization.This rule does not allow you to stay beyond the expiration date requested in the petition for which you are awaiting the decision.However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.Note: If the H1B worker needs to travel during this time, they may not be able to return until they receive the new H-1B Visa. Premium processing is a viable option in this scenario.Also Note: The 240 day rule is not a basis to renew the H-1B. It is rule that applies only after a bona fide H-1B renewal petition has been filed. Hope this helps you make a suitable decision to continue your employment. Congratulations on your H1B Approval.
  22. Kerwin Ross

    Traveling to India after h1 lottery picked

    Hello Ram, Just to confirm you are on F1 Visa and your status at this time is STEM OPT and you have a pending H1B petition in process with USCIS (RFE at this time). As long as you have maintained a valid status and posses a valid visa you should be good to travel with associated risks. Valid as in Unexpired Visa in an unexpired passport. However, you may want to consult with an immigration attorney, say for example you are in transit and your H1B petition is approved and at the port of entry you are trying to Enter using your previous documentation like F1 Visa, I-20 which has your SEVIS, once your H1B is approved, your SEVIS is no longer active that means the documents that you are using for immigration have expired and no longer active and you may have to return to your homeland and go for consular processing and get H1B stamped and re-enter. They may be factors that you can control over, usually RFE's have a deadline mentioned on page 1 until which your employer has time to respond to, if you can control not responding to that RFE immediately and travel and come back and respond, this guarantees that your current status would not change. Keep a check list of documents required for travel on F1 Visa, for example your I-20 needs to be annotated by your DSO which is within the past 6 months from re-entry date.
  23. Kerwin Ross

    H1B transfer

    I am in a similar kind of situation. Any advice/suggestions would be sincerely appreciated. My current H1B visa stamping is valid Sep 30, 2018. I-140 Approved as of Oct 15, 2018 with Employer A. My Client B has offered me full time and has filed my transfer in regular on Oct 12, 2018. B is asking to join on receipt no. or else they would have to revise the offer (20k less and one level) based on the new financial year that is about to begin soon. I’m getting married next month and need to travel to India. 1. Can I use my current H1B Visa Stamping for travel and at the port of entry show approved I-797 from Employer A and USCIS Receipt notice From Employer B 2. Can my dependent(H4) go for consular processing (Visa Interview) with my approved petition from A and transfer receipt from B, or do we need to wait until B’s petition is approved (no premium processing) 3. My Employer A will request USCIS to revoke my current H1B petition 30 calendar days after my resignation, does this affect my travel at port of entry would this cause any issues 4. If my H1B transfer gets denied can Employer A file a new cap-exempt petition for me for the same client and can I start working with Receipt No. or should I Exit and Re-Enter (if yes does this Re-entry require new H1B stamping or can I use the current H1B Stamp valid until Sep 30, 2019) 5. If my transfer gets denied does that mean that I incur unlawful presence (Current I-94 expiry date which is Sep 2019)
  24. Kerwin Ross

    Nurse from India seeking answers

    Hello Community, I am getting married to a Nurse from India. I am on H1B with I-140 Approved. Can you please share some valuable links so that I can understand my to be wife's carrier perspective on H4 EAD which I will apply for in Dec 2018. What challenges will I face in finding her employment or seeking another employment authorization such as H1B since H4 EAD is under jeopardy.
  25. Kerwin Ross

    H1B Transfer impact to H4 ?

    I have decided to stick with Employer A and take a hit in carrier wise (financially and position level )and make up for it in the long run. However, I request the forum to please answer these queries based on the legal technicalities of what is correct and incorrect, I googled a lot and awaiting an appointment from an attorney. Thanks in advance for your time.
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