Archive for February, 2010
How long do I have to find work once my OPT is approved?
Individuals with approved Optional Practical Training (OPT) have 90 days to find employment. OPT is the period following completion of an academic or degree program in which the graduate is permitted to work for a U.S. employer in a position related to his/her field. A graduate cannot accrue more than 90 days of unemployment during an OPT period.
This means that planning ahead regarding OPT employment is essential. A student may apply for employment authorization up to 90 days prior to the academic program end date but not later than 60 days after the end date. No job offer is required to apply for OPT, so even if an individual has no employment lined up but knows he/she wants to work, he/she should apply for OPT.
During the OPT period, an individual can work part-time, full-time or engage in self-employment provided the work is related to the individual’s field. If the individual cannot find a paid position, working in an unpaid position is acceptable and does count as OPT employment. Please don’t hesitate to contact our San Francisco immigration office if you have questions regarding OPT.
Tags: employment, F-1, OPT, optional practical training, volunteer work
Posted in F-1, FAQ F-1 | Read More »
May I use my OPT card for self-employment?
Yes. The Optional Practical Training (OPT) period following your college or university graduation may be used for self-employment, part-time employment or full-time employment in your field. This is the case regardless of whether you have completed a Bachelor’s, Master’s or PhD degree program.
The OPT period exists to provide new graduates a chance to work in fields related to their degree program for up to one-year (in some cases, longer, provided certain conditions are met).
Please contact our immigration attorneys if you have questions about your OPT period or OPT employment.
Tags: F-1, OPT, self-employment
Posted in F-1, FAQ F-1 | Read More »
Am I allowed to change employers in H-1B status?
Yes. This is known as H-1B portability. A person in H-1B status may switch to a new employer provided the new employer files an H-1B petition on the worker’s behalf requesting the change.
This “change of employer” petition is similar to an initial petition and must include the applicable forms and fees, as well as set forth information about the company, the H-1B position and the worker’s qualifications.
The most important thing to note with H-1B change of employer petitions is that employment with the new employer may begin upon filing the petition (i.e. upon receipt at the USCIS) provided ALL of the following four conditions are met:
1. The worker was lawfully admitted to the U.S.
2. The new petition is non-frivolous (i.e. not without basis in law or fact)
3. The new petition was filed before the date of the worker’s expiration of stay
4. Subsequent to the worker’s lawful admission to the U.S., he/she has not been employed with authorization before filing the H-1B change of employer petition
In other words, if the worker meets all 4 criteria above, he/she does not need to wait for the petition to be approved before starting employment with the new employer.
Please contact our San Francisco immigration law firm if you need assistance with your H-1B petition or would like to discuss changing H-1B employers.
Tags: change of employer, H-1B, portability, switch employer, transfer employer
Posted in FAQ H-1B, H-1B | Read More »
Are there any situations in which I may extend my H-1B status beyond 6 years?
The general rule is that H-1B status may be granted for a maximum period of 6 years. Typically, an individual who has reached 6 years must depart the U.S. at the end of the 6th year. If an individual leaves the country and stays outside the U.S. for one year or more, he/she is eligible to apply for another 6 years in H-1B status, but will be subject to the annual cap (quota).
There are two exceptions that allow an individual to remain in the U.S. beyond the 6-year maximum without having to return home. First, H-1B status may be extended beyond 6 years if a labor certification application (also known as, a PERM application), an I-140 immigrant petition, or an adjustment of status application was filed on the H-1B holder’s behalf at least 365 days prior to the expiration of his/her current H-1B status, and the case is still pending.
Under this exception, H-1B status may be extended in 1-year increments until there is a decision on the application or petition. Second, H-1B status may be extended beyond 6 years for any person who is the beneficiary of a first, second, or third employment-based petition, who, due to per country limitations (i.e. availability of a visa) is unable to file for or obtain immigrant status. For this exception to apply, the individual must have an approved I-140 immigrant petition.
Under this exception, H-1B status may be extended in 3-year increments until a visa number is available and there is a decision on the adjustment of status (“green card”) application.
If you require the assistance of an immigration attorney with questions regarding your H-1B status and eligibility for extensions, please don’t hesitate to contact our office.
Tags: 6-year maximum, AC21, employment-based green card, h-1b extension
Posted in FAQ Employment-Based Green Card, FAQ H-1B, H-1B | Read More »
When do I need a joint sponsor for my marriage-based green card case?
As a general rule, the U.S. citizen petitioner in a marriage-based green card case must show the United States Citizenship and Immigration Services (USCIS) that he/she has sufficient income to ensure that the beneficiary-spouse will not become a public charge (i.e. need welfare benefits, etc.). This information is set forth on what is known as an Affidavit of Support, which is filed at the same time as the green card petition. The petitioner’s income must meet or exceed 125% of the Federal poverty guidelines indicated for petitioner’s household size. The Federal poverty guidelines are updated each year and published by the Federal government. The current guidelines are found at this link: http://www.uscis.gov/files/form/i-864p.pdf. For example, currently, for a household of two, the amount that a sponsor must meet or exceed is $18,212 per year.
If the petitioner cannot meet the income requirements for his/her household size, he/she must have a U.S. citizen joint sponsor for the green card petition, which is typically a family member or friend (although it can be any U.S. citizen willing to jointly-sponsor the beneficiary). The joint sponsor will sign a separate Affidavit of Support and attest that the beneficiary will not become a public charge. The petitioner’s Affidavit of Support and the joint sponsor’s Affidavit of Support will both be included in the green card petition, along with supporting documentation confirming the income stated. Examples of supporting documents include tax returns, recent paystubs, and a letter from the sponsor/joint sponsor’s employer verifying the person’s salary and employment. If you need assistance with your marriage-based green card petition or have any questions about the above joint sponsorship requirements, please don’t hesitate to contact our office.
Tags: green card, I-130, joint sponsor, marriage-based, permanent resident, spouse
Posted in FAQ Marriage-Based Green Card, Immigrant Visas | Read More »
Is the position being offered to me an H-1B specialty occupation?
A specialty occupation is defined in the H-1B regulations as a position requiring the “theoretical and practical application of a body of highly specialized knowledge and 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 U.S.” To put it plainly, the position must require a Bachelor’s degree (or its equivalent) in a specific specialty relevant to the position duties. There are various standards the United States Citizenship and Immigration Services (USCIS) looks at when determining whether an H-1B position is a specialty occupation. The first is whether a Bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry into the position (i.e. generally speaking across industries). The second is whether the degree requirement is common in the specific industry in parallel positions among similar organizations/companies (i.e. similar in size and type). The third is whether the specific H-1B employer normally requires a degree (or its equivalent) for the position. Lastly, the USCIS will review the nature of the specific duties and determine whether they are so specialized or complex that the knowledge required to perform the duties competently is usually associated with attainment of a degree (or its equivalent) in a specific specialty. An H-1B position will not be considered a specialty occupation based on the job title alone. The main focus for the USCIS is on the complexity of the duties. If you have any questions about the H-1B category and/or whether a position qualifies as a specialty occupation, please don’t hesitate to contact our office.
Tags: Bachelor's degree, H-1B, specialty occupation
Posted in FAQ H-1B, H-1B | Read More »
May I have intent to immigrate in H-1B status?
The H-1B category allows for dual intent, which means both short-term nonimmigrant intent and long-term immigrant intent. H-1B status is a temporary status for an individual working in a specialty occupation (i.e. in a job that requires a degree or the equivalent). An individual who intends to hold H-1B status temporarily and then return to his/her home country has nonimmigrant intent. An individual who has the short-term intent to work in H-1B status and the long-term intent to live in the U.S. permanently has both nonimmigrant and immigrant intent (i.e. dual intent), which is permitted. Case law has held that the mere desire to obtain permanent residence in the future does not, by itself, automatically disqualify an alien from admission as a nonimmigrant. The United States Citizenship and Immigration Services (USCIS) recognizes dual intent not only for the H category, but for the L, O, P and E categories as well. Please don’t hesitate to contact our office if you have questions about dual intent or would like our assistance with your visa or green card petition.
Tags: dual intent, green card, H-1B, immigrant, immigrate
Posted in FAQ H-1B, H-1B, Immigrant Visas | Read More »
