Kevin Keane Immigration Information you can use

I have an active L1 Visa. I want to apply for a H1B this year through a new employer. Can I continue to work on L1 for my old employer though my H1B petition is approved?

• 
• 

Thank you, RK, for suggesting this question.

Getting an H-1B involves a change of status. US immigration law allows an alien to have only one status at a time. As a result, your L-1 will automatically end the day your H-1B status starts (usually, this is the day the petition is approved).

Can high school teachers get an H-1B? Are they exempt from the quota?

• 
• 

High school teachers theoretically qualify for an H-1B. In practical terms, though, the timing of the quota makes it virtually impossible to actually get an H-1B. The problem is that most school years start in August or September, while H-1Bs do not become available until October. As a result, many school districts are very reluctant to hire a teacher on H-1B.

High school teachers are not exempt from the quota.

I've heard that the H-1B quota is irrelevant for University teachers. Is this true?

• 
• 

This question was suggested by Sean.

Yes, indeed. A University is entitled to apply for and receive H-1B status for a foreign teacher no matter whether the annual quota of H-1B visas has been exhausted. The quota applies to jobs at most employers, but universities and certain non-profit research institutes are exempt.

I worked in the US for 6 years with an H1B visa. I would like to return to California after one year absence to experience an unpaid internship. If I enter the US with a J1 and after a few months a new company decides to offer me a job, am I allowed to sw

• 
• 

This question was suggested by Alessandro.

This is actually quite an interesting situation! There are several things to consider here. First, you must arrive in the USA after at least one year. This means, the J-1 must start after one year (you can't spend a few months outside the USA and then try and spend the rest of the year with the J-1 - the full 365 days must be spent outside the USA).

Second, you need to make sure that your J-1 will not have the two-year home residency requirements. Some J-1s do not allow you to switch to an H-1B unless you spent two years at home.

Third, if you plan on doing that right now, you would likely run into the roadblock of the H-1B quota. It is expected that the quota will be exhausted in a few weeks, so you would not be able to get an H-1B until October 1 of NEXT year. So it would be wise to make sure your J-1 will be good for as long as you can possibly get it, just so you have enough time to get the new H-1B. Otherwise, you may find yourself at the end of your J-1 with no H-1B to change to.

Can I submit an H-1B application now for a job that starts after the new quota becomes available?

• 
• 

Yes, by all means! USCIS accepts H-1B petitions up to six months in advance, that is, starting April 1.

In fact, you should submit your application as soon as possible because in the past, the quota has been reached within the first few days of April, and H-1Bs have remained unavailable for the rest of the year.

I am currently in another status and want to change to H-1B, but the quota has been hit. Can I stay in the USA?

• 
• 

This depends on various factors. USCIS announced that, for past years (through 2004), F-1s with Duration of Status (D/S instead of an expiration date) will indeed be automatically extended until October 1 to accommodate such cases. Unfortunately, this policy has been discontinued in 2005. You may need to find alternate solutions, such as attending college and changing to F-1 until the H-1B becomes available, or the like. What may or may not be available depends very much on the individual situation; please consult with a competent attorney for advice.

I am already working in the USA with an H-1B. Does the H-1B quota affect me?

• 
• 

No, only new H-1Bs are affected. There is one exception: if you are currently working in an exempt position and want to change jobs to a non-exempt position, the quota would indeed apply.

I am on H-1B. What happens to my Green Card application if I switch jobs?

• 
• 

Thanks to Kumaresh for this question!

Unfortunately, you will have to start over.

There are a few exceptions:

• You can leave the Green Card application running, as long as your employer cooperates (few will). In the event that you return to the original employer, you could then actually file an I-485 or apply for a consular immigrant visa based on that Labor Certification and petition. Of course, if you do not return to that employer, you would not get any benefit from this GC application.
• For certain purposes, the date the original Labor Certification was filed would continue to count as your priority date. This is true for 245(i) purposes. It is true for quota purposes only if the employer also filed an I-140, this I-140 was approved, and the employer did not revoke it.
• In some, extremely rare, circumstances it may be possible to transfer the Labor Certification to a new employer (or from one employee to another). This requires that the old and new job are identical in every respect, and even then can be difficult. Only try this with a competent lawyer. In the vast majority of cases, it isn't even worth considering.

I have an H-1B or L-1 visa, and my spouse would like to do unpaid volunteer work. Is this possible?

• 
• 

Thanks to Caroline for suggesting this question!

Sometimes, but tread carefully. The main criterion is whether this work would be performed unpaid by Americans, as well.

Most importantly, it is illegal to volunteer for a productive position. There is a good reason for this rule: the system of work authorizations was set up to ensure that Americans are given the opportunity to earn money. If you are offering to work in a job without pay that an American would be paid for, you are essentially not only taking away somebody's job, you are also underbidding and driving down the wages of other people.

On the other hand, if you are volunteering for a true volunteer position, for instance as a translator in a hospital, as a museum guide, helping with community events, school chaperone, or similar positions that Americans would also do without pay, then this is not a concern, and your volunteering would be legal.

I have an H-1B or L-1 visa, and my spouse would like to work. Is this possible?

• 
• 

This is actually an area where H-1B and L-1 (or, more accurately, H-4 and L-2) are very different.

L-2

Yes. You can apply for an employment authorization document (EAD) at the service center that has jurisdiction over the place where you live. The form number is I-765.

H-4

No, you cannot work. If you qualify for it, then you can of course change to another status that does allow work. For instance, many spouses of H-1Bs are able to qualify for an H-1B of their own.