Learn now to hold two jobs on an H-1B visa!

The most common form of employment on an H-1B visa in the U.S. is full-time employment with a single employer. However, the regulations permit “concurrent employment.” This means that more than one employer can engage the services of an H-1B worker in certain circumstances. An H-1B petition filed to authorize an H-1B worker to be employed in another job concurrent with his current H-1B employment, is commonly referred to as a “Concurrent H-1B.”

The second employer who seeks to engage the H-1B worker in concurrent employment must go through the entire H-1B process as well as convince the USCIS that the employee is eligible for an H-1B and that the second job is a specialty occupation. This means that the employer must also pay the prevailing wages for a job code that is appropriate to the concurrent position. The second employer must initiate the application by filing a Labour Condition Application (LCA) attesting to these and other H-1 requirements.

The concurrent H-1B employment need not fall under the same specialty occupation as that of the applicant’s first employment.

A concurrent H-1B cannot be filed at the time of the initial H-1B selection for that employee that would be subject to the annual cap and the employer needs the employee’s services for a full-time job, which generally involves 35-40 hours of work a week. The employee may file a concurrent H-1B petition after the employee has an approved H-1B petition and the individual enters the U.S. in valid H-1B status.

There is no limit on the number of concurrent H-1Bs an employee can hold. But the cumulative hours that the employee will work must be plausible and possible.

One of the most important points to remember is that while H-1B employees are not permitted to work under contract, part-time employees, who do not need a visa sponsor, frequently do so. Thus, to maintain concurrent visa status, an employer-employee relation is crucial. It is therefore advisable to make sure foreign nationals are retained on the employer’s payroll and have a W-2 to confirm their employment with respective employers.

The USCIS does not require the primary sponsoring company be informed about the applicant’s H-1B concurrent employment. However, the second employer must specifically select “Concurrent Employment” in Form I-129 when filing the H-1B petition for concurrent employment.

One of the major concerns most H-1B applicants have is whether they can hold their second employment even if they have left or have been terminated from the original sponsoring company. It is important to note here that the non-immigrant will continue to maintain his H-1B status and can continue to work for the second employer irrespective of any changes in his first employment.

While this is a good avenue for a lot of H-1B visa holders to earn more and improve their financial status, having an approved H-1B petition does not automatically result in an approval of the concurrent H-1B petition.

With inputs from Manizeh Mistry, Associate Partner at LawQuest.

Students on OPT status do not need new work visa if they do not need new work visa if they do not have to leave the US.

Students on OPT status do not need new work visa if they do not need new work visa if they do not have to leave the US.

The US mission in India has recently announced that a record 82,000 student visas have been issued in 2022 and Indian students have received more US student visas than any other country. Even as the number of Indian students going to campuses in the US goes up, the number on optional practical training visas, too, has seen a sharp rise over the past few years. For Indian students, OPT is an option to work in the US after their studies. According to the Open Doors survey in November 2020, which tracks international student numbers, there were 81,173 Indian students enrolled for the OPT programme.

International students on F-1 visas at US universities are eligible for OPT, temporary employment directly related to the applicant’s major area of study. Students on F-1 visas who finish their courses in the US, do not need a job offer to apply for OPT. The applicant may work for more than one employer or job, but all employment must be related to the degree programme that they have studied. Employment must be for a minimum of 20 hours per week.

While all international students can apply to receive up to 12 months of OPT employment authorisation before completing their studies (pre-completion) and/or after completing their academic studies (post-completion); the STEM (science, technology, engineering, and mathematics) OPT programme permits F-1 students earning bachelors, masters, or doctoral degrees in certain fields to remain in the United States for up to 36 months to work in their field of study. To be eligible for the 24-month OPT STEM extension, the applicant must be employed by, or have a job offer from, an employer who is registered with the E-Verify employment verification system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration. Such employment must be paid and full-time.

Even as OPT provides flexibility for Indian students to remain in the US after they finish their study programmes; applicants need to maintain legal F-1 OPT status during the entire period of employment. “Evidence must be acquired from the employer to verify that those on OPT status worked at least 20 hours per week during the period of employment. Once the post course completion OPT period starts, one must not accrue more than 90 days of unemployment within the dates on the EAD (employment authorisation document),” says Mumbai and Florida based immigration lawyer Poorvi Chothani. Post-completion OPT is any portion of OPT used after the student’s programme end date while pre-completion is any portion of OPT used before the student’s programme end date.

Chothani adds that applicants should submit an OPT update and report employment on the office of international students and scholars (OISS) student portal in order to stop the unemployment counting in Student Exchange & Visitor Information System. “Any time spent outside the United States, if not employed by a US employer, is counted towards the 90-day period of unemployment.
Unemployment days are cumulative, so if the OPT holder is employed for less than the length of the OPT time and begins to look for another employer, they do not get an additional 90 days of unemployment,” Chothani says.

Those who have not been unemployed for 90 days of post-completion OPT or 150 days of post-completion and STEM OPT extension periods, are given a 60-day grace period following the completion of the OPT. “This grace period is meant to give time to prepare for departure from the US unless the holder of the OPT visa successfully adjusts their status to a different type of visa or has enrolled in another approved graduate programme,” Chothani said.

In a recent interview to a news agency, US minister counsellor for consular affairs in India, Don Heflin, said that Indian students who are in the US on OPT and were travelling back to India, would need to get
a visa stamped on their passports before returning to the US. This summer, Indian students on F1 OPT visas, who travel to travel to India, have been given the flexibility of dropbox appointments, which means they don’t have to appear for in-person visa interviews to get their passports stamped. However, Indian students in the US, who are approved for OPT and have work authorisation (EAD) and a valid student visa status both with their university and United States Citizenship & Immigration Services (USCIS) do not need to get a new visa if they are not leaving the US.

F-1 OPT holders may change their status to other visa categories. “Frequently, OPT holders change their status to H-1B work visas depending on whether they wish to continue working with their OPT employer who is willing to sponsor them or if they have found a new employer who is willing to sponsor their H-1B. Either way they will need to be selected in the H-1B lottery,” says Chothani.

While OPT is a benefit of F1 status that allows students to work for one year ( possibly longer if the student is eligible for an extension), H-1B is a separate non-immigrant classification specifically for employment. The sponsoring employer must file an H1-B vias petition as ‘Change of status’ within a stipulated time. “Generally, once the H1-B visa petition is approved, the student’s status changes from F-1 (OPT) to H-1B from October 1 of that year. There is no need to procure a visa stamp to begin working on H-1B status. However, if the individual leaves the US, he or she will need a new H-1B visa to return to the US to work on H-1B status,” Chothani says.

US Immigration Alert | Premium Processing Services Extended to Additional I-140 Pending Cases

Premium Processing Services Extended to Additional I-140 Pending Cases

The U.S. Citizenship and Immigration Services (USCIS) announced that it will extend premium processing services to additional pending cases. This third phase is similar to the first and second phases and will apply to certain previously filed Form I-140 petitions under the EB-1 and EB-2 classifications.

Petitioners may request premium processing upgrades by filing the new edition of Form I-907, Request for Premium Processing. Beginning September 15, 2022, the USCIS will accept Form I-907 requests for:
• Multinational executive and manager petitions that were received by the USCIS on or before January 1, 2022.
• NIW petitions that were received by the USCIS on or before February 1, 2022.

The USCIS is taking a phased approach to expanding premium processing as part of a broader effort to reduce backlogs. The USCIS will take up to 45 days to provide a decision under the premium processing request for the above Form I-140 classifications.

The Nuts and Bolts of A Family Based Green Card Process.

The Nuts and Bolts of A Family Based Green Card Process.

In our last article we wrote about who can be sponsored for a US green card as a family member. A US citizen or lawful permanent resident (green card holder) may file Form I-130 petition for the foreign national relative, with the US Citizenship and Immigration Services (USCIS) to establish a qualifying relationship with the beneficiary (family-based immigrant). In this article we take you through the different stages of the process. Please note that it is now possible to file I-130 petitions online for certain categories.

Although the process for all categories is almost the same, the I-130 processing time will vary widely based on the type of relationship (between the petitioner and the beneficiary), the place of birth of the foreign national, the USCIS’ backlogs, waiting times at the applicable consular post and the accuracy and completeness of the I-130 petition.

I-130 Eligibility

US citizens can file a Form I-130 to petition for the following eligible relatives:

  • Spouse
  • Unmarried and married children
  • Siblings when petitioners are age 21 or older
  • Mother or father when petitioners are age 21 or older

Green card (LPR) holders can file a Form I-130 to petition for the following eligible relatives:

  • Spouse
  • Unmarried child

For family-based immigrant visa applications, having an approved Form I-130 by the USCIS is the first step, i.e. a prerequisite to the immigrant visa application for a green card.

General Steps to Process Family-Based Immigrant Visa I-130 Petition

  1. File I-130 petition and the USCIS will issue receipt notice
  2. The USCIS will review the I-130 petition to determine completeness
  3. The USCIS upon review will either approve the petition or issue a Request for Evidence for any additional/missing documents.
  4. The USCIS will forward the case to the NVC
  5. The NVC asks for additional forms, documents and fees and if everything is in order it forwards the case to the appropriate Consular office outside the US
  6. The US Consular office will schedule an immigrant visa interview after which if approved, the officer will issue an immigrant visa stamp in the passport.

Please note that the process is a little different for relatives who are already in the US in another non-immigrant visa status and can apply to adjust status to immigrant status.

Also, some cases may go through additional steps depending on their circumstances and availability of documents.

Filing I-130 Petition

Form I-130 can either be filed online or via mail.

To file online, an online USCIS account must be created. Online applications make it relatively easier to receive case alerts, check the case status, upload supporting evidence and see all case related correspondence.

I-130 petitions can also be submitted by mail by confirming the USCIS service centre address to which the application must be sent. Depending on the state in which the Petitioner resides and whether the immigrant beneficiary is submitting Form I-485 as well, I-130 petitions are routed to either of the following Lockbox facilities – Dallas, Chicago or Phoenix Lockbox.

From here, it will be processed at any of the USCIS’ five service centres.

I-130 Petition Processing

The USCIS, upon receiving the I-130 application and after determining the completeness of the petition, will issue a receipt notice to the concerned Petitioner and put the case in line for further review. Processing times for an I-130 petition may vary depending on a number of factors, most notably how busy the USCIS service centre is where the petition has been filed.

Wait times of several months/years are typical. Given the COVID-19 restrictions, there has been a significant increase in filings, which has led to extensive delays in receiving receipt notices for properly filed petition with a USCIS lockbox.

The review involves scrutinizing documents to make sure that, that the US citizen’s passport and other supporting documents submitted for the immigrant beneficiary are authentic and contain any official government certifications, if necessary, from the immigrant’s home country. The USCIS is very vigilant about fraud that can take place in such matters.

Once the USCIS completes its checks and scrutiny, and if all looks fine, it will approve the I-130 petition. By way of approval, the USCIS Service Centre will notify the Petitioner, by sending an official I-130 approval notice (with a priority date) and transfer the case file to the appropriate government office. It is important to note that having an approved I-130 does not, by itself, give an immigrant any right to come to, or remain in the United States.

Priority Date

The priority date basically determines each applicant’s place in the immigrant visa waiting line. It is established based on the date that a properly filed I-130 petition is received by the USCIS. The priority date is listed on the I-797 approval notice which is mailed to the Petitioner once the I-130 petition is approved.

The immigrant beneficiary must wait for the priority date to become “current” before he/she can apply for an immigrant visa or adjustment of status. “Current”, in this context, means until the applicant reaches the front of the waiting line or there is no backlog, and a family-based green card is available. Sometimes, an entire subcategory preference can become current if there is no backlog within that category. Such instances are seldom given the current backlogs and wait times.

Immigrant Visa Consular Processing or I-485 Adjustment of Status Filing

Upon approval of the I-130 petition, depending on where the immigrant is and the choice made in the I-130 application, the immigrant beneficiary may choose to apply for the green card through the process known as “Adjustment of Status” (which takes place in the United States) or “Consular Processing” (which takes place through a US Consulate or Embassy abroad).

If the immigrant beneficiary is in the US on a valid non-immigrant visa – such as an L-1, H-1B, F-1 or K-1 they need to “adjust status” from non-immigrant to immigrant, by filing an I-485, Application to Register Permanent Resident or Adjust Status with the USCIS.

The I-485 application must be submitted with relevant documents to prove, lawful status within the US, confirm the qualifying family relationship with the Petitioner, beneficiary’s biographic information etc. The required filing fee for this step will depend on the immigrant beneficiary’s age.

When the immigrant beneficiary is outside the US, he/she will have to go through consular processing at the US Embassy or Consulate abroad, generally in the country or nationality or residence. The National Visa Center (NVC) will notify the immigrant beneficiary and/or the petitioner that they must submit additional documents (including a duly completed form DS-260) and processing fee to the NVC.

The NVC will then inform the beneficiary if the case is “documentarily qualified” or ready and that NVC will send a further notification when the Embassy or Consulate is ready to schedule an interview. During the immigrant visa interview the Consular officer will also review the documents once again and if everything is in order the officer will approve the immigrant visa that is generally valid for 12 months from the date of issue. The officer will retain the passport and return it in a few days with the immigrant visa stamp. The immigrant beneficiary must travel to the US within six months of the issue date on the visa.

Police Clearance Certificate & Medical Examination

When the I-130 application is sent to the NVC, the immigrant beneficiary will need to submit a Police Clearance Certificate (along with other civil documents) from his/her present country of residence and from all countries where he/she may have lived for six months or more since the age of 16. In India, the Police Clearance Certificate must be obtained from the Regional Passport Office. The Police Clearance Certificate is valid for one year from the date of issuance. The applicant will only need to carry a new certificate to the visa interview, if the one submitted to the NVC has expired at the time when the immigrant visa interview date is scheduled.

Additionally, the immigrant beneficiary will also need to undergo a medical exam from one of the Consulate’s panel physicians before the immigrant visa interview. Entering the US on Immigrant Visa

The immigrant beneficiary must enter the United States no later than the visa expiration date printed on the immigrant visa issued. An immigrant visa is usually valid for up to six months from the date of issuance unless the medical examination expires sooner, which may make the visa validity less than six months.

At the port of entry, the US Customs and Border Protection will inspect the immigrant beneficiary and determine whether he/she is admissible or not. If found admissible, they will allow the immigrant beneficiary to enter the United States as a permanent resident. A few weeks upon arrival (usually within 45 days), the USCIS will mail the family-based green card to the immigrant beneficiary.

LawQuest US Immigration Alert | FY2023 H-1B Cap Apparently Reached

FY 2023 H-1B Cap Apparently Reached

It appears that the H-1B CAP has been reached for FY 2023.  Over the past several days, we have noted that the USCIS is sending non-selection notifications to registrants’ online accounts. The USCIS can only send a non-selection notice to a properly submitted H-1B registration once they have determined enough cases have been selected to reach the cap.

The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, show:

“Not Selected”: not eligible to file an H-1B cap petition based on this registration.

Unlike prior years, this year the USCIS only needed to perform one selection process. During FY 2022, the USCIS conducted selections in March and subsequently in July, resulting in approximately 131,970 selections. For FY 2023, the USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations to reach the 85,000 total FY 2023 numerical allocations.

The USCIS will continue to accept and process petitions that are otherwise exempt from the cap:

  • Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number.
  • H-1B petitions filed to:
    • Extend the amount of time a current H-1B worker may remain in the United States;
    • Change the terms of employment for current H-1B workers;
    • Allow current H-1B workers to change employers; and
    • Allow current H-1B workers to work concurrently in additional H-1B positions.

We will continue to monitor the USCIS’s website for an official announcement.

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