Tag Archives: Indu Liladhar-Hathi

F-1, H-4, and H-1B Cap-Gap

Q. I am currently in the United States on an F-1 (Student Visa). While I am studying, I am interested in a volunteer position that is related to my field of study. Can I legally take this position?

A.No, volunteering while you are on an F-1 status is not allowed. Your employer (or the entity) for whom you are volunteering is required to pay your wages and even if you are not paid, you will be in violation of your status. You cannot work without explicit work authorization.

Q.I am currently in the United States on an H-4 status. When my husband’s employer extended his H-1B status, I did not receive an extension for my H-4 status. I was under the impression that my status is automatically extended when my husband’s H-1B is extended. My I-94 expired 3 months ago. What do I do?

A. It is important to note that there is no automatic H-4 extension. You have two options: you can file a request with the USCIS (called nunc pro tunc) requesting an extension of your status even though you are late and out of status. Your other option is to step out before you accumulate 180 days of unlawful presence. This way you can apply for a new H-4 visa at the US consulate in your home country and still be able to return to the United States without any legal issues. If you decide to apply for your extension in the USA, even though your status has expired, you must show that your
i) Failure to file was due to extraordinary circumstances
ii) The extraordinary circumstances were beyond your control
iii) Your explanation must be reasonable in the context of what happened
iv) You have not otherwise violated your status
v) You must not be in removal/deportation proceedings
It is important to consult an experienced attorney if you decide to take this chance because if your application with the USCIS is denied, you may accumulate 180 days of unlawful presence and would be subject to a 3-year bar upon leaving the US.

Q. Can I travel during the H-1B Cap-Gap?

A. If you have cap-gap relief and you decide to travel outside the United States, you will not be able to return until the last 10 days in September, assuming that you have secured your H-1B visa.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

Facing Spousal Abuse While on an H-4

Q. I entered the United States in January 2015 on an H-4 visa. Subsequent to my entry, I was subject to extreme emotional abuse by my H-1B spouse. I am considering filing for divorce, but have serious reservations because I cannot financially support myself. I would like to work here. My husband has not started his green card process. Can I work legally in the U.S.A?

A. According to a recent USCIS policy memo dated March 8, 2016, certain battered spouses of H-1B workers may be able to apply for employment authorization. Pursuant to section 106 of the Immigration Act, a battered spouse may apply for an employment authorization document (EAD) by producing evidence of abuse. You can include police reports, medical records, photographs of any injuries, psychological evaluations, statements by credible witnesses, such as friends, neighbors, and family members. You can apply for the H-4 EAD even if your marriage to your H-1B has been terminated as long as you filed your EAD application within two years. If you re-marry prior to the approval of your EAD, you will no longer be eligible for employment authorization.

Q. I recently graduated with a Bachelor’s degree in Engineering and understand that in addition to the 12 months of work authorization, I can also obtain work authorization for an increased duration. Please confirm.

A. On March 9, 2016, the DHS published the final version of the new STEM OPT ruling. In essence, the DHS increased the duration of STEM OPT from 17 months to 24 months. It is important to note that this only applies to individuals who have a qualifying STEM degree from an accredited school. One critical change is a requirement for an employer to show that it has a formal training program that is consistent with the employee’s degree. The requirements are extensive, and site visits will be conducted to verify compliance.

Q. I am on an F-1 student visa and recently my employer submitted my H-1B petition. I need to travel to India while my petition is pending.

A. It is very important to note that when you apply for your change of status (COS) to H-1B and if you travel abroad while your petition is pending, USCIS will consider your request for COS as abandoned, and will deny your request for COS.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

Can I Change Jobs While My Green Card is Pending?

A. I applied for my Green Card with my employer, but now I want to change jobs. Can I look for a new employer before I get my Green Card?

Q. Perhaps. To change jobs while your Green Card application is pending (officially called your “Application to Adjust Status,” Form I-485), you need to meet three criteria.

First, your Application to Adjust Status must be pending for 180 days or longer. Second, your Application to Adjust Status must be based on the Immigrant Worker Petition, Form I-140, which your employer submitted for you. Third, the new job must be in “the same or a similar occupational classification” as your current job.

The third criterion is not easy to determine. Thankfully, USCIS recently issued a memorandum to provide guidance to determine whether two jobs are considered in “the same or similar occupational classification.”

As noted in the memorandum, you must establish by the preponderance of evidence standard (a requirement that more than 50% of the evidence points to something) that the two jobs are in the “the same or similar occupational classification.” This should be done by considering the Standard Occupational Classification (SOC) system, which is from the Department of Labor (DOL). The SOC system organizes jobs into different categories based on a six-digit number system. For example, a Web Developer has SOC number 15-1134. If your current position has the same six-digit SOC number as your new position, they are likely to be considered to be in “the same or a similar occupational classification.” Or when the first 2 or 3 numbers of the six-digit SOC numbers are the same, they may be considered to be in the “same or similar occupational classification.”

In some cases, two positions with varying combinations of six-digit SOC numbers may be considered in “the same or similar occupational categories.” Thus, you should also consider whether the job duties, experience, and education required for the positions are similar, and, if so, use that information to evaluate your situation.

If you meet all three criteria, you should be able change jobs. Due to the complexity in determining this, we encourage you to contact an employment-based immigration attorney for a professional opinion while your Application to Adjust Status is pending. It is also important to consider notifying the USCIS that you are changing employers.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose.(408) 453-5335