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H-1B in 2008: Gap Issues and Getting H-1B Status Aliens who are applying for H-1B petitions within the United States must have valid nonimmigrant status. For these aliens, there are two components to an H-1B application: the H-1B petition itself, and a request for change of status or extension of status. In this article, we’ll discuss some common issues and questions about H-1B status, including gap issues. Gap Issues If you wish to change to H-1B status, you must have valid non-immigrant status. Furthermore, you must prove that you will have valid non-immigrant status from the day you submit you H-1B application (usually April 1) to the day your new H-1B visa actually goes into effect (usually October 1). Effectively, that means that you must prove you will have valid non-immigrant status up to September 30, inclusive. No Valid I-94 If you do not have valid nonimmigrant status until the effective H-1B start date, it’s possible that your H-1B petition will be approved, but your request for a change of status will not be approved; therefore you will not be issued a valid I-94 (entry/exit card) at the bottom of your H-1B approval notice If you are not issued a valid I-94 with your H-1B application, you will need to travel to another country (usually your home country), apply for an H-1B visa at a U.S. consulate there, and use your H-1B visa to reenter the United States, and thus gain H-1B status. Example: Dr. Gupta’s F-1 status expires on September 15, leaving a 15-day period when she will not have valid status or authorized stay in the United States. She successfully files an H-1B petition but receives no I-94 card on her approval notice. Dr. Gupta goes back to her home country, apply for an H-1B visa at the U.S. consulate there, and reenter the United States with an H-1B visa. Her H-1B status goes into effect upon her entry to the United States. Planning Ahead If you know that your status (and any applicable grace period) will expire or end sometime between April 1 and September 30, there are two ways you can plan to deal with this gap:
I-485, EAD, and H-1B If you file an I-485 (an adjustment of status application, the approval of which gives you your green card), you can receive authorization to work in the United States while your I-485 application is pending. This authorization comes in the form of an EAD—employment authorization document, also called a work permit. Usually, your EAD is valid for one year at a time. However, if your I-485 application is denied, your EAD status will expire, and you will lose valid status. One way to avoid this outcome is to work under H-1B status instead. Even if your I-485 is denied, your H-1B will remain valid as long as you are with your current employer. Thus, H-1B status provides you with a safety net in case your I-485 is denied. However, because of the H-1B quota limitation, some people might not have had a chance to get an H-1B and might have had to work by using an EAD under I-485. In this situation, they are in I-485 pending status. To have a safety net in case that their I-140s are denied, we suggest that they apply for an H-1B sponsored by their employer. Although they cannot get H-1B status in the United States, they will be able to go outside the United States, apply for an H-1B visa, and return if their I-485s are denied. Example: Dr. Kumar’s OPT expires on January 15, 2008. He works for a private company and missed his chance to apply for an H-1B in April 2007. Dr. Kumar filed his NIW and I-485 in October 2007 and obtained an EAD. Once his OPT expires, he plans to use his EAD to work and is in I-485 pending status. Although this option gives him the ability to stay and work legally in the United States, his right to stay and work depends on his pending I-485, which in turn depends on his pending NIW. We would suggest that Dr. Kumar apply for an H-1B sponsored by his employer in April 2008. It provides a safety net in case his NIW is denied—in which case his EAD would immediately expire, and he would have to leave the United States, although he could come back to the United States with an H-1B visa. Let Zhang & Associates Help You Through the H-1B Process Zhang & Associates’ immigration attorneys can give you more information about specific requirements and determine how they apply to you. We can also ensure that your complete and accurate H-1B petition arrives at USCIS on April 1, 2008, giving you the best possible chance of approval. If you plan to file an H-1B petition in 2008, you can email us at freeevaluation@hooyou.com for a free consultation with one of our experienced immigration attorneys. We respond to most inquiries within 24 hours. --------------- At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074 In the moment of dynamics, our clients can always count on us. (02/14/2008) For more immigration news, please click here |
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