For those who are not U.S. citizens or permanent residents, a visa is typically required for entry or re-entry into the United States after international travel. However, if you travel to Canada, Mexico or adjacent Caribbean islands other than Cuba or fewer than 30 days, you may return to the U.S. using only your passport (which must not expire for at least six months at the time of your re-entry) and your H-1B approval notice. This is called the “revalidation rule.” Please note that this rule DOES NOT apply if you submit an application for a visa during your stay in Canada or Mexico and are denied the visa. In that case, you cannot return to the U.S. and must return to your home country.
2. I am currently working with the private practice that sponsored my J-1 visa waiver and H-1B visa. My job requires me to admit (and see) my patients at the local hospital, where I have privileges. The hospital has asked me to work (moonlight) with them a few hours a week. Can I work with the hospital based on my current H-1B visa?
No. Your current H-1B visa allows you to only work for your current employer. To work with the hospital a few hours per week (or per month), the hospital will need to sponsor you for a “concurrent” H-1B visa. The concurrent H-1B visa application must be filed with the Citizenship and Immigration Services (CIS) before your first day of employment with the hospital.
Currently, it is taking the CIS about 120 days to process applications to extend advance parole. One may not apply any earlier than 120 days before one’s advance parole expires, so you do want to file it right at the 120-day mark. If one is currently working pursuant to an H-1B visa, one may leave the US while one’s I-485 is pending and return using the H1-B wisa without abandoning the I-485. This is called dual intent. Using advance parole to travel may affect those still working pursuant to a J1 waiver, so before you do this, you should seek the advice of the qualified attorneys at Badmus Law Firm, PLLC.
Most J-1 visa waivers typically require a three year service obligation. Therefore, if your J-1 visa waiver requires a three year obligation, you must file for an extension of your H-1B visa to fully comply with your J-1 visa waiver three year service obligation. For more information, see our “J-1 Waiver Compliance” article.
In most cases, J-1 physicians can apply for permanent residence (green card) through the National Interest Waiver (NIW) once he or she obtains the J-1 waiver. If interested in applying for the NIW as early as possible, the physician should negotiate a five-year contract with the potential employer and ask his or her attorney to request a letter of public interest as well as the J-1 waiver recommendation letter from the state health agency in which he or she will be employed.
Yes, you can pursue permanent residence through the labor certification process and another process at the same time. The only restriction is that a person cannot have two I-485 applications to adjust status filed at any one time. Otherwise, it is perfectly acceptable to pursue different avenues simultaneously.
When your employer applies for your H-1B visa, your spouse is eligible for and should apply for a H-4 visa independently. However, there is no work authorization for those who hold H-4 status. To continue working, your spouse would need to apply independently for an H-1B visa or other work visa, if she is eligible.
If you have never been counted towards the cap, then you may be subject to the cap at this juncture. However, we need to look at where you will be physically working to see if maybe you might be able to take advantage of the third-party petitioner exemption to the cap. This exemption allows one to be employed by a for-profit employer if one is physically working at a facility that is exempt from the cap.
In general, work may not commence until the H-1B visa petition is approved. However, aliens who previously were issued an H-1B visa may accept new employment upon the filing of a new H-1B petition by a new employer, subject to final approval of the petition. In order to be eligible, (1) the applicant must have been lawfully admitted to the U. S.; (2) the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General; and (3) the individual must not have been employed without authorization in the U. S. before the filing of such petition.
You do not need a new visa even though your employer has changed; however, you must take your current approval notice with you. When you come back, show the new approval notice to the immigration officer and make sure he or she includes the NEW expiration date indicated on your approval on your I-94. For example, if your visa expires June 30, 2010 but your most recent H-1B approval notice reflects an expiration date of August 30, 2011, the immigration officer should issue your new I-94 with an expiration date of August 30, 2011.
Your spouse’s H4 status depends upon your maintaining H-1B status. Thus, if you are no longer in H-1B status, your spouse is no longer in H4 status. When you returned to the U. S. using your advanced parole, you moved yourself out of H-1B status and your spouse lost H4 status at the same time.
The CIS confirmed that H-1B employees are entitled to the same leave as all other employees under the Family Medical Leave Act and/or under employer maternity or parental leave policies. An H-1B employee taking such leave would not violate his or her status. INS stated, however, that an employee cannot take more leave than is usually allowed other employees and still be considered in status.
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NOTE: Immigration law changes frequently. The resources and information provided on this web site are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these pages without seeking the advice of an attorney.
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