RFE on ability to pay on I-140 petition and some number crunching.

SEPTEMBER 16, 2023

Key words: RFE ability to pay I 140

I-140 filing is the second step of a permanent residency application. For approval of the I-140 petition one must prove that the beneficiary qualifies for the offered position. In addition, Petitioner also must prove that the I-140 petitioner has ability to pay beneficiary the salary offered in the PERM labor certification application. Every now and then one comes across a Request for Evidence (RFE) on ability to pay in the context of the I-140 filing. Basic guidelines on the ability to pay issue was outlined in the Interoffice Memorandum dated May 4, 2004, by Mr. William Yates, Associate Director for Operations of USCIS. If you go through the memorandum, you will find that it will talk about the initial evidence to be submitted like Tax Returns or Audited Financial Statements or Annual Reports. Then the memo will go on to say that positive determination to be made if the Petitioner’s net income is more than the offered salary or the net current assets is more than the offered salary, or the beneficiary is currently employed with the beneficiary and was paid or currently being paid the offered salary. But the memo does not address some issues like if the ability to pay must be established for all the beneficiaries for whom the petitioner has filed the I-140 petition or if the ability to pay must be proven for each of the year since the filing date of the PERM application (known as priority date). I will try my best to breakdown to complex I-140 ability to pay issue in simple terms. Typically, I-140 ability to pay issue involve some basic analysis and data scrubbing. Take for example, offered salary in I-140 petition filed in the year 2023 is $ 100k and the PERM application was filed in the year 2021. In this scenario, if Petitioner can prove that the beneficiary made a salary of $ 100k in the years 2021 and 2022 and earning a salary at the rate of $ 100k or more in the current year (2023) then the ability to pay is met. For proof of income in the year 2021 and 2022 you enclose the W-2 statement and for the proof of income for the current year you enclose all the pay slips of the beneficiary for the year 2023. What if the beneficiary made $ 100k only in the year 2022 but in the year 2021 made only $ 80k. Here there is a shortfall of $ 20k for the year 2021. Now you must show USCIS that although for the year 2021 the beneficiary made $ 20k less than the offered wage the company had a net income which is more than $ 20k. Which document do you submit to prove that the net income was more than $ 20k? The document where net income will be shown is IRS Form 1120 which is the US Corporation Income Tax Return used to file the yearly federal tax return by Petitioner. In the Form 1120 you will see Net Income corresponds to the line 28 in tax returns which says, “Taxable income before net operating loss deduction and special deductions”. If this amount is more than the shortfall of $ 20k then you have established the ability to pay. What if in the line 28 the income is negative which means the company had a loss in the tax returns? Petitioner can still establish ability to pay by showing that the Net Current Assets can cover the shortfall of $ 20k. To arrive at Net Current Assets, you must add Assets in Schedule L (only from cash to other current assets – Line 1 to 6) and then subtract this by Liabilities in Schedule L (Accounts Payable to other current liabilities, Line 16 to 18). If the Net Current Assets calculation shows that it is more than $ 20k for the year 2021 then the Petitioner can prove that the ability to pay has been established. There might arise a situation where the tax returns are not available for a previous year because most of the businesses file for extensions to file their taxes and the taxes for prior year will be available only by September and an ability to pay RFE must be responded before that. In such situations Petitioner can either file for the taxes as soon as possible and then respond to RFE or the Petitioners can submit an audited financial statement along with wage reports and quarterly federal returns for the previous years. What you see from the above is that you must prove ability to pay for each financial year starting the year the PERM labor certification was filed. For every year you must see if the beneficiary was paid the salary offered in the I-140. If there is a shortfall, then you must see if the shortfall can be covered by the Net Income and if that is also not suffice then you look to see if the Net Current Assets can cover the short fall. There could also be a situation where a beneficiary did not work for the Petitioner on certain years. This could have happened when the beneficiary’s PERM application was filed and later after a year the beneficiary started employment with I-140 petitioner. This is possible since I-140 job offer is a future permanent job offer which the beneficiary is expected to occupy at least after he/she becomes a permanent resident. So, if you twist the above scenario and say the beneficiary’s PERM application was filed in the year 2021 and the beneficiary was employed only in the year 2022. In this scenario the USCIS would expect that the Net Income or Net Current Assets of the I-140 petitioner is more than $ 100k for the year 2021. As simple as it could sound things get complicated since as per the regulations a I-140 petitioner must prove the ability to pay for all the I-140 beneficiaries. This means the I-140 petitioner must prove that they have ability to pay the offered wage for all the employees for whom the I-140 petition was filed. So, if the Petitioner had filed 10 I-140 applications then Petitioner must prove that they have ability to pay $ 1,000,000 per year. ($ 100,000 times 10 presuming the offered wage for all these beneficiaries were $ 100k). Often some officers would take this line of query in the RFEs and ask for a list of I-140s that were filed by the Petitioner and then ask the Petitioner to prove that they can prove the ability to pay for all these beneficiaries. The way to respond to such RFEs is by creating a report in excel sheet and do a year wise calculation. For every year list the number of I-140s that are pending or approved. Every passing year these I-140s will carry forward unless it is revoked. So, for the year 2021 you will have to prove ability to pay for four I-140 petitions and moving forward to next year 2022 say you filed for another two I-140s then the total I-140 petitions will be six. In the year 2023 say the Petitioner filed for four I-140 petitions. Going by this you in the 2021 report you will have four I-140s, in 2022 you will have six I-140s and in the year 2023 report you will have ten I-140 petitions. For every year you must list the name of the beneficiaries, their receipt numbers, offered salary in I-140 and any shortfalls. Then you add all the shortfalls. Say in the year 2023 for the ten I-140 petitions each of them had a shortfall of $ 20k then you must prove that you have the net income or in the alternative Net Current Assets of $ 200k (20k times 10). Is there any way out for a Petitioner who is not able to prove ability to pay in a particular year. This is where someone like a CPA or a financial analyst can write a report and show how despite the shortfall and negative net income or net current assets, the petitioner had sufficient funds to pay the beneficiary. One can even claim that for a particular year the whole economy suffered like say when the economy went down during Covid pandemic. You can print financial reports showing how all the companies suffered financially in a particular year and the petitioner was also similarly placed during the downturn in the economy. Will the USCIS buy such an argument? Most probably they might. It all depends on how well the petitioner argues and it is within the discretion of the USCIS to accept such an argument. This is called the totality of circumstances argument which is under the discretion of the USCIS adjudicator to accept or reject. What do you do if despite your best efforts and I-140 petition is denied for inability to pay? There is always an option to file for a Motion to Reopen (MTR) followed by an Appeal. Exercising these options depend on beneficiary’s immigration situation especially regarding the six-year time limit. If the beneficiary’s beyond six year stay on H1b in USA hinges on the survival of this I-140 petition then it might be a good idea to exercise the option of MTR or Appeal since one is eligible to file for H1b beyond six years based on the fact that the whole permanent residency process is more than one year old. While this appeal process is going on, the beneficiary can explore other options like filing another labor certification for a different job role with same employer or even filing labor certification through another employer and follow through with I-140 petition with a different employer. Many petitioners don’t realize that when they plan filing permanent residency (Green Card) process for their employees they must be aware of the ability to pay issues that may impact each of the I-140 applications. As you see from above, they must diligently plan the filings of PERM applications/I-140 petitions so that they don’t get into issues of current salary being lower than the offered salary. This issue adversely impacts employers headquartered in regions with higher prevailing wages like Bay area, Seattle, DC and New York metro region. When it comes to consulting firms prevailing wages are based on the region where the head quarters are located. So, if a beneficiary is employed in Chicago and making an annual salary of $ 80,000 but for the sake of PERM application the wages, if the employer has headquarters in Bay area, could be as high as $ 140,000. Inversely, if an employee is working in Bay area and making $ 140k and the firm is headquartered in Chicago the offered salary on I-140 will be $ 80k which helps with the ability to pay calculation. Bottomline, the Petitioner must discuss with the Immigration lawyer about the impact of filing of multiple PERM applications especially if the offered wages are lower than the current wages of beneficiary. Depending on number of PERM applications being planned, Petitioner should discuss with their CPA or Tax consultant regarding the minimum net income or net current assets that must be shown for the I-140s to be approved. Beneficiaries before transferring their H1bs should also consider discussing these issues with their potential employer if they have a choice.

Applying for naturalization while I-751 is pending

SEPTEMBER 15, 2023

Key words: Naturalization while I 751 pending

Some permanent residents who have conditional permanent residence (Green Card) based on marriage wonder if they can file their Naturalization Application (N400) while they have a pending I-751. The answer is “Yes” to this. To understand the context, a person who marries a US citizen can obtain a Green Card by the US citizen filing for I-130 petition and the foreign spouse filing for the I-485 concurrently (if the foreign spouse is in USA). If at the time of grant of permanent residence, the marriage is less than two years old then a conditional green card is granted which is valid for a two year period. Within 90 days of expiration of the conditional permanent residence (conditional Green Card) one can file I-751 to remove the conditions and get an unconditional Green Card valid for 10 years. But due to high backlog of I-751 applications the adjudications take a long time like 17 to 30 months depending on the service center where it is being adjudicated. Meanwhile, the foreign spouse may qualify to file for naturalization since based on a marriage based permanent residence one can apply for naturalization after three years of being a permanent resident. In this situation if one does not want to delay the filing of naturalization they can go ahead and file the N-400 naturalization application while the I-751 is pending. When filing for the naturalization application one can mention the fact that the I-751 is pending and enclose the I-751 receipt notice. If a I-751 is pending for interview, then there is a high likelihood that I-751 interview may be conducted as part of the N-400 application interview process. This way the officer will first adjudicate the I-751 and then adjudicate the N-400 since a N-400 cannot be approved before approving the I-751. It will be a good practice to send evidence of continuation of marriage with such N-400 application when the I-751 is pending.

H4 EAD Application and H4 EAD checklist.


Key words: H4 EAD processing time / H4 EAD Premium Processing

As most of the readers of my blog are aware, spouse of a H1b beneficiary is eligible for H4 EAD (Employment Authorization Document) if the H1b beneficiary has an I-140 approved. H4 EAD premium processing is available if a H-4 spouse files for the H4 EAD application along with the H1b petition of H1b beneficiary. Typically, this is filed with a H1b extension or H1b transfer. H4 EAD processing time has been increasing over the last few years and so you are better off filing for the H4 EAD application as soon as possible. USCIS recommends filing the H4 EAD renewal within 180 days of expiration date. To address the processing delay USCIS had announced around November 2021 that a H4 spouse who timely filed for H4 EAD extension (means prior to the expiry of current H4 EAD), was eligible to work for 180 days based on the H4 EAD receipt notice as far as the H-4 spouse had a valid I-94 for those 180 days period. So even if the H4 spouse had an I-94 valid for 3 years the 180 days extension rule gave work authorization only for 180 days. If the H4 status was expiring within 180 days, then the work authorization also was cut short. Take for example someone’s H4 EAD expired on August 15, 2023, and a timely H4 EAD extension was filed. The H4 I-94 is valid till November 15, 2023. In this case the H4 spouse can work based on receipt notice only till November 15, 2023, and not till February 14, 2024(180 days). Basically, the work authorization can never exceed the I-94 validity. Sometimes instead of waiting for the H-4 extension approval and get an I-94 it might be a better option to leave USA and re-enter and get a new I-94 if your H1b spouse has an I-94 for extended period. After H4s are being adjudicated with H1bs when you file for premium, this option may not be required but one can still exercise this option if one has not filed for H4 along with H1b. Around May 2022, USCIS came with another guidance which said the 180 days extension based on H4 EAD receipt notice is eligible for 540 days extension till October 26, 2023. But again, one should understand that this 540 days extension is possible only if the H4 EAD applicant has an I-94 valid for 540 days. To avoid any delay, make sure that you file for the H4 EAD application with the correct service center and enclose the following. Use this as a H4 EAD checklist. Form G-1145 Form I-765 2 Passport size photos Copy of current I-94 Copy of passport Copy of most recent H4 approval notice / H4 receipt notice Copy of prior EAD card Copy of marriage certificate Copy of H1b approval of spouse Copy of 140 approval of spouse Copy of spouse’s passport Copy of spouse’s pay slips We hope you find the above article useful in applying for the H4 EAD and understanding the H4 EAD 180 days extension rule which can be very trick to understand.

H1b Stamping in USA.


Key words: H1b visa stamping in USA

In June 2023 during India’s Prime Minister Narendra Modi’s visit to USA, he indicated that soon Indian citizens will be able to renew/revalidate their H1b visas in USA. Even US Department of State in an interview during the beginning of the year 2023 announced that they are going to start a pilot program to issues H1b stamping in USA, which used to go by the name visa revalidation program. Most likely such a revalidation pilot program for H1b stamping in USA should start by end of year 2023. Earlier the visa revalidation was very popular with H-1b and L-1 non-immigrant visa holders. It started around the year 1987 for diplomats and benefits of such revalidation was extended to other visa holders including H1b and L-1 visa holders. Not only H1b visa holders, even their H4 dependents were eligible to revalidate or get their H4 stamping in USA. Requirement for H1b revalidation was that the applicant should have had a H1b visa which is going to expire in sixty days or expired within one year of applying for revalidation within USA. If they qualified under this criterion, the applicants had to send their visa application with passport to Department of State and within a month you will get the passport with visa stamping. Instead of the name of the consulate listed in the consular post, it will list Department of State as the issuing post. Such revalidation benefit was under chopping block after September 11, 2001 terrorist attack and by the year 2004 there were requirements for biometrics and Department of State felt this is possible only in US consular posts. The new program for revalidation should have some similar requirements. Stay tuned in for more updates. This will be such a great benefit. But one should understand under the current visa regime, even when you go for stamping abroad is not as strict it used to be. If you work for an established company, then there are no issues at all with stamping. The Dropbox provision also further eases the whole visa process. There are some 221gs issued for some companies which don’t have a good track record and consulate would like to get some additional documentation before they issue the visa. Ultimately one should get the visa unless there are some serious issues the consulate foresees. You can go through one of my blogs where I have written about 221gs on options available to you.

Are you subject to H1b quota if you had a H1b approved in the past!!


Key words: H1b lottery

Everyone who has some knowledge of H1b classification/visa is aware that once you are counted in the H1b quota in the last six years you are not subject to the H1b quota again. So basically, if you were counted in the H1b quota in the year 2020 then till the year 2026 you are not subject to H1b quota. But there are various circumstances when you are not subject to quota even if you had a H1b more than six years back if you had worked in USA in the past. Note that the main condition not to be subject to H1b quota if you had a H1b approved more than six years back is if you worked in the past in USA on H1b status. Let us look at an example that will explain it in clear terms. Raghu, a citizen of India, was working in India as a Software Engineer. In the year 2000 (23 years back) a company Amazing Tech Inc. from USA offered a job and filed the H1b petition for Raghu. After the H1b was approved Raghu came to USA in the year 2001 and worked for six months but due to some personal situation he had to move back to India. Now after 23 years Oracle Corporation in USA wants to hire Raghu as a Program Manager. Raghu is not subject to quota and Oracle Corporation can file for H1b under consular processing and seek validity for 3 years since he still has five and half years’ time left on his H1b out of the total six years. If Raghu in the past spent around 4 years in USA on H1b then he would be eligible for a 2 years validity on the H1b. Same situation as above, but what if Raghu never came to USA after his H1b was approved in 2000? He will be subject to quota since recapture of the balance of six year will work only if someone has spent some time in USA on H1b. Many are not aware that they are not subject to H1b quota if they had spent some time in USA working on H1b, even if it was two decades back. Companies can look for such resources without having to worry about the H1b quota when they make hiring decisions. What happens after sixth year? Most of the time one of the employers of H1b beneficiary would have filed a PERM application (first step of Green Card/Permanent Residency) or I-140 petition (second step of Green Card). The way it works is that, if a permanent residency process is more than 365 days old then you get one year incremental extension beyond the six years term. This is a situation where a PERM application was filed, and the case went into audit or denied and employer filed Request to Reconsider and the whole process since filing of the PERM is more than one year old. This situation clearly allows the H1b beneficiary to seek one year extension beyond six years. Similarly, if one’s PERM is approved, and one is waiting to file the I-140 or filed the I-140 and is pending with USCIS and total time elapsed from the date of filing the PERM to date of the expiry of H1b is year or more then one qualifies for one year extension. If a I-140 is approved and immigrant visa numbers are not available, then the H1b beneficiary is not subject to six year limit and in fact he/she can get extension for three years period instead of one year. Anyone who’s I-140 is approved is also not subject to the H1b quota. So, as you can see, there are various situations which will make a H1b beneficiary not subject to H1b quota even beyond the last six years period.

Immigration options for H-4 spouse who is victim of domestic violence.


Key words: H4 Domestic Violence

Every now and then an Immigration practitioner is confronted with this situation where a H-4 spouse calls and says that she is a victim of domestic violence, and her spouse is harassing mentally and sometimes physically. By the times lawyers get a call the domestic violence situation has gotten grim. What are the options for the battered spouse who is on H-4? The battered H-4 spouse must first figure out what will happen to her status? If she has still time left on her I-94, she can stay in USA without any issues till the expiry of the I-94. Hopefully, by the time the H-4 is up for renewal tension has cooled down and she is able to file the H4 extension along with the spouse. What if the domestic violence situation has not settled down? To continue staying in USA the H-4 spouse can file a Form I-539 extension based on the spouse’s H1b approval. In the event, the H1b spouse refused to provide supporting documentation then try to file the H-4 extension with whatever documents they could like passport, current I-94, marriage certificate. Basically, fill out the I-539 form to the best of their ability with whatever information they could provide. For whatever information is not available, inform USCIS why the information / document cannot be provided. You need to clarify on this since for H-4 extension you will need the H1b approval or receipt notice and pay slips of the H-1b spouse. Request USCIS to gather the required information from their records since as a H-4 spouse, who is still married, they are eligible for the H-4 extension. Other option if you are not able to pursue the H-4 extension is that of filing for a change of status to B-2(tourist) or change of status to F-1(student). One can also explore some job offer from non-profit organizations or institute of higher education like universities. These organizations can file for H1b at any point of time and bypass the H1b quota. If you are already separated from the H1b spouse, how do you support yourself? There is a special EAD option for battered and nonimmigrant spouses which USCIS can grant you once you filed a Form called I-765V. Once approved you can get work authorization for two years. Apart from the above one can also explore the U visa options. U visas are for a victim of a crime including domestic violence. U visa regulations set out the list of crimes and domestic violence will also qualify under the regulations. In order to qualify for the U visa, one has to prove that you are a victim of a crime in USA and that you must have helped police/prosecutor and finally you need to prove harm (mental or physical). It is not sufficient that you helped prosecutor. There is also this form I-918 Supplement B you file as evidence of helping law enforcement. You can also file EAD form I-765 requesting for employment authorization. But EAD will be issued only if the USCIS makes a bona fide determination on your case, and this is not approval of the U visa. Bona fide determination is a preliminary stage. Even to reach this stage of bona fide determination it may around 3 to 4 years and U visa by itself can take around 5 to 6 years to get approved because there is an annual quota of 10,000 visas and the demand is so high and there are thousands of U visa applications pending with USCIS. Depending on the circumstances even family members of victim can qualify, and the U visa victim can also remarry and there is no restrictions on that. To make an appropriate filing you need to file Form I-918 Supp B, I-918, a statement explaining your situation, Form I-192 waiver form if applicable, cover letter, identity documents and other supporting documents like medical report, police report, court records etc. U visa if approved is granted for 4 years and after being in U visa for 3 years you can potentially qualify to file for permanent residency and ultimately for US citizenship.

Filing another H1b while your visa application is stuck in 221g.

AUGUST 31, 2023

Key words: 221g H1b

Once a H1b petition is approved, the H1b beneficiary can continue to stay in USA if a H1b approval is issued with an I-94 and H1b is listed as the status. Such approvals are issued with I-94, for change of status to H1b or H1b transfer or H1b extension. But there are instances, when an I-94 is not issued. It could be either that the H1b employer opted for consular processing or the H1b employer’s request for H1b extension or change of status was not granted. In such situations, the H1b approval will clearly state that the H1b beneficiary cannot work pursuant to the approval and will have to apply for a H1b visa in a US Consulate abroad. The approval will clearly list the US consulate. Does it mean he has to go to the same consulate listed! No. The H1b beneficiary can go to any other US consulate as far as the US Consulate has some relation to the H1b beneficiary like it is the home country or H1b beneficiary is travelling to a particular country or he is temporarily residing in a particular country. For example an Indian national can go to Singapore if he is temporarily working in Singapore. One can also go to neighboring countries like Canada or Mexico for H1b stamping. If you are from Asia but travelling to Europe you can also apply for H1b visa from any of the US Consulates in Europe. Once the H1b visa applicant goes online and submits a non-immigrant visa application he will have to appear for an interview unless he qualifies for Dropbox. Post Covid, most of the H1b visa applicants who had H1b visa in the past qualify for Dropbox. But remember that because you qualified for Dropbox your visa stamping is not guaranteed. US Consulate often issues 221(g) notices which will ask for additional documentation. Many times, US Consulate requests for same documents which were part of the H1b filing. Again, they will give you two options. Either submit the requested documents by Dropbox or appear for a personal interview. There are also some cases where no documents are requested by the US Consulate and only information you will get is that your case is under administrative processing. Basically, your case is in limbo or went into the administrative black hole. So, what do you when you are such a predicament? You can contact the US Consulate in the timeframe they have stipulated on how often you can contact. It might also help if your H1b employer writes to them and let US Consulate know how crucial you are to their success and how they will suffer financially without your presence in USA. These administrative processing situations are especially tough on H1b employees who are residents of USA and went on a trip to their home country. Many times these H1b applicants own home, kids are US citizens and they attend schools and they have vehicles. Basically, these visa applicants are stuck abroad and cannot move back to USA, which they call home. I should not fail to mention that you have any urgent issues to take care off like moving things in your house or selling things you can apply for B-2 for the limited purpose of winding down you affairs in USA. What ultimately happens to such 221g cases? Sometimes, as we said, it is in a black hole and nothing happens in many cases and the H1b approval itself would have expired because of lapse of time. Very unfortunate but it happens often. For the cases which sees the light at the end of the tunnel, the US Consulate will write a consular report to the USCIS and USCIS will take their own sweet time and send a Notice of Intent to Revoke(NOIR). But unfortunately, by the time a USCIS officer picks up the case to send a NOIR the H1b would have expired. So, should you wait for eternity for a chance to get back to USA? No. Start developing an alternate plan. Afterall, dealing with Department of State or USCIS is like playing Chess. You always develop your openings well and try to play with all pieces. Based on the interview you need to figure out what exactly triggered the 221g? You can come to a fair conclusion based on the interaction you had with US Consular officer or based on the H1b documents itself. May be the H1b petition did not state in clear terms what client or project you are going to work on. Or maybe the H1b employer lacks good track record which made the US consular officer suspicious. You assess the situation and then file the H1b through another employer who has a good track record and list out in great detail what work you will be doing including Statement of Work, Purchase Orders etc. Most of the time the US Consulate suspects if there is actual work for the H1b beneficiary and if you cover this issue in the filing, the US consulate has less reason to issue a 221g. Many times, it also helps to speak with an Immigration Attorney before attending a US visa interview. An Attorney can give important tips after going through the H1b petition on how to answer certain questions relating to the H1b petition or address some issues pertaining to prior jobs or any status related issues. So, I will say, don’t wait for the 221g issue to be resolved if it remains pending for a long time. Just find a good H1b employer and get your H1b filed under consular processing. Make sure you have a client assignment, if a consulting firm is filing the H1b. If a product company is filing the H1b make sure enough information/documents are provided about what the company does, product details and what is your role in the company. If you are one such visa applicant stuck because of 221g, we are sorry for your plight. But don’t lose hope and start talking to other employers and get your H1b filed again. Just the fact that you had 221g in the past or present does not mean that you will get another 221g. Every application must be reviewed by officer on merits. As far as the prior 221gs were not issued because of any fraud or misrepresentation attributed to the you (H1b beneficiary), you can rest assured, you have a good chance to get the H1b visa stamped if the case is presented in a strong way to USCIS since US consulate gets a copy of the petition and US consulate relies a lot on the H1b petition papers when it comes to availability of work. We wish you the very best if you are stuck in 221g and we hope you can soon come back to USA to resume work and start leading a life with your family and friends.

Filing H1b for a remote worker.

AUGUST 30, 2023

Key words: H1b remote work

Since the advent of remote work culture, question often arises how it impacts the filing of a H-1b petition. Remote work is not something new and even pre-COVID H1b employers used to allow H1b employees to work remotely from time to time. The way remote work was handled pre-COVID was by listing the home location as an additional worksite. Basically, the Labor Condition Application (LCA) would have two addresses. One, the employer/client worksite and the second one will be the H1b employee/beneficiary’s home address. Most of the time under such an arrangement the prevailing wages would be the same since both the worksites (home and office) would be in same metro region. There were also instances when at the time of filing the H1b no telecommuting was offered but later telecommuting was agreed to. In this situation, no LCA for additional home worksite was required as far as the home was within commuting distance. Only notice of posting was required at the home worksite. That begs the question how you do a notice of posting for the job offered at a home location. Rules are akin to the posting formalities for a business worksite, which is posting in two conspicuous locations for 10 days. So, you do the same kind of posting in the house in two locations. What changed after COVID was majority of the H1b employees were offered telecommuting and many of them chose to move to states or cities that were more affordable. H1b employees from bay area started moving to Sacramento or H1b employees from Los Angeles moved to San Diego or some employees from California moved to Idaho. No surprise that Idaho experienced exponential rise in home prices. In such situation, when a H1b employee was moved to an area which is not within commuting distance from the worksite(s) listed in H1b petition then a H1b amendment was required prior to the H1b beneficiary starting to work from the remote location. Well, many H1b employers were probably not aware of this and only during site visits by USCIS officers (FDNS) they would have realized that they failed to file the H1b amendment and thus there has been a violation of status by H1b employee and non-compliance of H1b regulations by employer. In order to comply, the H1b employer was supposed to file the h1b amendment listing two locations (business address and home address) and then move the H1b beneficiary to a telecommuting arrangement. There could also be situation, which were quite common, where H1b beneficiary solely works remotely from home. In this situation many employers were under the wrong presumption that you must continue to list the business address along with home address in the LCA. Such practice is not warranted and in fact not proper, since you have to only list the actual worksite in the H1b. If the H1b worker is going to be working solely from home, then you should not list the business address. But some employers may say there is a possibility of this H1b worker to move to a hybrid work situation in future, say after a year and the employer does not want to spend money filing an amendment. If this is a likely scenario, then you can list both the addresses in the LCA and also in the H1b and clarify in the itinerary about this possibility and that is the reason two locations are listed in LCA. In fact, sometimes it makes sense for the employer to make a H1b beneficiary work remotely based on the wages offered. Take the example of a Software Engineer job with the employer head quartered in Silicon Vally where the prevailing wage will start somewhere around $ 120k and the employee is stationed in Chicago or Cleveland where the prevailing wages will be like $ 80k. In this scenario it makes lot of sense to just make the employee work from the remote worksite if the employer does not have the budget to pay the prevailing wage of Silicon Valley/Bay area. What if there must be an occasional trip the H1b employee has to make to the business address? It can be potentially covered, as far as it falls under the provision of short-term placement. Under this provision a H1b employer is allowed to place a H1b worker in a location not listed in the H1b as far as it does not exceed 30 days in a year and the employer covers the expenses related to travel, hotel, meals and incidental expense. It can be stretched to 60 days under certain terms which situation needs to be analyzed by an experienced immigration practitioner. As you can see, the remote worker scenario can pan itself into varied situation and an expert lawyer can advise the employer whether to go for a totally remote or a hybrid work model.

Can you run a business or do a side hustle/gig while on H1b!!

AUGUST 29, 2023

Key words: H1b side hustle

USA is a land of opportunity and provides people with lot of avenues to make money. Due to inflation everyone is trying to make some side income. H1b beneficiaries also come across many opportunities to make some side income or they think of opening a side business. Can a H1b beneficiary take up a side gig or start his/her own business? Unfortunately, the answer is a “No”. The reason being, H1b beneficiary cannot be involved in any other work than the duties listed in the H1b petition. So H1b beneficiaries cannot drive with Uber/Lyft/Doordash. Basically, they are shut out from the gig economy, which is sad but the stark reality. There are also many H1b beneficiaries who are budding entrepreneurs, and they are unable to start their own business. This is because if you start a business, you will be involved in the activities of the business, and it will be outside the scope of the H1b petition which limits you to work for the H1b employer and not for anyone else. Question often arises if one can be a silent partner in a company? One can be a silent partner is it even feasible to be a silent partner when you are a co-founder! Will the USCIS buy your argument in case of an investigation of status violation that you were just a partner and not do any activity! Things get even more complicated when you have to fill out the Form I-485 at the time of filing the adjustment of status application. Here you have to list all your prior jobs held and if you were a co-founder, you may be obligated to enter the details of any activities you were involved and you cannot miss out on you being a co-founder of a corporation. It is so difficult to divest yourself from all the activities and be a silent partner. So, what can you do when you have an amazing business idea or have got an offer to get involved in a start up and use your specialized skills. One way out is filing a part-time H1b. It is allowed under the laws for one to have a part-time H1bs so that you can do work after your day job and over the weekend. Any startup or established company can file such part-time H1bs as far as the work you are doing will qualify as specialty occupation. You will also consult an attorney specializing in contracts or intellectual property to make sure that you are not violating any non-compete terms or non-disclosure clause with your full time H1b employer. Only actual work is not allowed but if you are going to be just a passive investor then there are no issues of status violation. You can own stocks of companies and there are no restrictions on that since you are not actively involved in the activities of the company. Will a day trader be considered as a restricted activity? It depends on if you day trade, as if you are running a business. Can you on a H1b perform work for a company in your home country? You will be surprised that activity is also not allowed even though you might be a citizen of your home country. Any work you do other than the work mentioned in the H1b is not allowed. So, what we suggest is that if at all you want to be involved in an activity other than your H1b chose a field which will qualify for specialty occupation and ask your prospective part-time employer to file a part-time H1b.

P-3 visa for artists to come and perform in USA.

AUGUST 27, 2023

Key words: P3 Visa

Music unites the world. Even Indians and Pakistanis who are traditional rivals put their differences aside when it comes to appreciating musicians across the border. The way Pakistani’s listen and appreciate music of RD Burman or Kishore Kumar, Indians also appreciate the music of Ghulam Ali or the great Nusrat Fateh Ali Khan. The expatriate community of South Asians in USA have had the unique opportunity to enjoy live music shows of musicians from South Asia thanks to the P-3 visa. P-3 visas are for musicians from non-US countries who want to perform culturally unique program in USA. I just gave the example of musicians from the sub-continent but the use of P-3 by musicians to perform in USA from all over the world holds true. India is culturally so unique with so many ethnicities, languages and religion. There are more than hundred unique music / dance forms and each of them culturally unique ranging from Carnatic music, Hindustani music, Sufi music, Bharatanatyam, Kuchipudi, Kathak, Mohini Aattam and Kathakali. There are hundreds of musical instruments ranging from Sitar, Veena, Violin, Sarangi, Mridangam, Tabla, Dholak to name a few. There are also the film industries in Mumbai, Hyderabad and Chennai with industries like Bollywood or Tollywood which also churns out music which are culturally unique to those states and appreciated by audiences speaking Hindi, Tamil, Telugu, Malayalam or Kannada. Over the years there are hundreds of musicians who have entertained people in US soil with their culturally unique art form through the P-3 visa. Not only to artists from India, the P-3 visa has been widely used by artists all over the world to come and entertain and expose the US population to culturally unique art forms. So, you are a performing artist outside USA and you perform something which is culturally unique and you want to come to USA. How do you go about? First, you need to find a sponsoring organization in USA. There are more than hundreds of organizations in USA which are made of people from a particular community or country whether it be Indian Americans or Filipinos or Russians. Even religious institutions like churches, temples or mosques try to organize cultural events. All these organizations from time to time try to get musicians or dancers to perform in USA. So, you need to be in touch with these types of organization so that you or your group can be considered for a P-3 visa by way of sponsorship. Over the years we have worked with many such cultural organizations and religious institutions who organize performances by artists for sake of US audience. Even schools teaching music and dance, sponsor artists to come and perform in USA jointly with their students. Sometimes they want musicians to come and perform for plays or for dance performance. So, the first step is to connect with someone in USA who can sponsor you for the P-3 visa. Once you found a sponsoring organization you will have to negotiate your wages for performing in USA. Then, the sponsoring organization will finalize the itinerary so that the schedule and venue of performance are decided. USCIS will expect that P-3 petitions are supported by agreement with host organizations in different cities and with theaters / schools where the auditoriums will be rented. Before filing of P-3 petition with USCIS, an advisory opinion from an artists union relating to the performing artists is required. For musicians we get an advisory opinion from American Guild of Musical Artists (AGMA). P-3 petitions are filed for a duration not more than one year with USCIS with names of all artists, details of what they will performing, listing of venues and detailed profile of all the artists including support documents like certificates and news articles that review the performance of artists. Is it really required that all these artists must produce news articles on their performance? No. It will help but as far as we can prove by way of some letters or certificates that the artist will be performing culturally unique program, it is good enough to satisfy USCIS. So, it is not important that the artist has to be famous in their field. For artists who are famous by way of winning major awards qualify for visa like O-1. For P-3 there is no such requirement. P-3 can also include training workshops, rehearsals and activities are not limited to performance. Once the P-3 is approved the artists will have to apply to the US Consulate for the visa. Typically, when an organization applies for P-3 they try to have a buffer between your arrival to USA and the performance so that you have sufficient time to settle down before performance. You can also obtain a visa a lot earlier than the P-3 start date, but you cannot enter USA more than 10 days before the actual start date on the P-3 approval. For any artist it should be an amazing experience to come and perform in USA and P-3 visa acts as a perfect vehicle. Law firms can play a unique role in positioning the artists right way in P-3 applications and avoid delay or save costs relating to Request for Evidence (RFE). Strategizing a P-3 petition can make or break a case. When you are dealing with different entities like host organizations, venues, and famous artists you don’t want to take a chance. Lawyers will provide advice as to how multiple groups or artists can be part of one petition or what kind of petitions are required for support personnel. So, venture out on doing a P-3 but plan it properly by getting the right legal advice.

Non-availability of birth certificate for I-485 application.

AUGUST 26, 2023

Key words: 485 Birth Certificate non availability

You are excited and entering the last phase of getting the US permanent residency (Green Card) and you are collecting the documents to file the I-485 application or adjustment of status. One important piece of document you will be required at this stage is your birth certificate. Many I-485 applicants don’t have their birth certificates or have some issues relating to there name in the birth certificate. What if your name is not clearly mentioned in the birth certificate or the name just says “Boy” or “Girl”!! Yes. It does happen, often in India where unlike USA names don’t have to be given at the time of registration birth. Things are changing in India, but if you go back few decades it is very common to have no name or some kind of nick name in the birth certificate. If you have such a situation then you should get an affidavit from your parents and some relatives attesting the date of your birth, name of your parents and clarifying that the person referred to in the birth certificate is you. In the event, country of birth is India and you don’t even have a birth certificate and your birth date was later than April 1, 1970 then you have to get a non-availability certificate from the municipality of city/town you were born. We have seen from our experience that municipalities in India routinely issue such non-availability certificates. Along with the non-availability certificates you should also get affidavits from parents and relatives. Note that affidavits from relatives are also important. In fact, USCIS may say that affidavit from parents carry less weightage since parents have a vested interest in you getting permanent residency. After all, one day you may end up sponsoring them for Green Card. Same does not apply for your uncles or aunts or some neighbors. Along with these affidavits we also routinely include old records like School Leaving Certificate which has the date of birth. You would have noted from the above that we gave a cut off date of April 1, 1970 for people born in India. This is because only after April 1, 1970, Indian government made it mandatory to register birth. Department of State as a policy acknowledges this fact. This policy becomes relevant when many people sponsor their parents for permanent residency. In these situations when you apply permanent residency for Indian senior citizens you can enclose their Income tax card (PAN Card) and Aadhar Card (Indian equivalent of Social Security Card) and some other things like election card. You should upfront mention in the cover letter that USCIS should accept these documents on record and request for birth record. If you don’t do this, you are bound to get a Request for Evidence (RFE) asking for birth certificate. In conclusion, we feel potential I-485 applicants should plan ahead to start getting the documents ready so that last moment they are not scrambling to get proof for their date of birth.

H1b RFE on Specialty Occupation.

AUGUST 25, 2023

Key words: H1b specialty occupation RFE

If any of you received a RFE on your H1b filing and one of the issues raised in the RFE is about Specialty Occupation, then you are not alone. Very often we come across these types of RFE. One way to avoid such a RFE is to, upfront at the time of filing the H1b, present a good case so that there will be no specialty occupation issue raised by USCIS. What a specialty occupation RFE basically means is that USCIS is asking the H1b employer to prove that the position for which the H1b was filed requires a bachelor’s degree in a specific major. I mean “specific major” and not “any major”. If an offered position is such that a people with multiple/different majors as part of their bachelor’s degree may qualify then the position is not specialty occupation. Let us take an example of Business Analyst. USCIS may argue that this position is not specialty occupation since a person with either a major in Computer Science or major in Business will qualify. How do you overcome a specialty occupation RFE? We suggest do the following: You must review the job duties listed in the H1b petition and expand those job duties and explain how complex these duties are and that to do those duties you typically require a bachelor’s degree in a specific major. You research the websites of different universities in USA and look at what they are talking about the job prospects of doing a particular course. Many times, you will find that the university website will say that if you do a major in Data Science then you can become a Data Analyst. Print out relevant pages of all these websites and let USCIS know that it is typical in USA to require a bachelor’s degree in data science for the position of Data Analyst. Look into Occupational Outlook Handbook (OOH) and see what they have to say about the required qualification for the offered position. If the position is Software Developer, then it is easy to refer USCIS to OOH and say that the position is specialty since OOH says the required major is bachelor’s in computer science and the position offered is very similar to the position of Software Developer listed in OOH. OOH is like a double-edged sword. It works well when the OOH says the requirement is bachelor’s degree in a specific major and it work against you when a position is listed in OOH and it says the requirement can be Bachelor’s in multiple majors ranging from Computer Science to any engineering. So as legal practitioners we take great effort in analyzing a role before selecting the SOC code. First, we look at OOH and if we feel OOH will go against the client with regard to specialty occupation, we look at some alternates. So, strategizing the case with the correct job title, SOC code and highlighting the right duties are extremely important for success of a H1b petition. Go to all job boards like Dice, Monster, Zip recruiter, indeed etc. and type the H1b job title. Say if the position in issue is Project Manager and the beneficiary has a Bachelor’s in MIS then you must selectively look at advertisements which say that the position of Project Manager requires a major in MIS / Compute Science / related field. Note that you cannot select an advertisement which says Bachelors in MIS / Business Administration. Business Administration is very different from MIS or Computer Science and USCIS will claim that since the industry standard is to accept varied major the position does not qualify for specialty occupation. H1b employer can also investigate the current and past hiring practice to see if they had anyone working or in the past worked in a position similar to the offered position. Next step is to see if these people who hold similar positions or held similar positions had a major in Bachelors or master’s level which is the major you required for the offered position in the H1b. Say your requirement for the position of Data Scientist was Bachelor’s degree in Statistics then you look to see if you had anyone working or worked in the past as Data Scientist and they had a Bachelors or Masters in Statistics. You gather a list and then present to the USCIS proof of employment of all these individuals by way of enclosing copies of their degree, transcripts, pay slips and job duties. You are basically arguing that it has been your practice to require a particular major for a position in the past and present. One can also get statements from senior professionals in the field of offered position. The statement from these senior professionals should say that they reviewed the position/duties and based on their years of experience in the field they can vouch that the position requires a Bachelor’s in a particular major. Another option is to get letters from companies like the H1b employer and these companies can state that it is customary for them to hire a person with a specific major for a position being offered in the H1b. Say for example the position in question is Technical Recruiter and the requirement stated in the petition was Bachelor’s in HR or related field. Then the company which is akin to the H1b employer can give a letter stating that for the position of Technical Recruiter they also require a Bachelors in HR. Lastly, an expert opinion from an academician that the offered position requires a specific major will help. These are called position evaluation. These are expensive and I will say one should use it judiciously based on the overall evidence you have gathered. If you are not able to prove specialty occupation based on many of the above grounds like industry standard or past hiring practice or reference letters then position evaluation by an academic professor becomes very crucial. These letters are issued in the letterhead of the universities where the Professor is employer. These are obtained through credential evaluation agencies like Trustforte, Park Evaluation to name a few. I can say you don’t have to prove specialty occupation based on all the above factors. If you can prove well and good or else go with whatever is available. Even if you argue based on complexity of the position, requirements of other companies by way of job ads and enclose a position evaluation that will suffice. Success will depend on case to case. Software Developer can be easily proven to be a specialty occupation versus having to prove IT Support Analyst to be a specialty occupation. Bottomline, we can say that strategizing a case before filing the H1b is key so that you avoid having to face the specialty occupation RFE at a later stage.

Using the H1b visa of prior employer to enter USA and related status issues.

AUGUST 24, 2023

Key words: H1b visa stamping

Situation often arises when a H1b beneficiary enters USA using the H1b visa of Company A and later transfers the H1b to Company B. H-1b vias obtained through Company A’s H1b remains valid and the H1b beneficiary has to travel. In this situation many H1b beneficiaries get concerned if they can travel using the H1b visa of Company A. Rest assured that you can always re-enter USA with H1b visa of the Company A, as far as the H1b visa is valid at the time of re-entry to USA. So at the Port of Entry you have to present to the CBP officer the valid H1b visa from Company A and most recent H1b approval from Company B. It is crucial to present both these documents together, since often times, H1b beneficiaries don’t bother to produce the most recent H1b approval and CBP ends up issuing an I-94 which has end date matching the H1b visa in passport and this end date matches with the H1b approval of Company A. H1b beneficiary after arrival to USA does not bother many times to print the I-94 from CBP website and only at the time of H1b extension they find that the I-94 has already expired and H1b beneficiary is out of status. Employers are also required to inform the H1b beneficiary prior to travel that on arrival they have to submit the new I-94 so that the I-9 records are updated. But this is seldom practiced by most employers. Only option in this scenario is to file a Nunc pro Tunc petition to get a backdated approval. Nunc pro Tunc in latin means “Now for Then”. So to conclude you can use the H1b visa of prior employer but make sure that the end date in I-94 after re-entry matches with the new H1b approval.

Beyond 60 days grace period in H1b transfer.

AUGUST 23, 2023

Key words: H1b 60 day grace period

Since the inception of the 60 days grace period in terms of H1b transfer many questions have arisen as to what happens if one files their H1b transfer beyond the 60 days grace period. There are some legal practitioners and employers who are reluctant to aid the filing of H1b transfer beyond 60 days. But from practice I feel we have had success in filing H1b transfers beyond the grace period as far as you make the right arguments. Should you make these arguments upfront at the time of filing or wait for a RFE depends on circumstances. If the delay is only by couple of weeks we can wait for the RFE and if the delay is more than 2 weeks explain the circumstances as to why there was delay in filing the H1b transfer. Reasons could be you got a job offer earlier but there was some administrative delay in filing the LCA and H1b . In real world job market it does take more than 60 days to land a job and one should explain this to USCIS. The other grounds we can ask USCIS is to consider the family situation like kids attending school and going out of USA can be an issue or having financial commitments like paying mortgage which will be impacted if you travel outside and get stuck for visa appointments or even explain to USCIS about some health condition of you or your family which will be impacted if you go outside USA. Similarly, the employer can also argue as to how their business interests will be impacted if the beneficiary has to leave USA. So I will say from my experience we have had success with filing H1b transfer beyond 60 days grace period and one has to strategize the case based on one’ situation.