Visa Status Alternatives Can be Quite Complex

By September 27, 2013News & Press

Though getting an H-1B status after a long petition is the usual desired outcome, it pays to look at all options. The annual cap on the number of visas and the unknown, “lottery” aspect of being awarded a visa means that many employers and hopeful employees are forced to look at possible alternatives. It may even happen that when the H-1B visa is approved, you may prefer one of your alternatives and may not wish to make use of it, as then changing your status to H-1B is often a drawn-out and rocky process..

As a prospective employee, you may be sponsored into the U.S. by multiple potential employers for a change of status. Multiple sponsors would increase one’s chances of success, in theory. But if multiple petitions are selected for the lottery and are approved, that individual now has multiple I-94s issued, all with the same start date of October 1. The employee may join the employer of his or her choosing, and must maintain that visa status. Concurrent employment should be discussed with an immigration attorney to ensure that there is correct filing with the USCIS.

If you are a prospective employee, your employer may have filled out an H-1B petition which requests a change of status for an L-1 status foreign national, or someone who is otherwise a nonimmigrant. The petition must be filed in April for a start date of October 1. You may not hear again from the prospective employer and assume that they H-1B petition was not approved, and then hear after the October 1 start date that it was approved when you receive a work request. This happens quite frequently. An employer may hold onto authorization for a variety of reasons, or communications go awry.

Unfortunately, if you fail to join the H-1B employer on the start date of October 1, it is considered a status violation. Additionally, work you perform for your L-1 employer after October 1 is considered unauthorized employment.

If an individual’s status has changed and they wish to continue in their prior status, they may be advised informally to leave the U.S. and then return to the U.S. in their preferred status. The general wisdom is that returning will cause an individual to be issued a new I-94 at their port of entry. However, there are numerous risks with this approach and the many issues that can occur during travel. It is strongly suggested that you or your employee consults with an experienced Houston immigration attorney before deciding that this will solve any visa status issues.

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