F-1: Student Visa/Status 1. F1 Visa - business: F1 visa holder generally you cannot own a business. A nonimmigrant (F1 included) generally cannot work unless one is paid the "prevailing wage".
A-F1 student cannot engage in business because there are restrictions against off campus employment and against unauthorized employment.
F-1 Off Campus Work & Nominal Payment: You need authorization for off-campus work.
F-1 Practical Training: There is a 12 month limit on the duration of PT. Must complete training within 14 months of graduation. There is an O.I. (Operating Instruction) that any unused portion of PT cannot be used at a later time unless "reserved" in accordance with O.I.
F-1 Expiration of: Usually F1 is valid for 60 days after expiration date.
F-2 Visa procedures: a) adequate funds to support the applicant and family, b) Should show that applicant and family intend to return home after completion of studies. c) Strong papers to support the above. Temporary stay. However, one can apply to be immigrant Alien later.
2. F1 Multiple entry visa: There is a certain risk because the US Consular official is allowed the discretion under law to refuse a nonimmigrant visa (F1) if she/he suspects that the applicant may permanently reside in the US. There is a presumption under immigration law that all nonimmigrants are intending to be immigrants! Therefore, the burden is on the applicant to negate that presumption (Matter of Brantigan-a 1996 case). Appeals to the US State Dept. in visa denial cases are possible but it is expensive, time consuming and there is no guarantee of success.
H1-B Status and Visa Issues 1. H1 - 6 year rule: The Immigration Act of 1990 (it's H1B provisions became effective on Oct.1, 1991) imposed the 6 year rule. Of course, like every rule there are certain exceptions. There are published cases which have held that the 6 year cannot be extended by changing employers, or at end of 5th year, or by changing from H1 to L status, etc.
2. H1 - specific company & Return Transportation: The employer agreed with the INS (by signing LCA 9035) to pay for return transportation back to the home country. If the person failed for a new H1 and the old one has expired or one has left the old company, the person would be out of status. One should file for the new H1.
3. H1B - Wage Determination: Depends on your local State Employment Service Agency to determine the prevailing wage or a survey.
4. H1B Wage & Location of Work: One should file a new LCA for an H1B petition for each site (even in the same State) if the cumulative total period for that site exceeds 90 days and for each set of functions because of the prevailing wage for H1B purposes depends on the job duties.
5. H1B - Work Prior to Approval: INS has consistently maintained this postion that one can only start work in an H1B status after you get the new status but there is a 1982 case (Salehpor v. INS) which held otherwise. INS has maintained that the case is not valid. There is always the worst case scenario that one could get deported but as a practical matter, in most cases, the result of this scenario now is that at the time of adjustment of status, you would have to pay a much higher filing fee as a penalty for failure to maintain status unless this law changes & it may.
6. H1B - with Old Employer: Since an H1B is specific for a particular employer only, one is in violation of Dept of Labor regulations and INS laws by working for another employer.
7. H1B - without Job Offer: You cannot get an H1B without an employer. Consular officials do not normally give it if they suspect you may have immigrant intent.
8. H1B - Visa Stamp vs. Status: Unless you are planning to travel you do not need a visa. You are in valid status at the time the H1B papers was approved. It is appropriate to obtain a new visa based on your new employment. US Consulates generally do not deny H1B visas unless the Consulate can show fraud or has reason to believe that you have committed documentation fraud in obtaining your visa/status.
9. H4 - Visa for Dependent Spouse or Children: Your attorney is in a better position to assist you since he is familiar with your file. Generally, the minimum documents are your approval notice, Marriage and Birth Certificate. A letter from the employer is required and the content depends on your circumstances but it should not be very complicated for someone familiar with your file.
10. H4 to F1: H4 spouse can attend school but needs to change status to F1. Generally, changing form one nonimmigrant visa to another is not a problem.
11. Start Company while on H1. One can start a company or invest in or help create a company while one is on H1.
The legal entity you help create is different in law. It is looked at as an individual entity. However, in order to work for the company in any fashion whatsoever, even as an unpaid volunteer, you will require a work visa (H1 or other relevant work status) since you are a non resident alien. It is advisable for you to consult an attorney for detailed clarification.
J-1 Exchange Visitor and Foreign Residency Rule 1. J1 2 year Home Residency Conditions: Home stay applies generally only if:
a) Received funds from the US Government
b) Received funds from home country Government.
c) You are on the skills list or
d) are a medical student
The 2 years home residency requirements apply to J-1 visa holders. Nothing can avoid the 2 years short of :(1) a waiver or (2) actually complying with the rule. The 2 year rule has no exceptions even if the person marries a US citizen unless one obtains the waiver. J1 waivers tend to be complicated and case specific.
L-1 Intracompany Transferee 1. L-1 is an intracompany transferee (parent company can file for someone working in a subsidiary company. Legal criteria has to be satisfied), otherwise the qualifications are similar to an H1.
Classes of Non-Immigrants A-1 Diplomat & Consular personnel & their families
A-2 Other officials and their families.
A-3 Servants & Employees of above & their families
B-1 Temporary visitors for business;
B-2 Temporary visitors for pleasure
C-1 TRWOV, Transit without visa.
D Alien Crewmen & Seamen
E-1 Treaty Traders + Family members
E-2 Investors + Family members
F-1 Students
F-2 Spouses and children of F-1 students
G-1 International Organization e.g., NATO, IMF, WHO, UN etc.
H-1 Specialty Workers
H-2 Temporary Workers
H-2b Skilled Workers
H-3 Alien Trainees
H-4 Dependent spouses and children of H-1B holders
I Foreign Information Media, e.g. radio, television, press, etc.
J-1 Exchange visitors
J-2 Spouses & children of J-1 holders
K-1 Fiances and Fiancees
K-2 Their minor children
L-1 Intracompany transferees,
L-2 Their spouses & children
M-1 Vocational Students
M-2 Spouse/minor child of M-1
N-8 Parent of international organization special immigrant
N-9 Child of international organization special immigrant
O-1 Aliens of extraordinary ability in the sciences, the arts, education,
business or athleticsO-2 Certain aliens accompanying them
O-3 Spouse/minor child of 0-1 or 0-2
P-1 Internationally recognized entertainers and athletics
P-2 Reciprocal exchange artists & entertainers
P-3 Culturally unique artists & entertainers
Q - Cultural Exchange
R - Religious Workers
W - Waivers (non-visa holders).
Information in this column should not be construed as legal advice and does not constitute an engagement of the Law Office of Carmen DiAmore-Siah. The information contained herein is of a general nature and may not apply to any particular set of facts or circumstances. If you require specific advice on any immigration issue, you should consult an attorney.
Your participation in any manner whatsoever (posting questions, reading or reviewing the contents of the information herein) confirms that you have read and clearly understood the above contents and agree to be bound by it. No part of this document may be disseminated without THIS and the above paragraph.
