Immigration FAQs

Browse our frequently asked questions on U.S. immigration law by category or use the search box below and type in a word or phrase.


We also offer updates on immigration topics on our Immigration News page. Have additional questions? We welcome you to contact the Alagiri Immigration Law Firm.

How do you obtain a green card?

There are several ways to obtain permanent residence (i.e. a green card). The most common ways are through sponsorship by a family member or an employer. In some instances, you can file for yourself without sponsorship. There are other additional ways to also obtain a green card. This USCIS site has very useful information on the various ways to get a green card: https://www.uscis.gov/greencard.

What are the official rules to keep ones green card valid?

There are several “rules” green card holders must follow, such as filing tax returns, not voting in elections, and refraining from criminal behavior. However, the most common issue that comes up with green card holders is the travel restriction. Green card holders cannot leave the U.S. for extended periods of time and must always show their intent to live permanently in the U.S. If you expect to be out of the U.S. for more than 12 months, then you should apply for a re-entry permit before you leave. There are also physical presence and continuous residence requirements which must be met in order to apply for U.S. citizenship.

What are the reasons for losing your green card?

A very common reason for losing permanent residency (i.e. your green card) is remaining outside the U.S. for a long period of time. Staying outside the U.S. for more than 6 months could raise questions upon your return. Generally, though, you may be found to have abandoned your residency if you have been absent from the U.S. for 1 year or more. If you know you will be out of the U.S. for 1 or more years, then you should apply for a Re-Entry Permit.

A Re-Entry Permit is a travel document issued by USCIS to permanent residents who need to reside outside the U.S. for an extended period of time, but who intend to return to the U.S. to resume their residency. Re-Entry Permits can be issued for as long as 24 months with subsequent extensions possible. Even with a Re-Entry Permit, you should still maintain close ties to the U.S., such as by maintaining active bank accounts and filing taxes. Note, however, that a Re-Entry Permit does not preserve residency for Naturalization purposes.

What are necessary steps to keeping United States Permanent Residency once obtained?

A very common reason for losing permanent residency is remaining outside the U.S. for a long period of time. Staying outside the U.S. for more than 6 months could raise questions upon your return. Generally, though, you may be found to have abandoned your residency if you have been absent from the U.S. for 1 year or more. If you know you will be out of the U.S. for 1 or more years, then you should apply for a Re-Entry Permit.

A Re-Entry Permit is a travel document issued by USCIS to permanent residents who need to reside outside the U.S. for an extended period of time, but who intend to return to the U.S. to resume their residency. Re-Entry Permits can be issued for as long as 24 months with subsequent extensions possible. Even with a Re-Entry Permit, you should still maintain close ties to the U.S., such as by maintaining active bank accounts and filing taxes. Note, however, that a Re-Entry Permit does not preserve residency for Naturalization purposes.

If you did not obtain a Re-Entry Permit prior to leaving the U.S., then you may face problems upon re-entry. However, although difficult, there still may be ways to argue that your permanent residency should be preserved.

What is the process for a Canadian citizen to obtain a U.S. Green Card?

There are several ways to get a green card but the two most popular ways are through an employer or family sponsor. A typical path for someone like yourself is to change status from an F1 to an H1B if your employer is willing. The employer would then also sponsor you for your green card. There are ways to get a green card without sponsorship but they are not as common. Unfortunately, the TN visa is not a dual intent visa. This means that you always have to show non-immigrant intent and this can be tricky if on a TN visa and applying for permanent residence. There are, however, strategic ways around this if need be.

How long will it take to get a green card through marriage?

If you are in the U.S. and married to a U.S. citizen, the process to obtain permanent residence takes on average six to twelve months. The application requires submitting a comprehensive package to USCIS consisting of the Form I-130 (Petition for Alien Relative), which must prove the legitimacy of the marital relationship, and the Form I-485 (Application to Adjust Status), which inquires about such things as the foreign spouse’s status in the U.S. and prior immigration problems. The other forms included in the application are the Form I-693 (Medical Exam Results), which contain the results of the foreign spouse’s required medical exam, and the Form I-864 (Affidavit of Support), which provides proof that the U.S. citizen can financially support his or her foreign spouse. The other forms that may be submitted include the Forms I-765 and I-131, which respectively grant the foreign spouse with employment authorization and permission to travel internationally.

If I’m a green card holder, can I sponsor my spouse for a green card?

Yes, as a legal permanent resident (“green card” holder), you can sponsor your spouse, children, and unmarried sons and daughters (age 21 and over) for a green card under the family-based 2nd preference visa category. The first step would be filing the Form I-130 (the green card application cannot be filed until visa priority dates become current).

Does giving birth to a child in the United States affect one’s chance of obtaining a green card / citizenship?

This issue is a hot topic as of late. If you google the terms “anchor babies,” you will get a lot of information. Basically, the child is a U.S. citizen but the parents do not become permanent residents or U.S. citizens by virtue of their child being born here. They remain in whatever status they were in before the child was born. So, if the parents are illegally in the U.S., they remain illegal and subject to deportation, even after the child is born in the U.S.

I am a U.S. permanent resident (green card holder) and will be marrying my girlfriend in my home country (Pakistan) who does not have U.S. citizenship or a visa. How can my wife get in to U.S. to live with me and how long is the procedure to bring her here?

You can petition for your wife by filing the Form I-130 but unfortunately the wait time for a visa for spouses of permanent residents is currently about 2.5-3 years. If you become a U.S. citizen during that time, you can “upgrade” your application. Spouses of U.S. citizens are considered immediate relatives with no wait time for an immigrant visa.

Do hotels and other similar types of establishments sponsor visas?

Hotels and other hospitality establishments are more likely to sponsor workers for H-2B visas or J-1 visas. The H-2B visa allows employers to bring temporary workers to the U.S. to help with seasonal or peak load work (ex. resort sponsoring H-2B lifeguards during the summer season). The J-1 visa allows employers to bring temporary workers as interns or trainees (ex., a chef trainee in a restaurant). The H-1B visa requires working in a specialty occupation with a specialty degree, while the above two visas do not.

Given a choice, is the L-1 visa or the H-1B visa the better option?

In general, I would say the L-1A (versus the L-1B) visa is more optimal than the H-1B visa. Here are some of the reasons why:

  • Longer validity period
  • No cap/quota (you can apply at any time)
  • Spouses can work
  • No minimum prevailing wage requirement
  • No minimum education requirements
  • Can likely apply for the faster track EB-1(C) green card category, which has no wait times or labor certification requirements.

The L-1B visa has different requirements and may not be a better option than the H-1B visa depending on the circumstances.

If an L-1 visa holder wants to work for a different employer, he or she can then switch to the H-1B visa (as long as he or she meets the H-1B visa requirements). However, the time spent on the L visa is counted against the H-1B visa time.

Is it harder to get an H-1B visa if you work for a start up compared to working for a well-known company?

If by “well known,” you mean old, big and profitable, then, yes, it’s harder to get H-1B visas for startups in comparison. The H-1B visa was initially intended for use by large companies to bring in highly skilled labor. It’s now being used by startups as a sign of the times. But startups need to show more documentation, such as incorporation and financial documents, as well as proof of an employer-employee relationship for the H-1B applicant.

With careful planning and documentation, it’s certainly possible to get H-1B applications approved for startups. We just had one approved for a startup with minimal funding where the H-1B applicant was the founder and only employee.

What is the EB-2 National Interest Waiver green card category?

The EB-2 National Interest Waiver (NIW) category is a sub-set of the general Employment-Based 2nd preference (EB-2) immigrant visa category.

The general EB-2 category requires an employer sponsor and that employer sponsor must undergo the labor certification process, which is meant to ensure that no U.S. workers are available and willing to fill the position.

Under the EB-2 NIW category, however, the foreign national requests a waiver of the employer sponsor and labor certification requirements by establishing that it is in the “national interest” to grant him or her a green card. So, for an EB-2 NIW application, neither an employer sponsor nor a labor certification is required. This is the primary benefit of applying under the EB-2 NIW category.

The EB-2 NIW category does not waive the basic entry requirements of the general EB-2 visa category, which is that the foreign national must have an advanced degree or its equivalent in a professional field or exceptional ability in the sciences, arts, or business. If the foreign national meets these entry requirements, then he or she must then prove that his or her work is in the “national interest.”

The courts have set forth the following three-prong test to determine what applications would qualify as serving the national interest:

  1. The foreign national must be seeking work in an area of substantial intrinsic merit;
  2. The foreign national’s work must have a benefit which will be national in scope; and
  3. The foreign national must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

With regard to the last prong, which is the most difficult to meet, the foreign national must provide evidence establishing that he or she has a past record of achievement in the field, the ability to serve the national interest to a substantially greater extent than the majority of his or her professional peers, and that the foreign national has influence on his or her field of employment as a whole.

Finally, it is important to note that the priority dates of the general EB-2 visa category apply also to the EB-2 NIW category.

How can a Canadian citizen get a green card while on the TN visa and owning 50% of a start up?

TN visa holders are unfortunately not permitted to apply for permanent residency (although there may be some strategic workarounds). Many TN visa holders wanting to apply for permanent residence request a change of status to an H-1B visa, which does permit applying for permanent residence.

No matter what, owning 50% of the company that would sponsor the permanent residency application will make it difficult to get an approval in most instances.

Can a Canadian dental assistant get a J-1 Visa to work in the U.S.?

Yes, I believe the J-1 visa could apply to dental assistants, in particular the J-1 visa trainee program. The J-1 trainee program specifically permits health-related occupations. For more information, you can visit http://j1visa.state.gov/programs

Why doesn’t the U.S. make it easier for Chinese and Indian H-1B visa holders to immigrate?

There was a bill that was put forward in Congress eliminating the per country numerical limitations for employment-based immigrant visas. If passed, the bill would significantly reduce the wait times for Indian and Chinese nationals to obtain permanent residence. However, the bill was put on hold by Senator Grassley because he wanted better protections for U.S. workers. In July he agreed to lift the hold in return for greater restrictions on the H1B visa process. So, it is somewhat of a lose-lose situation. I unfortunately do not see this bill passing in the near future.

What is the timeline for obtaining an H-1B under premium processing?

USCIS is required to adjudicate the H-1B application within 15 days of receiving the premium processing request. With premium processing, USCIS communicates with the employer via email (as well has regular mail). So, for example, your employer will get an email notifying him or her that the application was received, whether there is a Request for Evidence on the application, and also whether it has ultimately been approved or denied.

I am on H1B1 and lost my job. I am looking for job, but in the meantime I was planning to change status to an H4 dependent visa. Do I need to leave the country to change my visa status?

Based on the information you provided, you should apply for your H4 change of status immediately. Technically, you are no longer in visa “status” because you lost your job. When you apply for the H4, you should provide proof that you’ve been maintaining H1B1 status, which is usually done in the form of pay stubs. If the H4 change of status cannot be approved, then you can obtain H4 status via consular processing.

Whether you have to leave the country or not depends on how long you’ve been out of status. No matter what, be careful not to stay in the U.S. beyond the date on your I-94 card.

Can I startup a company on an F1 student visa?

Unfortunately, if you are currently in school on an F-1 student visa, you are not permitted to start and work for your own startup company. However, if you have graduated and have an OPT (Optional Practical Training) work permit, then you may start and work for your own startup company (with the approval of your university of course). If you just want to invest in the startup company and not work for it, then that may be permissible as long as there is distance between you and the startup company. In other words, in such an instance, your role in the startup should be as a passive/sleeping investor.

I have my I-140 approved. Can I switch employers at this stage? Does the new employer have to file new H1B or they can apply for an extension based on my approved I-140?

I think you’re mixing up a few immigration rules. If you’re an H1B visa holder, then you can transfer to a new employer any time you’d like regardless of whether you have an approved I-140. The H1B process is separate from the green card process. No matter what, your new employer would have to file for an H1B transfer for you.

However, if you have an approved I-140, then you can keep your green card priority date once you transfer your H1B to your new employer and you can request a 3-year extension on your H1B. It becomes a bit more tricky, however, if your employer decides to withdraw the I-140 after you leave.

Is it relatively easier for international students in the U.S. to do a startup than H1B workers? If so, how?

It is easier for an international student to startup a company than an H1B visa holder if the student gets an Occupation Practical Training (OPT) work permit after graduation, since OPT holders are perfectly permitted to startup their own companies. It is relatively straightforward and the OPT holder is not restricted by the Department of Labor’s or USCIS’s many rules that apply to H1B visa holders. In comparison, it is more difficult to startup a company as an H1B visa holder.

What is the process to convert H1B visa status to H4 visa status?

It’s a fairly simple process. You would have to file for a change of status using the Form I-539. Among other things, you should provide proof that you are married to your H1B visa holder and that you have remained in status.

What are the steps for a startup to apply for a J-1 Visa on behalf of a trainee or intern?

The first step for any company wanting to host a J-1 intern or trainee is to find a J-1 sponsoring organization. This sponsoring organization is the one with whom you’ll work to get the J1 visa for your intern or trainee. The J-1 application and accompanying documents (such as the intern or trainee training program) must be submitted to, reviewed by, and ultimately (hopefully) approved by the sponsoring organization. Once approved, the sponsoring organization will then send all the necessary paperwork to the J-1 visa intern or trainee, which he or she will need to get the actual J-1 visa at his or her local U.S. consulate.

The process is not as straightforward for startups. If your company is too young or too small or doesn’t have enough funding/revenue, then it may not be possible to obtain a J-1 visa for your intern or trainee. You also will likely have to undergo a site visit by the sponsoring organization. I suggest you talk to a few J-1 sponsoring organizations to see whether the J-1 visa is an option for you. I’ve noticed that the sponsoring organizations are stricter now than before due to increased abuse of the J-1 visa program.

How can a foreign entrepreneur startup a company in the U.S.?

Being in the center of innovation in Silicon Valley, this is a commonly asked question and the following lays out some visa options to explore.

First, the L-1 visa. Known as the intra-company transfer visa, the L-1 visa specifically permits the starting up of a new office in the U.S. The caveat, though, is that the new office must be related (ex. subsidiary or affiliate) to a foreign company, and the visa applicant must have worked as an executive, manager or specialized knowledge employee for that foreign company for at least one year out of the last three years. If approved, the L-1 visa is granted for only one year, after which time the L-1 visa holder must apply for a visa extension. The benefits of this visa are that there are no minimum education requirements and visa holders can likely eventually qualify for the fast-track EB-1 category to obtain permanent residence. However, all L-1 new office applications must include extensive evidence of the company’s viability as well as proof of sufficient physical premises to house the new company.

Second, the E-2 visa. This visa also permits foreign nationals to start up a new company in the U.S. However, it is only reserved for citizens of E visa treaty countries. Unfortunately, India is not an E visa treaty country, but Japan and many South American and European Union countries are treaty countries. If the foreign entrepreneur is a citizen of an E-2 treaty country, then this visa further requires that he or she make an at-risk, “substantial” investment in a bona fide U.S. enterprise. The E-2 investor must also own at least 50% of the startup company. The E-2 investor could potentially stay indefinitely on the E-2 visa, but the downside is that, unlike the L-1 visa, E-2 visa holders are not permitted to pursue permanent residence.

Third, the H-1B visa. Most everyone has heard of the H-1B visa. Although commonly used by companies to hire specialized workers, it can also be used by foreign nationals to startup a company in the U.S. under certain conditions. According to a recent initiative by the U.S. Citizenship and Immigration Service, a foreign entrepreneur can apply for the H-1B visa to start a company in the U.S. if he or she can demonstrate that the startup company has the right to control the foreign entrepreneur’s employment (i.e. an employer-employee relationship). Such control would exist, for example, if the company has a separate Board of Directors that has the authority to hire, fire, pay, or supervise the foreign entrepreneur. As with any H-1B application, the startup company must also still demonstrate its viability to sponsor an H-1B employee.

Finally, the EB-5 visa, which was addressed in the August issue of India Currents.

The above is a very general outline of the visa options available to foreign entrepreneurs. Each option comes with its own set of unique requirements, but it provides a good place to start for those brave and innovative foreign citizens wanting to launch a startup in the United States.

I have a green card case filed under the EB-3 visa category. Can I move it to the EB-2 visa category?

This question is a common one, especially since the EB-3 visa category is severely retrogressed for all foreign nationals and has been for some time. Unfortunately, though, it is not possible to simply “upgrade” a current EB-3 permanent residency (“green card”) case to an EB-2 permanent residency case. The visa categories are set during the labor certification process and cannot be changed. However, it is possible to file a new permanent residency case under the EB-2 category with a new employer (or, in some instances, with the same employer). The job description and the foreign national’s background must still meet the requirements of the EB-2 visa category. If a new EB-2 case is filed, the foreign national would be able to retain the priority date from the EB-3 case if the Form I-140 from that case was approved.

Will changing jobs affect my green card process?

Whether a job change will affect a foreign national’s permanent residency (“green card”) process depends on where he or she is in the process. Below is a very general overview of the consequences of changing jobs once the permanent residency process has started:

  • If the PERM labor certification process has just begun, the foreign national will have to re-start this process at the new job and will lose his or her priority date.
  • If the PERM labor certification process has been completed and the subsequent Form I-140 has been approved, the foreign national will have to re-do the PERM labor certification process at the new job but can keep his or her priority date (this is important if filing under the EB-3 visa category or EB-2 visa category for Indian and Chinese nationals).
  • If the final step of filing the Form I-485 permanent residency application has been completed and it has been pending at U.S.C.I.S. for at least 180 days, then the foreign national can likely change jobs without it affecting his or her permanent residency application as long as, among other things, the new job is in the “same or similar” job classification as the one stated in the PERM labor certification application.

The above is intended to serve only as guidance. There are different complexities to each permanent residency case that should be considered prior to making any job changes.

YCombinator, TechStars and other incubators are funding foreign entrepreneurs. Do the incubators have a visa program or must the entrepreneurs secure tourist or student visas?YCombinator, TechStars and other incubators are funding foreign entrepreneurs. Do the incubators have a visa program or must the entrepreneurs secure tourist or student visas?

No, the incubators do not have a specific visa program. Foreign entrepreneurs would most likely use the B-1 business visitor visa to attend these incubator programs. But when it comes time to work for the startup, then a work visa would be required. The F-1 student visa is for full-time students at U.S. colleges and universities.

What are the factors influencing successful or unsuccessful E-2 visa applications?

Speaking very generally, Consular Officers have said that the most common reason for unsuccessful E-2 visa applications is lack of sufficient documentation. There are no requirements regarding the type of startup needed for an E-2 visa. However, the general rule is that the lower the cost of the startup, the greater the investment required. So, for example, if you’re opening up a hot dog stand, then you’ll need to provide more (if not all) investment funding than if you’re starting a large automobile manufacturing plant.

If someone needs a letter of recommendation for an O-1 visa and the letter is a bit over-the-top, do you just sign it anyway?

Support letters should be a true representation of your accomplishments. Inaccurate information could come back to hurt you, for example, when applying for a green card through the EB1 visa category (which is most common for O-1 visa holders). The EB-1 visa requires much more documentation and evidence, and you don’t want any of the additional pieces of documentation or evidence to contradict the O-1 support letter you submitted.

Is it legal to go through an incubator process under B-1 Visa?

Typically, B1 visas are appropriate in order to participate in incubator programs. These programs normally involve attending trainings, meeting V.C.s, connecting with mentors, refining strategies, etc. and these are all permissible B1 activities. You may not, however, be an “employee,” such as a computer programmer, for your startup. If you start doing work that is usually performed by traditionally-salaried employees, then that activity is likely not permissible under the B1 visa.

Can outside investors invest in my startup for the E-2 Visa?

Yes, the short answer is that investors can invest in your U.S. startup for the E2 visa. However, the majority of your startup must be owned by citizens (or entities) of your country. So, for example, if you are French and the majority of your startup will be owned by French citizens (including French investors), then you would qualify for an E2 visa. On the other hand, if you obtain money from U.S. investors and those investors will end up owning more than 50% of your startup, then you would not qualify for an E2 visa.

Can I pursue further studies in the U.S. while on an H-1B visa?

As an H-1B visa holder, you are permitted to take classes. However, the primary purpose of your being in the U.S. must be your H-1B employment and you must continue working for your H-1B employer in the same capacity. You may be able to amend your H-1B petition to work part-time, which would enable you to have more time to pursue your studies. If you don’t want to continue H-1B employment, then you can change your visa status to an F1 student visa. The F-1 student visa would require you to be a full time student.

Can I do freelance work while on an H-1B visa?

No, unfortunately not. You may not have any employment outside of your approved H-1B employment. Any other employment would require another work visa.

Can I have a valid H-1B and F-1 visa at the same time? In my case, I’m currently working on a H-1B visa and seeking to get a F-1 visa for my further studies. Is it possible to continue working part-time along with my graduate studies?

You may not need to change your status to an F1. You may pursue further studies while on an H1B visa as long as the primary purpose for your being in the U.S. is the H1B employment. You can also work part-time on the H1B visa as long as an amendment to the H1B petition is filed and approved. If you do decide to change status to an F1, then you would have to be a student full-time and may not work (except under very limited circumstances).

What happens when I get laid off while I am on an H1-B visa? I have an H1-B visa and I am working full time. What happens if I get laid off one fine day? Do I need to go back to my country immediately? Or can I get status for a time frame to search for job here? If so, how long is the time frame?

If you lost your job while on an H1B visa, you would technically be out of visa status. However, many H1B visa holders lose their jobs and stay here until they find their next job. Depending on how much time has passed between jobs, the H1B petition filed by the next employer will either be approved as a transfer or for consular processing (in which case, the H1B employee would have to leave the U.S. and go to a consulate for stamping). There’s no hard rule, but I would say a month between jobs might be ok for a transfer to be approved (although USCIS is getting much more strict on this). Keep in mind that USCIS asks for pay stubs from the previous employer to prove that the H1B employee has been in continuous status. If you lose your job as an H1B visa holder, then I recommend you speak to an immigration lawyer to avoid serious immigration consequences. For example, no matter what, it is important not to overstay the expiry date on your current I-94 card.

Can one person apply for both the H1B Visa and a NIW based Green card at the same time?

Yes, you can apply for both at the same time. They are two separate processes. The H1B visa is also a “dual intent” visa, which means that permanent residency can be pursued in conjunction with an H1B.

I currently work on H1B for my employer,and my AOS (I-485) is pending, priority date is current and I’ve already got my EAD. Can I start my own company in USA now? Or should I wait until my green card is approved?

Usually, it’s recommended that people in your situation stay working on their H1B visas until their AOS applications have been approved. If you start working on your EAD, then you’ll no longer be in H1B status. The problem arises if your AOS application is denied for some reason. In such an instance, you don’t have a valid visa status by which to remain in the U.S. Having an EAD cardoesn’t give you status to remain in the U.S. and, with no H1B visa (or other type of visa), you’ll have to leave the U.S. I recommend you ask your immigration lawyer whether or not you should start working with your EAD.

Can I start a company if I’m in the US on a student F1 visa?

You may not work for the company on an F1 visa. You may be able to start and work for a company with other types of visas.

How can you move to Silicon Valley to create or work at a startup if you’re not an US citizen?

The two visas that can be used to start a business in the U.S. are the E visa and the L1 visa. The E1 treaty trader visa allows individuals from E1 treaty countries to enter the U.S. for the purpose of carrying out “substantial” trade between the individual’s country and the U.S. The E2 visa allows individuals from E2 treaty countries to enter the U.S. for the purpose of investing a “substantial” amount of capital in an enterprise (including purchasing a new business). For the list of current E1 and E2 treaty countries, please visit http://travel.state.gov/visa/fee…. The L1 intracompany transfer visa allows individuals to enter the U.S. to open a new office of a foreign corporation. To qualify, the individual must be an executive, manager or a “specialized” knowledge worker, and must have worked for the corporation for at least one year out of the last three years.

Is there any legal way for international students on F-1 visas to incorporate and run their own startup while maintaining the F-1 visa status. How would this change after graduation (and the end of the F-1 visa)?

F1s can only work in the U.S. under certain circumstances. On-campus employment is allowed, but off-campus employment is only allowed for work which is related to the student’s field of study (through Curricular Practical Training). Even if the work you are contemplating is related to your field of study, it is unlikely that your school will approve for you to be self-employed. However, many F1 Bachelors or Masters students go on to be sponsored by employers for an H1B visa. So, one option for you could be to set up the start-up with someone and work for the start-up as an H1B. There are issues to consider if you go that way, but it might be worth exploring this option.

How can the spouse of an H1B visa holder obtain an EAD or work permit?

A spouse of an H1B visa holder comes in on the dependent H4 visa and is not allowed to work. Volunteering for a typical volunteer position, however, is permissible – like for a religious or charitable organization. H4s cannot volunteer for a position which is typically a paid position. The H4 visa holder may also permissibly study in the U.S. However, if you are on an H4 visa and want to work, you can look into applying for an H1B visa.

Can a H1B holder work for a startup as a co-founder?

I assume this means that this would be your primary job. Based on recent cases, USCIS seems to have taken the position that H1B visa holders cannot work for a company in which they have a majority interest. Generally, USCIS’s reasoning for denying such cases is that the required employer-employee relationship does not exist – i.e. there’s no independent person who supervises the H1B employee, hires or fires the H1B employee, or who generally controls his/her work. There are other options available if you seriously want to start and work for your own company, but, unfortunately, doing it as an H1B visa holder with majority interest will likely be unsuccessful. It is permissible, however, to invest in a company without working for it and still collect dividends.

Can a person on a H1-B visa work in his/her free time on a bootstrapped project as a minority shareholder and/or as a volunteer?

Generally, H1B visa holders may only work as volunteers for positions which are typically unpaid positions (like at non-profits, charitable orgs, etc.). Volunteering for a position that is typically a paid position (like as an engineer, etc.) would most likely be viewed as unauthorized employment which violates the terms of the H1B. However, making an investment in a company without doing any work for the company and collecting any dividends is permissible while on an H1B.

How hard is it to get an EB-1 for a researcher working in a small startup?

EB1 cases are very difficult to win because the standard is so high, but is definitely possible with the right documentation and legal help. EB1 visas are reserved for the most able and accomplished in their respective fields – i.e. the best and the brightest. These visas are attractive because the labor certification (a time consuming, expensive) process is not required and priority dates are usually current, as compared to the EB2 and EB3 visa categories. There are three EB1 sub-categories with varying requirements. The Outstanding Researcher sub-category requires the applicant, among other things, to have been internationally recognized in his or her field. In addition, if the employer is a private organization, then it has to show at least three other full-time researchers, and that it has achieved accomplishments in an academic field.

Can I leave the US without AP or H1B while my I-485 is pending?

If you do not have a visa, then you would need the Advance Parole document to re-enter the U.S. You must have the AP granted prior to departing the U.S. If not, then you may not be permitted to re-enter (without otherwise obtaining some type of visa). Also, if you depart the U.S. without the AP, then your I-485 application may be deemed abandoned.

Can I start a company while in H1B?

Based on recent cases, USCIS seems to have taken the position that H1B visa holders cannot work for a company in which they have a majority interest. Generally, USCIS’s reasoning for denying such cases is that the required employer-employee relationship does not exist – i.e. there’s no independent person who supervises the H1B employee, hires or fires the H1B employee, or who generally controls his/her work. There are other options available if you seriously want to start and work for your own company, but, unfortunately, doing it as an H1B visa holder with majority interest will likely be unsuccessful.

Can you work for the next company right after you get your H1B (i.e. doing a H1B transfer). If so, how long does it take for the transfer?

A valid H1B visa holder can transfer to another job as long as he or she is in lawful status and has not engaged in any unauthorized employment. The process for an H1B transfer is the same as the process for filing a new H1B petition, and, therefore, can take the same amount of time. However, you need not wait until your H1B transfer petition has been approved before you start working for the new employer. Rather, you can start working for the new employer as soon as your H1B transfer petition has been filed. Generally, to be safe, it is advised waiting until you receive the USCIS receipt notice for the H1B transfer petition before beginning the new employment. If you would like to know whether your H1B has been approved before starting your new employment, USCIS offers the Premium Processing Service for an additional fee, in which it will process the H1B petition within 15 days of receipt.

Can I travel outside the U.S. while my H1B application is pending?

Unfortunately not. If you depart while your H1B change of status application is pending, then the USCIS will deem the application to have been abandoned. The H1B petition, however, will still be active. So, if you do leave the U.S. while your H1B change of status application is pending, the only way to reenter the U.S. is to wait until the H1B petition has been approved, apply for a visa at the U.S. consulate abroad, and then enter the U.S. in H1B status.

What are the best ways to get a U.S. working visa for an entrepreneur?

There are two types of visas categories one can fall under to work in the U.S. – a non-immigrant visa or an immigrant visa. The non-immigrant visas are temporary in nature and typically require employer sponsorship (ex. H1B visa). There are ways with these types of visas to start-up a company, but there are limitations (see previously answered FAQ question). To come here for the sole purpose of starting up a company, you can look into the L1 intra-company transfer visa or the E Trade/Investor visas. These visas are temporary, non-immigrant visas. The other possible option is to wait for the Start Up Visa which was recently introduced in Congress. It is unclear, however, if and/or when it will ever become law.

Immigrant visas, on the other hand, allow admission into the U.S. as a permanent resident. For entrepreneurs, the EB5 visa preference category is worth looking into because it does not require an employer sponsor. However, it does require investing $500K-$1M in an enterprise in the U.S.

Is my company eligible to sponsor an H1B?

I would not let being a small company dissuade you from sponsoring an H1B employee. Many believe that small companies cannot successfully petition for H1B visas. However, even though small or startup companies often do not have as much business activity or revenues to show as compared to more established businesses, it is still highly possible for these companies to obtain H1B approvals (as long as all other H1B requirements are met). Generally, these companies must submit additional documentation proving that they are legitimate, financially solid companies capable of paying the potential H1B employee’s wages. It is important to look at the totality of the circumstances and submit evidence accordingly. As for an immigration lawyer, you can get names of local attorneys from AILA (the American Immigration Lawyer’s Association), but immigration law is universal and Federal in nature which means that an immigration lawyer in any part of the country can usually assist you.

How difficult is it to get an E3 visa without a degree?

You would need 12+ years of industry-related experience, and would need to have your work experience evaluated by independent experts to see if it is equivalent to a U.S. bachelor’s degree. You would submit this assessment to USCIS with your E3 application.

What is the best way to find a job in San Francisco when you don’t have a green card ?

Generally, you would need an employer to sponsor you for a temporary, non-immigrant visa. Or, if you have sufficient funds, you could look into an investor E visa.

How to get a job in Silicon Valley startup as a non-US citizen, without having a company sponsor?

Unfortunately, there are not a lot of options for a person in your position. If you are able, you can work for a multinational company abroad for one year and then come in under the L1 intra-company transfer visa. Or you can start up a company abroad and also come in under the L1 intra-company transfer visa to open up a new office here. If you have substantial capital, you can try to come in under the E visa to start up a business here. There might be some green card options available to you that don’t require an employer, but those unfortunately have strict requirements.

Can a non-US citizen with a visa that doesn’t allow employment (like J-1) apply for a work visa without leaving the country?

An individual in J1 status who is subject to the 2 year foreign residency requirement cannot change status to another visa in the U.S. unless a waiver has been granted. This individual would have to apply for a work visa at a U.S. consulate abroad.

How much of a risk it is to travel out of US when H1b is in processing?

Traveling in such instances is not advisable. If you are applying to change to H1B status from another status, then traveling outside the U.S. will abandon your request to change to H-1B status. If the H-1B petition is later approved by USCIS, you will need to apply for an H-1B visa at a U.S. consulate before you can enter the U.S. in H-1B status. If you must travel, you can request premium processing for your H1B application. With premium processing, USCIS will adjudicate the application within 2 weeks for an additional fee of $1225. This way, you can hopefully have your H1B approved prior to traveling.

If you are on OPT, then your case becomes more complicated. Generally, if you are requesting a change of status from OPT to H1B, then you should only travel outside the U.S. if you have a valid, unexpired OPT and it will still be valid upon your re-entry to the U.S, and you also have an approved H1B with a later start date. The travel should be completed prior to the H1B start date. Again, this is a very complicated situation and I would advise you to seek the advice of an experienced immigration lawyer.

Can a spouse of a US citizen living abroad obtain a work visa based on the marriage only?

No unfortunately not. If you are coming here to work, then you would need your employer to sponsor you for a work visa. Depending on the type of work you will be doing, there might be other visas you can use to enter. But, simply being married to a U.S. Citizen with no green card, employment authorization document, etc. will not allow you to work here.

What kind of work visa should a Canadian get for a marketing job in the US?

If you have a U.S. Bachelor’s degree or its equivalent, then you can look into the H1B visa. If you are already with a company, then you can look into the L1 visa for an intra-company transfer. If you have a substantial amount of money to invest, then the E visa could also be another option. The TN visa would not work for a marketing position.

For the E-1 visa, is it possible for me (owner of the company) to apply for the visa for myself (as an employee of my own company)?

The E visa is one of the few visas that allows foreign nationals to start up their own companies in the U.S. Along those lines, therefore, the answer is, yes, you apply for the visa yourself as the E1 treaty trader. However, the E1 visa has a number of requirements that go along with it, so you should be sure to meet those requirements.

How can a start-up help expedite the visa application process for a future employee/co-founder?

Generally, I would say the major visa hoops are putting together the visa application package (which can be onerous depending on the type of visa), responding to USCIS’s Requests for Further Evidence (which can be quite lengthy), and of course waiting for USCIS to process the application (which can take several months depending on the type of visa). In order to have a smooth visa application process, it is important to first put together a solid and comprehensive package. This could eliminate any Requests for Further Evidence. Often, the process gets delayed because the original application was incomplete or weak. You can also expedite the processing time by requesting the Premium Processing Service, which costs an additional $1225 on top of the normal filing fees. There also may be other visa options available to the foreign employee that are less burdensome.

How does the H1-B fiscal year cap work?

Generally, first time H1B applicants are subject to the cap, which means they cannot apply for the H1B prior to April 1st and cannot start working for the employer prior to October 1st. There may be options to start working sooner under a different visa category.

My wife is on H1B. Can she take a 1-week summer job in her field at another employer?

It is difficult to answer this question without more details, but generally an H1B visa holder can have more than one job as long as there is an approved H1B for each job. So, an individual can have multiple H1Bs. In addition, if an H1B visa holder decides to change jobs, then it would be necessary to file an H1B transfer application for the new job.

Process to get H1B Visa stamped into my passport?

If your H1B was approved while in the U.S. and you leave the U.S., you have to go through the visa stamping process in order to re-enter the U.S. The H1B visa stamp in your passport authorizes you to enter the U.S. in H1B status. In order to get the visa stamp, you must make an appointment with the U.S. consulate in your home country (you can visit the website for the specific consulate to get instructions on how to make an appointment, what to bring, etc.). Among other things, you should bring your entire H1B application to your interview appointment.

How can a non-US citizen start a small business in the US?

She can work for an employer for typically a year under OPT after graduation and then can find an employer (or the same employer) to sponsor her for an H1B afterward (that’s a very common route). If she wants to start her own company and work for it, then she should look into the E visa (this visa is available to her as a Turkish citizen) or the L intra-company transfer visa.

What kind of visa is required for a 3 month internship in the US?

For temporary employment like internships (paid or unpaid), then technically the H3 temporary trainee visa or the J1 exchange visitor visa would probably be the most appropriate.

What should Dutch entrepreneurs do to emigrate to the U.S.?

In terms of visas to start a business here, you can look at the E investor visa. If you already have a company in the Netherlands, you might be able to apply for an L intra-company transfer visa. If you are going to invest $500K-$1M, then the EB5 visa might be a possibility – this allows you to enter on a green card rather than a temporary work visa. There are restrictions on all of the above visas I mentioned, but this would be a good starting point.

Is my company eligible to sponsor an H1B?

I would not let being a small company dissuade you from sponsoring an H1B employee. Many believe that small companies cannot successfully petition for H1B visas. However, even though small or startup companies often do not have as much business activity or revenues to show as compared to more established businesses, it is still highly possible for these companies to obtain H1B approvals (as long as all other H1B requirements are met). Generally, these companies must submit additional documentation proving that they are legitimate, financially solid companies capable of paying the potential H1B employee’s wages. It is important to look at the totality of the circumstances and submit evidence accordingly. As for an immigration lawyer, you can get names of local attorneys from AILA (the American Immigration Lawyer’s Association), but immigration law is universal and federal in nature which means that an immigration lawyer in any part of the country can usually assist you.

If I’m in the U.S. on the B-1 or B-2 visitor visa, can I change status to another visa category or do I have to leave the U.S. to apply?

When a person enters the U.S. in the B-1 or B-2 visitor visa category and then files an application for a change of status to another non-immigrant visa category or for an adjustment of status to a green card holder, USCIS applies the “30/60 day rule” in evaluating such applications.

This means that if the person makes such an application within 30 days of entry on the B-1 or B-2 visa, USCIS will presume the person has acted in bad faith. That is, the person is assumed to have had the preconceived intent to make the change before he/she even entered the U.S., rather than the legitimate intent of actually coming to be a visitor. If the application is made between 31-60 days after entry, USCIS will not presume bad faith, but there will be a strong suspicion that the person may have acted in bad faith and the case will be scrutinized carefully. If the application is made after 60 days, USCIS will automatically assume the person acted in good faith. In short, therefore, it is safest to file such applications at least 61 days after entry on the B-1 or B-2 visa.

Is it permissible for a B-1/B-2 visitor to enroll in school in the U.S.?

No, in general, B-1/B-2 visa holders are not permitted to attend school in the U.S. In order to attend school, the B-1/B-2 visa holder must apply for a change of status to either an F-1 (academic student) visa or an M-1 (vocational student) visa. However, there are some exceptions. B-1/B-2 visa holders may engage in study that is recreational, casual, short-term or avocational in nature. Minor aged children may also be permitted to attend school if accompanying a parent to the U.S. and is only attending school while the parent is pursuing his or her primary reason for the U.S. visit.

Is it possible to work on short-term consulting projects in the U.S. on a B1/B2 visa?

If you’re coming to the U.S. to perform productive labor, then you would need a work visa like the TN or H-1B visa. If you’re coming simply to meet with clients, obtain information, or other such similar activity, and then will return home to actually perform the work, then you can use the B-1 visa. When you apply for the B-1 visa, you would have to show ties to your home country and be paid in your home country.

If you need to come in for short-term employment, then you can look into applying for the “B-1 in lieu of H-1B” visa, which would permit you to come to the U.S. for a few months as long as you meet the requirements of both the B-1 and H-1B visas. The “B-1 in lieu of H-1B” visa would be an alternative to the TN or H-1B visas.

The US Visa in my passport says: “Visa – R” and “Type/Class – B1/B2”. How long am I allowed to stay in US on business for?

When you arrive in the U.S., immigration officials will indicate on your I-94 card how long you can stay in the U.S. Be sure not to stay beyond the date indicated. Typically, B1/B2 visa holders can stay up to 6 months.

What are the most reliable and efficient ways for a foreign adult to get US citizenship?

A common and fast way to become a U.S. citizen is through marriage to a U.S. citizen. This way, you can apply for U.S. citizenship 3 years after obtaining your green card (instead of the more typical 5 years after obtaining your green card).

Can a permanent resident get a driver’s license or permit without the actual green card?

In general, to get a U.S. driver’s license you must show proof that you are legally permitted to live or work in the U.S. If you are a green card holder, then you can apply for a replacement green card if you’ve lost yours.

Why doesn’t the U.S. make it easier for Chinese and Indian citizens to immigrate?

The wait time to obtain an employment-based immigrant visa (rather than a family-based immigrant visa) for Chinese and Indian citizens is significantly longer than for citizens of other countries. A bill was introduced in Congress to eliminate the per country numerical limitations for employment-based immigrant visas, which if passed will significantly reduce the wait times for Indian and Chinese nationals to obtain permanent residence. However, the bill was put on hold by Senator Grassley because he wanted better protections for U.S. workers. He, however, agreed to lift the hold in return for greater restrictions on the H-1B visa program. So, it is somewhat of a lose-lose situation. This bill is unlikely to pass in the near future.

What parts of Arizona’s immigration law were struck down by the Supreme Court?

The Supreme Court found that three key sections of the Arizona immigration law are unconstitutional:

1) Section 3, which makes being undocumented a state crime;
2) Section 5(c), which makes it a crime for an undocumented immigrant to seek or accept work; and
3) Section 6, which allows police officers to arrest anyone they suspect of being undocumented without a warrant

But it will allow Arizona to begin enforcing Section 2(B), which requires officers to check the immigration status of anyone they stop and detain. Many believe that the enforcement of this section will result in racial profiling.

How can I revoke an affidavit of support for a US immigrant?

If the permanent residency application has not been approved, you can withdraw the affidavit of support by sending a letter to the USCIS office that currently has the permanent residency package. If the application has been approved, it becomes much more difficult as it is viewed as a contract at that point. However, there are certain conditions by which the affidavit of support terminates, such as if the green card holder becomes a U.S. citizen, dies, has worked a number of hours or has left the U.S. permanently. For more information, please visit https://www.uscis.gov/.

What questions are asked in the test given to prospective citizens of the United States?

The U.S. naturalization test has an English and Civics component. The English portion tests your ability to read, write and speak English. The Civics portion tests your knowledge of U.S. history and government. USCIS provides very helpful study materials to help you pass the test. You can access the study materials here: https://www.uscis.gov/citizenship/learners/study-test.

What are the statistical chances of a UK citizen obtaining a US visa?

It’s not so much your country of citizenship that counts, but instead the type of work you will be doing in the U.S. The type of visa you would apply for is dependent on the type of work you will be doing here. Citizens of the U.K., however, do have the E visa available to them (unlike some other countries) so that’s a benefit. Once you know the type of job you will have here or what you want to do here, then it will be easier to figure out a visa for you.

What is an American Diversity Lottery visa?

It is a Congressionally mandated program that provides 50,000 visas annually to individuals who have been selected from a random drawing. Persons entering the lottery must meet certain requirements from countries with low rates of immigration to the U.S.

What specific package of changes to law and policy are included in “comprehensive immigration reform?”

Comprehensive immigration reform typically refers to a set of legislative proposals and efforts to overhaul the current immigration system, which many believe is severely broken.
The proposals generally pertain to the following issues:

  • border security
  • reducing family-based and employment-based green card visa backlogs
  • reforming detention practices
  • legalization of undocumented immigrants
  • worksite enforcement
  • creating new non-immigrant visa worker programs
  • strengthening interior enforcement

Several attempts have been made to pass comprehensive immigration reform as one legislative package but none has succeeded. As a result, some of the proposals are now trying to be pushed through individually. A prime example of that is the DREAM Act, which is now a contentious election-year issue. Obama in his State of the Union stated that if Congress can’t agree on a comprehensive immigration reform package (which it can’t), then to send him individual bills that he can sign, like one that would give visas to foreign advanced-degree students.

Do Dutch citizens need visa to visit the USA?

The Netherlands is part of the Visa Waiver Program, so you do not need a visa to enter as a tourist or business (B1) visitor. You will need a passport to enter and can stay for up to a maximum of 90 days.