Immigration Q&A

This section contains some basic information relating to immigration and visa matters in the United States, as well as answers to questions relevant for international students and alumni in the United States. Answers are often provided by people who had gone through the same sorts of concerns earlier and sometimes by legal experts. Most of the following Q&As are taken from sites such as, and a link to the original source is always provided at the end of each question/answer. The information provided here is intended for general informational purposes only and should be used only as a starting point for addressing any legal issues. 

The International Student offices at universities are often the best source of information on immigration and visa matters. 

The section is updated regularly; future Q&As will be shown at the top of the Q&A Section below. Please visit often.



Guidance on 'Unlawful Presence' and Foreign Students

By Elizabeth Redden

Inside HigherEd: August 13, 2018

New final guidance published Thursday by U.S. Citizenship and Immigration Services will change the way international students and visiting scholars on F, J or M visas are found to accrue “unlawful presence” in the U.S., a determination that could subject them to future bars on re-entry. Individuals who accrue more than 180 days of unlawful presence during a single stay in the U.S. are subject to three- or 10-year bans on re-entering the country.

The final policy guidance holds that unlawful presence will begin accruing the day after a student stops pursuing a course of study or otherwise violates his or her immigration status, rather than -- as was the case under the previous policy -- the day after the Department of Homeland Security issues a formal finding of a violation in the course of adjudicating a request for another immigration benefit or the day after a judge issues an order of deportation.

Immigration lawyers and international education professionals had raised concerns about a draft version of the guidance, specifically about whether students would have the opportunity to contest alleged violations of their immigration status, and even whether they would necessarily know about them in all cases until after more than 180 days of unlawful presence had already accrued. NAFSA: Association of International Educators wrote in a comment on the draft guidance that the then-proposed change was “operationally complex and may lead to wrongly identifying a large number of foreign students and exchange visitors as failing to maintain lawful status, thus unfairly subjecting them to the 3-year, 10-year, or permanent bars to re-entry to the United States.”

USCIS says the change is necessary to reduce visa overstays, and notes that its capabilities for monitoring whether students fall out of status have improved since the previous policy was put in place in 1997. The most notable change since then was the creation of the Student and Exchange Visitor Information System, a monitoring system for international students and scholars kept up-to-date by designated college officials.

The final guidance issued Thursday is similar to the draft guidance, with one significant change: it stipulates that international students on F and M visas will not accrue unlawful presence for time out of status while a “timely-filed” application for reinstatement is pending. To be considered timely, a reinstatement application must be filed within five months of the alleged status violation. NAFSA has published its analysis of the final policy guidance here.



Accrual of Unlawful Presence and F, J, and M Nonimmigrants

NAFSA, August 10, 2018

Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). Under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs, unless the student applies for reinstatement or the student or exchange visitor is covered by some other exception to the unlawful presence counting rules. Read more at:,_J,_and_M_Nonimmigrants/


Lawsuit Filed To Protect Foreign Students From ICE And USCIS

Stuart Anderson

Forbes, August 8, 2018

A new lawsuit has been filed that seeks to prevent U.S. Citizenship and Immigration Services (USCIS) from enforcing changes made to its website that could result in international students facing deportation and a 10-year bar from the United States. Read more at:


New USCIS Policy Will Carry Harsh Consequences For Applicants

Stuart Anderson

Forbes, Jul 11, 2018, 12:15am 581,992 views

U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna at a White House briefing in 2017. Under a new USCIS policy, individuals denied an immigration benefit could be placed in deportation proceedings, a harsh consequence for many foreign-born professionals and others. (Photo by Mark Wilson/Getty Images)

The leadership of U.S. Citizenship and Immigration Services (USCIS) seems determined to refute the notion that people in the federal government don’t work hard. To the contrary, top USCIS officials work around-the-clock to come up with creative ways to make life as difficult as possible for those who submit applications to work or live in the United States.

The most recent USCIS effort to discourage or prevent foreign nationals from joining a loved one, making a career in America, or even departing the U.S. without negative consequences is a June 28, 2018, policy memorandum on updated guidance on Notices to Appear (NTAs). As explained below, few Americans likely understand the dire consequences a foreign-born professional placed in deportation proceedings will face under the new policy – even if he or she did nothing more than have an application denied after waiting a long time for a decision.

To better understand the new policy and its implications, I interviewed Jennifer Minear, a director in the immigration practice group at McCandlish Holton. Jennifer has practiced immigration law, with an emphasis on employment-based immigration, for more than 14 years.

Stuart Anderson: How bad do you think the consequences could be from the USCIS memo on Notices to Appear?

Jennifer Minear: The potential harsh consequences as a result of this memo are staggering.

Anderson: Before we get to the consequences, let’s start with some basics. What is a Notice to Appear or NTA?

Minear: A Notice to Appear is a charging document issued by the Department of Homeland Security through any of its component agencies – Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services. The purpose of the Notice to Appear is to place an individual into deportation proceedings.

Anderson: How is the new policy different?

Minear: In the past, USCIS has generally referred matters of potentially removable foreign nationals to ICE to determine whether removal proceedings should actually be initiated by issuing a Notice to Appear. However, under its new policy memorandum dated June 28, 2018, USCIS has greatly expanded its mandate for issuing NTAs without first consulting ICE. Now, USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial.

Anderson: What are the consequences of an individual receiving a Notice to Appear vs. in the past when a person may have decided to depart the United States voluntarily?

Minear: Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear, he or she is legally obligated to remain in the U.S. and appear before an immigration judge.

Anderson: What happens if an individual fails to appear?

Minear: If the person fails to appear in immigration court in compliance with the Notice to Appear, then a deportation order will be issued against the person. The failure to appear for removal proceedings carries a 5-year bar on re-entry to the United States. While it would be possible to apply for a waiver of that bar, there is no guarantee that the waiver would be granted. Having been previously ordered deported from the U.S. is likely to hamper one’s chances of being approved for another visa to return.

On the other hand, if the individual does remain in the U.S. to contest the removal proceedings – a process that could take years to complete due to the backlogs in immigration courts – he or she is considered “unlawfully present” during all of that time. If the individual prevails in the removal proceedings, his or her status will be restored and the unlawful presence will be wiped away. But if the individual loses, he or she will likely be subject to a 10-year bar on re-entering the U.S., depending on how much unlawful presence accrued by the time the final deportation order was entered.

Anderson: Can this happen to an H-1B professional whose employer files for an extension?

Minear: Yes. Many H-1B professionals whose petitions for initial or extended H-1B status are ultimately denied are likely to be placed into deportation proceedings under this policy.

Anderson: What will happen to the careers of individuals placed into deportation proceedings? Are people even allowed to work and support themselves while waiting for their immigration court appearance?

Minear: The consequences could be extreme because almost all people in removal proceedings are unable to obtain legal authorization to work. While the individual would be free to appeal a denial of the visa petition or other application that resulted in them being placed into removal proceedings and that may ultimately result in their status and employment authorization being reinstated and their deportation proceedings terminated, there is no work authorization generally available to those who are awaiting the conclusion of removal proceedings.

For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.

Anderson: Can you walk through how the new USCIS policy memo could affect an H-1B visa holder?

Minear: For example, an H-1B professional who has been legally employed in the U.S. in H-1B status in the past is permitted by federal regulation to continue living in the U.S. and working for the sponsoring employer for up to 240 days while an extension petition is pending – as long as the extension petition is filed prior to the expiration of the prior H-1B petition.

However, due to significant processing backlogs, USCIS very often takes 6 months or longer to adjudicate H-1B extension petitions. During that time the previous H-1B petition may expire, leaving the H-1B professional solely dependent on the 240 days of work authorization permitted under the regulation – and without any underlying H-1B status unless/until the H-1B extension petition is approved.

If the petition is ultimately denied, then such a person would be deemed unlawfully present as of the date of the denial and, under this new policy, an NTA would be issued. This is a very real scenario. The number of H-1B denials is increasing. That is due at least in part to changes in adjudications policies that, for example, now do not grant any deference to prior approvals of H-1B petitions filed by the same company on behalf of the same professional doing the same job identified in the prior petition.

Anderson: How could an international student be affected by the USCIS policy memo on Notices to Appear?

Minear: A number of international students who have entered the country to attend U.S. colleges and universities may also be placed in deportation proceedings under this new policy. This is because USCIS has also recently published another new policy that will take effect on August 9, 2018. That policy redefines “unlawful presence” to include any violation of student status. [See “USCIS Policy Change Could Bar Many International Students.”]

For example, if USCIS determines in the course of adjudicating an application for an immigration benefit that a student’s employment was unauthorized, or that the student’s school failed to update or maintain the student’s records, then USCIS could deny the application for immigration benefits, make a finding that the student is unlawfully present, and issue a Notice to Appear to the student. This is particularly alarming in that the student may have no prior warning that he has done anything to violate the terms of student status before removal proceedings are initiated against him.

Anderson: What about managers and executives?

Minear: Multinational managers or executives who have been transferred to the U.S. to work for U.S. offices of foreign companies may also become deportable under this new policy. When such executives apply for a green card, their employers must file an immigrant petition for them – and the processing times can take many months. If the manager or executive’s underlying temporary work visa (called an L-1A and which can only be maintained for a maximum of 7 years) expires while the immigrant petition and green card application are pending, and then USCIS denies the immigrant petition, the manager or executive and his family members will be issued NTAs and placed into removal proceedings – even if the denial of the petition was a clear error and there is a valid basis for appeal.

Anderson: What are the likely resource impacts of this new policy?

Minear: This will be an overwhelming administrative burden for an agency that is already struggling with ever increasing processing times and backlogs across all application types. USCIS can also expect increased litigation over denied applications and petitions now that the consequences of those denials are even more severe due to the virtual certainty of being placed in deportation proceedings.

In addition, the immigration court backlog is already over 700,000 cases as of May 2018. This new Notice to Appear policy from USCIS will only further contribute to the already enormous backlogs. Right now, many cases are not calendared for merits hearings until sometimes years after the NTA is issued. Those backlogs will likely grow exponentially given the number of new cases that will be added to the docket as a result of this policy.

Anderson: What advice do you have for individuals?

Minear: Foreign nationals need to take all possible precautions to ensure that their work visa petitions are filed and adjudicated to completion before the foreign national’s existing status expires, so that if the petition is denied, the foreign national will still be in another status and can avoid a Notice to Appear.

Petitions for nonimmigrant (temporary) visas may be filed up to 6 months in advance of the anticipated work start date. Extensions may be filed up to 6 months in advance of the expiration date of the current petition. Employers should plan to file petitions at the earliest possible moment. When available, the petition should be filed with a request for “premium processing,” which requires USCIS to take action on the petition within 15 days of filing.

Anderson: What about advice for employers?

Minear: Similarly, employers should consider sponsoring their workers for green cards at the earliest possible moment in order to maximize the chances the green card may be approved before the employee’s underlying temporary work visa expires or is denied for extension.

Where premium processing is not an option to ensure expeditious decision-making from USCIS, employers and foreign nationals may need to consider filing mandamus actions against USCIS to compel the adjudication of the application or petition for immigration benefit before the foreign national’s underlying immigration status expires.

Anderson: What does this USCIS memo on Notices to Appear and its consequences say about the state of immigration policy in America today?

Minear: I think this policy memo represents another piece of a well-organized and systematic effort by the current administration to make the process of legal immigration to the United States as difficult as possible for both immigrants and the employers who sponsor them. Other recently introduced policies, procedures and adjudication trends within USCIS have injected so much uncertainty and unpredictability into the process of seeking U.S. work authorization it has become almost impossible to advise clients as to what the outcome might be of a particular petition or application for an immigration benefit.

I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies – to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally. Even if that is not the intent, that is sure to be the result.



Prominent Immigration Attorney, Sheela Murthy, says that Trump policy leads to huge increase in H-1B denials, RFEs

White House Bulletin, May 7, 2018

Listen to her comments:


Economics Renames Itself to Appeal to International Students

Some economics degrees are now eligible for STEM classification

In 2012 the Department of Homeland Security expanded the list of STEM courses, which permit H-1B visa extension for three years. Now any quantitative economics degree can count as STEM with a tweak to its federal classification code, from economics (45.0601) to econometrics and quantitative economics (45.0603). According to The Economist of April 5, 2018, several Ivy League universities have changed the code for their economics major in the past few months to make the degree more attractive to international students.


USCIS Suspends Fast-track H-1B Visa Petitions to Clear Backlog 

The U.S. Citizenship and Immigration Services has temporarily suspended fast-track H-1B visa petitions in a bid to address a backlog and lengthy processing times. This is the second year in a row that the temporary visa for highly skilled foreign workers and a pathway to post-study work for international graduates has been suspended.


U.S. Employers’ Guide for Hiring International Students

Many university career services offices offer a guide for U.S. employers for hiring international students, which also offer valuable information for international students. Here are links to two such guides from U.C. Berkeley and the University of Texas at Austin. Feel free to search for  such guides at other universities.


7 Facts about the U.S. H-1B Visa Program (Pew Research Center)

As on April 27, 2017





What are some of the rules you should never violate on H1b visa?

5 Answers

Ron Julren

Answered July 14, 2018

  1. Never do side projects or engage in “Multi-level marketing”
  2. Live within 50 miles of your workplace. If you want to live more than 50 miles from your workplace, make sure you have two LCAs (one for the workplace and another for the home office)
  3. Don’t work remotely on a daily basis. You will be in trouble when USCIS does random site visits
  4. If you are in a consulting role (EVC etc), be mindful of the employer - employee relationship.
  5. File your H1-B extensions on time
  6. By the 4th year of H-1B, start PERM process.
  7. Do not engage in political talk at the office. If someone is offended and reports you, the consequences will be harsh for you as you are not a citizen or permanent resident
  8. Do not get into heated arguments with neighbors or vendors
  9. Do not engage in racism. Be mindful of the “politically correct” terms for groups of people. Terms which are perfectly acceptable in your country may be offensive here.
  10. Do not flirt with coworkers. You never know how they will take it. I have known of people getting fired for harmless flirting
  11. Do not drink and drive. If you are arrested, Your Extensions and Visas will be at risk.
  12. Do not engage in solicitation of prostitution. America is NOT as liberal as they show it in the movies. You WILL be deported
  13. File your taxes on time. Do not get overzealous while filing.
  14. Always keep a copy of your passport and visa with you. A digital copy should be fine. IT IS THE LAW, and many people on H-1B do not know this!
  15. When visiting border areas, be careful not to cross the border. I know of a few people who accidentally crossed over into Mexico while visiting Las Americas Mall in San Diego.

EDIT: As others have pointed out, DUI arrest is not a basis for deportation. But the H-1B extensions and Visa approvals will be under grave risk. Officer may issue RFE and 221(g) asking for documents which may not be readily available. So, if the Visa has expired, and extension pending adjudication, self deportation may be a possibility

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When can I expect the H-1B lottery 2019 results to be released for a non-master’s cap?

2 Answers

Arun Mudaliar, lives in The United States of America (2014-present)

Answered Apr 18, 2018

First things first, The H1-B lottery result declaration is common for both master’s and non-master’s cap, so that should not make a difference in your case.

Moreover, there is no one particular date where you can expect your result. There is a projected time frame for each of the USCIS activities and it looks like follows:

  • Monday, April 2 to Friday, April 6: Filing Window
  • April 30: Official cap exhaustion announcement
  • May 1 - May 31: USCIS case intake, cap lotteries and receipting
  • June - August: Return of cases not selected in the lottery
  • September 15: H-1B adjudications completed (approval, denial or RFE

The dates above are just a rough prediction based on USCIS’s processing times from previous years and is subject to change based on the actual filing volume USCIS receives in the first week.

So to answer your question, you can already expect to receive the receipts and can continue to expect until the end of May, as beyond this date it is usually the rejected petitions that start coming back from USCIS, so the sooner you hear, the better are the chances that you’re H1B case is receipted.

If a company has applied for your H1-B through an external agency, or internal HR, they can sometime predict your status by checking to see if the money they issued for H1-B application has been debited from the respective account, however most attorney’s or HR would not confirm the receipt of your status unless they get the receipt document in mail/ email (if applicable).

I hope this answers your questions, good luck with your H1B application!

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What are my options after the H-1B extension denial? I have 3 more years left in the H-1B cap.

3 Answers

Stuart Reich, Immigration attorney 20+ years, focus on entrepreneurship

Answered Nov 29, 2017

You should be discussing your options with your employer’s attorney (or another attorney, if you want a second opinion or if your employer didn’t use one to begin with).

We would need far more detail to answer you - a review of the denial itself, an overview of your overall immigration situation (how long the case was pending past expiration of prior H-1B, whether there’s a green card case on file and if so at what stage, etc.)

Appealing/Moving to Reopen or Reconsider may be an option, but likely takes to long to be useful and doesn’t give you interim ability to continue working, among other problems.

Refiling may be an option, but you may need to wait abroad while the application is pending.

This all needs to be evaluated in light of your current situation. I’ll mention this because others will: USCIS no longer officially gives deference to an earlier approval of the same visa for the same person/company for the same job - but in truth, they never really did in practice.

But, everything is more difficult now - and as a practical matter the standard for an approvable case has changed.

Consult an attorney, who can properly evaluate your case on the facts, for options.

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What are some red flags in a visa interview?

2 Answers

Rodrigo Magalhaes, former Gerente TI (2011-2012)

Answered Apr 5, 2018

  1. No matter what, don't lie. Don't try to outsmart the interviewer.
  2. You can mumble and you can be nervous but always look in the eyes to give your answers.
  3. Try to relax and give your best answer because it will be about your life, not somebody else's life.
  4. Always have your documents organized and ready.
  5. It is not a beauty contest. You can wear light, no need for make-up or a haircut but always look clean. Like if you were going out with your friends and they were bringing someone new to the group.
  6. Security is a pain, so: no metals, no earrings, no collars, no bracelets, no phones, no coins, no games, no hats. Wedding rings are ok :)

That's all I remember from my 7 interviews… Never got rejected. B1s, J4s, H4s. Brazil and Germany. It is always the same drill. Be comfortable. Be courteous. Don't worry much about your English mistakes. They don't care about it and they like to see the effort. Tell them everything!!!

Good luck!

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Although there is no new rule, but why is the USCIS rejecting so many H1B visa extensions? Many well-qualified people have to leave the US now.

12 Answers

Mel Burslan, Have been to US with B1/B2 & H1B visas in the past

Answered Mar 12, 2018

There is a new rule which took effect around Feb 22nd or so. According to that rule (may be an act I don’t know the legalese about it) every new H-1B visa request or extension request will be evaluated against the main purpose of the visa holder getting granted an H-1B visa.

Assume this case: You are a Weblogic guru. You came to US with H-1B to work for company A to help them get their Weblogic instances in shape and you were granted 3 years long visa, because it was the norm at the time (Say Obama years). 2 years later, you have done all that was expected from you and your assigned employer told your H-1B visa holder company that they will not be needing your services anymore. Instead of doing the right thing and sending you home, your contracting agency (likes of TCS, Cognizant, Wipro etc.) decided to put you up to company B as a java support person. After all Weblogic is written in java and you have a pretty good understanding of it. Right? Well, not so right here. US has a plethora of Java programmers and they can do the same job without requiring a special work visa and they should have preference when it comes to hiring someone for that position. And since your company farmed you out to one of these places, they did the wrong thing. Now another year later, i.e. end of your initial 3 years long period (which is not unconditional by the way, your visa may be cut short when you put transfer request for another company) you applied for extending your visa. And naturally your company (again Wipro or TCS or alike company) need to provide your new job description to the USCIS, which says Java programmer or java support. And USCIS looks at that and says, this is not something that US has a shortage of and denies extension request. Whereas, if your end employer, would have offered you a weblogic support job, the denial most probably wouldn’t happen (unless the support level you are assigned to is wildly different between companies A & B).

Yes you are qualified as a Java programmer may be but so are many unemployed or under employed US java programmers as well. And US’ priority is to protect its own citizens and legal residents before going out and hiring foreign labor.

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Rebecca Freeman, Business and Investor Related Immigration Attorney

Answered Mar 14, 2018

There have been a number of directives from this administration that attack the H-1B program.

See here for example: Combating Fraud and Abuse in the H-1B Visa Program and more recently: USCIS Strengthens Protections to Combat H-1B Abuses Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions

This new direction is a direct result of the Buy American Hire American executive order, found here:

Here are some examples of the ways that H-1Bs are being impacted:

The service is targeting level 1 in a few different ways:

  • Version one requires the petitioner to demonstrate that a Level 1 PWD is appropriate for the specialty occupation. These RFEs imply that although the position may be specialized, the wage 1 level of the PWD used to support the LCA was inappropriate, and that the LCA should have been supported by a PWD above Level 1.
  • Version two implies that a Level 1 PWD is never appropriate for a specialty occupation. These RFEs usually find fault with characterizing any “specialty occupation” as “entry level.” To make this argument, these RFEs cite the DOL general definition of Wage Level 1, and over-focus on phrases from that definition such as, “have only a basic understanding of the occupation… perform routine tasks that require limited, if any, exercise of judgment.” The RFE then asks the petitioner to demonstrate that the position is a specialty occupation.
  • Version three combines both issues.

For reference, here are the DOL explanations of the levels:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones.

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be considered. Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered.

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

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Stuart Reich, Immigration attorney 20+ years, focus on entrepreneurship

Answered Mar 13, 2018

Though denials may not be as widespread as you might think, we’ve certainly seen more inquiries (Requests for Evidence) and in some cases of different types than we had in the past.

A few things have happened. First, the administration’s “Buy American, Hire American” Executive Order from about this time last year - it actually didn’t say much other than a general suggestion that the government should really be thinking about new rules to [supposedly] protect US workers, particularly with regard to H-1Bs.

USCIS has been interpreting this in a number of ways, putting out a series of memos and internal instructions while withdrawing others.

Among the issues have been inquiries on H-1B meeting wage Level 1, claiming that Level 1 cases can’t be “specialty occupations” as required for H-1B status since the DOL claims jobs at this entry level don’t require much independent judgment and require supervision.

Of course, every job, including professional jobs requiring a bachelor’s conveying specific knowledge to even perform the basics, has an “entry level” - so it’s sort of a ridiculous argument, and the Administrative Appeals Office has largely been agreeing when these have been appealed and overturning denials. I suspect this argument came from outside, anti-immigration groups and was adopted by administration-appointed leadership rather than coming from from career USCIS officers, who I think would be more likely to understand the logical problems with the argument.

To be fair to USCIS, in many cases they accepted a counter-argument in response and approved these. We saw a significant uptick in these inquiries starting July/August of 2017, but we’ve only had one denial as of the date I’m writing this…which we then refiled with additional supporting information and got approved.

USCIS also withdrew an earlier memo giving deference to earlier agency decisions (which is why you may see more inquiries on simple extensions for the same job/employer) - although in my experience they often sent inquiries for such extensions even when the memo was still in force.

Another, more recent memo added requirements when an H-1B worker is client-site-based.

So, there are probably more denials overall and more cases are hard-fought. There are certainly some highly qualified people who will now be stationed overseas, strengthening the offshoring marketplace even further and damaging US prospects for continued technology leadership.

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What is the necessity to allow new immigrants into the USA when jobs are scarce for domestic people at this time?

9 Answers

Kathryn Berck, Former US consular officer

Answered March 25, 2016

Jobs are not scarce for ‘domestic’ people at this time in the US. What is scarce is the number of such people who are skilled in the work that is needed, and are willing to - you know - actually work.

Why are Indian programmers so desired in the US? Don’t Americans study IT? Sure they do, but they usually won’t work for the offered salaries doing the slog-work of producing the 151st update to an existing, pedestrian program or app. But that work needs to be done anyway.

As one first-hand example of another kind, I know a contractor here in Texas with a reputation for excellent work who specializes in interior upgrades and has more requests for work than he can handle.

Most of his workers are Spanish speaking and have no legal status. I asked if he was hiring and he said, he would love to. Then he added that he would love to hire more Amcit workers. Every day, he said, American guys came by his work sites asking for jobs. But in his long experience more than half of those have arrest records, half of the rest have drug issues, and most of the few remaining seem to have no idea that if you have a job, you are supposed to show up every day, on time and sober. And just about zero have any skills at all. It is not worth his time to interview fifty men to find one worth hiring. So he takes on men that his existing crew members recommend, and every one of them is skilled, reliable, honest, and cheerful. And well paid.

Another example: I have a 12-acre pasture that needs cutting, and have repeatedly offered the work at a very favorable rate. But no one who owns the correct equipment wants to bother with such a small job, even though they will make a clear profit. It’s 1,000 acres or nothing. They would rather drink beer and watch The Game on TV than put 100 dollars in their pocket. I only wish that a new immigrant (yes, even without status) would have access to the equipment; I know that he would probably do the job willingly and well.

Okay. Now before you decide to join in the howls of outrage about how I employed ‘illegals’ remember: I didn’t. The contractor might have.

20.9k Views · View Upvoters

Upvote · 482


Dave Shapiro, studied at Marquette University

Answered Mar 25, 2018

First, jobs are not scarce; there are “help wanted’ ads everywhere. Unemployment is the lowest it has been in 10 years. Without immigrants, the pressure on wages will increase and that will result in higher prices. In addition to this, people must understand that we have joined the global economy. The competition is not the guy next door, the competition is in some other nation. Consider this example: X lives in the US and works 8 hours per day. Z lives in another country, does the same job and works 10 hours per day. Z has two hours more production each day than X; given equal pricing, they will begin to dominate the market and possibly drive the American company to foreign soil for production. (This happened with many industries in the US already - think TV sets.)

I will be blunt here. Having run several manufacturing shops, Americans have an unrealistic view of the economy. They do not want to work more than 8 hours (many do not even want to work that long.) Immigrants are willing to work the longer hours that make a company competitive in the global market. Without immigrant labor, the US will follow Britain down the path to near insolvency. India and China are growing at rapid rates - if we fail to “step up to the plate”, we will lose our advantage. You cannot legislate economic power - you must do it the old fashioned way - you must earn it. Without immigrants the US economy willnot be able to match the work forces in India and China.

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Upvote · 15


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How will a h1b visa holder from India, with a US masters degree and who is working for a US based company, be affected by the new h1b policy passed on Feb 22nd 2018?

3 Answers

Mohit Panwar, Senior Engineer, MS, Working in Fortune 50 company

Answered March 2, 2018

If you are employed ‘by the company for the company’, you are not at risk. Basically, Feb 22 rule is only for employers who place their workers on 3rd party client sites. In other words, If you are a Microsoft employee, with Microsoft H1B, Microsoft payroll, and working for Microft’s product in Microsoft’s office, you will not be impacted.

But, if you an Infosys employee on Infosys H1B but working in Microsoft’s office for Microsoft’s product, you will be impacted.

For details, read my answer

Mohit Panwar's answer to What would be the impact with latest USCIS policy memo dated February 22, 2018 to H-1B holders? Will it be impossible to switch companies within the US?



Upvote 3


Mel Burslan, Have been to US with B1/B2 & H1B visas in the past

Answered March 2, 2018

In this new world order for H-1B holders, your degree and which school it is from will not matter. What matters is. what kind of a US based company you are working at. If you are working for likes of IBM, Google, Miocrosoft etc. you have very little to worry about. If you are working for Cognizant, Infosys, Wipro, Tata etc, then you are on shaky ground.

Shaky ground you are on is like this:

Your company, in order to justify your existence in the US and get you an H-1B, will need to show USCIS where exactly you will be working at, doing what and for how long. No more 3 years long rubberstamped H-1B visas, when your sponsor fills out a fictitious (or potential) contract with a big name client, knowing well that chances of that contract getting signed is next to nil, but they have a help desk position they can put you into, although it will not satisfy the H-1B requirements. Or, Showing a 3 years long contract and after the second month, taking you away from that employer and sending you to somewhere that doesn’t satisfy the reasons why you were granted the H-1B visa for.

It means, the so-called consulting companies, run mainly by the Indian nationals, will need to find a new loophole to exploit. This one is getting patched and in my opinion, way too late in the game. This should have been done in Bush time, the junior, GWB, not about 20 years later with hundreds of thousands of people waiting in the lines to get their permanent residencies.


Upvote 5


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4 years on H-1B visa and no employer wants to file a Green Card for me. Should I leave US or wait till end of 6 years?

27 Answers

Mohammed Zafar, M.S. Tourism and Hospitality Management, University of Massachusetts, Amherst (2007)

Answered Jan 21, 2018

While I was on my H1B, I applied for the Canadian PR in 2009 and hired an immigration consultant to represent me. Another friend also applied on his own and also received his PR. I would recommend you to apply for the Ontario immigration Nominee Programme. The OINP is currently open and they are accepting applications. About the Program

Canada is fairly transparent with the process and you may need time to get your documents and certification together.

You could also look and apply through

If all goes well, I would also recommend you to look for jobs in Canada when you are closer to receiving the Canadian PR.

This being said, all is not rosy. While you may not get an ideal job, you can choose to work with any employer or start your own business in Canada. No strings attached, other than obeying laws, paying your taxes and achieving your citizenship in a few years. Good luck.

11.7k Views · View Upvoters

Upvote 12


Jayakumar Nair

Answered Jan 23, 2018

I don’t think anyone has answered your question in a sane way other than complaining about how americans exploit them etc…etc. It is simply not true. We as Indians are no different or special than ordinary americans are. Yes.. there is exploitation, but so are scheduled castes and lower castes exploited badly in India, much worser than any immigrant is in this country. Well…. to answer your question, yes.. if you think your job is irreplacable and you bring a special talent to your company, then there is a good chance you will get your green card sponsored within the last two years of your H1B, since the it is more costlier for an employer to train a new exployee to replace you than just sponsor your green card. But if you are an easily replacable talent, then your chances of getting sponsorship for your GC is nill to none, which is equal to the chances of an american in that situation remaining employed. Remember a lot of americans in this country are let go or were replaced by immigrants or outsourced to India and China. It is basically a game of chance and skill.. Make yourselves valuable and work hard and your GC will come. Have faith. this is a great country to work and make a living in.

2.2k Views · View Upvoters

Upvote 2


Pradeep Bhattarai, Database Administrator, Systems Engineer at Giesecke & Devrient (2009-present)

Answered Jan 24, 2018

While I was transferred to US in L1B, I was very clear that I was being transferred for 3 years. Later, it was extended for additional 3 years from company (via h1b). I am mentally prepared to go back despite of the fact that other colleagues are getting long term resident visa. Green card is something that i learned once i spent a year in US. I even do not bother to ask what my company is gonna do. What I believe is that at the end of the 6th year, if I am still valuable for the company they will find to keep me. If I am not valuable, I will return back to the source country from where I was Parceled. I assumed, I would have saved enough penny by that time I wound not save in India for next 10 years. I would start my own work investing some portion of my savings or I would find another job in India. It is the land of opportunity, so take it easy my friend you are not alone.

15.2k Views · View Upvoters · Answer requested by Sriram Srinivasan


Mehul Kamdar, Associate

Answered Jan 19, 2018

Immigration procedures and processes follow the economy. In tough economic times, countries become more selective about awarding permanent residency to foreign nationals. In times of prosperity or in special circumstances (think back to the Y2K mess) they take more foreigners in to tackle an issue that needs to be addressed. Right now, the US is possibly transitioning to a skills based immigration process, which is possibly a good thing for the many H-1B workers living here. That said, if you do not like the uncertainty, your choices are to either move back to your native country, or to move to another country which offers more stability under current circumstances. For someone who works in the US, the closest to the US would be Canada.

If your company has Canadian operations and they are willing to hire you there, you would be able to move under the Express Entry category and start working rightaway. If you do not have a job offered to you BEFORE you go to Canada, it could be difficult for you to get hired, as Canada places a high priority on Canadian experience, and US experience does not count. Check out the Canadian government’s official hiring website You will find some jobs reserved for Canadians, some open for both Canadians and foreign nationals, etc. Use that as the guideline to base your decision upon. Other countries like Australia, New Zealand etc may have easier immigration processes than Canada, but you might need to talk to someone whom you trust and who lives there.

2k Views · 1 Upvote


Achilles Tziazas, works at Thomson West

Answered Jan 18, 2018

My friend, I have gone through the same process and I can assure you your concerns are valid. First things first I am speaking due to my experience with the process but I am not in any way shape or form an expert (lawyer) in the field. I am merely one person with one specific experience that may or may not match yours.

If I were you I would consider the following. If your country of origin provides you with the availability of jobs, technology and social system similar to the United States then do consider waiting the 6 years in pay and then returning back.

If it does not, I would then consider the following options:

  • Embrace your network of contacts and alumni from your school and make an immediate move to an organization that will consider sponsoring you. Give your 2 weeks notice and cite the reason being their lack of sponsorship. You would be surprised how quickly the minds of management change if you are indeed adding value to the organization and you decided to leave
  • See most other comments below. I don’t want to bore you with the particulars but as many commentators below mentioned, Canada has a much different process. It is not easier, but I consider it more merit based and straightforward
  • If you have an “extraordinary skill” (see O visa), you might be eligible to apply for such visa. I am not a lawyer nor do I understand your background so I cannot tell you when or how you apply or even how you would be eligible but it’s an option others have considered. It’s not a Green Card, nor does it lead to a Green Card but if your goal is to gain more experience in the U.S. and you have something to contribute back to this country, you can possibly utilize such option

Best of luck to you!

18.3k Views · 15 Upvotes


Bruno Guardia, Have worked in the USA with TN/H1B visas

Answered Jul 19, 2016

Disclaimer: I am not a lawyer

All options are good, you are not able to control your stay in the US long term but other than that seems you are in a good place.

Personally, I would start planning for returning to my home country 2 years from now; it is much easier and cheaper to move back in stages than completely once the job is done. Starting to get rid of stuff and expenses, in advance.

But if you have a good opportunity at a different country or back home, and particularly if you have already saved enough, it doesn’t hurt to go back early.

6.1k Views · 4 Upvotes


Saravanan TK, works at Qualcomm

Updated Jul 7, 2017

Planning a move to home country is an option. Also think about immigrating to Canada, with their current express entry program, you might have a Canadian PR much faster than US.

Better question to ask - why do employers keep rejecting the idea of filing green card for you? What is your current role? If the role is something which can be filled up by some qualified American, then its possible the company might opt to skip you and hire a citizen or permanent resident.

31.3k Views · 14 Upvotes


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Is it true that the I-551 stamp on passport is the substitution for green card?

2 Answers

Abhishek Bommakanti, US Permanent Resident (Green Card holder) since 2013

Answered Jan 24, 2018

Theoretically, yes it is. In practice, be prepared to answer a ton of questions and issue clarifications as not many immigration officers (both in the US and especially outside the US) recognize the stamp.

In my case, I was scheduled to travel to India a couple of days after my (marriage-based) Green Card interview. The consular officer had approved our application, congratulated me and informed me that my Green Card would arrive in a couple of weeks time. I’d already read up on the I-551 stamp so requested the officer to affix one on my passport as I was due to travel that weekend. The officer asked me for proof of this and I showed him our plane tickets and itinerary. This satisfied him and in a couple of minutes, I had my passport stamped with the I-551. This looks something like this:

There were no problems when I left the US or entered India - after all, I am an Indian citizen. However, on my way back to the US (Bombay to London to Los Angeles via British Airways), here is what I experienced:

  • When the staff at the BA ticket counter asked me for my US visa, I showed him the I-551 stamp. He didn’t know what it was as he was expecting one of these:
    • Physical Green Card
    • US Visa (B1/H1 some other) Stamped in my passport
  • Now, I actually have both an H1B visa as well as a B1/B2 visa stamped on my passport. I obviously had no intention to present any of these as my entry visa but the staff found these and asked me which of these I wanted to use. When I showed him my I-551 stamp, he was stumped. He said that this was not a valid visa (especially since there was hand-written text on the stamp) and was refusing to let me board. I had to wait for two supervisors until one of them recognized the stamp and allowed me to board.
  • I had a similar experience at Heathrow Airport where the staff at the terminal didn’t know what the stamp was, her supervisor didn’t know what it was either but the supervisor’s supervisor did. All this supervising did mean that I almost missed my flight, but all was good in the end.
  • Finally, in Los Angeles, when I presented my I-551 stamp to the admitting officer, he looked me up on his terminal and asked me to step aside. I was then taken into a separate room for secondary verification/questioning. They allowed me to stew in here for a couple of hours before an officer came in to question me. He asked me why I was not traveling with the physical Green Card - it had been mailed to my home in Los Angeles while I was in India. I explained to him that I’d left LA before it arrived - he then proceeded to ask me the same question, but in different words, which I guess was a way to try and see if I would give the same answer or not. I was let go after about 30 minutes of this kind of questioning.

So yes, the I-551 stamp is valid and can replace your physical Green Card, but I for one, would not travel on the basis of this stamp anymore. If I’ve lost my Green Card or if it has expired, I will make sure that I have a duplicate made and in my possession before I travel.

One good thing that came out of all this was that I was upgraded to Business class at Mumbai. This might also be due to the fact that I was on crutches at that time, having previously had surgery done on my knee due to a busted ACL.


Upvote 13


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If you are on a H1B visa, can you incorporate your own startup and build your business? What are the simplest work arounds to this without breaking the US law and having problems with the INS?

23 Answers

Raad Ahmed, Founder of LawTrades, UB Law, 500 Startups B15

Updated Jul 27, 2017

Probably not on your current H-1B, but there are other options.

The two main routes are either immigrant or nonimmigrant visas.

Nonimmigrant Visas

Foreign entrepreneurs commonly obtain H-1Bs, because these nonimmigrant visas are generally available to a company’s employees and pretty straightforward. The downside is that there’s a cap of 65,000 for regular H1Bs, and a cap of 20,000 for Masters Degree H1Bs - and the competition is intense. They also expire after six years and require a minimum one year leave outside the US after the 6-year expiration. There are some exceptions, but they only offer extensions of between one and three years.

Your current H1B work-authorization is limited to employment with your sponsoring employer. If you’re dismissed or quit your position with the sponsoring employer, you’re required to apply for alternative nonimmigrant status, secure employment with another employer, or leave the U.S. If you find employment with a different employer, then a new application must be filed and your visa status modified to reflect the reclassification. However, this is not going to help you necessarily start a new business in the US.

Other nonimmigrant visas that might help you include an F-1/OPT (Optional Practical Training) visa, which is available to students who meet certain reqs. You can learn more about those from my recent post here on Quora. If you don’t qualify as a student, you could be eligible for a B-1 Business Visitor visa. An E-2 Treaty Investor visa is available to individuals from treaty countries, which may or may not help you.

The O-1A Extraordinary Ability and Achievement visa has been effective for many entrepreneurs. This nonimmigrant visa is available to individuals who meet the legal definition of “exceptional abilities” in the arts, sciences, education, business or athletics. Here’s the breakdown on O1s:

  • O-1A: Individuals with extraordinary ability in the sciences, education, business, or athletics (excluding the arts, motion pictures or television industry).
  • O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
  • O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance.
  • O-3: Individuals who are the spouse or children of O-1’s and O-2’s

Immigrant visas

These are typically EB-1, EB-2 or EB-5 visas.

  • EB-1 Extraordinary Ability Visa

An EB-1 visa is used to obtain employment-based permanent residency. It’s generally intended for “priority workers” who are identified as foreign workers with “extraordinary abilities.” This classification usually consists of senior executives and managers who are transferred to the U.S. and those who qualify as “outstanding professors or researchers.”

  • EB-2 Advanced Degree Professional and Exceptional Ability Immigrant Visas

These visas generally require proof of a job offer from an employer and a DOL labor certification. EB-2 visas occasionally are granted to individuals who are seeking to waive the DOL labor certification. Specifically, subsection (C) does not require an applicant to have an employer. An advanced degree (masters and higher) or an exceptional ability in your field are required in addition to showing that the defined exceptional ability is in the national interest of the United States.

  • EB-5 Immigrant Investor Visa

This visa requires at least a $1 million dollar investment ($950,000 dollars if the business or investment is located in a rural area). This program allows entrepreneurs, their spouses, and unmarried children under the age of 21 to apply for a green card (i.e., permanent residence) if they meet the following requirements:

  • Make the necessary investment in a commercial enterprise within the U.S.; and
  • Plan to create or preserve ten permanent full-time jobs for qualified U.S. workers.

The USCIS has more information here for foreign entrepreneurs.

Engaging an immigration attorney is strongly recommended since the procedures for obtaining any of these visas are pretty complicated. Please feel free to PM me directly or check out LawTrades for more information on how to start a small business in the U.S. as a non-citizen. I hope this helps!

7.7k Views · View Upvoters



Shilpa Malik, Immigration Attorney at SGM Law Group

Answered Feb 21, 2017

Before the memorandum released by the USCIS in 2010, there weren’t any regulations that either allowed or prohibited entrepreneurs from starting businesses under H-1B visas. However, because an established employer-employee relationship needed to exist as an H-1B requirement, most entrepreneurs understood that they could not work for any business they started in the country.

However, after the memorandum, an avenue has been created for H-1B holders to start their own companies in the U.S. The employer-employee relationship rule still stands, but the USCIS clarified this regulation. If your company has an entity, such as a CEO or board of directors, that has complete control over your wages, tasks, and employment status, then you will be able to start and work for your own company under H-1B status without breaking any laws or violating your status.

Remember, this separate entity will be, for all intents and purposes, your sponsoring employer. This means that it must acquire your Labor Condition Application, file your petition, and pay the necessary fees. If you are transferring your status from your current H-1B employer to your own business, the same situation applies. In any case, you cannot petition for yourself for the H-1B under any circumstances.

It’s difficult to say whether or not the USCIS will scrutinize your case more heavily in these situations. The best tactic would be to develop a solid business plan that details your intentions to hire U.S. workers for your business. Because one of the goals of the USCIS is to protect and grow the U.S. job market, your plans to hire native workers will go a long way toward your petition’s approval.

Also, if you are worried whether or not this will impact your green card status if you have a pending I-140, you likely don’t have anything to be concerned with. However, it’s always best to consult with your H-1B attorney before making any decisions that could possibly have an effect on your immigration status.

I hope this answers your question!

This answer is not to be considered as a substitute for legal advice and does not establish an attorney-client relationship.

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