20 questions relating to H-1B Visas answered by Mr. Sudhir Shah, Indian Member of Global Chain of Immigration Attorneys in the Economic Times on Sunday during the period January 1999 till April 9, 2000.
Q1. Whilst in US on tourist visa I changed my status from that of a tourist to H-1 after procuring a job there. I then petitioned for my wife who was in India. She was called for a visa interview but was not granted a visa and she was asked that she should call me to India to satisfy the Immigration Officer on certain points. At her request I came to India. I then along with my wife went to US Consulate. I was under the impression that it is my wife, who would be interviewed for her visa. Instead I was questioned at length for nearly two hours. My employers here were contacted on phone and ultimately the visa officer stated that I was not entitled to H-1 visa and he on my papers made an endorsement by recommending that my H-1 visa be revoked. Can he do so? What should I do now?
A Reader
Ans. An Immigration or a Visa Officer is entitled to make recommendation for cancellation of H-1 visa based on his observations. Obviously in your case the Immigration Officer must have found something objectionable. Therefore you were called from US to India and interviewed at length. Had you not come to India, perhaps things would have been different. However, now as a recommendation has been made for revocation of your H-1 visa and you are not granted any visa to travel to US your remedy is to petition in US against the order of revocation of your H-1 visa. I suggest you contact an Immigration Lawyer and take proper advice.
Q2. I am a commerce graduate and have been working with a nationalised bank since past 15 years. My husband is carrying on business of manufacturing rubber products in partnership and has two partners, one of whom is my mother-in-law and another is an elderly person. We have two minor children. We own a house, where we are staying and some agricultural land. We also have some reasonable investment in shares, securities and fixed deposit receipts. I have only two sisters and no brothers. Both my sisters are settled in U.S. My husband's only sister (he too has no brothers) is also settled in U.S. and is a green card holder. Few months ago we both, leaving behind our children, went to U.S. on tourist visa. There, we traveled two cities and after about three weeks, I was offered a job in a store as an Accountant. The owners of the store are residing in different cities and they wanted a person upon whom they can rely and have trust and who was also well versed with accounts. They found me to be an ideal person. I then made an Application for change of status and my employers petitioned for my H-1 visa. As time, which was granted to us as tourist was expiring, my husband left U.S. and returned back to India. After some time I was granted H-1 visa. I then petitioned for my husband and children as accompanying relatives of H-1 visa holder. My husband was called for an interview twice and the Immigration Officers in Mumbai told him that he should call me to India. I accordingly came down to India and would be now visiting the Consulate in Mumbai for interview along with my husband. When I and my husband went to U.S. as tourists, I had no intention of taking up a job there. We have no intention of permanently residing in U.S. It was only because I was offered a job that I thought of taking it up and be in America for some time and find out what American life is. I am worried as to why my husband was not granted H-4 visa and why I have been specially called from U.S. to Mumbai.
A reader.
Ans. You may not have any "pre-conceived" intention of taking up a job in U.S. when you applied for a tourist visa and traveled to U.S. as a tourist. However all facts and circumstances of your case leads a reasonable person to believe otherwise. Normally a tourist to U.S. travels around U.S. and do not stay at any one place for a long time. It also does not happen that to a stranger, a job of trust and experience is offered immediately. The fact that both your sisters are in U.S. and your husband's sister is also a green card holder and the fact that your husband is the only managing person for his business, yet he is desirous of leaving his business unattended and is prepared to accompany you, knowing that he will not be in a position to work in U.S., are all factors which lead one to believe that when you traveled to U.S., you had intention to permanently settle down there. It is also surprising that you could produce all your certificates and credentials required to be submitted along with your Petition for H-1 visa whilst you were in U.S. as a tourist. This factor also would go against you. Though changing of status whilst in U.S. is legally not prohibited, Immigration Officers always view the same with suspicion. It appears that the Immigration Officer at the U.S. Consulate here has suspicion as regards you and your husbands' pre-conceived intention to settle down permanently in U.S. and has therefore asked you to come down to Mumbai. In all probability, you will not be granted visas to travel to U.S., although your petition for H-1 visa may have been accepted. I strongly recommend you to bear all these in mind and prove to the Immigration Officer during your interview, the genuineness of your having no intention of taking up a job in U.S. at the time when you applied for a tourist visa and entered U.S. as a tourist. (At the interview this reader was denied visa)
Q3. I am an engineer and a computer professional and have acquired a very promising job at a handsome salary and excellent perquisites in America and I have been granted H-1B visa. My wife who is a double graduate and is having her own career here in India refuses to join me as she is not allowed to work in America and will have to give up her career as a professional woman. This has put me into a great dilemma. Can you suggest some way out of this?
Gaurang S. Shah, Ahmedabad.
Ans. Most companies find that the first and foremost reason for the failure of a foreign assignment is a grievance of the accompanying spouse like that of yours. Normally the spouse of an H-1B visa holder is educated and have his/her own professional career in the home country. Whilst travelling to US as the spouse of H-1B visa holder that spouse has to sacrifice his/her professional career in India and in addition thereto is unable to pursue his/her professional career in US or work there. An H-1B visa holder should therefore consider self-petitioning for H-1B visa for his/her entrepreneurial spouse. A foreign individual can establish a business in US. There is no law which prohibits an H-1B visa holder from establishing his business there. That person can then petition for an H-1B visa for his/her spouse to work for that business. This is a viable means for individuals who have the skills, experience and interest required to run their own business. An H-1B visa holder's spouse who is a consultant or a market researcher, a sales or medical researcher, a graphic designer, etc. can avail of this mode to make his/her spouse pursue his/her career in US and work there. An H-1B visa holder can also request his employer to sponsor him immediately for a green card. In your case you can also consider the exceptional ability of your wife and apply for a green card for her under that category.
Q4. I am a Chartered Accountant. I got my H-1B papers in April 1999. I submitted the same on 7th April 1999 to US consulate when I was told that my papers have been taken up for investigation and I will be contacted after two-three months. I was given unsigned papers that including my academic degrees would be verified and visa will be either issued or rejected. Now it is middle of August so far I was not given any information. Whenever I try to get in touch with the Consul, I was informed that they would get in touch with me and I should not call upon the Consulate. I am helpless. What is the way to get a reply from the consul?
R. Lalitha Mohanraja, Coimbatore
Ans. It must be that something suspicious in your papers must have been observed by the Immigration officer. Recently in many cases it has been observed that certificates and documents in support of qualifications to be eligible for H-1B visas were not genuine. The Consulate therefore in cases where they are doubtful makes their own investigations. Depending upon the nature of the investigations and the availability of the investigators, the Consulate would deal with your application. As and when the investigation is over they themselves would inform you. If your papers are in order and your academic degrees are genuine you should not worry. But you will have to wait.
Q5. What is a "Labour Certification required by the US Immigration Authority?
Ms. Kavita D. Desai, Mumbai
Ans. The Labour Certification is the process by which an employer shows the State and US Department of Labour that hiring a foreign citizen worker will not adversely affect the US work force. It is an application that is filed by the employer.
Q6. Can one physically residing in US apply for H-1B status without leaving US.
Atit Shah, New York, US.
Ans. If a person has entered US legally, has never worked in US illegally, the date on his I-94 card has not passed away and is simultaneously filing paper work for or has already received an approved petition can apply for H-1B status without living US.
Q7. My husband's two brothers joined us in US. They came to US on H-1 visa to work as Engineers. They are however, for the very same employer, working merely as clerks. Is this allowed or by doing so they are violating the condition by which they have obtained visa? In case, if they are found out, what are the consequences?
A Reader, US.
Ans. In this case both the employer and the employee are in the wrong and both on being found are liable to be penalized. The employees' H-1B visa are liable to be cancelled and if they are contemplating to apply for Green Card from H-1B status the same is likely to be disapproved on the grounds of fraud and/or violating the conditions of H-1B visa.
Q8. A friend of mine went to Boston, USA on an H-1B visa. The company who had sponsored him has asked him to search for an employment on his own. Many other Indians from Ahmedabad who have gone like my friend on H-1B Visas have also been asked to search jobs on their own. Is it not true that a job is secured when you are granted an H-1B visa?
Rahul Shah, Ahmedabad.
Ans. An H-1B visa is granted only when an US Employer sponsors the immigrant. That means that the job of the immigrant is secured. H-1B status is employer specific. If you have obtained an H-1B visa and then your sponsor company asks you to procure job on your own, you have to find a new employer and your new employer has to start from scratch and file the form I-129 Petition for you. It appears that your friend and others in like situation were not genuinely offered jobs in US but had availed of fake companies services to enter US on H-1B visa.
Q9. What is the nature of paper work which is required to be submitted to get a H-1B visa?
Mukund Dave, Baroda.
Ans. To get a H-1B visa you and your US employer must complete the official government Forms and submit the same along with personal documents such as your degree and/or diploma certificates, mark sheets, academic credentials, professional license, certificates of merits, certificate issued by your employers, etc. Documents will be accepted if they are in English. If not they must be accompanied with a translation and on the translation the translator must certify by stating that he has translated that document from whatever language the original document is, to English language and that the translation is accurate and complete. The translator must also state that he is fully conversant to translate the said language to English. To US Consulates the original documents must be given along with xerox. As regards the INS you can furnish them xerox copies and should be able to produce, upon request the originals. You must think very carefully as to what documents you should submit. You should also fill in the official Government Forms very very carefully. Lakhs of applications from all over the world are applying for H-1B visas. It will help you to consider ten times and check up your Forms and documents before you submit them.
Q10. Is there any restriction on H-4 visa whereby the spouse of H-1B visa holder, who has more than 4 years of education after 12th standard is refused H-4 visa by considering such an educated spouse as a potential immigrant?
Devendra Gajeshwar, New Mumbai.
Ans. When a person qualifies for H-1B visa that person's spouse and unmarried children under the age 18 years should get H-4 visa simply by providing proof of their family relations with H-1B visa holder. H-4 visa authorizes the family members of the holder of H-1B visa to stay with the visa holder in US but not to work there. In normal circumstances, whether illiterate or educated and studied up to 4 years after 12th standard or not, the spouse of H-1B visa holder should be granted H-4 visa. If the visa of a spouse of H-1B visa holder is refused by the Immigration Officer only because that spouse has taken education for four years after 12th standard and therefore considered as a potential immigrant such a decision is not proper and could be appealed.
Q11. My friend's son who had gone to US to study after completing his MBA got a job there. His employers applied for necessary visas for him to stay and work for them. Recently he came to India. At that time he told me that though his present job is for a period of two years he would be applying for a Green Card through employment and would be in a position to live in US permanently. I was surprised at this as people whose relatives are in US and have petitioned for them have to wait for 10 to 15 years to get Green Card. How could a person who traveled to US as a student stay there after his studies are over and then obtain a Green Card? Who can qualify for a Green Card through employment? What are the advantages and disadvantages of such a Green Card?
Arvind H. Bhuta, Bhavnagar
Ans. It is possible for a person who has traveled to US as a student on F-1 and or M-1 visa to change status and apply for and obtain H-1 or H-1B visa. To get a Green Card through employment one must have a job offer from a US employer. The Applicant must also have a correct background in terms of education and work experience for the job which he/she is offered and there should not be a qualified American willing to or able to take up the job offered. However, in the categories of Green Card where labour certification is not required, the last qualification will not apply. The advantages of obtaining a Green Card through employment are that the person may live as long as he wants anywhere in the US. Although the application for a Green Card through employment must be based on one's specific job, the applicant need not keep that job permanently. Once the Green Card is obtained the applicant may work at any job for any person, persons or company anywhere in the US. The applicant can also be self-employed and can also carry on his own business. If he wants, he may not work at all. The applicant is entitled to travel out of the US whenever he wants to and can also choose to become an American Citizen after he has held the Green Card for at least 5 years. Once the applicant qualifies for a Green Card through employment his spouse and unmarried children (which may also include divorced children or widowed children) under the age of 21 years may also get Green Card as accompanying relatives. However, the applicant's actual place of residence must be in US. The Applicant cannot use the Green Card just for work and travel purposes. The applicant must also pay US taxes on his worldwide income since the Green Card holder is regarded as US citizen. If the applicant commits a crime or participates in subversive activities his Green Card may be taken away and he would be deported.
Q12. I am a software professional. In September, 1999, I was granted a Business Visa for six months period for U. S. In my Visa Application Form, against the questions (1) Have you or anyone acting for you ever indicated to a U. S. Counselor or Immigration employee, a desire to migrate to U. S.? (2) Has any one ever filed a Immigration Visa Petition on your behalf ? and (3) Has Labour Certification for employment in U. S. ever been requested by you or on your behalf ?, I had answered as "No". On the said Business Visa, I traveled to U. S. There, I received H-1 work permit. I had some problems in India and therefore I came to India in January, 1999. I then applied to the Consulate here for again going to U. S. on H-1 Visa. The Consulate Officer, at that time, checked my earlier Business Visa Application Form, wherein the aforesaid three questions were answered by me in negative. He felt that my answer in negative to the third question was wrong and fraudulent, because I knew about the Application for my employment having been made at that time, pursuant to which I was granted H-1 work permit. My papers were sent to the INS who imposed a 90 year ban upon me against entering U. S. My Business Visa, on which I had earlier traveled to U. S. were still valid when I had applied for the H-1 Visa. The Immigration Officer in the U. S. Consulate's Office in India crossed my said Business Visa and wrote some letters and numbers thereon. I have thereafter consulted three distinguished U. S. Immigration Lawyers, who all are of the opinion that there was nothing wrong and fraudulent in my answering those questions on my Visa Application Form in negative, since those questions are applicable only for permanent employment in U. S. and not a temporary employment applicable for H-1B visas. All of them have informed me that I can challenge the said decision. However their fees of U. S. $ 15000 and more is prohibitive for me. Can you tell me whether I have any other remedy available for removing the said ban imposed upon me from entering U. S. and removing the said endorsement made on my U. S. Visa ? If, I apply now for a Visa to travel to Canada, U. K., Australia or any other country, how would the Immigration Officers of those countries react to the endorsement made on my U. S. Visa?
Mr. Surendra Gupta, Calcutta.
Ans. Considering the fact that you are a software professional and you will have ample opportunities to earn substantially in U. S. or other western countries, if the ban is removed, I feel that you must take necessary steps for removing the said ban. The fees of U. S. $ 15000 quoted to you by the Attorneys in U. S. is reasonable considering the nature of the petition, which they will be required to file on your behalf for removing the ban imposed against you and the amount of work involved for the same. It is also possible for you to make an Application from India for removal of the said ban to the INS on your own. But it will be wise on your part to do so with the assistance of an Immigration Attorney. In the matter of Immigration, it is always advisable to consult an Immigration Lawyer beforehand. The endorsement on the U. S. Visa on your passport will definitely be viewed seriously by the Immigration Officer of any other country.
Q13. I have received a proposal for marriage from one of our Community person, who at present is working in a multi-national company in U. S. on H-1B Visa. He has intentions to settle down in the U. S. permanently. A Petition for Green Card has already been filed for him. My parents and relatives are telling me that I should wait and should get married to him after he obtains a Green Card, so that as his wife I can also get a Green Card and stay in the U. S. What do you advice ?
Miss. Jyoti S. Varma, Indore.
Ans. It will be unwise for you to wait till the person who has proposed you obtains a Green Card. Since once he gets the Green Card and thereafter marries you, your Petition for Green Card would fall under second preference and it would involve waiting for several years. However if you get married to him in his H-1B Status, as his spouse, you will be in a position to obtain H-4 Visa and travel with him to the U. S.
Q14. My son, who was employed by a multi-national company and was granted an H-1B Visa is suddenly given a lay-off. Can he claim compensation from his company for dismissing him before his authorised stay on H-1B Visa expiring ?
A Reader.
Ans. Whether or not your son can claim any compensation from his employer would depend upon his terms of contract with his employers. Normally in the U. S., the policy is "Hire and Fire". The employers are entitled to dismiss their employees at any time. However in the case of your son, his employers would be liable to pay for his trip back to India as he was an H-1B worker and has been dismissed before his authorised stay has expired.
Q15. My son did B. E. (Mechanical) from Delhi in 1992 and MS (Bio Instrumentation) from a university in USA in 1995. In the MS Course he took a few computer-related subjects, based on which he got a job there as programmer/analyst in 1995. He got H1-B visa in April 1996, and went to Canada in October 1996 to get "Multiple entry" endorsed but the INS at the border did not let him re-enter USA saying that his subjects in BE and MS were different from the field he claimed he was working in. On intervention of lawyers of his employer company, they let him re-enter the USA the next day saying that the next time they would not. However, they did not make any entry whatsoever on his passport or visa. He is still working there on H1-B visa. His Green Card is under processing and will take some time. The Labour Certification has just been issued. He wants to visit us now. How can he get multiple entry and is it safe for him to leave USA ?
A father.
Ans. As no endorsement has been made on your son's passport by the U. S. Immigration Authorities at the Canadian Border, it means that when he would visit India, he will have to go to the U. S. Consulate for endorsing his H-1B Visa on his passport. At that time, the scrutiny will be more strict and the question of his subjects in B. E. and M. S. being different from the field he claimed he was working in, may arise once again. Added to that, the question of his Application for Green Card will also arise and in all probability he will not be granted a visa to enter U. S. again. According to me, it is advisable for your son to stay in U. S. till he gets his Green Card.
Q16. I am a general medical practitioner and have an MBBS Degree. I desire to go to America. Can you suggest me what type of Visa I should apply for ?
Dr. Bhadresh G. Patel, Rajkot.
Ans. If you are interested to teach or do research for a public or non-profit private educational or research institution or agency where no patient care is involved or if involved is merely incidental to the teaching or research, then you can approach such an institution in the U. S. and request them to sponsor you for an H-1B Visa. The procedure is the same as in the case of other professionals applying for the H-1B Visa. In addition, you would be required to have a certification from a State Medical Board as a Visiting Researcher or Visiting Professor. You can also seek a job as a Pharmaceutical Person for private employers and be eligible for H-1B Visas. Doctors may also qualify for J-1 Visas. These Visas however involve severe limitations.
Q17. I had applied for the post of an Accountant in a Departmental Store in Houston. In response to the same, I was interviewed on telephone and thereafter I received a letter informing me that I have been selected for the post. My employers then Petitioned for me for H-1B Visa, which was accepted. When I went for Visa interview in India, at the U. S. Consulate in New Delhi, the Visa Officer inquired of my qualifications and experiences. I am a commerce graduate and have experience in working for two years with a store in New Delhi as a Computer Programmer. The Visa Officer, upon learning my qualifications stated that I was not qualified for H-1B Visa, but I am to be qualified for H-3 Visas and thereupon he did not grant me the H-1B Visas. What are the H-3 Visas ?
A Reader.
Ans. This Visa enables people to further their careers in their home country by participating in the Job Trading Programmes offered by the U. S. Companies. These training must not be available in their own country and the programmes should be designed on their jobs abroad. One would be eligible for H-3 Visa if that person's qualification enables him/her to meet the requirements for participation in their training programme. That person is required to maintain his/her residence in his/her home country and show an intention to return home once the training programme is complete. The programme itself must be a legitimate one with a formal curriculum and the Applicant must be invited or requested to participate in such a programme and it must be aimed at furthering the Applicant's career abroad. You must be able to show that less than half your time will be spent working in order to justify obtaining an H-3 Visa. I doubt whether you would qualify for an H-3 Visa.
Q18. I have procured a job as a Computer Analyst in a reputed company in Chicago. They have Petitioned for my H-1B Visas. I am asked by them to keep several documents ready, so that once my H-1B Petition is accepted, I can make an Application to the U. S. Consulate in Chennai for H-1B Visas. I have all the required documents, but few of them are in vernacular language. I am informed that all documents sent in support of H-1B Visa Application to the U. S. Consulate should be translated into English language. From whom should I get my documents, which are in vernacular language, translated into English language. Do I go to the Official Translator's Office in the High Court here ? Is it necessary that translation should be certified as a True Copy by a Notary or some other Authority ? Please guide me in this behalf ?
J. S. Moos, Chennai.
Ans. You need not go to any one. You yourself, if capable, can have the documents `word by word' translated into English. If you yourself cannot do it, you can have the translation done by any one competent to do the same. However at the end of each translation, the translator must write the following :
"I hereby certify that I have translated this document from ....(fill in appropriate language) to English. This translation is accurate and complete. I further certify that I am fully competent to translate from ..... (state the language) to English."
The translator should then put his signature and date below the same.
Q19. My brother, who went to U. S. on a Tourist Visa, after staying there for three months, got a job there and applied for an H-1B Visa. His Petition was accepted. Now, he is informed that to obtain an H-1B Visa, he has to travel to India and apply to the U. S. Consulate in India. Is it correct ? Should my brother travel all the way to India for obtaining H-1B Visa and then return back to the U. S. ? Will there not be any difficulty if he leaves U. S. and comes to India ? Will he be allowed to return back to the U. S.? Please throw some light on this, as my brother is confused and extremely worried ?
A Reader.
Ans. Your brother need not travel to India. He should apply for adjustment of Status in the U. S. itself. In all probability, his Application for adjustment of status would be granted. However, if the same is denied, he can remain and work in the U. S. and Appeal against the said decision.
Q20. Many of my friends, who have gone to the U. S. for work on H-1B Visa had consulted Immigration Lawyers for obtaining their H-1B visas and had to pay their fees of U. S. $ 3,500 - 5,000. I find that the same is wastage of money. One can easily apply for an H-1B Visa by himself. Am I right?
Rohit S. Parikh, Mumbai.
Ans. Immigration laws and procedures of all the countries including the U. S. are complex and are changing very often. In a matter where one's entire future depends upon whether his/her immigration papers are proved or not, it is risky to venture without professional guidance. Compared to the entire future of a person, the fees, which Immigration Lawyers are charging, are negligible. As you should not treat yourself when you are ill, but should take medication from a knowledgeable doctor, similarly in the matter of your future career, you should not take any chances, but get expert advice from an Immigration Lawyer.