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Vivek Goel

Vivek Goel’s Answers

6 total

  • L1 to H4 change of status requirements

    My wife is working on an L1 visa and I am working in an H1 visa. Her employer has stated that they will not file for an L1 extension and we want to change her status from L1 to H4. I am planning to file an I 539 change of status application but my...

    Vivek’s Answer

    • Selected as best answer

    As long as your wife is in valid L-1 status at the time the change of status application is filed with USCIS, she may remain in the United States and is not required to depart the country to obtain an H-4 visa stamp in her passport. On this point, it should be noted that a U.S. "visa" is a document entered in one's passport that permits a foreign national to apply for admission to the United States. Once that person has been lawfully admitted to the United States, their stay and "visa status" is governed by their valid Form I-94. Thus, since your wife is presumably lawfully present in the United States, a timely filed and approved change of status application will have the effect of changing her lawful status to the H-4 classification and USCIS will issue her a new Form I-94 (on the approval notice) as evidence of the same.

    You should also keep in mind that your wife's eligibility to continue employment with the L-1 employer ends upon the earlier of the termination of that employment, the expiration of her I-94 noting L-1 status, or the approval of the change of status application to the H-4 classification.

    Good luck.

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  • India Visit before filnig H1B extension

    Hi, My H1B is expiring on Jan-30 and I have to file my extension.I am returnig from India vaction on Jan-05. Is this advisable to file the extension once I return back from India. Will it create any issues on port of entry if I travel on Jan-05...

    Vivek’s Answer

    As long as you hold a valid H-1B visa and will be working for the employer for whom you are approved to work in H-1B status, I don't see any reason why you could not return to the U.S. on January 5, and then have your employer file your H-1B extension petition thereafter. It is unlikely that you would have any problem at the port of entry in this situation based on the facts that you have provided.

    You should bear in mind that the H-1B extension petition must be received and accepted for processing by USCIS no later than the day your H-1B status will expire, as this will permit you to maintain valid immigration status while the petition is pending with USCIS. This will also permit you to continue working for up to 240 days beyond the expiration of your existing H-1B status. You should also keep in mind that the H-1B petition and the related Form ETA-9035 Labor Condition Application will require time for preparation. For this reason, it will be important for you to coordinate this approach with your employer's HR department and immigration counsel to ensure that all potential complications and viable options are considered.

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  • L1B to H1B visa conversion

    I'm on L1-B, petition valid till April 2011. This is when I complete my 5years. I'm exploring the option to process my permanent residentship through my existing employer. With the limited period left on my L1, one option I'm considering is to a...

    Vivek’s Answer

    A change of status from L-1B to H-1B won't have any impact on how quickly your PERM cases is processed by the U.S. Department of Labor.

    Between the two options you have mentioned above, it is important to remember that applying for a "fresh" H-1B petition will not cause your status to automatically change while you are in the U.S., which means that you will need to depart the U.S. to obtain an H-1B visa in your passport and then return to the U.S. with that visa to assume H-1B status. With that in mind, it is important to remember that you must do this BEFORE you complete your five-year period of L-1B eligibility since you will not be eligible for an H-1B visa if you have reached the maximum period of stay in the L-1B classification until you spend at least one year outside the United States.

    I am aware of situations where the beneficiary had already obtained a "fresh" H-1B approval, but was unable to later obtain an H-1B visa because he/she "maxed out" in L-1B status and then left the U.S. for the visa stamping.

    To be safe, please discuss your specific situation with a qualified immigration attorney before deciding on a course of action.

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  • H1 full term expiring in Jun 2011. Am I still eligible to extend for another 3.5 yrs if I stayed only for 2.5 yrs actually in US

    My H1 visa would be completing full 6 years term and expiring by Jun 2011. H1 Visa of 6 years includes only actual stay of 6 years in US (OR) it expires by default after 6 years from the date of first issue? Actually I stayed in US totally...

    Vivek’s Answer

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    The six-year period of eligibility for H-1B status is based on actual time spent in H-1B status while in the United States. Thus, if one only held H-1B status while in the U.S. for 2.5 years, he/she should be eligible to use the H-1B "remainder option" to complete the remaining 3.5 years of eligibility without regard to whether visas are available under the H-1B cap.

    This is a relatively common situation that any competent business immigration attorney should be able to address while filing a new H-1B petition for a sponsoring employer.

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  • Can I invest and run my own business while I have H1B visa? Can I switch to another visa to do so?

    What sort of visa do I need? And is the process of changing visa difficult?

    Vivek’s Answer

    It might be possible if your business is able to get an approved H-1B petition on your behalf for the job that you will be doing.

    In practice, H-1B "self employment" by entrepreneurs used to be relatively common, but under the guidance issued by USCIS on January 8, 2010 (referred to as the Neufeld Memo on H-1B Employer-Employee Relationship), this type of case has come under increased scrutiny. Today, where the H-1B beneficiary is the majority owner or otherwise directs and controls the business' activities, getting such a case approved has become rather unlikely. The reason is that USCIS is requiring the employers in these cases to demonstrate that there is a valid employer-employee relationship between it and the H-1B beneficiary. A valid employer-employee relationship is one where the employer has the "right to control" the employee's work assignments. In situations where the H-1B beneficiary does not report to anyone else within the company, USCIS is taking the position that the requisite "right to control" does not exist, and it denies the case on this basis.

    While there may be other visa classifications that might be more suitable for some form of "self employment," you have not provided sufficient information to allow a thoughtful answer. That said, the L-1, E-1, E-2, O-1, and even TN classifications may offer viable options depending on your individual circumstances. I'd recommend discussing your options with a reputable immigration attorney. Good luck!

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  • I checked online my case status for my I-485 and it is approved, but

    I filed also an I-130 and and I-601 waiver along with it. I wet to the interview already but I haven't received any update of the I-130 and what it is more important so far the I-601. Even though the say my green card has been produced and will be...

    Vivek’s Answer

    While mistakes do occasionally occur at USCIS, I would think that the I-130 and I-601 have also been approved. It's highly unlikely that an I-485 application would be approved without the underlying I-130 and I-601 waiver beig approved, as well. If you have the USCIS receipt notices for the I-130 and I-601 cases, I'd recommend checking the status of those cases online at http://www.uscis.gov.

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