Thursday, June 23, 2016

What happens to the H4 visa and the H4 EAD when the H1B is terminated?

In our previous video (see video below), we discussed about issues relating to H1B and layoffs. While the H1B layoffs is painful, the H4 visa holder also feels the pain when the H1B is terminated. As such someone who has had his H1B terminated and is not able to transfer H1B and the H4 on time, will see their spouses H4 visa and H4 EAD terminated by operation of law. This in turn means that the H4 EAD holder has to stop working because the H4 EAD will be invalidated. In order to fix the H4 and H4 EAD, you need to first fix the H1B situation. Once you fix the H1B visa through either transfer of status or new employment with consular processing, you also need to do the same for the H4 Visa holder. This means that you either need to file H4 visa extension (if H1B is transferable) or travel outside to have the H4 visa reinstated at the port of entry. Please do not forget that the H4 is attached to the H1B and ultimately the EAD attached to the H4 is affected by termination of the H1B. If you need help, feel free to call (510) 742 5887.

Monday, June 6, 2016

Is 24 month STEM OPT worth it?

The new 24 month STEM OPT is presenting some really difficult challenges which is making many question whether they should actually apply for it.  Here are few things you might want to consider  prior to applying for the 24 STEM OPT:

1. Are you actually going to work in your field?
If you are not going to actually work in the field of your STEM degree, you should not even apply for the 24 Months OPT because it will be denied.  Also misrepresenting on your I-983 application form or when you apply for your EAD, might have very bad consequences on your career and your ability to get future immigration benefits.

2. Does the employer have the ability to monitor the student as required by the form I-983?
The form I-983 is very precise on the requirements on monitoring and other necessary compliance requirements.  The employer, the student and the designated school official (DSO) are all supposed to check on one another.  In case one of them miss any of the steps or misrepresent, all the entities might be liable.

3. Are you going to work for a consulting company?
As you know the way the new STEM OPT extension is crafted, working with a consulting company can actually present some challenges.  This article best describes how to deal with such challenges. The only question is whether the consulting company is willing to participate? If they do, then the student should make sure they are fully compliant with the other requirements. For those who don't get a participating employer, then we recommend to quickly find another employer.

What are the options if you cannot get STEM OPT?
  • Many have asked whether it is better to move back to CPT instead of taking the risk on OPT. Unfortunately the CPT is not a work permit per se, abusing the CPT can have dire consequences in your OPT or even your H1B visa. However, it seems that for many the CPT might actually be a better option. We recommend you call your lawyer before you make the choice.
  • If you have the ability to move to H4 EAD, we recommend that you take this choice. Many feel that since they have paid so much for an education, they do not want to lose the STEM OPT but the risk of violating the rules under STEM OPT might be worse than the money lost.  Also you might be eligible to claim this OPT based on another degree.  
The points mentioned above are just few of the issues we are seeing with the new OPT STEM extension.  We recommend talking to a good lawyer to help before you make any choice(s). You can reach the Shah Peerally Law Group at 510 7425887 or email for more information.


Thursday, June 2, 2016

Lawsuit on H1B lottery

The American Immigration Lawyers Association (AILA) and some other organizations on failure to respond to Freedom of Information Act (FOIA) on transparency of the H1B lottery.

"The lawsuit challenges USCIS’s failure to properly respond to the Council’s FOIA request by withholding responsive records and failing to identify and conduct an adequate search for records that describe how USCIS tracks and counts unused H-1Bs for each fiscal year and takes into account such unused numbers. Because demand far exceeds the limited pool of H-1B visa numbers available in a fiscal year, the American public—and in particular, U.S. employers, foreign nationals seeking H-1Bs and immigration lawyers—have an interest in a system that fairly selects the petitions submitted and completely allocates the H-1B numbers."

Let us see how the USCIS deals with this one!

Immigration Law Show June 2 2016 - E3 Visas, EB2 AOS, H1B visas, H4 EAD Business