미국에서 job을 가지고 계신분들에게 관련된 정보 (H1-B Visa Holder)
- 글쓴이
- kyung-ho cho
- 등록일
- 2002-08-03 03:48
- 조회
- 3,182회
- 추천
- 0건
- 댓글
- 0건
관련링크
우연히 미국 체류관련된 정보를 얻어 공유할까 합니다. 특히 H1-B (취업비자)를 가지고 계신분들께 도움이 되리라 생각됩니다
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
EMPLOYMENT TERMINATION FAQs
FAQs REGARDING IMPACT OF TERMINATION OF EMPLOYMENT ON NON-IMMIGRANT STATUS
1. What happens to my H-1B in the event my employment with my H-1B employer ends? Can I obtain a position with a different employer?
Your H-1B status is based on your employment with a specific employer. If this employment relationship ends, your current H1B no longer provides the basis for your presence or employment in the US even though your I-94 is still valid. You must obtain other “permission” from INS to remain in the US.
INS regulations do not specify how long a person has to remain in the United States or file a change of employer/change of status petition. The regulations only refer to a 10-day time frame following the validity period of the H-1B petition. It is the customary practice to assume that this 10-day period also applies to situations in which employment is terminated. This means that when your employment terminates (as a result of Voluntary Separation, the end of your redeployment period, or even a performance-related termination or termination for personal reasons), you have 10 calendar days to either depart the U.S. or to submit a petition to INS for another type of visa (such as another company’s H-1B petition on your behalf).
Recently, INS acknowledged the difficulties created by this lack of clarity in the regulations. INS indicated that it is considering a new regulation that would provide an official “grace period” for those in H status seeking to change employers or status. The process of approving and implementing new regulations is a complex and lengthy one. Since there is currently no such “grace period” you should not rely on INS’ comments regarding the possibility of the new regulation until such time as the regulation is actually approved and published.
When the INS is adjudicating a change of status/employer petition, they have discretion to determine that too much time has elapsed between the termination of employment and the filing of the petition. In this situation, the INS could still approve the petition, but deny the part of the application allowing the change of status or extension of stay to occur in the U.S. You would then need to apply for a visa at a consulate outside the United States prior to beginning your new employment.
It is critical that if you find yourself in this situation, you immediately speak with an immigration attorney to evaluate your status. Intel’s immigration attorneys cannot advise you on matters related to your immigration status after employment with Intel terminates, other than the general information provided in this document.
2. Must I take any action on behalf of my spouse and children?
Yes. The status of your “dependents” is connected to or “derivative” to yours, so you must include them in any new/amended petition that is filed on your behalf.
3. I have heard that I do not have to wait for an H petition filed by a new employer to be approved before I can begin working for the new employer. Is this true?
Yes, due to recent changes in the law, an individual who is in H-1B status may now begin working for another company once a "non-frivolous" H-1B petition has been properly filed with the INS by the new employer. To take advantage of this law, you must show that you were lawfully admitted to the United States in H-1B status at the time the new employer files the petition, and that you have not previously worked without authorization.
4. Do I get an additional 6 years of H status when I begin working for a new employer?
No. The law only provides a total of 6 years in H status. The time is cumulative, which means that you must count all the time you have previously spent in H (or L) status for all employers when evaluating how much time you have left.
5. I also have heard that my H-1B can be extended beyond 6 years. Is this true?
Only in some cases. Recent changes to the law allow for extensions of H-1B status beyond six years provided that certain conditions are met. The two provisions which allow extensions are:
· An H-1B will be extended in one-year increments if an individual has an I-140 immigrant visa petition filed and more than 365 days have elapsed since the labor certification application was filed.
· An H-1B may be extended for foreign nationals that have an approved I-140 petition but are unable to file an adjustment of status application due to priority date backlogs.
Please note that INS has not issued any regulations providing guidance on how INS will interpret the law. It is not at all clear that these provisions would allow you to rely on the date or fact of filing a labor certification or I-140 immigrant petition by your current employer when you are no longer employed by them. Before relying on these provisions, then, it is critical that you review your specific situation with your own immigration attorney to determine whether the provisions would be applicable to your case.
6. I am in L status. Do the same H-1B rules apply to me?
Not entirely. As with someone in H status, your legal presence and work authorization are connected to your employment with the company that sponsored your L petition, so if you leave your employer, you will need to obtain another status in order to have the right to live and work in the US. Further, since the L status is based not only on your current employment with your employer in the US, but the fact that you worked for the same employer overseas for one year prior to your entry, the chances are very remote that you are eligible for an L with another employer.
Like someone in H status, you must include family members in any new petition filed on your behalf or they will not be in status.
Unlike the H provisions, the law does not allow someone in L status to begin working for another employer upon the filing of an H petition. Rather, you have to wait until your H is approved to begin new employment.
Finally, the provisions allowing for extension of H status beyond 6 years do not apply to someone holding L status, so your time in L status is still limited to 5 years as an L1B or 7 years as an L1A. Keep in mind that according to the federal regulations, the total of 6 years allowed in H status must include anytime previously spent in H or L status for any other employers.
FAQs REGARDING IMPACT OF TERMINATION OF EMPLOYMENT ON PERMANENT RESIDENCY
PROCESS
1. I am currently in the labor certification process. Can my labor certification be transferred to another employer or to a different position or location within my current employer?
No. Your labor certification is employer specific, job specific and location specific. It cannot be used for a permanent residency application with another employer. If you change jobs or locations at your current company, or leave your employment with them, you will need to start the process over again in the new position.
2. My labor certification has been approved and my I-140 immigrant petition has been filed. Can that be transferred to another job with another employer or to a different position or city within my current employer?
No. Your I-140 is based on the position/employer/location described in the underlying labor certification. A change in employer would require the filing of a new labor certification application and a new I-140 immigrant petition.
3. I have heard that I can “use” my I-140 with a new employer once it has been approved. Is this true?
Not exactly. If you are still employed by your current employer when your I-140 is approved, and you subsequently leave that employer, it may be possible for you to retain your original priority date (the date that your labor certification was filed). This will allow an advantage if there is a backlog in visas available based on your country of birth and preference category. Your new employer, however, will still need to file a new labor certification and I-140.
4. My Adjustment of status was been filed and I have received my EAD. Does my EAD allow me to leave my current employer yet continue with my Adjustment?
No. The EAD does not change the general requirement that in order for your Adjustment to proceed you must intend to accept the position with your current employer described in the underlying I-140 immigrant petition.
5. My adjustment of status has been filed but has been pending for less than 180 days. What happens if I leave my employment with my current company?
A. The immigration law allows you to immigrate only if the job for which your employer received labor certification still exists and the employer intends to have you fill it once your AOS is approved.
· If your employment stops, the underlying certified job offer is no longer valid and the AOS process may not continue.
· The law allows the employer to withdraw your I-140 so that it can be used by another employee working in the same generic position identified in the labor certification.
· The law gives “ownership” of the labor certification and the I-140 to the employer since both documents involve the employer’s obligations, not the employee’s.
B. If you have valid H-1B status and are still eligible for more H 1B time [i.e., you have not used your entire 6 years], you might be able to switch your H-1B status to another employer, and you might be able to begin work for that second employer when your “new” employer has a receipt for its H-1B petition filing, rather than have to wait for the full approval of the H-1B. This would represent a savings of several months in time. This option is discussed above in Question 3.
6. My Adjustment of Status has been filed and has been pending for more than 180 days. I heard that in this case, I can leave my current employment and continue with the Adjustment. Is this True?
Under a law passed October 2000, the INS is allowed to continue processing an AOS case if it has been filed for more than 180 days even if the employee will no longer be working at the labor certification job. There are a number of conditions attached to this benefit, including the requirement that the job be the “same or similar” as the one for which labor certification was granted.
To date, INS has not issued regulations defining “same or similar”. Such questions as whether the job can be in a different geographic location, or whether it can be in a closely related field are not answered. As a result, it is wise to be very cautious in relying on this “open job market” benefit. You should always review your situation with your own lawyer before making any decisions about a job change when you have an AOS pending.
Further, INS has not issued regulations discussing the effect of a withdrawal of the underlying I-140 on a pending AOS application, even if it has been pending for more than 180 days. If the I-140 is withdrawn by the employer so that it can be used by another employee, INS may conclude that the original AOS is also withdrawn since the job on which is was based is now being used by another foreign national. Again, you should review these matters carefully with your own lawyer.
7. I Have an Adjustment of Status pending. How long can I remain in the U.S. after leaving my current employment?
See discussions in Questions 5 and 6.
There are no regulations defining how long you may remain in the US if you are an applicant for AOS based upon a labor certification and an I-140 and you are terminated from that employment.
If your employment is terminated, you should consult your own attorney immediately to determine if you need to take any steps to remain legally in the US, even to locate a new job.
You should not assume that an existing EAD or Advance Parole automatically grants you the right to remain in the US.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
EMPLOYMENT TERMINATION FAQs
FAQs REGARDING IMPACT OF TERMINATION OF EMPLOYMENT ON NON-IMMIGRANT STATUS
1. What happens to my H-1B in the event my employment with my H-1B employer ends? Can I obtain a position with a different employer?
Your H-1B status is based on your employment with a specific employer. If this employment relationship ends, your current H1B no longer provides the basis for your presence or employment in the US even though your I-94 is still valid. You must obtain other “permission” from INS to remain in the US.
INS regulations do not specify how long a person has to remain in the United States or file a change of employer/change of status petition. The regulations only refer to a 10-day time frame following the validity period of the H-1B petition. It is the customary practice to assume that this 10-day period also applies to situations in which employment is terminated. This means that when your employment terminates (as a result of Voluntary Separation, the end of your redeployment period, or even a performance-related termination or termination for personal reasons), you have 10 calendar days to either depart the U.S. or to submit a petition to INS for another type of visa (such as another company’s H-1B petition on your behalf).
Recently, INS acknowledged the difficulties created by this lack of clarity in the regulations. INS indicated that it is considering a new regulation that would provide an official “grace period” for those in H status seeking to change employers or status. The process of approving and implementing new regulations is a complex and lengthy one. Since there is currently no such “grace period” you should not rely on INS’ comments regarding the possibility of the new regulation until such time as the regulation is actually approved and published.
When the INS is adjudicating a change of status/employer petition, they have discretion to determine that too much time has elapsed between the termination of employment and the filing of the petition. In this situation, the INS could still approve the petition, but deny the part of the application allowing the change of status or extension of stay to occur in the U.S. You would then need to apply for a visa at a consulate outside the United States prior to beginning your new employment.
It is critical that if you find yourself in this situation, you immediately speak with an immigration attorney to evaluate your status. Intel’s immigration attorneys cannot advise you on matters related to your immigration status after employment with Intel terminates, other than the general information provided in this document.
2. Must I take any action on behalf of my spouse and children?
Yes. The status of your “dependents” is connected to or “derivative” to yours, so you must include them in any new/amended petition that is filed on your behalf.
3. I have heard that I do not have to wait for an H petition filed by a new employer to be approved before I can begin working for the new employer. Is this true?
Yes, due to recent changes in the law, an individual who is in H-1B status may now begin working for another company once a "non-frivolous" H-1B petition has been properly filed with the INS by the new employer. To take advantage of this law, you must show that you were lawfully admitted to the United States in H-1B status at the time the new employer files the petition, and that you have not previously worked without authorization.
4. Do I get an additional 6 years of H status when I begin working for a new employer?
No. The law only provides a total of 6 years in H status. The time is cumulative, which means that you must count all the time you have previously spent in H (or L) status for all employers when evaluating how much time you have left.
5. I also have heard that my H-1B can be extended beyond 6 years. Is this true?
Only in some cases. Recent changes to the law allow for extensions of H-1B status beyond six years provided that certain conditions are met. The two provisions which allow extensions are:
· An H-1B will be extended in one-year increments if an individual has an I-140 immigrant visa petition filed and more than 365 days have elapsed since the labor certification application was filed.
· An H-1B may be extended for foreign nationals that have an approved I-140 petition but are unable to file an adjustment of status application due to priority date backlogs.
Please note that INS has not issued any regulations providing guidance on how INS will interpret the law. It is not at all clear that these provisions would allow you to rely on the date or fact of filing a labor certification or I-140 immigrant petition by your current employer when you are no longer employed by them. Before relying on these provisions, then, it is critical that you review your specific situation with your own immigration attorney to determine whether the provisions would be applicable to your case.
6. I am in L status. Do the same H-1B rules apply to me?
Not entirely. As with someone in H status, your legal presence and work authorization are connected to your employment with the company that sponsored your L petition, so if you leave your employer, you will need to obtain another status in order to have the right to live and work in the US. Further, since the L status is based not only on your current employment with your employer in the US, but the fact that you worked for the same employer overseas for one year prior to your entry, the chances are very remote that you are eligible for an L with another employer.
Like someone in H status, you must include family members in any new petition filed on your behalf or they will not be in status.
Unlike the H provisions, the law does not allow someone in L status to begin working for another employer upon the filing of an H petition. Rather, you have to wait until your H is approved to begin new employment.
Finally, the provisions allowing for extension of H status beyond 6 years do not apply to someone holding L status, so your time in L status is still limited to 5 years as an L1B or 7 years as an L1A. Keep in mind that according to the federal regulations, the total of 6 years allowed in H status must include anytime previously spent in H or L status for any other employers.
FAQs REGARDING IMPACT OF TERMINATION OF EMPLOYMENT ON PERMANENT RESIDENCY
PROCESS
1. I am currently in the labor certification process. Can my labor certification be transferred to another employer or to a different position or location within my current employer?
No. Your labor certification is employer specific, job specific and location specific. It cannot be used for a permanent residency application with another employer. If you change jobs or locations at your current company, or leave your employment with them, you will need to start the process over again in the new position.
2. My labor certification has been approved and my I-140 immigrant petition has been filed. Can that be transferred to another job with another employer or to a different position or city within my current employer?
No. Your I-140 is based on the position/employer/location described in the underlying labor certification. A change in employer would require the filing of a new labor certification application and a new I-140 immigrant petition.
3. I have heard that I can “use” my I-140 with a new employer once it has been approved. Is this true?
Not exactly. If you are still employed by your current employer when your I-140 is approved, and you subsequently leave that employer, it may be possible for you to retain your original priority date (the date that your labor certification was filed). This will allow an advantage if there is a backlog in visas available based on your country of birth and preference category. Your new employer, however, will still need to file a new labor certification and I-140.
4. My Adjustment of status was been filed and I have received my EAD. Does my EAD allow me to leave my current employer yet continue with my Adjustment?
No. The EAD does not change the general requirement that in order for your Adjustment to proceed you must intend to accept the position with your current employer described in the underlying I-140 immigrant petition.
5. My adjustment of status has been filed but has been pending for less than 180 days. What happens if I leave my employment with my current company?
A. The immigration law allows you to immigrate only if the job for which your employer received labor certification still exists and the employer intends to have you fill it once your AOS is approved.
· If your employment stops, the underlying certified job offer is no longer valid and the AOS process may not continue.
· The law allows the employer to withdraw your I-140 so that it can be used by another employee working in the same generic position identified in the labor certification.
· The law gives “ownership” of the labor certification and the I-140 to the employer since both documents involve the employer’s obligations, not the employee’s.
B. If you have valid H-1B status and are still eligible for more H 1B time [i.e., you have not used your entire 6 years], you might be able to switch your H-1B status to another employer, and you might be able to begin work for that second employer when your “new” employer has a receipt for its H-1B petition filing, rather than have to wait for the full approval of the H-1B. This would represent a savings of several months in time. This option is discussed above in Question 3.
6. My Adjustment of Status has been filed and has been pending for more than 180 days. I heard that in this case, I can leave my current employment and continue with the Adjustment. Is this True?
Under a law passed October 2000, the INS is allowed to continue processing an AOS case if it has been filed for more than 180 days even if the employee will no longer be working at the labor certification job. There are a number of conditions attached to this benefit, including the requirement that the job be the “same or similar” as the one for which labor certification was granted.
To date, INS has not issued regulations defining “same or similar”. Such questions as whether the job can be in a different geographic location, or whether it can be in a closely related field are not answered. As a result, it is wise to be very cautious in relying on this “open job market” benefit. You should always review your situation with your own lawyer before making any decisions about a job change when you have an AOS pending.
Further, INS has not issued regulations discussing the effect of a withdrawal of the underlying I-140 on a pending AOS application, even if it has been pending for more than 180 days. If the I-140 is withdrawn by the employer so that it can be used by another employee, INS may conclude that the original AOS is also withdrawn since the job on which is was based is now being used by another foreign national. Again, you should review these matters carefully with your own lawyer.
7. I Have an Adjustment of Status pending. How long can I remain in the U.S. after leaving my current employment?
See discussions in Questions 5 and 6.
There are no regulations defining how long you may remain in the US if you are an applicant for AOS based upon a labor certification and an I-140 and you are terminated from that employment.
If your employment is terminated, you should consult your own attorney immediately to determine if you need to take any steps to remain legally in the US, even to locate a new job.
You should not assume that an existing EAD or Advance Parole automatically grants you the right to remain in the US.
