US Immigration Questions & Answers

2. What's that new rule about maintenance of H-1 and L-1 status for certain adjustment applicants?

On Employment
1. Could you suggest some general questions that may be asked of the foreign worker during an employment interview to qualify a potential employee's immigration status?

On TN-1 Visas
1. I'm a foreign worker from Canada, working on a TN-1 visa. I want to start my Green Card, but am told I can't do that. Is that true? What is the best way to go about getting a Green Card?

On Tourist Visas
1. Can I enter the U.S. on a tourist visa (or a visa waiver), then switch to a work visa after I am offered a job?

Miscellaneous
1. I'd like to come to the U.S. to work...as a painter, as a truck driver, as a window washer...in other words, in a job that does not require a college degree. Is that possible?

2. Is it possible to have several petitions processing in USCIS at the same time, each coming from different employers, in case one of the petitions has a problem and is denied?

3. What is the difference between a nonimmigrant, an immigrant, and a U.S. citizen?

4. Tell me about the 3 and 10 year bar that I keep hearing about. How does it affect me if I am "out of status"? What if I am not "out of status" now, but have been in the past?

5. How can I contact the USCIS to see what the status of my file is? All I get is a busy signal.

1. Why do I need an Employment Authorization Document (EAD) and/or Advance Parole

As you may know, because of changes in the law, and the added burden the changes have put on the USCIS service centers, Phase II of the Green Card process, the Adjustment of Status, is taking much longer than ever before. If your H-1B temporary work visa expires while your Adjustment of Status case is pending, filing the I-765 and subsequent issuance of an Employment Authorization Document (EAD) will give you authorization to continue working after your visa expires, without filing an H-1B extension.

I-765 Application for Employment Authorization should be filed no less than 90 days before the H-1B expiration date. If you see that you do not have that much time, an extension of your H-1B should be initiated immediately, in conjunction with the filing of the I-765.

If you travel outside the U.S. while your Adjustment of Status is pending, you may be shown to have abandoned your case unless you have permission to travel. (See #2 below) This permission is given upon receipt of the approved Advance Parole Document. And, when you re-enter the U.S., if your H-1B has expired, you cannot return to work unless you have been issued an EAD.

By automatically filing the I-131 and the I-765 (and subsequent receipt of both documents) with your Adjustment of Status, you are ready at a moment's notice to travel, and your working status is protected upon entry.

If your dependent (16 years or older) desires to go to work while the Adjustment of Status case is pending, they must have authorization by showing an EAD.

Your dependent should not plan to start work until the I-765 has been approved and the actual EAD card received!

2. What's that new rule about maintenance of H-1 and L-1 status for certain adjustment applicants? (Posted on 9/10/99)

Previously, all H-1 and L-1 adjustment applicants were required to obtain advance parole prior to traveling outside the U.S. Effective July 1, 1999, if you are an adjustment of status applicant and have maintained your valid H-1 or L-1 status, you are eligible to travel outside the U.S. without showing to have abandoned your adjustment case. You may also extend your H-1 or L-1 status during the pendency of your adjustment case.

IF YOU DO DECIDE TO TRAVEL, make sure:
1) Your H-1 or L-1 visa is valid
2) You remain eligible for that classification, and
3) You have the ORIGINAL I-797 RECEIPT NOTICE OF ACTION FOR THE I-485 with you when you travel.

Getting married while your adjustment is pending?
Since this new rule became effective, an H-1 or L-1 worker traveling outside the U.S. during the pendency of the adjustment may get married and may also bring the spouse back to the U.S. on a dependent visa.

1. Could you suggest some general questions that may be asked of the foreign worker during an employment interview to qualify a potential employee's immigration status?

• Have you begun the immigrant visa (green card) process?
• Do you have a valid Employment Authorization Document (EAD)?
• When did you initially enter the United States?
• What visa did you enter the United States on? (H-1B, B-2, F-1, H-4, etc.)
• What is your current status? (H-1B, B-2, F-1, H-4, etc.)
• Do you have a valid I-94 card?
• If on an H-1B visa - Are you currently working for the employer who petitioned for your H-1B visa?
• If on an H-1B and not currently working - How long has it been since you worked for your last H-1B employer? or How long have you been out of status?

1. I'm a foreign worker from Canada, working on a TN-1 visa. I want to start my Green Card, but am told I can't do that. Is that true? What is the best way to go about getting a Green Card?

Unlike the H-1B nonimmigrant visa, the Trade NAFTA non-immigrant visa does not have "dual intent", meaning there is no provision for being a nonimmigrant and intending to be an immigrant at the same time. If you begin the immigrant visa process, then return to Canada for a visit while the process is pending, you may be asked the question when you re-enter: "Have you begun your Green Card yet?" When you say "yes", the officers at the port of entry will be obliged to deny you entry into the U.S.

It is our usual policy to suggest that if you are eligible to change your status to an H-1B visa before beginning the green card process, that would be the safest way to proceed. Then, when you travel to Canada, you will be fine, because the H-1B visa does have dual intent...you can be a nonimmigrant and an intending immigrant at the same time!

1. Can I enter the U.S. on a tourist visa (or a visa waiver), then switch to a work visa after I am offered a job?

There is no "black and white" answer for this. According to the regulations, a tourist visa is for just that...to be a tourist. There are other good reasons to enter on a tourist visa, but the good reason should always be fully disclosed to the immigration officer issuing the visa. However, entering to look for a job, or to travel and then later to begin working, are neither one good reasons!

If you enter the U.S. with every good intention to be a tourist, then receive an unforeseen job offer, you may be able to show that entering to work was not your initial intent.

You may be able to show your good faith if the petition to change status is filed more than 60 days after your initial entry as a tourist.

If the change of status is filed (and subsequently approved) before the tourist visa expires, you may make an appointment at a U.S. embassy in Canada to have your new visa stamped. However, the officers do have the authority to question your intent to initially enter on a tourist visa.

If the officers are convinced that you entered with no intention to find employment, they should ultimately approve the new visa and stamp it.

But, if they are not convinced of your original intention to enter as a tourist only, they may deny the visa on the grounds that they suspect fraudulent intent connected with obtaining the tourist visa.

NOTE: If you are from a country where a visa waiver is recognized, and you subsequently enter the U.S. on the visa waiver (for no more than 90 days), you will not be allowed to change to any other status while in the U.S., nor are you allowed to change in Canada or Mexico. In the case of a visa waiver, you must return to your home country U.S. embassy to change the visa status, then re-enter on the new visa. For information on the Visa Waiver Pilot Program, see http://travel.state.gov/visa/laws/telegrams/telegrams_1485.html.)