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  1. How long can I remain on the current visa H-1 in the U.S. after being laid off?
  2. Can we convert to an F1 visa after an H-1 expires after 6 years?
  3. I plan to change my job. If my petition by the other company is denied by INS, I still remain legal with the former H-1?
  4. How long does the INS usually take to process an H-1 B application?
  5. Do I lose legal status if I leave my current employer before my H-1 B transfer is approved?
  6. Can a small software corporation with 4+ years in business sponsor an H-1B employee ?
  7. After H-1 B approval, can I start work from the approved starting date, even if I have not received the real paperwork by that date ?
  8. If a person on H-1B marries an Américan citizen then what is his status?
  9. If the INS approves my H-1 B from October 1, can I go to the U.S. embassy in August to get the visa stamp, given that I am currently living outside the US?
  10. How many H-1 B visas can you apply for simultaneously?
  11. Can I work with visa L-2?
  12. Will it make a difference if the sponsoring company (for GC) is small ( less than 20 people) or large?

GENERAL INFORMATION ON VISAS FOR TEMPORARY WORKERS

Classifications
The Immigration and Nationality Act (INA) provides several categories of non-immigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications which are shown in parentheses.
H-1A - classification applies to registered nurses;
H-1B - classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor (65,000). This classification also applies to Government-to-Government research and development, or co-production projects administered by the Departmenent of Defense (100);
H-2A - classification applies to temporary or seasonal agricultural workers;
H-2B - classification applies to temporary or seasonal non-agricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);
H-3 - classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50);
L - classification applies to intra-company transferees who, within the three preceding years, have been employed outside the united States continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;
O-1 - classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;
O-2 - classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;
P-1 - classification applies to individual or team athletes, or members of an entertrainment group that are internationally recognized (25,000);
P-2 - classification applies to artists or entertainers who will perform under a reciprocal exchange program;
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P-3 - classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and
Q-1 - classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country.

Petitions
In order to be considered as a non-immigrant under the above classifications, the applicant's prospective employer or agent must file Form I-129 (Petition for Nonimmigrant Worker), with the United States Immigration and Naturalization Service (INS). Once approved, the employer or agent is sent a notice of approval, Form I-797. It should be noted that the approval of a petition shall not guarantee visa issuance to an applicant found to be ineligible under provisions of the Immigration and Nationality Act (INA).

Visa Ineligibility/Waiver
The non-immigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a temporary worker, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.

Applying for the Visa
Applicants for temporary work visas should generally apply at the Américan Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.

Procedures for Applying for Temporary Work Visas
If the applicant is in possession of the original of the Notice of Action/Approval and all supporting documents, he or she may appear at the Consulate, Rua Padre João Manoel, 933 on any working day (except Wednesday) between 8:00 AM and 10:00 AM bringing passport with minimum six month validity, completed, dated and signed application form, one recent 5 x 7 cm photograph, one US$45.00 processing fee receipt, payable at any Citibank branch in Brazil before the visa interview.
Visas are generally issued the workday following the visa interview. There is a fee of US$100.00 for categories H and L and US$40.00 fee for the other categories of visa issued to Brazilian passport holders. This fee may be paid, in cash, at the Consulate cashier on the fist floor after the visa interview.
Should you need additional information please call (55-11) 881-6511 on any workday (except Wednesday) between 10:00 AM and 12:00 AM.
Other Documentation
With the exception of the H-1 and L-1, applicants may also need to show proof of binding ties to a residence outside the United States which they have no intention of abandoning. It is impossible to specify the exact form the evidence should take since applicants; circumstances vary greatly.


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U.S. Port of Entry
Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the bearer of a temporary work visa is authorized to deny admission. Also, the period for which the bearer of a temporary work visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94 (Record of Arrival-Departure), which notes the length of stay permitted. Those temporary workers who wish to stay beyond the time indicated on their Form I-539 (Application to Extend Status). The decision to grant or deny a request for extension of stay is made solely by the INS.

Additional Information
Family Members
With the exception of "Q-1 Cultural Exchange Visitors", the spouse and unmarried, minor children of an applicant under any of the above classifications may also be classified as non-immigrants in order to accompany or join the principal applicant. A person who has received a visa as the spouse or child of a temporary worker may not accept employment in the United States. The principal applicant must be able to show that he or she will be able to support his or her family in the United States.
Time Limits
All of the above classifications have fixed time limits in which the alien may perform services in the United States. In some cases those time limits may be extended by the INS in order to permit the completion of the services. Thereafter, the alien must remain abroad for a fixed period of time before being readmitted as a temporary worker under any classification. The INS will notify the petitioner on Form I-797 whenever a visa petition, an extension of a visa petition, or an extension of stay is approved under any of the above classifications. The beneficiary may use a copy of Form I-797 to apply for a new or revalidated visa during the validity period of the petition, and must retain a copy of the Form I-797 to present whenever reentering the United States during the validity period of the position. The approval of a permanent labor certification or the filing of a preference petition for an alien under the H-1 or L classifications shall not be a basis for denying a visa.


  1. How long can I remain on the current visa H-1 in the U.S. after being laid off?
  2. The immigration laws and the INS regulations provide no guidance on how long a person may remain in the U.S. between H-1 B jobs. If you don't already have another H-1B employer lined up, you should immediately apply for H-4 status, and when you secure another offer of employment, change your status back to H-1 B.
  3. Can we convert to an F1 visa after an H-1 expires after 6 years?

    That depends on many factors. For instance, the F-1 visa is not a dual intent visa. Therefore, if you are the beneficiary of a labor certification or of a visa petition, the INS would probably deny a change of status from H-1 B to F-1 on the grounds that you are an intending immigrant. On the other hand, some H-1 B visa holders may be eligible to change status to another dual intent category such as O-1.

  4. I plan to change my job. If my petition by the other company is denied by INS, I still remain legal with the former H-1?
  5. Yes, you can.

  6. How long does the INS usually take to process an H-1 B application?
  7. That depends on where your job is located. Processing times vary from 15-30 days if you work in a state where the processing is done by the INS's Vermont Service Center. On the other hand, if your job is in California, the California Service Center typically takes up to four months to process an H-1 B petition.

  8. Do I lose legal status if I leave my current employer before my H-1 B transfer is approved?
  9. Neither the law nor the regulations specify how long a person may remain in status without an employer, a cautious person will remain in job number one until the INS approves a change of employers to job number two. That said, give yourself a break and take a two- or three-week vacation between jobs.

  10. Can a small software corporation with 4+ years in business sponsor an H-1B employee?
  11. When the employer is small, the INS may demand additional documentation (tax returns, etc.) for the employer to demonstrate its financial viability and its ability to pay the salary of the H-1 B employee. Under regulations yet to be issued by the Department of Labor, if a certain percentage of your employees are H-1 B visa holders, you will be subject to additional requirements including the requirement that you first seek a U.S. worker to fill a job opening before submitting a petition for an H-1 B employee.

  12. After H-1 B approval, can I start work from the approved starting date, even if I have not received the real paperwork by that date ?
  13. Under INS regulations, once a person obtains H-1 B status, eh or she has only a limited time to begin working for a petitioning employer. The employer and the employee should both have notice that the H-1 B petition, or change of status, has been approved.

  14. If a person on H-1B marries an Américan citizen then what is his status?
  15. If the U.S. citizen would like his/her spouse to obtain permanent residence in the U.S, they should immediately submit a combined visa petition and application for adjustment of status together with their H-1 B spouse. For more information about obtaining a green card through marriage, see this page. In the Spring of 1998, the Senate Bill (S. 1723) which would have raised the H-1 B cap for the next five years contained a section which would have effectively abolished country quotas in the employment-based preferenced categories. However, the House Bill contained no such provision. In the House-Senate Conference Committee, this provision of the Senate Bill was removed from the bill. Since the enactment of the law raising the H-1 B cap on October 21, 1998, no bill has been introduced in Congress that would eliminate per-country quotas. However, per- country quotas to be a relic of the past and favor the proposals of the Immigrant Support Network (please see http://www.isn.org) to eliminate country quotas.

  16. If the INS approves my H-1 B from October 1, can I go to the U.S. embassy in August to get the visa stamp, given that I am currently living outside the US?
  17. No. The State Department regulations allow you to obtain an H-1B visa and enter the U.S. no more than 10 days before the beginning of the validity period on your approved petition.

  18. How many H-1 B visas can you apply for simultaneously?
  19. There is no limit. I ear notice about one person who is working for three H-1B employers simultaneously.

  20. can I work with visa L-2?

    An L-2 visa is not a working visa, however, if you apply for permanent residence after one year, both you, your wife and any unmarried children under 21 years of age will be able to obtain work cards.

  21. Will it make a difference if the sponsoring company (for GC) is small ( less than 20 people) or large?
  22. Ideally, the largest, oldest and most well known employers are better. However, in the real world, as long as your petitioning employer can establish that is financially viable, you should have no problem. Avoid being sponsored by start-up companies operated out of your friends garage.