Q: I am going to work in Kentucky; an underserved area. Am I required to obtain a waiver through the Appalachian Regional Commission (ARC)? Or am I eligible for a Conrad 30 waiver?
A: Kentucky has its own Conrad 30 program. Thus, a physician going to work in Kentucky may choose to apply for the waiver through the Georgia State Conrad 30 program or, if the site is located within the ARC’s jurisdictional area, through the ARC. A third alternative may be a waiver through the Delta Regional Authority depending upon the job location.
Q: I have a valid H1-B but I do not have an H-1B visa stamp in my passport. Do I need a visa stamp to return to the U.S. after travel to Canada or Mexico?
A: For those who are not U.S. citizens or permanent residents, a visa is typically required for entry or re-entry into the United States after international travel. However, if you travel to Canada, Mexico or adjacent Caribbean islands other than Cuba or fewer than 30 days, you may return to the U.S. using only your passport (which must not expire for at least six months at the time of your re-entry) and your H-1B approval notice. This is called the “revalidation rule.” Please note that this rule DOES NOT apply if you submit an application for a visa during your stay in Canada or Mexico and are denied the visa. In that case, you cannot return to the U.S. and must return to your home country.
Q: I am currently working with the private practice that sponsored my J-1 visa waiver and H-1B visa. My job requires me to admit (and see) my patients at the local hospital, where I have privileges. The hospital has asked me to work (moonlight) with them a few hours a week. Can I work with the hospital based on my current H-1B visa?
A: No. Your current H-1B visa allows you to only work for your current employer. To work with the hospital a few hours per week (or per month), the hospital will need to sponsor you for a “concurrent” H-1B visa. The concurrent H-1B visa application must be filed with the Citizenship and Immigration Services (CIS) before your first day of employment with the hospital.
Q: What is the processing time for obtaining an extension of my advance parole and do I need advance parole to travel while my green card is pending?
A: Currently, it is taking the CIS about 120 days to process applications to extend advance parole. One may not apply any earlier than 120 days before one’s advance parole expires, so you do want to file it right at the 120-day mark. If one is currently working pursuant to an H-1B visa, one may leave the US while one’s I-485 is pending and return using the H1-B wisa without abandoning the I-485. This is called dual intent. Using advance parole to travel may affect those still working pursuant to a J1 waiver, so before you do this, you should seek the advice of the qualified attorneys at Cowles & Thompson.
Q: In compliance with my J-1 waiver obligation, I started to work on September 1, 2006 on an H-1B visa. My H-1B visa will expire on June 30, 2009. Do I need to “renew” my H-1B?
A: Most J-1 visa waivers typically require a three year service obligation. Therefore, if your J-1 visa waiver requires a three year obligation, you must file for an extension of your H-1B visa to fully comply with your J-1 visa waiver three year service obligation. For more information, see our “J-1 Waiver Compliance” article.
Q: If I am a J-1 physician applying for a J-1 waiver, may I also apply for a green card through the National Interest Waiver at the same time?
A: In most cases, J-1 physicians can apply for permanent residence (green card) through the National Interest Waiver (NIW) once he or she obtains the J-1 waiver. If interested in applying for the NIW as early as possible, the physician should negotiate a five-year contract with the potential employer and ask his or her attorney to request a letter of public interest as well as the J-1 waiver recommendation letter from the state health agency in which he or she will be employed.
Q: Can I apply for permanent residence through more than one method at a time?
A: Yes, you can pursue permanent residence through the labor certification process and another process at the same time. The only restriction is that a person cannot have two I-485 applications to adjust status filed at any one time. Otherwise, it is perfectly acceptable to pursue different avenues simultaneously.
Q: My spouse is currently on J-2 and has work authorization. Once I get an H1-B visa, what will be her status and will she be able to continue working?
A: When your employer applies for your H-1B visa, your spouse is eligible for and should apply for a H-4 visa independently. However, there is no work authorization for those who hold H-4 status. To continue working, your spouse would need to apply independently for an H-1B visa or other work visa, if she is eligible.
Q: I currently have an H-1B visa allowing me to work for a cap-exempt employer. I now want to change employers, but the employer is a for-profit company. Can I still change employers?
A: If you have never been counted towards the cap, then you may be subject to the cap at this juncture. However, we need to look at where you will be physically working to see if maybe you might be able to take advantage of the third-party petitioner exemption to the cap. This exemption allows one to be employed by a for-profit employer if one is physically working at a facility that is exempt from the cap.
Q: My H-1B visa petition has been filed, may I begin working immediately?
A: In general, work may not commence until the H-1B visa petition is approved. However, aliens who previously were issued an H-1B visa may accept new employment upon the filing of a new H-1B petition by a new employer, subject to final approval of the petition. In order to be eligible, (1) the applicant must have been lawfully admitted to the U. S.; (2) the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General; and (3) the individual must not have been employed without authorization in the U. S. before the filing of such petition.
Q: I have an H-1B visa stamp in my passport; however, since I received the stamp, I have changed H-1B employer. Do I need a new stamp in order to travel internationally?
A: You do not need a new visa even though your employer has changed; however, you must take your current approval notice with you. When you come back, show the new approval notice to the immigration officer and make sure he or she includes the NEW expiration date indicated on your approval on your I-94. For example, if your visa expires June 30, 2010 but your most recent H-1B approval notice reflects an expiration date of August 30, 2011, the immigration officer should issue your new I-94 with an expiration date of August 30, 2011.
Q: My spouse is on an H4 visa as a dependent of my H-1B. I recently traveled outside the U. S. and returned using my advanced parole instead of my H-1B visa. My spouse is fine with her H4 still, right?
A: Your spouse’s H4 status depends upon your maintaining H-1B status. Thus, if you are no longer in H-1B status, your spouse is no longer in H4 status. When you returned to the U. S. using your advanced parole, you moved yourself out of H-1B status and your spouse lost H4 status at the same time.
Q: I am on H-1B status and will take maternity leave for 4 months as allowed by my employer. Will I be out of status during this time?
A: The CIS confirmed that H-1B employees are entitled to the same leave as all other employees under the Family Medical Leave Act and/or under employer maternity or parental leave policies. An H-1B employee taking such leave would not violate his or her status. INS stated, however, that an employee cannot take more leave than is usually allowed other employees and still be considered in status.