H1B Visa Lawyer Blog
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1 – If an employee leaves prior to the end of their contract on H-1B, can we recoup the expenses we paid to sponsor them for the H-1B, like the USCIS filing fees and legal fees? H-1B employees may not be subjected to penalties for leaving the sponsoring employer. Employers may not recover their normal business expenses from an H-1B employee. The Department of Labor’s regulations explicitly prohibit an employer’s recovery of some of the H-1B petition-related filing fees: $460.00; $500.00; $750.00 or $1500.00; along with legal fees paid to an Attorney to prepare and file the case with the USCIS. An employer may recover the filing fees paid for any H4 dependent filing fees and legal fees associated with the H4 filing.
2 – What happens to my H-1B employee if I terminate them prior to the end of their validity period? The H-1B employee will have a period of 60 days, a grace period, in which to find another employer willing to sponsor their H-1B (i.e., an H-1B transfer), or they may change status to another status (if eligible), or they may decide to leave the United States. If they decide to leave the United States, then you as employer are responsible for covering their reasonable expenses associated with the trip home (i.e. covering airfare).
3 – What is administrative processing? Administrative processing means the case requires additional review outside of the normal visa processing times. The reason for a case being placed in administrative processing is not always clear, nor is a estimated time frame provided for resolution. Typical administrative processing takes 60 days or less to resolve. If a case has been in administrative processing for longer than 60 days, a follow up to the Consulate or a request for Congressional assistance may be in your best interest to reach a resolution in your case.
4 – What Visa Bulletin table are we to follow for March if we have a family-based case ready for adjustment processing? According to the United States Citizenship and Immigration Service (USCIS), you must use the DATES FOR FILING chart for March. If your priority date falls on or before the date listed in your preference category, you would be able to prepare and submit the I-485, Application to Adjust Status to Permanent Residence or Adjust Status to the USCIS. If you are going through consular processing, then the National Visa Center (NVC) should reach out via email or by mail to the Petitioner to let them know that an immigrant visa is available and to initiate Consular processing by paying the required fees electronically, submitting the DS-260 form through the CEAC website, and uploading all supporting documents to the Department of State (DOS) portal.
5 – What Visa Bulletin table are we to follow for March if we have an employment -based case ready for adjustment processing? According to the United States Citizenship and Immigration Service (USCIS), you must use the FINAL ACTION DATES chart for March. If your priority date falls on or before the date listed in your preference category, you would be able to prepare and submit the I-485, Application to Adjust Status to Permanent Residence or Adjust Status to the USCIS. If you are going through consular processing, then the National Visa Center (NVC) should reach out via email or by mail to the Petitioner to let them know that an immigrant visa is available and to initiate Consular processing by paying the required fees electronically, submitting the DS-260 form through the CEAC website, and uploading all supporting documents to the Department of State (DOS) portal.
6 – How can I get a green card? There are nine (9) ways in which to get a green card: (1) Family Based Sponsorship; (2) Employment Based Sponsorship; (3) Granted Asylum/Refugee status; (4) Special Immigrant; (5) Human Trafficking /Crime Victims; (6) Victims of Abuse; (7) Registry; (8) EB5 Investment; and (9) other special categories: LRIF; Diversity Visa; Cuban Adjustment Act; etc.
For more information visit: https://www.uscis.gov/green-card/green-card-eligibility-categories
7 – What are the eligibility requirements for Naturalization? If you have been a lawful permanent resident for 5 years, are at least 18 years old, and meet specific continuous & physical presence requirements, have good moral character and can pass a U.S. civics, reading and writing exam, then you may be eligible to file a N400, Application for Naturalization with the USCIS.
If you received your Green Card through marriage to a United States Citizen, and you have been a lawful permanent resident for at least 3 years, and have remained married to that U.S. Citizen Spouse for at least 3 years, and the US Citizen has been a citizen for at least 3 years, and you meet specific continuous & physical presence requirements, have good moral character and can pass a U.S. civics, reading and writing exam, then you may be eligible to file a N400, Application for Naturalization with the USCIS. Conditional Lawful permanent residents – PLEASE NOTE, you must still have filed Form I-751, Petition to Remove Conditions on Residence with the USCIS PRIOR to the filing of Form N400.
8 – Can my aunt sponsor me for a family based green card? If you are related to your Aunt as a niece/nephew, and are not the child of your Aunt, then your Aunt cannot sponsor you for a family based green card.
United States citizens may sponsor the following family members: their parents; their spouses; their children/sons & daughters; and their brothers and sisters. That is it.
Lawful permanent residents may sponsor the following family members: their spouses and their children/sons & daughters. That is it.
9 – Do I still have time to submit an H-1B CAP registration with the USCIS? Yes. The FY2025 H-1B CAP registration period will remain open through noon on Friday, March 22, 2024.
10 – When completing an I-9 Employment Verification Form, may I ask an employee for specific documents? No, you should not ask an employee for specific documents. An employee is free to produce one item from List A (documents that establish both identity and employment authorization), or a combination of items, one from List B (documents that establish identity) and one from List C (documents that establish employment authorization).
List A items include a U.S. passport, a foreign passport with a I-551 stamp, a permanent resident card, an employment authorization document, and for nonimmigrants with work authorization incident to status a Form I-94.
List B items include a state issued driver’s license, a federal/state/local identification card, and a military identification card.
List C items include a social security card, a Certificate of Birth Abroad, and a Certification of Report of Birth.
For more information about how to properly comply with I-9 requirements for Employers, check out this handy resource: https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274
MVP Law Group would like to thank everyone who contributed a question or comment.
Our next “Immigration Q & A Forum” is scheduled for Friday, March 29, 2024!
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