Kevin Keane

This is essentially just a change of status. The instructions are virtually the same as the instructions for an new H-1B above.

Do keep in mind that you will likely be subject to the H-1B quota. In the past, the quota has been oversubscribed, and H-1B petitions were approved in essentially a lottery among those whose applications were received during the first few days of April, for a start date in October. If you miss this window of opportunity, you may have to wait a full year before reapplying.

 

First, you may actually be asking about an H-1B status rather than a visa. All that matters while you are in the US is your status - that is, you must have a current I-94. See the General FAQ for more information on this issue.

If you do plan to travel outside the US, then you will usually need a new visa. There are two ways of getting one. If you already had an old H-1B visa that has expired no more than a year ago, or that is about to expire in less than 60 days, you may be eligible for visa revalidation by sending your passport to St. Louis. Please note that Dept. of State announced that this service will be discontinued soon. Yuo may submit your passport until July 16, 2004. After that day, you must get your visa at a US consulate abroad.

This is generally not a good idea, although in some case it is supposed to be possible. Don't expect BCBP officers to know this, though!

If you leave the US while such an application is pending - and this includes even trips to Canada or Mexico - then you will probably find that you need to wait outside the USA for the approval notice. In most cases, you will also need a new H-1B visa from a consulate. Of course, if you already have an H-1B visa that hasn't expired, you can use that. This happens frequently in transfer cases, but rarely in extension cases, and almost never in cases of change of status.

For people subject to the current security checks, this may mean that you are stuck outside the US for up to six months or more.

In some cases, there is an alternative: do not file the H-1B until you have returned from your trip. This is not always an option, though.

• If your previous status is still good, you can use that to return to the US. For instance, if you are currently an F-1 and have not yet graduated, then you can return as an F-1. Warning: if you arrive with the intent to change status, this can mean you will be denied admission, or it can be immigration fraud. In particular, do not try to return to the US as a tourist.

  Of course, you may need Premium Processing in this case since you now have less time left.

• If you are transferring to a new employer, be sure to return to work for the old employer if you follow this process, even if only for a day.

The rules for business trips are very convoluted. You are allowed to go on a business trip for up to 90 days to any one city in a three-year period. However, this 90 day period applies not just to you, but rather to all H-1B employees from this employer.

An example may clarify this. Assume that Acme Corp sponsored three H-1B employees in their San Diego office: Adam, Bernhard and Chris. Adam and Bernhard together travel to corporate headquarters in New York for two weeks. How long can Chris travel to visit a client who also happens to be in the New York area?

Between themselves, Adam and Bernhard already used up 28 days of the 90 days available. Chris can therefore go for a maximum of 62 days.

The metropolitan area is usually defined as the area that you can reach with a daily commute. That is, if you don't need to move to a different home, you can usually safely assume that the job is considered in the same metropolitan area.

This is the area where your prevailing wage is determined.

The details depend very much on the circumstances of the case. Only a competent immigration attorney can give you a reliable answer. In general, as long as the job duties and salary remains unchanged, and if the transfer was within the same metropolitan area, then the H-1B remains in effect.

Hopefully, the purchaser had an immigration attorney look at the acquisition. However, often this aspect is overlooked and can sometimes lead to pain. Fortunately, in most cases, your H-1B continues as if nothing had happened.

The main factors that make a difference here are the structure of the deal and your job duties, salary and location. In order to be unproblematic, the purchaser must acquire all assets and liabilities, not just the machinery and building. Of course, your job duties, location and salary also all need to be unchanged. Again, this is a very general statement, only an attorney can evaluate the details.

You will probably need to have a competent attorney look at the specifics of your case, but in general, you will probably need to treat this as a transfer.

The part-time job is considered a completely different job. You need to get an H-1B transfer.

No, as long as the old visa has not expired. The old visa does list the employer, but this is strictly informational and has no legal meaning. When returning to the US with such an old visa, just be sure to also carry the new petition with you. It may also be a good idea to bring a recent letter from your new employer confirming employment.