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US Immigration News
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Posted 2/19/2008 |
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LEGAL NOTES /
By REUBEN S. SEGURITAN |
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H1- B Status While Ajustment Is Pending
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Many of our readers have asked if it is necessary to maintain
one's H-1B status if he/she has a pending adjustment of status
application.
A pending adjustment application entitles the applicant to file
for interim benefits such as employment and travel. Why should
one go to the expense of extending his/her H-1B status if the
above H-1B benefits are already available to the adjustment
applicant?
There are substantial benefits to maintaining an H-1B status.
The pending adjustment application authorizes the applicant to
remain in the U.S. and work, but if he/she is laid off or
terminated, the adjustment application may be denied and he/she
may be forced to leave the country. |
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Upon denial, he/she may not be able to file an H-1B extension or
change of status because he/she would have already incurred a
long period of unlawful presence.
On the other hand, if he/she is in valid H-1B status, it is
possible to file a new petition before a significant gap of
employment occurs.
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There is an exception to the rule that termination of
employment will invalidate the application. Under the
portability rule, if an adjustment of status application
has been pending for more than 180 days, the employee
may move to another employer and work in the same or
similar occupational classification.
But what happens if the adjustment application is denied
for other reasons such as failure to submit a required
document? Upon denial, the applicant will be considered
as being unlawfully present in the U.S. from the time
the H-1B expired. |
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As an example, if a physical therapist, occupational therapist or
medical technologist files an adjustment application without a visa
screen certificate, the USCIS will accept the application and may
issue a work and travel permit.
But the applicant will receive an RFE (Request for Evidence)
requiring him/her to submit the visa screen certificate within a
certain period of time.
Visa screen certificates are not easy to get. The applicant must
pass a verbal and written English test and submit a validation of
all his/her licenses and registrations. Most of the time, the
process takes over six months.
If the visa screen certificate is not submitted on time, the
application will be denied and the applicant will then be considered
in unlawful status from the expiration date of his/her H-1B.
The adjustment application may be resubmitted upon obtaining the
visa screen certificate but it will be denied if he/she has been in
unlawful status for six months or more. He/She may have to depart
the U.S. but will be subject to the 3 year/ 10 year bar.
To avoid exposure to the above risks, it is advisable to maintain
one's H-1B even if an adjustment of status application is pending.
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REUBEN S. SEGURITAN
has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281 |
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