h1 while on toursit visa

R

rock1

Registered Users (C)
hi all,

I have a question for my friend..she came here last year on a toursit visa( 6 months)..then before it expired she got a h1 filed. Her tourist visa expired and subsequently she got a recipt notice for h1 and eventually the h1 approval. she has NOT left the country and not got her h1 stamped. she just has the approval and is currently working on it. IS it okay?? does she have to go out of the contry and get the h1 stamped?? OR is she ok to continue like this...please advice,,
thanks
 
Doesn't seem OK...

I don't want to alarm you but you should talk to a lawyer. All that matters is that did USCIS also send ur. friend a I-94 attached to H1 approval notice ? If not and her existing I94 expired with the visitor's visa, then she is probably accruing out of status time.

If u apply for H1 and u have a non H1 visa previously, then you cannot use the AC21 portability with H1-B application receipt and start working.

Your best bet is to get to a lawyer immediately.

will_get_there
----------------------
Just an opinion, not an advice.
 
Yes they did send a new I-94 with the H1 approval notice..so is she ok?? Now she does want to change employers and do a H1 transfer...
 
Originally posted by rock1
Yes they did send a new I-94 with the H1 approval notice..so is she ok?? Now she does want to change employers and do a H1 transfer...
Click to expand...

If all of the following is true, the person is in a valid status:

H1 was filed and received at USCIS before visitor visa I-94 expired;
The person did not begin to work until after H1 was approved AND a new approval notice with a new I-94 was received.

A visa stamp is only required if the approval notice for H1 says so OR if the person wants to travel out of US (and return).

An application for h1 transfer to a new employer can be filed anytime.
 
While coming here on the B1 you are showing the intent of non-immigrant. There might be some question about intent when filed for the green card since it has column called manner in which you entered US last time. This will be problematic particularly in cases where you apply for H1 immediately( within a months or so) after arriving to US. That is reason lot of people go out of US to come back with H1 stamping.

Sheela Murthy was very careful about this when she was handling our company cases.
 
Tammy2 is correct. In the visitor visa application the applicant said 'no' to the question 'Do you want to work?'. Now the applicant started working, making the statement in visa application false.
 
I had the same question in my J-1 visa application 6 years ago. At that time my lawyer assured me that it shouldn't be a problem. Since then I have been working on H1.
At your place, I would continue this discussion in the H1 forums, there you may get better advice from people in similar situations.

Originally posted by Planet3rd
Tammy2 is correct. In the visitor visa application the applicant said 'no' to the question 'Do you want to work?'. Now the applicant started working, making the statement in visa application false.
Click to expand...
 
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Re: Doesn't seem OK...

Originally posted by will_get_there
If u apply for H1 and u have a non H1 visa previously, then you cannot use the AC21 portability with H1-B application receipt and start working.
Click to expand...

will_get_there, can you please point to a source backing your statement. I'm a bit surprised, and I would imagine that a lot of people fall in that category. I was counting on AC21 and now I am a bit worried.
Thanks
 
AC21 Portability benefits

Here is the basis of my opinion on portability i.e starting to work using a H1 receipt.

http://www.cyrusmehta.com/news_cyrus.asp?news_id=421&intPage=30

Infact you can search for AC21 portability benefits anywhere on immigration forums and you will see that it is applied only in cases where the person has held H1-B in past, whether it is currently expired or not.

As a liberal interpretation, even the H4 visa holders may use the portability benefits however I am not sure how their case will be handled.

In spite of whatever I say, you should take the advice of a lawyer to be sure what ever step you take are not based on hearsay.


will_get_there
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Just a non-legal opinion, not an advice.
 
When H1 was applied for your friend then,

(1) she did apply for COS to H1
(2) there was a new I-94 attached to the approval notice.

As far as I know change of status From B1/B2 to H1 is allowed (only from B1/B2 to F1 not allowed). If there was a new I-94 attached to the approval then she is in status. And she should be able to use AC21
 
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Re: AC21 Portability benefits

Originally posted by will_get_there
Here is the basis of my opinion on portability i.e starting to work using a H1 receipt.

http://www.cyrusmehta.com/news_cyrus.asp?news_id=421&intPage=30

Infact you can search for AC21 portability benefits anywhere on immigration forums and you will see that it is applied only in cases where the person has held H1-B in past, whether it is currently expired or not.

As a liberal interpretation, even the H4 visa holders may use the portability benefits however I am not sure how their case will be handled.

In spite of whatever I say, you should take the advice of a lawyer to be sure what ever step you take are not based on hearsay.


will_get_there
-------------------
Just a non-legal opinion, not an advice.
Click to expand...




AC-21 covers H1 issues. Usually when you are transferring H1 you are eligible to work once you apply for H1 transfer. This is called as H1 portability. You cannot use the portability means you cannot join the new employer unless you have H1 approval notice. This applies when you are converting from when you are converting from other type of visa to H1 visa. Since in this case it has already approved H1 he should be able to use this H1 portability

It is not about AC-21 in GC perspective.
 
Re: Re: AC21 Portability benefits

Thanks for the clarification, I was not thinking about AC21 from a non-GC perspective.
Originally posted by tammy2
AC-21 covers H1 issues. Usually when you are transferring H1 you are eligible to work once you apply for H1 transfer. This is called as H1 portability. You cannot use the portability means you cannot join the new employer unless you have H1 approval notice. This applies when you are converting from when you are converting from other type of visa to H1 visa. Since in this case it has already approved H1 he should be able to use this H1 portability

It is not about AC-21 in GC perspective.
Click to expand...
 
Non GC perspective

I am not thinking about portability benefits in tersm of GC perspectives. However we all agree that once alien applies for H1 and is holding a non-H1 visa to begin with, he/she cannot start working on mere H1 recepit. He/she has to wait for the H1 approval with I-94 attached to it. And during the wait he/she should have been in status with some visa - visitor or whatever.

If the conclusion above is in sync. with everyone's opinion than rock1 can decide on this basis whether he/she has stayed out of status or worked without proper authorization.

However - rock1, if you file for GC, just fill the date of starting work as that on which you received the H1 approval. I can't imagine a scenario where USCIS would find out if you worked without authorization. In my view going to a lawyer especially your company's lawyer may unnecessarily complicate the matter.

will_get_there
------------------
Just a non-legal opinion, not an advice.
 
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