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H1B Transfer with misdemeanor case pending

Discussion in 'General I-485 and Related Issues' started by InDilemma, Mar 25, 2010.

  1. InDilemma

    InDilemma Registered Users (C)


    I was charged a misdemeanor assault 4 degree and am currently on a 2 year probation.
    I am trying to switch jobs. I have a H1B approval notice for 3 years although I have not got
    it stamped since I was advised not to leave the country. Now I am trying to switch jobs and the lawyer with my new employer wants me to fill out DS156 ( which asks for prior :(arrests ) and I129. I have read somewhere that for H1b transfer only I129 is needed. What do I do? I dont want my new employer to find out about the arrest unless I cant help it. Pls advise.
  2. Jackolantern

    Jackolantern Registered Users (C)

    You are correct. DS-156 is only for when you are outside the US applying for visa stamping at a consulate. And it is not an employer-handled document, it is something you personally give to the consulate.

    Perhaps their lawyer told them to request DS-156 from you. If they say the lawyer is requiring it, have them tell the lawyer that you are already inside the US legally and not traveling anytime soon, so you don't need it.

    In addition, the DS-156 is being phased out and is no longer accepted by most consulates. It has been replaced by the DS-160 online form. When submitted online, it goes straight to the Department of State, not through the employer.

    See http://travel.state.gov/visa/frvi/forms/forms_1342.html and http://travel.state.gov/visa/frvi/forms/forms_4230.html
  3. justdoit

    justdoit Registered Users (C)

    Never heard of employers asking for DS-156.
    You use DS-156 to obtain a non-immigrant visa at a US Consulate abroad which as jackolantern pointed out is being phased out and replaced with DS-160.
    When changing employers, you are not applying for a non-immigrant visa, you are just applying for a work auth transfer (H1b transfer). You cannot even obtain visa stamp within US.
  4. jasm_reckless

    jasm_reckless Registered Users (C)

    In both DS 156 and DS 160, the form asks about Criminal History. It says, "Have you ever been convicted or arrested for any offense or crime ..."

    My question to the experts here is whether you need to disclose that you were arrested if the person received an Order of Non Disclosure or Expungement. In the Order of Non Disclosure, it states that the person can legally deny the charges. I have heard that for immigration purposes, one should still reveal everything. But I dont understand why. Specially if the non-disclosure and expungement are done both at the state and federal level? Thanks.
  5. Jackolantern

    Jackolantern Registered Users (C)

    The point of this thread is that neither DS-156 nor DS-160 are required for this situation (H1B change of employer without leaving the US).

    But as far as denying or hiding the expunged charges is concerned, you can do that for other areas of life such as employment, but not immigration. That's just how immigration law works; it's not a federal vs. state level thing. Immigration-related background checks will usually see the expunged charges, and you are expected to disclose them.
    Last edited by a moderator: Apr 1, 2010
  6. jasm_reckless

    jasm_reckless Registered Users (C)

    Thanks Jackolantern. You are right. The point of the thread is like you said, neither DS-156 nor DS-160 are required for this situation. Do you or anyone else know what exactly is the process of H1 transfer? It seems like following documents are needed other than Form I-129?

    Latest resume;
    One or two latest pay slips;
    Photocopy of your existing H-1B visa approval;
    Photocopy of your existing valid visa;
    Copy of valid passport;
    Photocopies of the Form I-94 (Arrival-Departure Record);
    Copy of your Diploma/Degree certificate; and
    Copy of your social security card.

    Is that it?
  7. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    No need for a copy of the SSN, and I don't believe a copy of the visa stamp is required either.
  8. ginnu

    ginnu Registered Users (C)

    And dont join new employer once H1 transfer is filed and they get filing reciept from USCIS. Join only AFTER H1 transfer gets approved. I know 2-3 cases where H1 holder was working with A and joined B after B filed H1 transfer and H1 transfer was denied and A also revoked H1 status by writing to USCIS and they did not had any status to stay in US and had to go out of US.
    ** your new company Lawyer does not know that DS 156 or 160 are NOT required for H1 transfer filing. Copy of valid I-94(front and Back) is also needed in the list you wrote. SSN copy not needed.
  9. jasm_reckless

    jasm_reckless Registered Users (C)

    It seems like filing an H1 extension is common with H1 transfer. I see that being the only reason that DS 156 will be required?
  10. Jackolantern

    Jackolantern Registered Users (C)

    There is no reason DS-156 is required, except when applying for visa stamping outside the US. You can change employers and/or extend your H1B within the US, without DS-156 or DS-160.
  11. jasm_reckless

    jasm_reckless Registered Users (C)

    Which docs

    Out of all the employment based visa forms ( H1B and green card based on employment), which documents ask for arrest records?

    I know only of DS156/160? Any other documents you know of?

  12. ginnu

    ginnu Registered Users (C)

    DS-156 or DS-160 is only needed when you go for VISA stamp from US embasy or US consulate. DS-156 or DS160 is not needed for H1 filing, H1 Extension ,or H1 transfer Petition that is filed with USCIS. Forms that start with DS are Department of State forms
    Last edited by a moderator: Apr 5, 2010

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