UCAR International Visitor & Scholar ServicesSome frequently (and not so frequently) asked questions.
Travel to Mexico as a United States Permanent Resident Question: I will be traveling to Mazatlan, Mexico for a business trip. I have a non-U.S. passport with a U.S. green card. Do I need a visa to travel to Mexico for fewer than 30 days? Answer (from the Denver Mexican Consulate): No visa is requred for you if traveling for less than 30 days. Just your valid (non-expired) passport and valid green card. Travel on Advanced Parole while in H-1B Status Question: If I travel outside US and come back on Advance Parole, can I keep working for UCAR in my H-1B status? Answer: This is a very gray area and that the best advice is for you to travel and return on your H-1B. Permanent residency applications and the need to maintain the non-immigration visa status. Question: Does a person applying for permanent residency need to maintain a non-immigrant visa? Does the type of visa matter, for UCAR's employees? Answer: Any individual who applies for permanent residence has to have a way to return to the U.S. if s/he leaves. The options for UCAR visitors are to have an H or L visa or to obtain advance parole and an Employment Authorization Document (EAD) to travel and work, respectively. Thus, an individual on a TN or J will either need to switch to H or get an EAD and advance parole. This also applies to the applicant's spouse and dependents, if applicable. Permanent Residency Application Time Question: How long are Permanent Residency application taking? Can the applicant travel while the application is pending? Answer: Employment-based applications are currently taking 2-3 years. However, once the applicant files for adjustment of status s/he can then travel on advance parole and therefore doesn't have to deal with visa issues at the consulate. Question: At what point can the spouse of a permanent residency applicant apply for work authorization? Answer: Employment-Based Applications - A spouse is eligible for work permission after the adjustment of status (I-485) application has been filed. The current USCIS policy is if the applicant filed the I-140 and I-485 concurrently, the work permit application can't be adjudicated until the I-140 is approved. Family-Based Applications - Since family based applications are still being handled by local offices the beneficiary is able to get an Employment Authorization Document (EAD) usually the same day that s/he files the application. Denver is part of the pilot program to do away with local filings so this will change sometime in the near future, but for now it still works. The local office is open 7:30 a.m. - 2 p.m. Monday -Thursday. Is there a way to expedite a permanent resident application? Answer: There is no process for expediting these applications. Sadly, the USCIS has just announced that they have all but stopped adjudicating I-485 applications based on employment for the remainder of this year as they have been sued and are devoting more resources to asylum based adjustment applications. Question: Several permanent residents applied to renew their Resident Alien cards well in advance of the cards' expiration dates. However, they have heard from the USCIS that renewals are taking over a year. These people need to travel out of the country for work - can they do so, even after their cards expire? Is there additional documentation they should take? Answer: This is a trickier question than it seems. If they are full Legal Permanent Residents (LPR), not conditional ones, then their permanent resident status does not expire when the card expires. They are allowed to travel and usually what happens is the officer will clip the corner of the card when they enter indicating that they've been advised to apply for a new card. If they are conditional LPRs they need to see an attorney. Outstanding Researchers Question: Please explain the significance of being approved as an Outstanding Researcher. Answer: An individual who has an approved outstanding researcher petition is eligible to apply for permanent residence via adjustment of status or consular processing, assuming the institution which filed the petition still wants the person. That is the only privilege the petition confers on the beneficiary. Assuming the adjustment or consular processing application was approved, the person would become a permanent resident and receive a green card at the end of the process. Since the outstanding researcher application is the first step of the permanent residence process it does not give a person any non-immigrant status, work permission, etc. Unpaid leave of absence for personal reasons while on H-1B Question: Can we give an H-1B employee an unpaid leave to go home for personal reasons for several months? Answer: If the employee is requesting leave for personal reasons, yes, it can be unpaid leave, but it must be documented in writing, with a letter from the employee. On a technical level, since the employee will be outside the U.S. he/she will have no US immigration status during that time and arguably wouldn't be subject to H-1B regulations (not an argument to make were he/she working on assignment outside the U.S. as a UCAR employee). Prevailing Wage and Salary Change while in H-1B Status Question: If funding changes, can we lower the salary paid to someone in H-1B status? Answer:This is okay, as long as the salary is not lowered to below the prevailing wage. However, if the salary reduction is due to hours reduction, then a new Labor Condition Application needs to be filed. Dependent spouse applying for H-4 visa and entering U.S. while H-1B employee is not in the U.S. Question: Suppose I am subject to a security clearance when I go to renew my H-1B, but first my wife applies for separately for her H4 now gets it. Can she enter the U.S. in order while I am not there? Answer: Since you have been in the U.S. already on H-1B and will be continuing employment with the same employer this should be no problem. If you hadn't yet entered EVER on an H-1B for UCAR then your spouse wouldn't be eligible to enter while you are not here. Your spouse should also carry a copy of your employment letter. Travel on Advanced Parole while in H-1B Status Question: If I travel outside US and come back on Advance Parole, can I keep working for UCAR in my H-1B status? Answer: This is a very gray area and the best advice is for you to travel and return on your H-1B. Canadian citizens and H-1B visa stamps Dual Applications (applying for change to H-4 status and then applying for H-1B transfer Trying to withdraw a pending application and filing another one is not recommended. In general, the Service will only adjudicate one at a time. Is an H-1B appropriate for a contractor who will visit the U.S. ( UCAR) several times a year? H-1B extension and travel Question: An employee is nearing the end of his current H-1B and has applied for an extension. He needs to travel during the final weeks of his current H-1B and is concerned that the immigration official may question the fact that his visa is about to expire and he doesn't have an extension in hand. Answer: He should be able to travel BUT with all the changes these days there is no guarantee that he will have no hassles. He should take the complete application for the extension and the receipt notice with him to show that he will have more valid time in the U.S. as inspectors will balk if they see that he's returning with only a couple of weeks left. Question: Is it possible to extend an H-1B past 6 years even though the person has not applied (and is not planning to apply) for permanent residency? I know of no way to extend the H-1B unless the individual has filed a labor cert or I-140 by the time his 5th year of H1B time ends. Damaged I-797A Approval Notice Question: Although the instructions on the I-797A Approval Notices specifically state that the petitioner (UCAR) is to keep the top part of the Approval Notice in its files, and the beneficiary is to separate the bottom part and keep the left side in a safe place, a traveler was told by the official at the port of entry that his I-797A was now considered damaged and would not be acceptable for entry. Should the beneficiary be given the entire form and instructed to keep to together? Answer: Yes, we give our clients the entire I-797. UCAR should keep a copy in its files. Ending studies before getting H-1B Question: If a student on an F-1 graduates before his H-1B is approved, does he go out of status? Answer: Students who are given duration of status are not unlawfully present until a determination is made by the USCIS or an immigration judge; they are out of status 60 days after the I-120 expires. Are the visitor and their dependents out of status while waiting for approval of his H-1B? Answer: As long as the H-1B is pending he's considered in status though he can't work after his DS-2019 expires. Question: We filed for H-4 status concurrently with a a change of status from J-1 to H-1B. The beneficiary was told that the H-4 may take up to one year to process, although the H-1B will be processed in 30-90 days. Will the dependents be out of status until their H-4 approvals come? Answer: If the dependents have a Change of Status application pending, they are in status. Their status is dependent to the H-1B. 240 day grace period Answer: Yes, H-4's get the same 240 day grace period that H-1B holders get while the extension is pending. Just as with the H-1B holder, they are restricted from traveling during that time period. Going to Canada once DS-2019 expires and returning on Visa Waiver Program Date: 11 Feb 2005 Question: Can someone who would otherwise be eligible for the Visa Waiver Program leave the U.S. once his/her DS-2019 expires, go to Canada for a day or two, then return on the visa waiver program? Answer: The staff at ports of entry have stated that people can only use the visa waiver program for a round trip originating in their country (UK for example). However, people have done this successfully in practice. This kind travel is discouraged because of the statements made by the ports of entry staff.
Keeping documents with the visitor at all times when a foreign embassy wants them to process a visa application Date: 23 Feb 2004 Answer: Technically, yes, but unlikely. He should keep a copy of the passport as well as a copy of all the documentation of applying for the foreign visas. Citizenship Application Pending in Another Country Question: We have a visitor coming from Canada, who is a Chinese citizen, but a Canadian permanent resident who recently applied for Canadian citizenship recently. Is there any reason why we couldn't apply for an H-1B for him (as a Chinese citizen), at least as far as U.S. rules? Answer: Nothing in his Canadian immigration process affects his eligibility for an H1B. However, please note that if he's been to the U.S. before on a J he may be subject to the 2 yr home residence requirement, and that many (make that MANY) Chinese nationals have been experiencing lengthy delays at the consulates in getting their visas. In contrast, once he's a Canadian citizen he wouldn't need a visa, though any 2 year home residence requirement issue wouldn't go away. |
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DISCLAIMER: U.S. immigration laws are very complex. The information contained in these files is designed specifically as assistance for visitors and scholars at UCAR/NCAR/UOP. Immigration laws are constantly changing, and even though we will attempt to keep these files up to date, we cannot guarantee their completeness or accuracy. The information contained herein is not intended to create an attorney/client relationship nor can it be construed as legal advice. For further information, please contact the International Visitor Administrator or an immigration attorney. Other individuals not affiliated with UCAR/NCAR/UOP should seek assistance from immigration specialists. You may consider consulting with an attorney who belongs to the American Immigration Lawyers Association (AILA). |
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