Can someone volunteer at a company without a visa?

By Jim Nolan | March 12, 2010

We often are asked if a company, either for-profit or non-for-profit, can use volunteer staff without getting them a work visa.  We also get a related question if an owner of the company on another work visa, like H-1B, can start a company and volunteer to work at it without getting a separate visa.  We’ll discuss both situations in this blog.

Assuming the volunteer doesn’t own part of  the company he or she is volunteering at the answer is unclear.  It is safer to get the volunteer work visas,  but I don’t think it is required based upon my reading of the regulations as follows:

 Please understand the above recommendations are from the company’s point of view.  It does not mean volunteering cures any immigration problems the individual has or does not violate his or her visa status. 

 For example, someone who overstays their visa and volunteers at a not-for-profit does not regain their legal status.   Also, someone who is in the U.S. on a tourist visa or on visa waiver program is not permitted to do volunteer work in this visa status. 

 So, the company can legally accept the volunteer work, but it could violate the individual’s legal status to provide the services..

 Volunteering without pay or other remuneration would only apply to people who are legally in the U.S. in a visa status that would permit them to do non-employment activities.  One example would be  spouses of business visa holders or minor children who are old enough to work, but under 21 years old. 

 The situation is less clear for  people who have work visas, like H-1B, L-1, etc. and want to start their own companies.  It is legally permissible for anyone to own a business in the U.S. without a separate visa and they can receive the benefits of ownership, such as dividends and capital appreciation.  However, if the owners want to provide services to the company they own, even without compensation,  I think Immigration would consider this as work for “other remuneration” (to get the dividends or capital appreciation) and such work would violate their legal status in the U.S. without a separate work visa.  If somehow the owner could show that there is no “other remuneration” then providing the services would not violate their visa status.

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Topics: Business work visas, H-1B, Our Thoughts, Work Visas | No Comments »

How a U.S. citizen can get a GC for spouse or parents

By Jim Nolan | March 7, 2010

 A question we get often is what does a U.S. citizen  need to do to get a “green card” (GC) for his  spouse or parents and does he or she need a lawyer to help?  I would like to answer these questions, but please understand they do not apply if the sponsor is a permanent resident (GC holder) and not a U.S. citizen.  A GC holder has a much longer and difficult road to sponsor his spouse and can’t sponsor his parents.

I will also assume that the spouse or parents will have an interview in the U.S.  This is usually what most people want, but it is possible and, in some situations required, that they have their interview at the U.S. Embassy in the home country of your spouse or parents. 

First, I would like to list what documents you need to mail to Immigration.  You can download them from www.uscis.gov

Forms signed by U.S. citizen:

 Forms signed by spouse or parents

 Need to include the following things:

 It is important to be sure where to mail the forms.  Immigration changes this frequently so check with Immigration at www.uscis.gov to be sure. 

 You should talk to an attorney before filing your papers if any of the following situations apply to you:

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Topics: Family, Practical Immigration Tips, “Green Cards” | No Comments »

Promotion at your visa sponsor could get you in immigration trouble

By Jim Nolan | March 3, 2010

If you promote an H-1B visa holder or change him or her to part-time you may have to file for a new H-1B visa before the changes take effect.  If you don’t you could put your worker  in illegal status.  With the Department of Labor visiting more companies looking for changes in the visa papers this accidental mistake can be very serious and cause your worker to have to stop working quickly and leave the U.S.

The rule about this is simple, but how to apply it in real life is more complicated.

The rule is that if a person with an H-1B visa gets a new job, even in the same company, they can’t take it without the company first filing a new H-1B visa case.  A job is “new” if it “significantly” different then the job in the visa papers.

What is “significantly” different is the problem.  Even if the you  don’t think it is, if Immigration thinks so they will cancel the visa and the person may suddenly have to leave the U.S.

There are a couple of things Immigration thinks about to see if a new job is “significantly” different than the visa job.

If after you  review  these  points you think your worker is getting a “new” job, you should file a new H-1B visa case before they start it.  They don’t have to wait for it to be approved. 

Another common situation is where a worker who was sponsored for a full-time job becomes part-time, either voluntarily or not.  If this change is only temporary, even if you don’t know for sure how long, the company doesn’t have to file for a new H-1B visa. 

However, it this change is permanent then the company has to file for a new H-1B visa before the change can take place.

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Topics: H-1B, Practical Immigration Tips | No Comments »

How the spouse and children can stay to finish the school year

By Jim Nolan | March 2, 2010

Every spring we get questions from executives who are returning home about how their children can stay in the U.S. and finish their high school or grammar school year and how their mother can stay with them after he returns to the head office.   The problem is that the executive’s wife and children have been in the U.S. under his visa and once he leaves they need their own visas to stay in the U.S., even for only a few months. 

 The other common way to handle it is for the mother to apply for a tourist visa (B2) for the few months she needs to stay with her children while they finish school.  In the past Immigration has usually granted this request.

To apply for this visa she should send Immigration the following items before her husband leaves the U.S.:

Also,  the children who remain as students need a student visa and aren’t suppose to continue going to school without one.  Many people ignore this point and there is usually no problem, but if Immigration finds out the children  continue  to go to school after their  father doesn’t have a job in the U.S. it would consider them to be  in illegal status.  To get a student visa the students would need to get an I-20 from their high school, which is often very difficult because they aren’t used to giving them, and send in a request to change their status to F-1 using the same I539 form and have it approved before their dad leaves.  Children in grammar schools can’t get student visas.

The instructions to the I-539 explain where you should send the forms so please read them before sending them in or register for our monthly free consultation and we’re happy to help.  Most people don’t use a lawyer to do this, but it might be a good idea to have a lawyer review everything before you send it in.

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Topics: Practical Immigration Tips | No Comments »

Changing your address with Immigration after you move

By Jim Nolan | February 27, 2010

 Sorry to add more burden to all my international friends, but I want to remind you that Immigration requires every non-US citizen, including permanent residents, to update their address on line  within 10 days of his or her move.

 Because using their system is confusing I have prepared some instructions how to do it so please click here if, like almost everybody else, you find the system difficult .  If you would like to pause the recording please use the pause key in the lower left hand corner of the video after you click the link.  Even if you don’t have headsets or a sound system you can still see how to work with the software so please click on the arrow you will see when you open the software so you can see what to do.

 By doing updating your address on-line you will be doing two things:
 

 Since Immigration is getting more strict on everything I would update your address within the 10 day period, or, if you miss it because of all the confusion of the move, do so as soon as possible.

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Topics: Artist Green Card, Artist visa, Business work visas, Company Green Card, Family, H-1B, Practical Immigration Tips, Work Visas, “Green Cards” | No Comments »

New H-1B “cap” season April 1st – start early because big changes from last year

By Jim Nolan | February 26, 2010

New H-1B visas are more complicated  this  year!   The difficult questions we are getting from our clients are:

I’d like to share the answers we are giving to our clients.

When is the latest date I can file the case?

There are two parts to this question.  The clear answer is  you should  file  the case while the person in the U.S.  is in legal status.  This usually means before his or her optional practical training (OPT) card  expires plus the 60 day grace period.  If the person isn’t in the U.S. you don’t have to worry about this.

Beyond that there is no sure answer to this question.  The company and employee have to balance two risks and decide which is great.  The risks are:

Unfortunately, we don’t know if this year will be like 2009 or the years before.  Therefore, it is safer to file on March 31, 2010. 

When do I have to decide to go ahead?

Since the clients need to pay the legal and filing  fees when they decide to go ahead, they would prefer to delay the decision.  Up until July 2009  we could prepare  an H-1B case within a few days after  the client said go ahead.

 This has changed and now it takes at least a week and usually 10 day to 2 weeks s from the time we start working on the case until it is ready to file.  The reason for the change is the new procedure to file a  form with the Department of Labor is much slower and unreliable than the older one.  This is not just for our office, but true of all lawyers. 

Is my case likely to be approved?

There are two main reasons the case won’t be approved.

The first is that the company isn’t offering to pay a wage the Department of Labor thinks is appropriate for the job being offered to the H-1B person in the area the company  is doing business.  This is called paying the “prevailing wage”. 

Up until July 2009 the company could do its own research to see  what is the normal wage for the job.  They would only have to show the research if the Department of Labor asked for it (and it usually didn’t), but did not have to show it before filing the case. 

Now, the Department of Labor will not accept the company’s research and requires the employer use the wage that the Department puts on its Web site.  Many employers think that  the Department’s wages are  too high and we need to spend time working on this. 

Assuming the employer is comfortable offering the Department’s prevailing wage, the next risk is that Immigration may not approve the visa request.  Our experience is that it is getting much more strict than in the past.

The problems are:

Immigration has gotten stricter in this area.  Immigration has asked  questions about whether a college degree with a specific major is a  normal requirement in  jobs we didn’t ha e any problem with a few years.  These jobs include:

We usually have been able to get H-1B visas for these positions, but there is a disturbing trend and we can’t be sure in the future.

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Topics: H-1B | No Comments »

What to think about if you want to hire someone who has an H-1B

By Jim Nolan | February 21, 2010

One of my clients wrote that they are thinking of hiring someone with an H-1b visa and asked what should they think about before making an effort.  There are some potential tricks and if you are in this situation I would suggest you think about the following:

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Topics: H-1B, Practical Immigration Tips | No Comments »

H-1B visa holders not let in the U.S. – How to avoid this problem

By Jim Nolan | February 17, 2010

Recently some unfortunate H-1B visa holders were not allowed into the U.S. at Newark Airport.  When immigration attorneys asked what happened we learned that Immigration has started a new policy at Newark that people with H-1B and L-1 visa will be randomly stopped and questioned about their job and employers.   If the immigration officer isn’t satisfied with the answers they will ask the poor person to either voluntarily return home without coming into the U.S. or, force the person to return to his or her home country.   We don’t know if Immigration will do this at other airports, but we have to assume it will in the future.

The people who appear to be most at risk are people working in the computer industry who work at client’s office, not the office of the company who sponsored them for a visa.  Immigration has been closely watching this industry to make sure that the people with the visas are really working for their sponsors and not being “farmed out” by recruiting firms.  

Also at risk are H-1B and L-1A visa holders who are owners of the company who sponsor them. 

In both situations Immigration is concerned that the visa holder is not really employed by his or her sponsor.  In the computer industry, Immigration believes that the company whose office the visa holder is working at is the real employer and should file for the visa directly, not the sponsoring company.  For self-employed people, Immigration is concerned that they are not really employees because the owners won’t fire themselves. 

Any visa holder should be sure they have a copy of the forms and support letter sent to Immigration to get their visa with them when they travel and know what the forms and support letter say about the following:

We’ll keep you updated on this serious development.

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Topics: Business work visas, H-1B | No Comments »

What to do if my GC expires and I’m not in the U.S.?

By Jim Nolan | February 14, 2010

I answered the following question in LinkedIn and wanted to share it:

In this year my GC will expire. I am not living in America. Where can I apply for a new Resident Card and do I have the right to get a new GC.

 You can’t apply for a new GC while you are not in the U.S.  However you can do a few things:

Even if you have been back within the year it is still possible the Immigration officer at the airport may still take away your GC when you return.  This depends on many factors, like if you have returned for 2 days every year for the last 10 years you may have trouble, and you should discuss it with an immigration attorney before returning to give yourself a better chance at the airport.

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Topics: “Green Cards” | No Comments »

Your child is 21 – Congratulations! You made it, but if they want to stay in the U.S. they need their own visa!

By Jim Nolan | February 13, 2010

Many foreign businessman and diplomats  raise their children in the U.S. and to their children America  is their home.    They go to school and all their friends are here.  But, unlike their  U.S. citizen friends, the foreign child’s 21st birthday  is an important point with large immigration consequences. 

Before turning 21 most child have visas allowing them to stay, travel in and out of the U.S.,  and go to school in the U.S. tied to their parent’s visa.  However, on their 21st birthday they can’t use their parent’s visa anymore and need their own visa to stay in the U.S., travel outside the country,  go to school, and work.  Many times this change is not easy or quick and requires planning and advance action.  

If the child doesn’t do anything before his 21st  birthday, he (I will use he to mean he or she)  has to leave the U.S. within 10 days and not return to live with his family or go to school.  He may be able to get a tourist visa to stay a few more months to pack, but that is all.

To avoid this sudden change there are two common options. 

First, if the child is in college,  he applies for a student (F-1) visa.  If he gets his student visa before his 21st birthday then he can continue his studies without interruption.  However, there are a couple of things to be careful in using this option.

Second, the child’s parent applies a “green card” before the child’s 21st birthday.  This is a very tricky legal area and the parent’s should  talk to an experienced immigration attorney  at least a few years in advance.  The key point is that the parent must file the appropriate request for a “green card” for themselves and include their children as minors before their children’s 21st birthday.  Even if the child gets the GC after turning 21 it will be OK.

However, if the parent files for the GC after the child turns 21 the child will not be included in his parent’s GC case and may have to wait between 7 – 10 years to get a GC.

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Topics: Business work visas, Company Green Card, Family, Practical Immigration Tips | No Comments »

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