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H-1B petition did not ask for "change of status"

H-1B petition did not ask for "change of status"

Old May 11th 2001, 7:00 pm
  #1  
mhz21
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I'm asking this H-1B question for a friend, who:

1. received a H-1B approval in Form I-797B, which requires change of status by geting
a visa at a US consulate.

2. it turns out that the original I-129 form the lawyer filed actually did NOT ask
for "change of status". it asked INS to notice US consulate in his home country
instead so this person can get a H-1B visa.

3. he has been working in US in J-1 student training in the same company which
sponsors his H-1B. his status is still valid.

My understanding is: his company can simply file another almost duplicate I-129
merely asking INS to change his status to H-1B. Is that right?

Many thanks.
 
Old May 14th 2001, 7:11 am
  #2  
Sylvia Ottemoeller
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Posts: n/a
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mhz21 wrote:

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I know what *you* mean by "change of status," but you should keep in mind that the
term "change of status" in U.S. immigration law refers to changing from one temporary
status to another while remaining in the U.S.

It does not refer to leaving the U.S., getting a visa stamp in a different category,
and re-entering the U.S. in that different status.

I have looked at a I-797 approval notice for an I-129 petition, for consular
notification, and the term "change" or "change of status" does not occur on the
notice, except where it says, "If any of the workers are already in the U.S. the
petitioner can file a new Form I-129 to seek to change or extend their status based
on this petition."

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A request to get a visa at a U.S. consulate is made by checking box (a) of the same
number. Box (a) says "Notify the office in Part 4 so the person(s) can obtain a visa
or be admitted . . ."

A request for "change of status" is made by checking box (b) of Form I-129, Part 2,
No. 4. Box (b) says "Change the person(s) status and extend their stay since they are
all now in the U.S. in another status . . ."

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Yes. The company should be sure there is enough time left to get an H-1B petition
approved before the expiration of the J-1 status, or the person will have to leave
the U.S. and get a visa anyway. I am also assuming that the person is not subject to
the J-1 2 year HRR.
 
Old May 14th 2001, 3:17 pm
  #3  
ilknur-icke1
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Posts: n/a
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Actually my situation is very similar to this. My J1 Academic training is ending in
july and H1B is still pending at INS and I do not know if the lawyer asked for change
of status or not. Actually, he is not giving me any info. All I know is they filed it
and I have receipt.I thought I could simply go to Canada and apply for the visa
stamp. By the way, I already have the waiver for the J1 2 year rule. If the lawyer
asked for notification for the US consulate in my home country, what should we do to
switch it to Canada? I prefer going to Canada, it would take less time and cost less.
Also, on some newsgroup some people are talking about multiple entry H1B visa stamp?
What does that mean? Is not it multiple entry automatically? What should we do to get
it multiple entry? Thank you.

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[usenetquote2]> > I'm asking this H-1B question for a friend, who:[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > 1. received a H-1B approval in Form I-797B, which requires change of[/usenetquote2]
status
[usenetquote2]> > by geting a visa at a US consulate.[/usenetquote2]
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[usenetquote2]> > 2. it turns out that the original I-129 form the lawyer filed actually[/usenetquote2]
did
[usenetquote2]> > NOT ask for "change of status". it asked INS to notice US consulate in[/usenetquote2]
his
[usenetquote2]> > home country instead so this person can get a H-1B visa.[/usenetquote2]
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[usenetquote2]> > 3. he has been working in US in J-1 student training in the same company which[/usenetquote2]
[usenetquote2]> > sponsors his H-1B. his status is still valid.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > My understanding is: his company can simply file another almost[/usenetquote2]
duplicate
[usenetquote2]> > I-129 merely asking INS to change his status to H-1B. Is that right?[/usenetquote2]
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Old May 15th 2001, 5:33 am
  #4  
Sylvia Ottemoeller
Guest
 
Posts: n/a
Default

ilknur-icke1 wrote:

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You must get an appointment to apply for the visa; see
http://travel.state.gov/tcn.html. You may simply hand-carry all the necessary
documents to the consulate. It is not usually necessary to have INS notify a
consulate other than the one designated on the I-129.

I prefer going to Canada, it would take less time and cost less.
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Check this site: http://travel.state.gov/reciprocity/. For most countries and most
visas, the selection of "single" or "multiple" entry visa is not a choice. The U.S.
government mandates the selection based on reciprocity.

For certain countries, the applicant may choose the number-of-entry for certain
visas. Generally there are different fees for the different choices. See Russia, for
example: http://travel.state.gov/reciprocity/...R/Russia.htm#C.

[usenetquote2]> > mhz21 wrote:[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > > I'm asking this H-1B question for a friend, who:[/usenetquote2]
[usenetquote2]> > >[/usenetquote2]
[usenetquote2]> > > 1. received a H-1B approval in Form I-797B, which requires change of status by[/usenetquote2]
[usenetquote2]> > > geting a visa at a US consulate.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > I know what *you* mean by "change of status," but you should keep in mind that[/usenetquote2]
[usenetquote2]> > the term "change of status" in U.S. immigration law refers to changing from one[/usenetquote2]
[usenetquote2]> > temporary status to another while remaining in the U.S.[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> > It does not refer to leaving the U.S., getting a visa stamp in a different[/usenetquote2]
[usenetquote2]> > category, and re-entering the U.S. in that different status.[/usenetquote2]
 
Old May 16th 2001, 7:04 pm
  #5  
mhz21
Guest
 
Posts: n/a
Default

About going to Mexico for a H-1B visa (currently in J-1 training status, has H-1B
approved w/o "change of status", has J-1 waiver), the question is:

If the visa interview fails, can I come back in J-1 status using existing IAP-66? Any
new I-94/record_of_failure?

Am I subject to the 2 year home country residency again (this is a major concern)? I
heard you can simply take taxi back with no officer looking at your doc?

I guess going to Canada has more paperwork involved? Thanks a lot for any advice!

Sylvia Ottemoeller
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[usenetquote2]>> Actually my situation is very similar to this. My J1 Academic training is ending[/usenetquote2]
[usenetquote2]>> in july and H1B is still pending at INS and I do not know if the lawyer asked for[/usenetquote2]
[usenetquote2]>> change of status or not. Actually, he is not giving me[/usenetquote2]
any
[usenetquote2]>> info. All I know is they filed it and I have receipt.I thought I could simply go[/usenetquote2]
[usenetquote2]>> to Canada and apply for the visa stamp. By the way, I already[/usenetquote2]
have
[usenetquote2]>> the waiver for the J1 2 year rule. If the lawyer asked for notification[/usenetquote2]
for
[usenetquote2]>> the US consulate in my home country, what should we do to switch it to Canada?[/usenetquote2]
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[usenetquote2]>> Also, on some newsgroup some people are talking about multiple entry H1B visa[/usenetquote2]
[usenetquote2]>> stamp? What does that mean? Is not it multiple entry automatically? What should we[/usenetquote2]
[usenetquote2]>> do to get it multiple entry?[/usenetquote2]
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[usenetquote2]>> > mhz21 wrote:[/usenetquote2]
[usenetquote2]>> >[/usenetquote2]
[usenetquote2]>> > > I'm asking this H-1B question for a friend, who:[/usenetquote2]
[usenetquote2]>> > >[/usenetquote2]
[usenetquote2]>> > > 1. received a H-1B approval in Form I-797B, which requires change of[/usenetquote2]
status
[usenetquote2]>> > > by geting a visa at a US consulate.[/usenetquote2]
[usenetquote2]>> >[/usenetquote2]
[usenetquote2]>> > I know what *you* mean by "change of status," but you should keep in mind that[/usenetquote2]
[usenetquote2]>> > the term "change of status" in U.S. immigration law refers to changing from one[/usenetquote2]
[usenetquote2]>> > temporary status to another while remaining in the U.S.[/usenetquote2]
[usenetquote2]>> >[/usenetquote2]
[usenetquote2]>> > It does not refer to leaving the U.S., getting a visa stamp in a different[/usenetquote2]
[usenetquote2]>> > category, and re-entering the U.S. in that different status.[/usenetquote2]
 
Old May 17th 2001, 5:20 am
  #6  
Sylvia Ottemoeller
Guest
 
Posts: n/a
Default

mhz21 wrote:

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By the way, be sure to have your I-797 approval notice of the waiver from INS before
you leave the U.S. to apply for a visa. This is a separate I-797 than the H-1B
petition approval notice.

The consular post cannot approve a J-1 waiver; only the INS can. The State Department
letter is merely a recommendation (though INS will virtually never deny the waiver if
the State Department has recommended it.

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Yes.

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None is necessary.

record_of_failure?

There will be a record of refusal at the consulate, but nothing on the I-94.

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Yes.

I heard you can simply take taxi back with no officer looking at
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I don't know about that, but it does not matter. If at any time later some INS
examiner finds out that you entered the U.S. in J-1 status after the waiver was
recommended, you may be found to be subject again.

You need to assess the risk of refusal of the H-1B visa application. Maybe you could
consult with a good immigration attorney who has lots of experience with
Canada/Mexico third country national visa applications. If your job position is a
very straightforward H-1B type of position, and you obtained a bachelor's or higher
degree in the U.S., your risk of refusal is not very great.

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[usenetquote2]> >ilknur-icke1 wrote:[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> >> Actually my situation is very similar to this. My J1 Academic training is ending[/usenetquote2]
[usenetquote2]> >> in july and H1B is still pending at INS and I do not know if the lawyer asked[/usenetquote2]
[usenetquote2]> >> for change of status or not. Actually, he is not giving me any info. All I know[/usenetquote2]
[usenetquote2]> >> is they filed it and I have receipt.I thought I could simply go to Canada and[/usenetquote2]
[usenetquote2]> >> apply for the visa stamp. By the way, I already have the waiver for the J1 2[/usenetquote2]
[usenetquote2]> >> year rule. If the lawyer asked for notification for the US consulate in my home[/usenetquote2]
[usenetquote2]> >> country, what should we do to switch it to Canada?[/usenetquote2]
[usenetquote2]> >[/usenetquote2]
[usenetquote2]> >You must get an appointment to apply for the visa; see[/usenetquote2]
[usenetquote2]> >http://travel.state.gov/tcn.html. You may simply hand-carry all the necessary[/usenetquote2]
[usenetquote2]> >documents to the consulate. It is not usually necessary to have INS notify a[/usenetquote2]
[usenetquote2]> >consulate other than the one designated on the I-129.[/usenetquote2]
 

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