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Deportation Misunderstanding

  • Published: November 30, 2018
Deportation Misunderstanding

Hypothetical: Imagine you are traveling to the U.S. with a valid visa, valid earlier H-1B approval, and an amendment receipt notice for your new employer but you are insufficient for entry and deported because your petition is under process. You had to correct paperwork but what went wrong?

Timing and preparedness is the name of the game for an H-1B Visa Holder/Applicant. Visa officers use the law and a visa holder’s history to accept or reject at the Point of Entry (POE) to the U.S. H-1B applicants can change employment but as mentioned timing and preparedness.

A nonimmigrant who was previously issued an H-1B visa or provided H-1B non-immigrant status may being working for a new H-1B employer as soon as that new employer files a non-frivolous H-1B petition on the nonimmigrant’s behalf, if:

  • The nonimmigrant was lawfully admitted to the United States;
  • The “nonfrivolous” petition for new employment was filed before the end of their period of authorized stay; and
  • The nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition

For nonimmigrants claiming portability, an H-1B applicant for admission who is no longer working for the original petitioner is admissible at a Port of Entry (POE) pursuant to the portability provisions, upon presentation of the following evidence:

(a) that the applicant is otherwise admissible;

(b) that the applicant, unless exempt, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);

(c) that the applicant was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition’s validity dates; and

(d) that an H-1B petition was timely filed on behalf of the applicant, before expiration of the validity dates of the applicant’s previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query.

Practice Alert: Employers, it is important that you know that POE officers may get your employee’s entry wrong. To avoid confusion, your H-1B employee should wait for the receipt notice of the filed amendment; their preparedness will show the timely proper filing of the amendment petition to the officer. Finally, the non-immigrant is admissible to the validity date of the previously approved petition, plus 10 days.

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