Past immigration violations may not be remedied through future compliance

Dear Attorney Gurfinkel,

I am currently an H-1B visa holder, but ever since I came to the US, I never worked for the employer who petitioned me. My visa will expire in a few months. Fortunately, I was able to find another employer who is willing to sponsor me. Will I encounter any problems with the USCIS if I file for a change of employer?

Very truly yours,

LG

Dear LG,

If a person is in non-immigrant visa status (such as B (visitor), F (student), H-1B (temporary worker in college level position), L-1 (intracompany transferee), etc.), then anytime the person files for an extension, change of status (from one non-immigrant visa to another, such as student to H-1B), or with a new employer, the United States Citizenship and Immigration Services (USCIS) will most likely examine and evaluate your past compliance with your existing visa status. If they find that you had violated your existing visa status, your request for an extension or change of status could be denied. 

For example, if a person was under a student visa, but dropped out of school, and now wants an employer to petition him for an H-1B visa, the USCIS may want evidence that the student had always maintained status, and would request his transcripts, to make sure that he had been in school all that time. 

Similarly, if a person is under an H-1B visa, and now wants to extend that visa or change employers, the USCIS may ask for his pay stubs, to make sure that he had been working for the existing H-1B employer, and was being paid the wage specified in the petition. The USCIS may also ask for the alien’s tax returns, to make sure that he was not working at any “side jobs”, which would also be a violation of status.

In your case, you were petitioned for an H-1B visa, but did not work for the petitioning employer. USCIS would consider that to be a violation of status. Even though you now may have another employer who is willing to petition you, and that you would work for that employer, it still would not erase your previous status violations. In other words, future repentance does not erase the past sins. While it could be possible for USCIS to approve the petition, it’s likely that USCIS would deny any change or extension of status. In that case, you would be instructed to go to Manila and apply for your visa at the US Embassy. However, it is highly unlikely that the Consuls would “reward” anyone with a new visa if the person had violated their previous visa.

So the lesson for people is that if you are holding a visa, you should abide by, and comply with, the terms of that visa, or it could mess up your existing status and future in the US. 

*      *      *

WEBSITE: www.gurfinkel.com

Four offices to serve you:  PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)