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August 24, 2003
The Iranian

Do you have an immigration question? Shawn Sedaghat may be able to help. He is an attorney based in Los Angeles who practices Immigration and Nationality Law. You may send your questions to info@visaattorney.com. Your questions, if of interest to the general reader, will be posted here, without any personal specifics. Here are some frequently asked questions. In a few days we'll publish incoming mail with replies.

* H-1B visa: Any solutions?
* Sponsor merging with new company. What should I do?
* L-1 Visa to H-1B?

H-1B visa: Any solutions?
I am in the U.S. on an H-1B visa but feel that my current employer, the one that sponsored, me is about to go belly up. Luckily I have found another employer that needs me.

The problem is that they are in the midst of a very urgent project and cannot afford to wait for my visa to be approved first. I am afraid if I tell them they have to wait they may decide to go with someone who is readily available.

I have suggested that they keep my paychecks until I have the visa all approved. Can I start working with this company and not get paid for the time being? Are there any other solutions?

Unfortunately your idea is not going to be an acceptable solution to the BCIS (Formerly INS). Anytime you take on a job, albeit on a voluntary basis, which could have been filled by a regular ìpaidî employee, you are in fact displacing someone in the job market, and an H-1B will be required.

There is a little break for those who are already in the U.S. on an H-1B visa. BCIS operational instructions allow commencement of employment for those who are already in H-1B status upon receiving the filing receipt. What does this mean? If you want to work for a new employer, and you are already in H-1B status, you may do so the instant that you receive the I-797 filing receipt, but no sooner.

Those individuals who are in the U.S. in other status will have to first apply and receive and approval before they can commence work. Keep in mind, for someone who is here on the Visa Waiver Pilot Program or who has ran out of status while in the U.S., will have to leave the U.S. and have the visa approved and stamped in their passport overseas.

For these individuals an approved petition does not mean an approved visa until completion of the consular processing.

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Sponsor merging with new company. What should I do?
My sponsoring company is merging with a new company. Although this probably means more job security to most, I am concerned about my H-1B visa. Will I have to have a new application filed?

If the new company is a successor in interest to the old company you will NOT have to obtain a new H-1B. The term successor in interest is a term of art and entails the assumption of all liabilities and obligations of the old concern.

I suggest very strongly that you review this matter with an attorney who would then have to contact the new company to ascertain whether the new entity is in fact a successor in interest.

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L-1 Visa to H-1B?
I am here on an L-1 Visa but because of the economy my business is not doing well. Can I convert to an H-1B visa?

Technically yes you can if you are otherwise qualified for an H-1B visa. However, you must have maintained your status under the terms of your L-1 and any time you have spent here under your L-1 status will count against the 6 years cumulative time you can be in H-1B status. Confused yet? Consult an attorney because chances are that the BCIS officer reviewing your case will be even more perplexed than you are and youíll need an attorney to show them the path!

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