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AN H-1B VISA IS NOT A GREEN CARD
by Michael J. Gurfinkel, Esq.
Many people are petitioned for H-1B visas, and once
the petition is approved and/or the visa is issued, they start
treating the H-1B visa as though it was a green card (i.e. working
wherever they feel like, and not just for the employer who petitioned
them). However, an H-1B visa is not a green card.
An H-1B visa is a temporary working visa,
available to college graduates, who will be working for the petitioning
employer in a job position related to their college degree, and
will be paid the prevailing wage (or going rate) for that college-level
position. If you do not meet and/or abide by the conditions and
requirements of an H-1B visa, it could be considered that you
have violated your visa status, or even be considered out
of status. Such visa violation could include the following:
1) you do not work for the employer who sponsored you, 2) you
work for another employer, without getting petitioned by that
second employer, 3) you are being paid less than the prevailing
wage, or 4) you work in a different job than that described in
your petition (i.e. you work as a Bookkeeper, when you were being
petitioned as Controller).
An H-1B visa holder is like a OCW (overseas contract
worker). You must work for the employer who petitioned
you. In fact, the name of the employer is printed on the
H-1B visa itself. If you work for a different employer, without
having that second employer separately petition you for an H-1B
visa, you are "out of status". You cannot use an H-1B
visa obtained through one employer, to work for a different or
additional employer.
I know of a case where an employee was stuck in
Manila, after the Embassy cancelled his H-1B visa. This particular
employee came to the U.S. on a visitor's visa. He later found
an employer, and had an attorney prepare the paperwork to enable
that employer to petition the alien for a job related to the alien's
college degree. The H-1B petition was approved, and the person
even went to the U.S. Consulate in Ciudad Juarez, Mexico, in order
to have the visa stamped on his passport. He then reentered the
U.S., the proud holder of an H-1B visa.
However, the problem was that he never bothered
working for the petitioning employer. Instead, he found a better
job opportunity, with a different employer, and immediately started
working for the second employer, without having that second employer
petition him for an H-1B visa. He simply acted as though he was
a green card holder.
This person decided he wanted to bring his wife
and children to the U.S. to join him. So, with his H-1B visa in
his passport, he flew back to Manila, to accompany his family
to the U.S. Embassy, where he assumed that his family would automatically
be given their H-4 visas. (H-4 visas are non-working visas for
the spouse and minor children of H-1B visa holders.)
At the U.S. Embassy, this person proudly presented
his H-1B visa to the Consul, requesting that the Consul issue
H-4 visas for his family members. Their bags were packed, and
their plane tickets had been purchased. They were ready to go.
However, the Consul asked this man, "Where are your pay stubs,
W-2's, and tax returns with your petitioning employer?" The
person was stunned. Since he never bothered working for that employer,
he, of course, did not have these documents. The Consul told him
that the Embassy wanted to make sure that he was still working
for that employer. The Embassy even called that petitioning employer
in the U.S. Since that person had never been on the payroll, and
he never worked for the petitioning employer, the Consul uncovered
that he had violated his H-1B visa status.
In the end, this person was not able to have H-4
visas issued for his wife and minor children. To make matters
worse, the Embassy cancelled his H-1B visa, because he
violated that visa. So, he is now stuck in the Philippines, and
there is nothing that could be done at that point, because of
his immigration violations.
This person was very talented, and had risen through
the ranks of the second company he had been working for (but had
not bothered to be petitioned for an H-1B visa). But this large
company needed someone to fill his job duties. They could not
wait the many months it would require to hopefully get him back
from the Philippines. So, they had to terminate him, and hire
a new person to fill his job position.
If you are an H-1B visa holder, you should learn
from this person's mistake. Do not think that just because you
have an H-1B visa, you can enjoy all the rights and benefits of
a green card holder, such as being able to work wherever you want,
at whatever job you desire. An H-1B visa does not allow this.
You can only work for the employer or employers who petition you.
You can only work at a college-level job related to your degree,
at the prevailing wage. Once you start violating the terms of
your visa, it can only create further problems for you.
Also, a lot of people come to me asking for assistance
in "extending" their existing H-1B visas. They may have
originally been issued the H-1B for three years, and the three
years are just about up. However, they never worked for the petitioning
employer, or quit their job soon after getting the H-1B visa.
They think that just because the visa was issued for three years,
it remains "valid" for that entire three-year period,
regardless of whether or not they actually worked for the petitioning
employer. That is not the case.
If you violate the terms of your visa, such as not
working for the petitioning employer, etc., you are "out
of status", even though there may still be time left on the
duration of the visa. You cannot extend status if you are
out of status. If you try to extend that visa, the INS
and/or Consular Officers may ask for proof that you had been working
for the petitioning employer for the entire period of the
visa. If you never worked for your H-1B petitioning employer,
or haven't worked for them for a very long time, you are, obviously,
not going to be able to prove that you have abided by the terms
of your H-1B visa.
The bottom line is that an H-1B visa is not a green
card. It has lots of restrictions. If you want to be a green card
holder, you need to apply for a green card. For example, the same
way an employer can petition a person for a temporary working
visa, the employer can also petition a person for a permanent
green card through the process called Labor Certification.
You should seek the advice of a reputable attorney,
who can analyze your situation, and advise you about the best
course of action to take. With proper advice and guidance, you
may be able to live the life of a green card holder because you
will be a green card holder.
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