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Immigration Issues/Consequences of not working on H1B visa


Hello Eileen,

My sister was recently denied a tourist visa. She lives in Russia and I'm a permanent resident in the US. Although I've been married for 7 years to a US citizen, I haven't applied for my citizenship yet. I wanted my sister to come visit me for 5 months together with her husband and their 7-months-old baby. She was in the US before - in 2004 my husband sponsored her through an H1B visa with his business. But when my sister got to the US at that time, the business was in really bad shape, so there was no work for her. We were trying to wait and see if the economy conditions would change, as well as to find another business to sponsor my sister's H1B. She lived with us, but she did not work and she was not paid. She stayed for 6 months in hopes of finding a job and then left back home to Russia. So, all of this came up during her interview at the embassy a few days ago. And my sister was denied a visa because she was not working on her H1B. My husband can provide a letter to the Embassy explaining that his business was in a financial hardship in 2004, and that he could not afford to give the promised job to my sister. Do you think that would help in the appealing process? What are our options? Thank you for you help!


Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Alexandra,

I understand your situation and I see it a lot these days.

However, the Department of State (US Embassy) isn't really forgiving when it comes to utilizing a visa such as the H-1B and then not being able to work...even if it was no fault of the worker.  

There are very strict rules for disallowing H-1B employers from bringing in workers for whom there is likely to be no work.  This is the so called "no-benching" rule.  Due to the economic climate these days, and with unemployment rates at an all time high, there has been a lot of concern over usage of the H-1B program to bring in workers whose jobs might be on the brink.  

My other point is that whether it was your sister's fault of your husband's company's inability to provide her work, the fact remains that she stayed in the US for 6 months and wasn't working as per the terms of the H-1B.  In the eyes of the US Embassy, she should have left and had no right to stay to look for work.  She was allowed to enter so she could work under the terms of the H-1B and if she wasn't doing so, she was supposed to leave.  

Recently, our government has been prioritizing fraud prevention and detection in the H-1B scenario.  I'm not saying that your sister or husband defrauded the government, but this very issue has become a point of debate:  whether foreign workers are being brought in under the H-1B program even if there's  no work for them.

My firm just posted a blog about the H-1B program and the Department of Homeland Security's new efforts to "detect and prevent fraud."  You can read more about it at:

Now, to answer your last question, whether a letter from your husband might help get your sister a re-adjudication of her visitors visa?  Well, it can't hurt, but given the length of time she stayed (6 months), the Embassy may find that she is not a "credible" applicant for a visitor's visa, that she may not truly have a "non-immigrant intent" which is a required showing for the visa.  

Lastly and most unfortunately, there are no appeals to consular decisions of visa denials.  She can re-apply but will need new evidence to overcome the initial grounds of denial.

Good luck,
Eileen Chun-Fruto

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Eileen Chun-Fruto


I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).


I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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