Chat : March 02, 2009

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

----------------

Attorney Murthy : Good evening / day, MurthyChat participants (depending upon where you are). It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with general information on your immigration matters. Thank you for using our services at the Murthy Law Firm.

----------------

Chat User : I am on H1B visa and my employer has terminated me, stating that he will send my H1B visa petition for revocation. How many days I have to find a new H1B employer?

Attorney Murthy : Under the law, there is no grace period for one in H1B status to find a new employer. Status is lost immediately upon stopping work with the H1B employer. As a practical matter, however, a week or two is often not a problem since the USCIS has the discretion to approve the extension of status. After that it could start to become a problem. There still may be options, even if there is a gap in status. These should be discussed with one of our knowledgeable attorneys.

----------------

Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

----------------

Chat User : I am B.com(H) from DU (3 Years) and a Chartered Accountant. I have 8 years of experience. Can I file green card in EB2 category?

Attorney Murthy : Usually, the USCIS does not recognize the 3-year BCom and CA from India as equivalent to the U.S. 4-year bachelor's degree. This is because the CA is not a regular course of study that results in marks sheets or transcripts for the USCIS to evaluate as equivalent to a 4-year, single-source degree. This is a common problem for many BCom and CA graduates who may be lucky even to file an EB3 case, since a combination of education is not acceptable with some officers at the service centers to approve the case as even a simple bachelor's degree!

----------------

Chat User : I am on H-4 & my husband on H-1 (I-140 approved and I-485 pending). If my husband uses his EAD, what are my options to maintain legal status other than H-1 / F-1 options?

Attorney Murthy : If the spouse is no longer  working with the H1B employer, then if the I-485 was filed for you, you would be able to remain in the U.S. and, if desired, work with your own EAD during the I-485 pending time. If for some reason the derivative spouse had not filed the I-485 when the priority dates were current, it would be a problem since it would require the spouse to maintain separate or independent valid status to remain legally in the U.S.

----------------

Chat Master : The information provided during the Chat session is of a general nature and MAY NOT apply to any specific or particular circumstance. It is NOT to be construed as Legal Advice and does NOT establish an attorney-client relationship.

----------------

Chat User : If a person on H1B uses his EAD to work in a part-time second job, will it affect the status of his wife who is currently on H-4 visa? Is it even advisable to do so? Thanks.

Attorney Murthy : If the principal is in H1B status and continues to work with the H1B employer, then, arguably,  the spouse's H-4 status remains valid. This is a bit of a gray area, and the USCIS has not issued clarification one way or the other regarding the impact of using the EAD while also maintaining the H1B job. In this situation, it is likely that the H1B will be able to extend status, and the same for the H-4. However, if the H-4 also has an I-485 filed, then that will also provide a legal basis for remaining in the U.S. and, if desired, obtaining an EAD.

----------------

Chat User : Is it compulsory that H1B employer should revoke H1B once the employee leaves the company and joins another company? If the employer does not revoke the H1B does the COS punish the employer?

Attorney Murthy : Generally, from an employer's perspective, it is much safer to revoke the H1B petition, as is required by regulation once the employee leaves the employment or is no longer able to work for the employer. The U.S. Department of Labor and the USCIS could hold the employer liable for back wages and penalties until the revocation occurs. We have articles on this topic that can be found in the compliance section (under the Employment tab) of MurthyDotCom.

----------------

Chat User : I have an H1B for an IT job, but I also have a degree in engineering. Does any new job on H-1 have to be in IT? Can I change to engineering?

Attorney Murthy :  Actually, if a person was previously counted against the H1B quota, then s/he is not limited to work for any particular type of employer, but may work for any other future H1B employer simply based upon the filing of a new H1B petition under AC21 H1B portability provisions. The AC21 law also allows one who was "ever" previously in H1B status, or had an H1B visa, to be able to work upon filing a new H1B petition with a new employer.

----------------

Chat User : Hi Ms. Murthy. I am on OPT, which just started. Is it possible to cancel it and go for another masters degree? Can I use the remainder of my OPT time after that?

Attorney Murthy : The general rule is that once a person has filed and obtained the OPT approval, s/he has used up the one OPT per degree, since the law does not allow one to reclaim unused OPT time or any variation, unless time was specifically reserved earlier before it is filed and approved. Once it is approved, there is no way to carve it out for future use.

----------------

Chat User : If I apply for H1B visa via the lottery this year, then will my travel to India post lottery results affect my immigration status on my way back from India?

Attorney Murthy : If a person departs the U.S. after filing for a change of status from F-1 or other nonimmigrant status to H1B, then the change of status is deemed abandoned upon departure. The only way to correct this could be to wait until the H1B decision, then travel and reenter before Oct 1st, the start date of the new H1B, or be prepared to arrive after Sep 21st in the H1B status by applying for the H1B visa stamp at the U.S. consulate in the home country.

----------------

Chat User : I'm on H-1 (I-140 approved & I-485 pending) and my wife is on F-1. Once she finishes her studies, is she required to report to USCIS for her change of status if she wants to work on EAD?

Attorney Murthy : If the spouse did not file the I-485 along with the principal, the spouse must wait until the priority dates become current in the future to be able to file for the I-485 and the EAD, etc. There is nothing to report to the USCIS. One is eligible to file for the I-485 when the priority dates become current and s/he is in the U.S. and has not violated status ideally, though there is a limited exception of up to a max of 180 days to fall out of status, which is risky. If you were referring to the eligibility for OPT after completion of F-1 studies, this does need to be requested, based upon the recommendation for OPT given by the school, during specific timeframes. It sounds like a consultation with a knowledgeable attorney may be wise.

----------------

Chat User : What are the risks in H-1 transfer with the current environment?

Attorney Murthy : The common risks are in case the employer is being subject to an audit or investigation and the Department of Labor or USCIS threatens to penalize the employer by not approving any H1B petitions for that employer. There are also situations in which such employers simply experience an apparent "hold" on all their H1B cases. That is the most common scenario in today's economy and considering other enforcement efforts, with an apparent bias against consulting companies, due to the practices of a certain minority of those companies.

----------------

Chat User : We tried an H-1 transfer to our company and got a denial, which we appealed now. Is the H-1 candidate out of status, or is it ok if he continues with the previous employer?

Attorney Murthy : Generally, as long as the earlier employer has not revoked the H1B petition, it is considered valid if it has not expired for the employee to return to that employer for work, assuming the employer is willing to offer employment to that employee. At some point, it is safer for one to depart the U.S. and reenter in valid status to clear up any status problems that may have occurred in this type of situation.

----------------

Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.

----------------

Chat User : I am a BE with 15 years of experience. Can I file GC in EB2? What is the negative side if filed in EB3 other than long wait time?

Attorney Murthy : Well, as mentioned in many articles on MurthyDotCom, it is not only the person's own background and credentials, but the true minimum requirements for the job that determine if the job can be filed as an EB2 or EB3. The only downside really of an EB3 is the much longer wait time, not only to obtain the GC but also often to file the I-485 and obtain the EAD, AP and ancillary benefits that come along with filing the I-485, which include not having to extend the H1B or other nonimmigrant status.

----------------

Chat Master : Murthy Immigration Services, Pvt Ltd, in Chennai, India, is available in help in complex or routine matters for companies and individuals. Whether for visa stamping, or guidance regarding H1Bs, L1As, or L1Bs, or for helping parents who have been denied B-1/B-2 visas, see www.murthyindia.com or contact us at info@murthyindia.com.

----------------

Chat User : Hi, Ms. Murthy. My husband is on L-1 and I am on L-2 EAD. If my husband goes on vacation to India, will my L-2 EAD still be valid? Can I work in the USA?

Attorney Murthy : Yes, a spouse on the L-2 EAD is allowed to continue working and living for a short span of time (like a couple of weeks) if the L-1 principal is traveling abroad on work-related matters. On the other hand, if the L-1's employment has terminated in the U.S., then the L-2 dependents are not allowed to remain in L-2 status even if the I-94 card date has not expired. There is a USCIS memo on this subject, issued December 5, 2006. Short, routine vacations or business trips should not be a problem.

----------------

Chat User : Hi, I am using my EAD and my wife is on H1B. If the employer asks her to convert into H-4 or transfer her H-1, what is the best thing to do?

Attorney Murthy : I am not sure I understand the question. The employer cannot tell an individual what they need to do about their immigration status. If the employer does not have work, then they should terminate the employment, and the individual will have to determine how to maintain valid status. If the H1B spouse has her own EAD she can work based upon the EAD. The H-4 is not an option, unless the other spouse has H1B status. One's best option, which will depend on a variety of factors, will most likely require a consultation. If you don't have an attorney, please eMail law@murthy.com or call the Murthy Law Firm to set up a consultation on the options available to you.

----------------

Chat Master : Whether you are an individual or a company representative, you may request our fees for handling your case by eMailing a brief outline of your situation to law@murthy.com. More information is available at http://www.murthy.com/repre.html.

----------------

Chat User : I am currently on L-1 visa and I have initiated my GC. In case my company sends me back to India, will this affect my green card processing.

Attorney Murthy : Since the GC is based on the concept of a future job offer, if one is abroad or has never worked for the GC-sponsoring employer, the GC process can still continue. One issue in such cases is demonstrating the employer's ability to pay the prevailing wage, if the individual was not working for the employer and/or being paid the required Department of Labor mandated wage. For larger employers or companies making a substantial profit, it is usually not an issue if the employee is not working for the U.S. green card-sponsoring employer. It is also necessary to establish that there is an ongoing, bona fide job offer. The employer must be willing to continue the case.

----------------

Chat User : My LC date will be current in 30 days. With EAD in hand, can we have a break in paystubs?

Attorney Murthy : There is no guarantee that the LC date will be current in 30 days, since the priority dates (PDs) do not systematically move a day for a day. If one was able to file the I-485 and obtain the EAD, then s/he may be able to take a break in employment, without its being considered a break in legal status. However, there must be a valid job offer for the primary applicant in order for the case to be properly approved.

----------------

Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.

----------------

Chat User : My company has applied for my labor (GC), and it is stuck in audit for more than a year. Is there any way to track its status online?

Attorney Murthy : Unfortunately, even though when PERM was established in March 2005 it was meant to move the LC process for the GC much more quickly, it has resulted more recently in a much slower process. Part of the reason is the slowing of the economy and the Department of Labor's concern that U.S. citizens are unemployed, but foreign nationals are getting sponsored for green cards or even H1Bs. The DOL has no way for an individual to track the PERM online. There is a basic tracking system for the employer to check cases that have been filed, but this only provides information such as "pending" and not much other detail. It is common for PERM cases to take as much as 14-16 months, particularly when there has been an audit.

----------------

Chat User : Can we file multiple H-1s this year 2009?

Attorney Murthy : A foreign national may be the beneficiary of more than one H1B through different employers. But it is sometimes an issue of ethics to promise multiple employers that one will work for them on a full-time basis. There also can be problems if an individual enters into employment contracts that s/he is unable to keep. It potentially is possible to file for concurrent H1Bs to work for more than one employer, for example, in two part-time jobs, etc. From a purely immigration law point of view, one is allowed to request more than one employer to file the H1B petition.

----------------

Chat Master : Your participation has made this the Internet's most popular chat on U.S. immigration law! MurthyChat is one of the few weekly chats on U.S. immigration law offered and run by a law firm. Another FREE and VALUABLE SERVICE proudly offered by the Murthy Law Firm and MurthyDotCom.

----------------

Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

----------------

Chat User : Hi. I am on H1B now. If I convert to H-4, can I convert to H1B again?

Attorney Murthy : Yes, it is certainly allowed, and you may want to read some of our articles about changing status, which you can find and research on murthy.com free of charge. One is allowed to possibly start working simply upon filing the new H1B petition again after the H-4 status has been approved based on AC21 H1B portability, as well.

----------------

Chat User : I am on H1B. If I go out of the country and come back with my valid H-4 stamping, will it cancel my H1B?

Attorney Murthy : The general rule is that if one travels abroad and reenters in H-4 status in this type of situation, her/his wishes supersede the existing H1B status with the H-4 status under the last action rule of the DHS to determine the current status in the U.S. An individual can only hold one status at a time. The H1B petition is not terminated unless the employer requests revocation, but the person's status has changed to H-4.

----------------

Chat User : Do I have to keep copies of my old H1B approval notices when I change jobs? What about my I-94s that I have to hand over when I travel abroad?

Attorney Murthy : A person should ALWAYS keep copies of the H1B and other approval notices, especially prior I-94 cards to show status since it will be required at the time of filing for the I-485 or if there is an RFE issued by the USCIS and maintenance of valid status throughout in the U.S.

----------------

Chat User : Hi. I have been working on H1B for 2 years. Due to layoffs, if my employer revokes my H-1 and I change the status to H-4, but a project comes to me in a month or two, can I re-apply for the H-1 and will this H-1 come under the H-1 Cap (my H-1 approved in SEP-2006).

Attorney Murthy :  It is certainly possible to reapply for the H-1 in this example, and it will not come under the cap. If one has already been counted against the cap, s/he can change back to H-1 after H-4 (or other status) without worrying about the cap, even if the employer revokes the old H1B petition. The employer is supposed to revoke the H1B petition if the job is terminated, but this doesn't change the fact that one has been counted against the H1B cap previously.

----------------

Attorney Murthy : Thank you for allowing us to help you, your family, and friends in our regular MurthyChat sessions. We at the Murthy Law Firm look forward to helping you with all of your immigration matters.

----------------

Chat Master : This ends tonight's session of the MurthyChat. We are sorry Atty Murthy could not respond to all of your questions. We make every effort to get to as many of your questions as possible. Check the LogFiles to of past chat sessions at http://www.murthy.com/chatlogs/chattran.html to see if your question was answered for someone in a previous chat.

----------------END

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved