Chat : April 06, 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.

We at MurthyDotCom have conducted chat sessions and provided individuals with answers since the year 2000. For your convenience, rather than repeat many of the basic questions and answers in the weekly transcripts, we now select the most relevant and timely Q/As from each session. Search the chat database for information not included here.

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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.

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Chat User : In case a transfer petition is rejected and I have crossed 240 day period, how much time do I have to vacate the country?

Attorney Murthy : Actually, the law does not impose a 240-day limit on an H1B petition requesting to transfer from one H1B employer to another. That limit only applies when filing an H1B extension with the same employer. In case of a change in employers or jobs, AC21 law simply provides that one is allowed to keep working for the new employer until there is a decision on the petition. Generally, after a denial (rejection with the USCIS means that the package is not accepted but rejected or returned by the mailroom), the person is given about 30 days to make plans to depart the U.S. This is not a grace period where one has status; it is simply a delay in any enforcement action, so that the person can depart or, if appropriate, file a motion to reopen the case. So, technically, the person loses their permission to be in the US immediately upon the H1B petition denial.

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Chat User : Thank You for taking my question. I am an employee of a small business company (12 employees). What are the chances of getting an I-140 approved in the current situation, if my company can show valid documentary evidence of ability to pay?

Attorney Murthy : Generally, the mere size of the employer has nothing to do with the denial of the I-140 petition. If the employer is bona fide and the job is valid, the fact that the employer has 12 employees is not the sole determining factor. The employer will have to demonstrate that it has the ability to pay the offered wage set out on the labor certification. The best way to prove this is by actually paying that amount to the beneficiary as an employee. It is better to have a financially stable, smaller company than a larger company that is operating at a loss. It is true that in the H1B context the USCIS reviews criteria like the size of the employer being fewer than 25 employees or having less than $10 million in revenues or having been established for fewer than 10 years ago as factors to consider when analyzing the profile of the employer. We at the Murthy Law Firm have obtained many, many I-140 approvals for employers with ten employees or even smaller companies.

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Chat User : With I-140 and I-485 pending for more that 180 days, can one change the employer? That said, should s/he wait for approval of I-140 to file AC21?

Attorney Murthy : It is not safe to change jobs before the I-140 petition approval since the law requires that the l-140 petition must be at least approvable for the person to enjoy AC21 portability. It is risky if the I-140 is denied or there is an RFE and the employer does not respond to the RFE resulting in a denial. Then there is nothing to carry with the new job, not even the priority date to carry to a new filing with a new employer. If, due to job loss, one does not have a choice in this matter, then s/he can try to use AC21 to continue the green card case. One should also put a backup plan into place, such as filing a new green card case through the new employer.

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Chat User : Is it true that all the H1B extensions / transfers from a DESI consultancy are getting denied even with client letter? Were there any success stories?

Attorney Murthy : It is not true that all Indian-owned companies' H1B petitions are being denied. As written in our MurthyBulletin article several months ago, there was a Sep 2008 US ICE investigation in which fraud was detected within approximately 20 percent of the H1B filings. Some of this was tied to IT consulting companies, including some of the companies owned / operated by many desi types, unfortunately. This has resulted in a problem wherein all cases are being given great scrutiny, even the 80 percent of cases (using the findings in the report) that are legitimate and honest cases. We at the Murthy Law Firm have filed and successfully obtained many H1B approvals for companies of all sizes - including those for owners and with many employees of Indian origin. If a company has valid reasons for H1B filings, and can show the bona fides of the case, the law itself has not changed and does allow for H1B petition approvals. Such companies do need to closely review their practices to assure compliance with the H1B requirements.

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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.

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