Chat : May 04, 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 : What is the advantage of using H1B over EAD in a case where six years of H1B have been completed; because once the green card is denied, the applicant can't work or stay in either case, correct?

Attorney Murthy : It is not true that a person with an approved H1B cannot stay after the GC is denied. If s/he has the three-year or one-year H1B petition approval, it is certainly permissible to remain and work legally in the U.S. on the H1B approval until its expiration date, even if the I-485 is denied. This will either make for a smoother transition, if the individual ultimately leaves the U.S., or will allow enough time to potentially re-file a green card case and extend the H1B / permanent stay in the U.S. This is one of the main reasons we suggest maintaining the backup H1B status.

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Chat User : Hi! My I-140 was denied because the employer's letter was not provided. What options do I have now?

Attorney Murthy : That depends on the reason the employer letter was not provided. The employer must not only submit a letter outlining the minimum job requirements and duties, but must also submit tax returns and other data, as required by law, for the I-140 petition approval. It is not clear from this question if what is meant is a letter confirming experience with a prior employer. There may be alternative forms of proof for that letter. The options for anyone depend upon his/her background, the time available in H1B status, the backup options by other family members, and other applicable criteria. You should schedule a consultation with an attorney right away. If you don't have one, please contact us at law@murthy.com, or call our office to schedule a standard consultation.

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Chat User : Hello, does a change of status from one visa category to another have to be filed by the employer or can one file on his own; say from H-1 to L-2 or L-1 to H-4.

Attorney Murthy : Well, in the example given, the employer would not have to be involved in the filings. The employer only has to be involved if the change of status is based upon an employment offer and employer petition, such as an H1B or L-1. Since the L-2 and H-4 are both dependent classifications, the application is made by the individual requesting the status. It is certainly legally permissible for the dependent spouse to file a change of status (COS) on his / her own. Sometimes the attorney for the spouse’s employer may help with the COS filing. It is always best to be involved in one's own case and to understand when the extensions must be filed, even if filed by the employer’s attorney, to make sure things happen when they should. This avoids the common problem of falling out of status because an employer or employer's attorney does not realize that there is a spouse or that the spouse needs the L-2 or H-4 change or extension of status filing.

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Chat User : Hello, Ms Murthy. Have PERM processing times in 2009 improved?

Attorney Murthy : Well, we have recently started to see faster movement and approvals of PERM cases that had been pending for quite a while. Let's hope it is a sign of things moving along by the Department of Labor, after a period of stagnation. However, it is too early to tell if this is an indication of long-term, overall improvement in processing times.

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Chat User : Hi, Atty Murthy. I was wondering how the new law affects people who are working for companies receiving TARP money, specifically their H1B renewals and regarding green card applications.

Attorney Murthy : The TARP restrictions on H1Bs do not prevent H1B extension filings or GC filings by the TARP employer. It only applies to H1Bs filed for new employees, after the effective date of the TARP law. So, it should not impact those who are already in H1B status working for the particular employer. It does not directly impact the GC filings. Of course, if the company is having layoffs, then there may be issues with the LC, depending upon the particular geographic area and jobs involved in the layoffs. Some TARP employers may be hesitant to file H1B/GC cases due to the possible negative publicity, considering the level of scrutiny that they are under, and the overall economic problems in the U.S. at this time.

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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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