Chat : June 01, 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 : Is it OK to apply for change of status a couple of times while in the U.S.? Say, H-1 to L-2 and L-2 to H-1?

Attorney Murthy : Yes, it is allowed for a person who is maintaining valid nonimmigrant status to change status from H1B to L-2 and then L-2 back to H1B. This change of status to L-2 would not subject the individual to the H1B quota or “cap” if s/he held H1B status within the last six years. Additionally, L-2s can request employment authorization documents. This may be an easier way to work than the H1B.

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Chat User : What is the number of days a person must be present in U.S. to be eligible for U.S. citizen. I am already a green card holder

Attorney Murthy : Generally, a person must be a permanent resident for five years in order to become a U.S. citizen. The filing may be made 90 days before the date of the 5th anniversary. The timeframe is reduced to three years if the person has been married to a U.S. citizen for three years (or more). In addition, the person must be physically present for more than half the number of days in the U.S. in the applicable 3- or 5-year period. There cannot be a break of one year abroad, and a break of six months (but less than a year) creates a presumption that there has been a break in the continuity of residence. Please visit MurthyDotCom for more details on this issue.

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Chat User : Hi, Ms Murthy. While in H1B status, I went on vacation to India for a total of 13 weeks (5 trips overall), between 2004 and 2008. Can I recapture this duration to my H1B? All these trips were paid leaves.

Attorney Murthy : Under the current USCIS regulation and case law, any time outside the U.S. can be recaptured, even if the person was actually doing work for the employer abroad and getting paid or getting paid for paid vacation time, etc. So if you need to recapture that time, you may do so when filing the next H1B extension for the balance of time remaining in your H1B status. It is necessary to have proof of the travel abroad when making this recapture request.

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Chat User : Iam on OPT and got the change of status approval with new I-94. I am going to India in July, can I enter into U.S. with H-1 stamping (which is valid from Oct 1) on Aug 30 and work on OPT until Sep?

Attorney Murthy : No. One cannot enter in H1B status on Aug 30, when the H-1 petition is not valid until Oct 1. It is permissible to enter on F-1 OPT, by showing the job and the F-1 status on Aug. 30th and as long as the H1B is approved with the I 94 card attached to the approval notice, then the individual's status changes automatically on Oct 1st, and one can start to work legally as an H-1 from that date.

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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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