Chat : July 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.

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

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 : What is the minimum number of pay stubs needed during H1B transfer? What is advisable?

Attorney Murthy : The general and safe rule is at least 2 or 3 pay stubs in order to request an extension of H1B status within the U.S. Of course, the USCIS is allowed to ask for more if they wish. Most paystubs have a cumulative total income for the year; so, if a person has not been working for the first part of the year, then gets paid for a short while, the USCIS may notice this discrepancy. The burden of proof is on the H1B employee to show maintenance of valid nonimmigrant status to be eligible for the extension of H1B status within the U.S. Individuals with status issues should consult with a Murthy Law Firm attorney regarding potential options.

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

Chat User : Once F-1 is approved, is it mandatory to leave the country to get an F-1 stamped?

Attorney Murthy : No, it is not necessary for one to depart the U.S., since the F-1 can only be approved as a change or extension of status by the USCIS with the I-94 card attached to the bottom of the approval notice. This means that the individual is allowed to remain in the U.S. as long as s/he maintains valid student status and complies with the F-1 requirements, including pursuing the full-time course of study. The F-1 visa stamp is only required if one departs the U.S. and then seeks reentry as an F-1 student, since, in most cases, a visa is needed to enter the U.S. from abroad.

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

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 : During change of status from H-1 to F-1, can I start school if I have not received my F-1 approval?

Attorney Murthy : The general rule is that a person who has been maintaining valid nonimmigrant status, like the H1B, is allowed to start attending classes for school based on having filed the change of status to F-1. One is not allowed to start attending class upon filing the COS to F-1, however, if s/he has entered on the B-1/ B-2. If the COS to F-1 is approved, then one may continue the study program. If the F-1 COS is denied, one’s ability to continue to attend classes (and whether full time or part time would be appropriate) depends upon whether s/he holds another valid nonimmigrant status, and, if so, which status is held. For example, an H-4 could continue to attend school on a full- or part-time basis. An H1B can take classes, but the H1B work must be the primary purpose for being in the United States. So, H1Bs typically would attend classes only on a part-time basis.

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

Chat User : After I-140 approval, I opted for CP and left the U.S. to work in India. Is there any limit on how long I can stay outside U.S. as visa number is not available?

Attorney Murthy : There is no limit under the law. In fact, one cannot reenter the U.S. as an immigrant based on the I-140 petition approval until the priority date becomes current, the visa number becomes available, and the consulate issues the immigrant visa. With the backlogs in visa numbers in certain categories (particularly for persons from India and China), this waiting time could be five or ten years or possibly longer! Of course, one may be allowed back into the U.S. in H1B or other valid NIV status, if s/he is eligible under the law. Additionally, in order to obtain the immigrant visa based upon the I-140, the employer must continue to have the offered job available.

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

Chat User : Currently I am on EAD working with the same employer who sponsored my green card. I lost my project last month and do not know when I am going to get my next project. Would it be a problem regarding maintaining my status?

Attorney Murthy : Generally, a person who is in the U.S. based upon the I-485 filing, and working on an EAD, is not required to be working each day - unlike a one who is in H1B status. If there is an I-485 RFE or NOID, the I-485 applicant will need to show that there is still the job offer of permanent, full-time employment available for him/her to be eligible for the I-485 approval. If there is no work available, the employer may not be able to continue to offer the position. In that case, if the case is potentially eligible for AC21 portability, it may be possible to find a new job and pursue the case under the AC21 same / similar job classification provisions. Otherwise, there is a risk that the I-485 could be denied after an RFE requesting evidence of the full-time position.

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

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