Chat : August 03, 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 will now select the most relevant and timely Q/As from each session. Search the chat database for information not included here.

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

Chat User : Dear Ms. Murthy, when is the last date to apply H1B for 2010 quota. Can we even apply in December if quota is available?

Attorney Murthy : The last day will be whenever the limit or cap is reached. No one knows when this will happen. All of the latest cap count information is available on MurthyDotCom. A company is able to apply at any time, as long as there are cap numbers. This could be at any time until Sep 30, 2010, which is the last day of the 2010 fiscal year for the USCIS.

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

Chat User : Can an employer revoke an approved I-140 without the receipt number or A#? My employer doesn't have either and I am planning to quit.

Attorney Murthy : It would be unusual for an employer not to have the receipt number for the I-140 filed by that employer. The employer's attorney is also likely to have a copy. The information is available on the back of the cashed filing fee check. It is possible for the employer to revoke the underlying I-140 petition simply by requesting this action. It is easier for the USCIS to access the information with the receipt number, but they should be able to locate it with the employer's name and the beneficiary's name. The employer should have access to other information that might be helpful to track the case, such as the beneficiary's birth date and social security number.

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

Chat User : Hi, Ms Murthy! What is the procedure to transfer the H1B from a nonprofit organization to one that operates on a for-profit basis? What happens if the cap is filled? Does one have to wait for the next fiscal year or is there a way to work around it? Thanks!

Attorney Murthy : Not every H1B with a nonprofit entity is cap exempt. So, it is first necessary to verify whether the employer really is cap exempt, based on the requirements, before assuming that there could be a problem. If, in fact, one was never previously counted against the H1B cap based on any earlier H1B filing, then it could pose a problem if the H1B quota is met. Honestly, at the current pace of H1B usage this is a less urgent matter than in recent years. Of course, if a cap number is needed, then the earliest start date would be October 1, 2009.

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

Chat User : Murthiji, thanks for the great service. What is the procedure for converting an EB3 case to EB2 with the same employer?

Attorney Murthy : Well, there is no simple method. The EB category is based on the minimum requirements for the position as set out in the labor certification. An EB3 case cannot be simply converted to an EB2 case. In order to change categories, the employer must file a fresh, new PERM / LC for a new position that has the higher requirements. Generally, one should have the required qualifications before starting to work for the GC-sponsoring employer. (There are some exceptions to this general rule.) Then, if the PERM is approved, the employer is required to file a new I-140 and submit the earlier EB3 I-140 approval notice and request the earlier PD to be transferred.

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

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