Chat : September 21, 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.

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Chat User : Can I switch to H-4 after completion of my 6 years in H1B?

Attorney Murthy : Yes. It is possible to switch to H-4 status after completion of 6 years in H1B status. Luckily, the USCIS decoupled the time in H1B and H-4 status in a memo in December 2006. This means that the 6-year limit on the H1B does not matter if an individual is otherwise eligible for an H-4. This option is feasible if the spouse is maintaining H1B status.

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Chat User : My wife's H-4, EAD, and AP has expired, but she has a pending I-485 application. Will that be a problem for the status during the I-485 interview?

Attorney Murthy : The EAD is only required by law to work and the AP to be able to travel abroad and reenter the United States. If one is not working or traveling, then the EAD and AP are optional benefits, available when the I-485 is pending. Generally, the I-485 permits an individual to remain in the United States, in a period of authorized stay. There is DHS / Legacy INS precedence permitting the DHS to start a removal / deportation proceeding against an individual for failure to maintain valid nonimmigrant status. Historically, however (and from what we see at the present time), in more than 99 percent of the cases this action is not taken, and one is permitted to remain in the United States with an I-485 pending alone until there is a decision on that case.

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Chat User : When a qualified U.S. worker is found during recruitment stage of the PERM process, can the company lay off the incumbent H1B before his/her visa expires and replace with the U.S. worker?

Attorney Murthy : The law does not require the employer to terminate the H1B worker if a qualified U.S. worker is found during the recruitment stage of the PERM process. Of course, it will mean that the PERM case cannot move forward if there is a qualified, available worker who is willing to accept the job under the terms / conditions of that permanent (green card) position. Of course, the employer is allowed to terminate any employee "at will" in most states if the employer is in compliance with all other applicable laws. If the employer were to terminate the H1B worker prior to the expiration of the H1B, the employer would have obligations under the law to paying for the return transportation home for the H1B worker and to pay the prevailing wage to the H1B employee until the termination date.

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Chat User : My H-1 starts on Oct 1st. I am currently working on OPT for the same employer who applied for my H-1. I am planning to transfer my H-1 in November. Is it okay if I provide OPT paystubs during H-1 transfer?

Attorney Murthy : No. The OPT paystubs would not be relevant to filing an H1B through a new employer after October 1st. Since one's status changes automatically by law on Oct. 1st, when the H1B petition was approved with the change of status (or COS). Thus, it is the H1B paystubs that are needed. The OPT paystubs would only be important if it was necessary to establish that the individual was in status during the OPT period. If there is some issue with regard to starting employment with the H1B employer on October 1st, it is best to discuss this with an attorney.

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Chat User : The monthly salary on my OPT status is different and less than the salary on H-1 (as per the LCA & job offer letter submitted for H1B application) starting from this Oct. Would this cause any problem at the time of H1B stamping?

Attorney Murthy : The employer does not need to pay the H1B prevailing wage for a person on F-1 OPT. But, starting from Oct 1st the employer must comply with the H1B wage payment requirements, if that is the start date of the new H1B petition with the change-of-status approval within the United States, under the terms of the LCA approved by the U.S. Department of Labor. If one is not paid the correct H1B wage rate, then it will create problems for both the H1B employer and the H1B employee. It would be likely to generate questions / problems and, potentially, a denial during H1B visa stamping at the U.S. consular post abroad.

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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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