Chat : November 02, 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 : Hi, I am currently on an F-1 visa via COS from H-4. I will be getting my OPT in December. Do I have to get the F-1 visa stamped to be able to travel?

Attorney Murthy : If there has been a change of status in the United States, and one wishes to travel and reenter the U.S. in the new status, then, in most cases, it is necessary to obtain a new visa in the changed category. In this example, one would need the F-1 visa to return and work under the F-1 OPT. The exceptions would be for situations such as travel to Canada or Mexico or a contiguous territory under the automatic visa revalidation rules. In a case of this type, an individual is not required to apply for a new visa to return to the United States following travel of up to 30 days to a contiguous territory.

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Chat User : Has the 365-day rule changed recently to accommodate the PERM approval as a condition? Can my employer not file for my 7th-year extension because my labor is not approved?

Attorney Murthy : There has never been a requirement to have a PERM approval in order to get an H1B extension under the 365-day rule. It is only necessary to have the pending PERM case filed at least 365 days earlier. This allows for one-year H1B extensions.

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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 : Thanks for taking my question. My 485 is pending (EB3 India PD May 2002). My company won't file for an EAD. What are the consequences of losing my job? Will it affect the green card processing?

Attorney Murthy : Well, a person does not need the employer to file for the EAD. The EAD filing is the individual's own filing, and should be possible, if one has the copy of the I-485 receipt notice, or at least the receipt number. If there is a danger that the job will end, it may be a very good idea to request the EAD, since they take around 90 days. The green card case can potentially continue if there is a new job that meets the AC21 green card portability requirements. There are many articles about AC21 on MurthyDotCom.

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Chat Master : Please make your question is brief. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : My wife is in H1B status, working for a company, and things are not going very well. What is the requirement if she wants to get back into H-4 status under my H1B? If we visit India will it be difficult to get an H1B visa stamped? Will it be easier to get back into H-4 if we visit India?

Attorney Murthy : The general rule of law is that, when a person travels abroad, s/he may choose to apply for the H-4 visa stamp in such a situation at the U.S. consulate abroad, if there is an earlier, unexpired H-4 visa stamp in the passport. Then one could choose to reenter and get back onto H-4 status in that way at the time of reentering the United States. If one is in status as an H1B, then s/he could also request a change of status to H-4 from within the United States.

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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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