Highlights from MurthyChat Session: 24.Sep.2012

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

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Question:  Hello, I got my H1B visa stamped in April 2010. This year, in April, I moved to another employer as a full-time employee. Do I need to stamp my visa again if I visit India? Please let me know.

Senior Attorney:
The visa "stamp" in the passport is valid through until its expiration date. Thus, even though the H-1 stamp has the name of the first employer - say company "A" - it can be used for travel in the H1B category even if one is working for company "B." It is necessary to have the appropriate H1B petition approval with company "B" and an appropriate job with company "B." We also always suggest checking the expiration of the I-94 card issued at the port of entry in these situations. Sometimes mistakes are made and an I-94 is given the expiration date of the visa, rather than the expiration date of the new employer's H1B petition.

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Question:  Switching from EB3 to EB2. What are the risks while working on EAD only, without H1B?

Senior Attorney:
The concern regarding using the EAD, rather than keeping a nonimmigrant status, such as an H1B,  is that there is no "back up" plan if something goes wrong in the green card case. As a practical matter, it is sometimes necessary to take this step and work using the EAD in order to move forward in one's career and/or to move into EB2. It is important in most such situations is to make sure that the EB3 case stays solid and as safe as possible through the use of AC21 for the job change. It is also very important to have job stability so that there is always a qualifying job offer to support the case.

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Question:  With 15 months left in my H-1, is my employer still able to file PERM before 365 days, if they start the process now?

Senior Attorney:
You may want to read the article on MurthyDotCom about PERM filings in the sixth year of H1B. With 15 months left, it is unlikely that the employer will be able to meet the 365 day rule. This assumes that there is no work that has been done toward the PERM filing. If that is correct, it will take more than three months to get the prevailing wage determination, conduct all recruitment, wait for the 30-day quiet period, etc, as needed to finalize the PERM filing. However, the timing may be close and, if all goes well, the case may reach the point of eligibility for the three-year extensions. Three-year H1B extensions beyond the six-year limit are permitted if the I-140 is approved. The article referenced discusses some options and variations in these cases.

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Question:  Do I need to file AC21 with every company I switch to while working on an EAD?

Senior Attorney:
AC21 is not a mandatory filing, although it is strongly recommended in most cases. This does not mean that it is necessary or always best to file AC21 notifications through multiple employers if one is in somewhat of a transitional employment stage between a number of employers. There are times when it may be advisable to wait until more long-term employment is established before proactively notifying the USCIS. This is a case-specific judgment call that should be discussed with an attorney. We discuss AC21 matters such as this regularly with clients and those seeking advice.

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