Highlights from MurthyChat Session: 08.Oct.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:  Regarding green card, if I change my employer after my I-140 approval, do I need to reapply for both labor and I-140 again?

Senior Attorney:
Yes, if the GC case with the current / sponsoring employer only reached the I-140 stage, it will be necessary to start a GC case all over again if there is a change to a new, unrelated employer. This assumes that the current sponsor will not be willing to continue the case or take the person back at a later time (and/or that the employee does not wish to return to the sponsoring employer). In most cases, ending the employment relationship means having to start the GC case again. The priority date can be retained in the later case at the I-140 stage, but nothing other than that is preserved.

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Question:  Is there a minimum number of days one should have worked under H1B to get the cap exemption?

Senior Attorney:
I think you are asking about how quickly a person can leave the H1B employer in a cap-subject case without the need for a new cap number. So, if the H1B starts on October 1st, the question I believe you are asking is how long one must work for that employer. There is actually no minimum legal timeframe. One has been counted against the cap, and has even held H1B status for at least some period. Thus, they could have a new employer file an H1B case even in very early October and change employers very quickly. There are some logistical issues regarding showing proof of status, because proof of status for an H1B worker is usually the I-94 and paystubs. But, that is not too big of a problem, we have strategies to address that issue.

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Question:  Hi. I have my OPT extension until Feb 2013, but my H1B was denied for this October. Is my OPT still valid?

Senior Attorney:
Sorry about the H1B denial. The good news is that the OPT in this situation would still be valid, even if the H1B has been denied. There is also a 60-day grace period at the end of the OPT, so maybe the employer will be willing to file the H1B again for the next cap season. Under the cap gap, the H1B filing during the OPT will extend the grace period.

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Question:  If a current GC is in progress (PERM and I-140 approved) with employer A, is it possible to file another GC with another employer for future employment while working for employer A?

Senior Attorney:
Absolutely. There is no limitation on multiple employers filing PERM and I-140 cases for the same individual. So, many people have GC cases with their employers as well as having second GC cases filed with some future employer.

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Question:  Can I work part time during my H1B time?

Senior Attorney:
H1B petitions can be approved for part-time employment. It is not OK just to start working part time if the H1B petition is for full-time employment. It is also not OK to simply take on an extra part-time job in addition to the H1B employment. In the case of a reduction in hours, the H1B petition would have to be amended to show part-time hours. Another option for many people is a full-time job with employer A and a concurrent part-time job with employer B. We also have had clients with two part-time jobs concurrently. It is all allowed, but the H1B petition must show part-time employment.

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