Highlights from MurthyChat Session: 04.Mar.2013

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:  Can we go for H-4 stamping without having current H-1 paystub?

Senior Attorney: It would be very risky to apply for an H-4 visa if there is not proof that the H-1 spouse is in status. Status for most H-1s is established by showing proof of employment and proper payment of wages. It is possible that the H-4 would be denied if there was a failure of the employer to pay the required wages to the H-1. Additionally, the consulate may notify the USCIS and request that the H1B petition be revoked if there is evidence of non-compliance.

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Question:  What are legal implications of frequent job changing on employment-based EAD?

Senior Attorney: If a person is the primary beneficiary in an employment-based GC case, s/he is eligible to change jobs under the AC21 GC portability provisions. However, approval of the GC, even under AC21, requires that there is a permanent job offer. A permanent job really means one that is indefinite and non-temporary. While there is no limit to the number of job changes permitted under AC21, if a person keeps changing jobs, it may raise questions about whether or not the job offer is really long term and non-temporary. If one  is NOT the primary GC beneficiary, then s/he is free to change jobs as often as s/he wishes, as the case is not based upon the dependent's job offer/s or employment.

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Question:  PERM approved and I-140 applied?

Senior Attorney: If the priority date of the EB3 case is not current, it is possible to qualify for additional H1B time with a new employer. The I-140 approval and lack of visa number availability would make the applicant eligible for a 3-year extension. The chances of approval depend upon the rest of the case - proving that the job is a specialty occupation, employer-employee relationship, educational qualifications and the like. If the rest of the case is good, then the fact that it is a 7+ year extension with a new employer does not create an additional risk. The one issue is that the I-140 must be valid (not withdrawn). So, most people file the H-1 case through the new employer, and wait for the approval to give notice to the current employer.

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Question:  Can I use AVR to come back to the U.S. from Canada (5-day trip), while my AP is pending, without abandoning AOS (EB2 India). I will be working for the same employer who sponsored my H1B. Last entry to U.S. was on H1B.

Senior Attorney: Yes, it would be acceptable to use Automatic Visa Revalidation (AVR or Contiguous Territory Rule) to return from Canada and continue the AOS case while the AP is pending. What is required to avoid abandoning the AOS is that one has, in this instance, H1B status at the time of departure from the U.S. and H1B status upon return. In that event, the AOS is not abandoned. The same rules apply whether using AVR to reenter or using an H1B visa "stamp."

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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