Highlights from MurthyChat Session: 11.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.

Question:  Maxed out L1A thru company A. Will be completing one year outside the U.S. in June 2013. Can I apply for H-1 in April 2013 thru company B?

Senior Attorney:

The "clock" for L-1 and H1B time is reset by spending a year outside of the U.S. However, in order to file an H1B case in April, it is necessary to actually qualify for the requested benefit in APRIL. This is true even though the requested start date for the H1B petition will be six months later, on October 1. It is not enough to file the H1B petition and argue that the beneficiary WILL qualify by October. It is similar to the situation faced by people who expect to graduate with masters' degree in May. They cannot file under the advanced-degree (or masters') cap in April.

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Question:  I'm on H1B and just received EAD extension for 2 years. I want to change my job, but my employer will cancel the l-140 after I leave them. What are the risks on I-485 approval?

Senior Attorney:

Under AC21 GC portability, the employer's revocation of the I-140 does not prevent the GC case from being approved. If the individual notifies the USCIS that s/he is using AC21 and has a new, qualifying job, the USCIS is supposed to allow the I-485 case to continue, even if the initial employer revokes the I-140. The applicant may not even have any indication that the I-140 has been revoked. If the individual does not notify the USCIS about the new AC21 job, and the initial employer revokes the I-140, the USCIS is supposed to issue a notice of intent to deny the I-485. The individual can respond to the NOID with proof of the new job, and the case can continue to make its way toward approval.

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Question:  What does the law say if LCA expires before I-94?

Senior Attorney:

The H1B petition should not extend beyond the LCA validity date. There has to be an LCA in place for the duration of the H1B petition. However, the port of entry can grant 10 extra days beyond the H1B petition in an I-94 issued upon return to the U.S. after foreign travel. It is important to note that the 10 days are not an extension of the H1B petition. Thus, one who wishes to extend H1B status in the U.S. must make sure the case is filed prior to that 10 "extra" day period.

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Question:  Can a spouse travel on H-4 valid visa, which is based on previous H1B employer, even if the previous H1B has been revoked and new H-1 transfer is in process?

Senior Attorney:

The H-4 visa is not company specific. It can be used for proper H-4 travel through until its expiration date. It is "spouse" specific, not employer specific. Thus, the H-4 must still be married to a person with H1B status. So, in this example, it would usually be necessary to get the new H1B extension approved in order to allow the H-4 spouse to return. There is an exception for travel under AC21 portability with the pending H1B case, but that is rather risky.

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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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