Highlights from MurthyChat Session: 22.Apr.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:  My documents have been returned to USCIS for possible revocation after 221g document filing. What can be done? Can I transfer my petition to another employer until my petition is still valid?

Senior Attorney:

H1Bs are not transferred from employer to employer. Thus, the ability to file another H1B petition through a different employer is not limited to the duration of the petition that resulted in the 221(g). Filing through another employer (maybe the vendor or end client, if this is consulting) is often a valid option in these situations. There may be other options, including returning to the U.S. as a spousal dependent, if one is married to a person that holds his/her own independent immigration status.

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Question:  Can I go onto F-1 visa from a clinical J-1 visa?

Senior Attorney:

After a clinical J-1, the 2-year home-residency requirement applies. But, it is possible potentially to change over to F-1 - however, not by filing a change of status request in the U.S. A person subject to the 212(e), 2- year home-residency requirement would have to leave the U.S. and apply for the F-1 visa at a consulate abroad. If the visa is granted, it would then be possible to reenter as an F-1 student. However, such an individual would remain subject to the 2-year home-return requirement restrictions until either a waiver is obtained or compliance with the requirement is met.

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Question:  Can my employer require that I pay back the amount spent on sponsoring a green card?

Senior Attorney:

The employer must pay the costs of the PERM labor certification, including legal and recruitment costs. The other costs for the I-140/I-485 can be paid either by the employer or the employee or shared in any manner. However, there is a separate issue regarding whether an employer could require repayment of costs that were paid by the employer, but could have been paid by the employee. This will depend upon whether there is an enforceable contract requiring repayment of the costs that the employee COULD have paid. That is a matter of contract and employment law, not immigration law. It will depend on how any such agreement is written and the laws of the state.

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Question:  Is every nonprofit organization exempt from the H1B cap or only universities and research organizations?

Senior Attorney:

Every nonprofit is NOT cap exempt. It is only nonprofit and governmental research organizations or institutions of higher education and their nonprofit affiliates (example: university hospitals). It is only necessary to be working AT such locations, not FOR the organization in some cases.

 

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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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