Highlights from MurthyChat Session: 29.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:  When a full-time H1B employee loses his job, is it ok to change to F-1 & come back to H-1 when he gets another job?

Senior Attorney:

It is potentially possible to change from H1B to F-1 and, later, back to H-1. There would not be a concern with the H1B cap when seeking to change back to H-1, provided the earlier H-1 was cap subject. But it is important to be careful. If there is really no intention to attend school for any period of time, then trying to change to F-1 may create problems - more so if a personal statement is needed to explain one's intentions.

-----

Question:  I am on H-4 visa, and have H1B approved from Oct 1st 2013. Can I leave the U.S. this month and reenter on H-4 (stamped) before Oct 2013?

Senior Attorney:

It is possible to travel as an H-4 and reenter prior to October 1 in H-4 status in this example. In this case, the status would change to H-1 automatically on October 1st, even though the travel occurred. The key points that make this possible is that the H-1 has been approved before departure, and that the return travel is prior to October 1st.

-----

Question:  If the OPT is about to expire in 2 months what options do I have to stay in the USA?

Senior Attorney:

If STEM OPT is not an option, and no H1B was filed, the options may be fairly limited. There is a 60-day grace period at the end of the OPT. Some people in this situation will be able to change to a dependent status if they are married. Others will enroll again into an F-1 student program. I have also seen people explore various trainee options - J or H-3 - but there are restrictions and limitations in those categories. A cap-exempt H-1 is also an option for some.

-----

Question:  AC21 and EAD renewal, do I need to do both or is EAD renewal enough?

Senior Attorney:

The EAD is employment authorization. If a person is going to work on the EAD, then it has to be renewed. But, this is not necessarily connected to AC21. The EAD would have to be renewed to allow employment even if there was not a job change under AC21. The EAD renewal isn't a substitute for an AC21 notification. The EAD is based upon the pending I-485 application, not any particular job. It does not require employment information. The AC21 provisions do not mandate the filing of a notification, but it is strongly advised and that has been our practice for more than a decade.

-----

Question:  Hi! If OPT extension is pending more than 180 days and H1B is also pending with USCIS can I continue to work?

Senior Attorney:

Unless working under cap gap, the pending H-1 petition does not give any authorization to work to an individual going from OPT to H-1 situation. It is possible to work for a limited period, 180 days, based on the pending STEM OPT application. When that limit has been reached, the employment must end. The 180 days is counted from the end of the first OPT, not the date of filing the STEM OPT.

Copyright © 2013, MURTHY LAW FIRM. All Rights Reserved

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.

Contact Us