Highlights from MurthyChat Session: 06.May.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:  If OPT expires and academic H1B is being processed can one still work?

Senior Attorney:

No, there is no work authorization in this situation. In a cap-exempt H-1 filing, there is no "cap gap" relief to allow for employment between the OPT expiration and October 1st. In a cap-exempt case, the start date can be immediate - it can be any date selected by the employer. So, if the OPT is expiring or has expired, it usually makes sense to use premium processing to expedite the decision in the H-1 filing in a cap-exempt case.

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Question:  Is H1B stamping a tough process? What are the chances of getting completely denied?

Senior Attorney:

H1B stamping can be a very tough process. This depends upon the type of employment and the individual's immigration history, for the most part. IT consultants face many potential problems. It is impossible to give odds without knowing more about the case. I would suggest contacting our affiliate office in India, Murthy Immigration Services, Pvt. Ltd. in Chennai, for some case-specific advice on visa stamping questions.

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Question:  If I have a J-1 visa, can I be on my spouse's green card application?

Senior Attorney:

It depends on what is meant by being "on" the spouse's application. A spouse is eligible as a derivative (dependent) in the principal's GC case automatically. The principal (or primary) applicant should always properly list the spouse on any form that asks for that information. As a derivative beneficiary, the spouse is eligible for the principal's priority date and EB category. HOWEVER, if a J-1 is subject to the two-year home-return requirement, s/he will NOT be able to file the I-485 based upon the primary applicant's GC case unless and until the HRR is met or waived. So, there are procedural issues with respect to WHEN the J-1 with the HRR can take advantage of the derivative eligibility.

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Question:  My PD is not current. USCIS issued 1 year EAD/AP. Can I call USCIS to get 2 year EAD/AP?

Senior Attorney:

It is not a good idea to try to "fix" this. While the USCIS can issue documents with a two-year validity, they don't consider it a mistake if they just issue it for one year. Plus, in order to get anything "fixed" you have to send the EAD/AP back to them and wait for a new one! It is better to just keep the 1-year approval and file to renew. Even though it can be a pain to have a one-year card - particularly if the driver's license is tied to the EAD/AP expiration date - it just creates another series of complications when one tries to "fix" the one-year card.

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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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