Highlights from MurthyChat Session: 20.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.

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Question:  My previous company has not withdrawn I-140 as of now, but if they do, how would it affect my case? I understand that I can port the PD, but what else I can gain with my approved I-140?

Senior Attorney:

With an approved I-140 and no available visa number, it is possible to qualify for more H1B time beyond the six-year limit, if needed. The priority date can be retained even if the I-140 is revoked by the employer, but it is not possible to keep extending H1B status based upon a revoked I-140.

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Question:  What's the likelihood that CIR will be passed this year, and how does it help the employment-based GC process?

Senior Attorney:

It is very hard to predict whether CIR will pass or what provisions potentially will be retained in the final version. The Senate is dealing with numerous amendments, as is typical in the legislative process. If it were to pass, it is likely that there would be some favorable provisions for individuals with GC cases in the "pipeline," as a condition of extending benefits to undocumented workers. However, it is too early to really make any reliable predictions on CIR.

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Question:  What are the implications if a qualified U.S. citizen is found during PERM processing? Will the foreign national's job be terminated?

Senior Attorney:

If the employer locates a U.S. worker during the PERM process, who is qualified, willing, and available for the position, the employer does not need to terminate the foreign national employee from his/her position. The employer does not need to hire the U.S. worker. The consequence of finding someone who is qualified, available, and willing to work under the offered terms of the position is that the PERM case will have to end at that point.

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Question:  I changed my status from H4 to F-1 two years ago because I turned 21 and fell out of my parents’ green card process. I haven’t gone back to India to get my visa stamped. I still have 2 years of my education left and I am planning to go to India. Do you think there are any chances of my stamping getting rejected?

Senior Attorney:

There is definitely a chance that the F-1 stamp will be rejected. While the consulates are often generous to "kids" who find themselves in this situation of aging out, F-1 visas can be denied for failure to establish nonimmigrant intent. If one has spent a lot of time in the United States, his/her parents are in the U.S., and s/he has never lived outside of the U.S. as an adult, the consulate absolutely could decide that the individual has immigrant intent and isn't eligible for the F-1.

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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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