Highlights from MurthyChat Session: 01.Jul.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:  Can the recapture time and 1-year extension be filed together based on the fact that labor was filed before the start of 6th year of H1B?

Senior Attorney:

Yes, it would be possible to combine the request to recapture time spent abroad during the initial six years of H-1, plus an additional year, based on a qualifying GC case using the 365-day rule. There is no need for two separate filings in these situations. It is very important to clearly set out the basis for the time that is being requested and to fully document the time spent abroad.

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Question:  Is it possible to work on EAD (I-485 pending) in software engineering (IT), EAD job duties as per I-140 are for mechanical engineering?

Senior Attorney:

The EAD allows for unrestricted employment authorization. So, a person could take any job on the EAD. However, I assume the real question is whether this type of job change would qualify under AC21. AC21 is for a job change to the same / similar job classification. So, there may be an argument for both jobs being engineering, but, a pure mechanical engineering job is going to be in a different classification and different job grouping than a pure IT job. This should be looked at carefully, therefore, and it is best to have a backup GC case in the event that this does not work under AC21.

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Question:  The unlawful presence is counted from the date of the application or the date of the denial notice?

Senior Attorney:

Unlawful presence (ULP) generally is counted from the date of the denial of a pending case - assuming that the pending case was either a properly filed request to extension of status (EOS) or change of status (COS) or adjustment of status (AOS). If the pending case was not properly filed, then the ULP would be counted from some earlier point. There are such significant consequences attached to ULP that this very important matter really needs case-specific advice. It would be best to have a lawyer look at the exact situation, the dates involved, and the details of the filing that was denied (to make sure that the filing of that case really tolled the counting of any potential ULP that might otherwise have occurred).

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Question:  What is the progress on EAD for H-4 bill that was being proposed?

Senior Attorney:

That proposal was part of the initial provisions in the comprehensive immigration reform bill that, after significant changes and amendments, recently passed the Senate. The matter now depends upon what is done by the House of Representatives - which is a very different situation from what was faced in the Senate. So, it is all still up in the air, waiting for the House to move forward in some fashion.

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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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