Highlights from MurthyChat Session: 09.Sep.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: I have an EAD, but chose to continue working on my H1B. My H1B extension is applied for and pending approval. I want to switch to a different company and start working on my EAD. Should I wait for H1B approval before moving on?

Senior Attorney:

It would not be necessary to wait for the H1B extension approval in this situation. If the plan is to work on the EAD and "drop" the H1B status, there is no purpose for or need to wait for an H1B extension from the current employer. What is important is to consider AC21 issues, assuming you are the primary applicant.

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Question: For a long pending AOS, what will the adjudication officer look at to finally adjudicate and approve the AOS in EB3?

Senior Attorney:

AOS adjudication involves a number of issues. The most common ones are as follows. In an employment-based case, they will look to see if there is an appropriate job offer. This could be through the initial sponsor or a new, AC21 qualified position. They will check for status history at the time of filing and check status and employment authorization issues arising after the filing. Documents such as birth and marriage certificates must be proper. There can be additional issues in some cases, if there have been arrests / charges or other complications.

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Question: If I have a labor for GC in progress and go on for a year or two on sabbatical for my higher studies, will my labor still be valid if I return to the same company after higher studies?

Senior Attorney:

If the employer is willing to file the I-140, the case remains valid indefinitely. The PERM LC expires after six months unless the I-140 is filed. But, all of that is contingent upon the employer's willingness to continue the case. There has to be a valid job offer. And, most people don't want to return to their old jobs after obtaining more education. But that may depend upon the job.

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Question: If I start using my EAD (not working for H1B employer, I-485 > 180 days), how soon should my new employer file AC21?

Senior Attorney:

Since AC21 notification is not legally required, there is no specific deadline for filing. But, it is usually best to try to file fairly promptly, very shortly after starting the new job. It is particularly important to make sure that there is a new lawyer on the case if the old employer's lawyer will not be continuing representation after the job change. The new employer should enter his/her appearance right away, so that any notices, RFEs, decisions etc. are not sent to the old lawyer.

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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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