Chat : January
15, 2007
Laws are constantly changing. While accurate at the
time of publication, this item is retained for archival and historic
purposes and should not be presumed to be up-to-date indefinitely.
Responses vary
with the nuances of each question and because immigration law is constantly
changing. The subtle differences in questions may call for very different
legal responses and strategies. You are advised to treat these materials
as general information, not to be applied to a specific circumstance without
consulting with your attorney.
It is illegal to copy this material for
distribution or posting.
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Attorney Murthy :
We welcome your
questions and look forward to helping you with your immigration matters. Thank you for your interest in our MurthyChat.
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Chat User : Hello. If the I-140 gets denied, can I use the same labor
to file another I-140?
Attorney Murthy : It is possible to use the same LC to file another
I-140 petition, but it is likely that the I-140 petition will be
denied again unless the reason for the earlier denial is remedied. We have
obtained approvals of I-140s filed by other law firms that were initially
denied. It is necessary to include better proof or better arguments the
second time.
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Chat User : The information provided during the Chat session is of a
general nature and MAY NOT apply to any specific or particular circumstance.
It is NOT to be construed as Legal Advice and does NOT establish an
attorney-client relationship.
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Chat User : I have completed 5 years on H1B and received the labor
and I-140 more than a year ago. I have to apply for an H1B extension this
year. Will I get an extension for 1 year or 3 years?
Attorney Murthy : If one has an approved I-140 petition s/he is entitled to file and obtain an H1B extension valid for 3 years
at a time, if there are no visa numbers available for the category and
priority date. This 3-year H1B extension is possible even with an employer other than the GC-sponsoring employer.
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Chat User : My H1B is in the 8th year. I have received my labor, and
the I-140 is also cleared. Can I switch jobs? How long will my H1B be valid?
Attorney Murthy : After the I-140 petition approval, one is
allowed to file and obtain a 3-year H1B extension with any other employer,
as well. This assumes that there are no visa numbers available for the
category and priority date. So after a 3-year H1B extension
is obtained through a new employer, one needs to file a new LC/PERM and a new
I-140 petition and, hopefully, transfer the earlier PD where the I-140
petition has not been revoked.
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Chat User : Please make your question as brief as possible. Keep in
mind that lengthy, case-specific Questions are not as likely to get answers
as shorter, general ones.
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Chat User : I am presently on OPT and working for a company. Is it
safe to go on a leave of absence between the time my OPT expires in June and
the H1B starts in October, or should I resign in June and get rehired in
October? Thanks for your help.
Attorney Murthy : The USCIS has been asked this question, and there
has been no definitive answer. It appears that one is
allowed to be on an unpaid leave of absence, generally, in such a situation
as the USCIS realizes that it is more difficult for the employer to
terminate the employee and rehire the same person after a few months.
However, there is no definitive legal guidance from the Department of Labor
or the USCIS, so it appears that, as long as one is not working, s/he
presumably is safe. There is a sixty-day grace period at the end of
the OPT. The individual is allowed to stay in the U.S. but cannot work.
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Chat User : Dear Ms. Murthy, could you please explain what the
principle residence is on an I-864 for affidavit of support application? Can
we have two residences at the same time?
Attorney Murthy : The principal residence for the family-based
affidavit of support in the I-864 application is wherever one
considers his/her principal home to be - where s/he spends most of the time
and is based for the work, etc. Domicile is used with residence.
Depending on the reasons, it is worthwhile to verify the definitions from
the Immigration and Nationality Act to ensure compliance, since the I-864 is
signed under penalty of perjury.
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Chat User : I am a U.S. citizen. I’m going to live in India for a few
years. Can I sponsor my brother for a GC from India?
Attorney Murthy : It is possible for a U.S. citizen to file papers
for family-based (FB) immigration for a sibling, but the timeframes for
process with the visa dates could take about 10 to 15 years. Finally, when the
priority date becomes current, the U.S. citizen will need to return to
the U.S. to show that s/he has made the U.S. her/his domicile
so that the family members can join the U.S. citizen back in the U.S.
Ultimately, that is the reason that the U.S. government is allowing FB
immigration - to unite family members. The residence also has an
impact on the affidavit of support.
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Chat User : For anyone in need of advice on a specific matter, you
may wish to visit <http://www.murthy.com/consult.html> following the Chat
for information on paid CONSULTATIONS. Our helpful staff can schedule
telephone, eMail, or in-person consultations with Attorney Murthy or one of
our other experienced attorneys.
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Chat User : I am working currently in L-1 and planning to work in L-2
and then get H-1.Will this conversion be possible? If so, can the visa be
obtained from the U.S. without going to India without any problems? Thanks.
Attorney Murthy : If one has been maintaining valid, legal
status in the U.S., s/he is allowed to file for a change of status
without going abroad. The USCIS can approve one's new status and, as
long as the I-94 tear-off card is attached to the bottom of the approval
notice (which usually signifies that the government has approved the
status), one should be allowed to keep working while in
the U.S.
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Chat User : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : If an H1B is approved wrongly for 7 years, is it
necessary to file for the 7th-year extension when the labor was approved and
the I-140 is in process?
Attorney Murthy : The general rule of the USCIS is that, if the
government approves a petition in error when the law does not allow for it (generally based on incorrect information being submitted by the employer who
asked for the 3 years instead of the 2 years maximum as allowed by law), then
the H1B employee and employer cannot and should not rely on the government's
error. So it is safer to file a new 1-year H1B extension or, if the I-140 is
approved before the expiration of the 6-year term, file for the 3-year H1B extension.
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Chat User : Is it safe to travel to Hawaii or Alaska with an expired
H1B/H-4 on the passport but a valid I-797 approval notice?
Attorney Murthy : Generally, a person with a valid I-94 card who has
been maintaining legal status is allowed to travel within the U.S. and to
contiguous territories without the need for a new visa stamp in the PP. From
January 8, 2007, the passport is required to be able to reenter the U.S.
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Chat User : The information provided during the Chat session is of a
general nature and MAY NOT apply to any specific or particular circumstance.
It is NOT to be construed as Legal Advice and does NOT establish an
attorney-client relationship.
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Chat User : If one works full time on an H-1 and is paid hourly by his
employer, is it mandatory to work for minimum 40 hours a week, or it can be
less than that? If it is less, can it affect the GC process?
Attorney Murthy : The U.S. Department of Labor has defined full-time
work as any number of hours at or above 35 hours per week. Generally, if the
salary is based on an hourly rate, then potentially it could be multiplied
by 35 for full-time work, but the USCIS generally would multiply it by 40 to
derive the annual prevailing wage for the person.
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Chat User : Hi. Thank you for such a wonderful service. If a labor
case is closed by mistake (USCIS) in a backlog center because of multiple
applications, what are the implications, and is there anything that the
employer needs to do?
Attorney Murthy : If the law does not allow for multiple applications
for the same person for the same job opportunity in the same location, then
the employer and employee need to document why the multiple applications are
permissible.
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Chat User : For the latest news in U.S. immigration and what it all
means to you, subscribe to MurthyBulletin - our FREE, weekly
eNewsletter delivered to your Inbox! Visit <http://www.murthy.com/signup.html>
to find out how.
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Chat User : I have taken admission in a second master’s degree to
cover the gap between the OPT expiration and H1B start. Do I have to
complete my second master’s degree if I get an H-1 and have started working?
If I withdraw, do you see any legal issues?
Attorney Murthy : There is no legal requirement to complete the
second M.S. degree. The law requires that one maintain valid, legal
status. If the H1B has been approved, effective from October 1, 2007, then on
that date s/he is allowed to start working in H1B status. The school
will likely notify SEVIS to remove the person's name once s/he decides
not to remain in F-1 status.
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Chat User : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : If I renew my H1B with an amendment for salary change /
duties, do I have to file the labor / I-140 again?
Attorney Murthy : Well, it really depends. The H1B is based on a
current job while the LC/I-140/GC is based on a future job offer. It is
possible that an H1B amendment for a substantial change in salary may or may
not require a new LC/GC filing, depending upon various factors. It is also
possible for the USCIS to determine that the new job is the "same or similar"
for AC21 portability purposes, since that term so far has been defined broadly by the USCIS.
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Chat User : Is retrogression going to end?
Attorney Murthy : Unless the U.S. Congress increases the quota or the
number of people who can obtain permanent residence in the U.S.,
retrogression is not only not going to end, but the waiting times may keep
increasing over the years! That is why employers and businesses that need
H1B professionals and other skilled workers need to push for legislation to
address the long delays due to retrogression.
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Chat User : MurthyDotCom - MurthyBulletin - MurthyChat
- and the MurthyForum - Your ultimate U.S. immigration resources on
the Internet all start with MURTHY!
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Chat User : I have an I-140 with a 3-year H-1 extension. Can I change
jobs multiple times with this H-1 if the underlying I-140 is revoked later?
Attorney Murthy : A person is able to file and obtain the 3-year H1B
extension only while the underlying I-140 petition remains valid for that
employee in that job. Otherwise, the person is out of luck after the
employer revokes the underlying I-140 petition, since that employee cannot
use that I-140 as the basis for any future H1B extensions. That is why we
recommend having the new employer file a new PERM/I-140 after the job
change. One cannot count on an old case after leaving the employer.
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Chat User : I am currently on an H-1 exempt visa valid through June
2007. If I apply for a non- exempt H-1 in April 2007, how soon can I start
working with my new employer?
Attorney Murthy : The way AC21 reads, it arguably appears that one is allowed to start working for the new H1B cap-subject employer upon
filing the new H1B petition, but must stop working as soon as the new H1B is
approved with a future start date of, for example, October 1st. That is the
reason that people prefer not to file the new H1B extensions under premium
processing.
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Chat User : This ends tonight's session of the MurthyChat.
Attorney Murthy : We look forward to continuing to help you, your
family and friends with all of your immigration law needs.
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Laws are constantly changing. While accurate at the
time of publication, this item is retained for archival and historic
purposes and should not be presumed to be up-to-date indefinitely.
Responses vary
with the nuances of each question and because immigration law is constantly
changing. The subtle differences in questions may call for very different
legal responses and strategies. You are advised to treat these materials
as general information, not to be applied to a specific circumstance without
consulting with your attorney.
It is illegal to copy this material for
distribution or posting.
Copyright © 2007, MURTHY LAW
FIRM. All Rights Reserved
Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.