Chat : August 31, 2009

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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Chat User : Would a job promotion with the same employer (say, from a staff accountant to a semi-senior accountant or senior accountant) require my employer to get a fresh LC?

Attorney Murthy : Usually it is not simply the title that determines whether a new LC is needed. It is necessary to review the detailed job duties to determine whether a new LC is required in each instance. It requires a review of the duties and the staff being supervised to determine whether one is essentially doing the same work described in the LC. It also depends upon the stage of the case. If the I-485 in the case has been filed, then it may be possible to use AC21 in connection with a job change or promotion within the sponsoring company.

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Chat User : Currently I am on H-4, H1B is still in process. Can I remain in H-4 status after H1B approval if I don't accept the job offer?

Attorney Murthy : Generally, it is not possible to keep the prior status by simply not accepting the job offer, if  the USCIS has already changed the status of the person in the United States. The safer approach may be to have the employer request the USCIS to withdraw the H1B petition before it is approved. In the alternative, it may be necessary for to travel abroad and reenter the United States in H-4 status to reinstate the desired H-4 status. The benefit of obtaining the H1B approval is then that the person is already counted against the quota. Thus, at a future time, s/he may be able to regain H1B status without having to wonder whether s/he will be selected in the random lottery system, which is likely to return when the economy improves.

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Chat User : EB3 to EB2 porting:  What is the advantage / implication of porting priority date in one's I-485 stage as opposed to doing this at the I-140 stage?

Attorney Murthy : It is much simpler and easier to port the earlier EB3 PD to a new EB2 I-140 petition at the I-140 stage, if that option is available. When that request is made with the I-140 filing, the USCIS approval notice should contain the earlier priority date. If the transfer of the earlier PD is requested when the I-485 has been filed, it is usually more complex, although still possible. It may require multiple contacts with the USCIS to ensure the request for the earlier PD is noticed and acted upon by the USCIS when reviewing the case for the principal and any dependant family members.

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Chat User : Thanks much for this service, Ms. Murthy. I have completed 6 years of H-1 status and have extended the H-1 status for 3 years, based on my approved I-140 with my current company. In this situation, is it possible for me to do an H-1 transfer to another company in case of a layoff or other reasons?

Attorney Murthy : Under the current USCIS interpretation of allowing the 3-year H1B petition approval based on any other employer's I-140 approval, it is certainly possible to obtain a 3-year H1B approval with a new H1B employer and then request that new H1B employer to start and file a new PERM case. In this situation, it is wise to request a transfer of the earlier priority date when the new employer files the I-140 petition.

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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.

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