Common H1B Questions
Posted Feb 23, 2007
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We at the Murthy Law Firm try to provide answers to questions that plague many who visit our MurthyForum, as well as readers of MurthyDotCom and the MurthyBulletin. A few of the more common H1B questions that come up from time to time are addressed in this article.
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Question 1. I read your 2005 article, Travel after Change-of-Status with Future Start Dates, about travel for students after a Change of Status (COS) to H1B is approved. This is my situation exactly. Is this still valid? Has anything changed? Does this only apply to students? What if I am going from H-4 to H1B and want to travel before my job starts?
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The information in the 2005 article is still valid. There has not been any change in the law that would override the USCIS opinion letter discussed in the article. The USCIS has not issued any new letters or memos that are contrary to the letter's interpretation.
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Although the opinion addressed the common situation of students changing to H1B, the principle in the letter does not appear to be limited only to students. We believe that it also applies to persons in other categories who need to travel after a COS to H1B has been approved, but before the October 1st start date.
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Question 2. I am graduating in May with a master's degree. I want an H1B under the advanced-degree cap. What should I do?
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There is no way to predict when either the regular or advanced-degree H1B cap will be reached. They were reached very quickly in Fiscal Year (FY) 2007 (May 26, 2006 and July 26, 2006, respectively). It is generally expected that the caps will be reached even faster in FY2008. Therefore, we do not recommend waiting to file one's case. The eligibility for a cap number is based upon the date of filing. Thus, if the master's degree will not be completed until May, it is better to file a regular case at the beginning of April, unless the job requires a master's degree.
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Question 3. I heard about the Decoupling Memo. Can I use that right away? Does it matter that I am beyond my six years in H-4 status? Does it matter that I changed from H-4 to H1B [or H1B to H-4]?
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Information on the Decoupling Memo is available in our January 5, 2007 article, H1B/H-1 Decoupling Effective Immediately, available on MurthyDotCom. It can be used right away. It was effective immediately upon publication. Under the Decoupling Memo, time spent in H-4 status does not limit the time available in H1B. It does not matter if a person has used all of her or his six years (or more) in H-4 status. It also does not matter if s/he has changed back and forth between H1B and H-4.
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Question 4. If my H-4 spouse changes to H1B, can s/he still be the dependant in my green card case?
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We have answered this often, but we still see this question come up again and again, and feel it is important to repeat the answer - particularly around the time when people have to file their H1B cases. Yes, the spouse can still be a dependant in one's green card case, even if s/he does not hold a dependant nonimmigrant status. Many couples are in this situation, both holding H1B status. Some of them file two green card cases, one through each spouse, to enhance their likelihood of success.