Chat : January 05, 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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Attorney Murthy : Happy New Year to all our MurthyChat participants!

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Chat User : Hi, madam. I got my H-1 this year. If my employer revokes my H-1 now, and I change the status to H-4 by reentering the U.S., can my employer reapply for H-1 once I get the project? If so, does it come under H-1 cap?

Attorney Murthy : The general rule is that the USCIS cannot subject a person to the H1B cap / quota again if s/he was previously counted in the quota within the last 6 years. We at the Murthy Law Firm have successfully obtained H1B approvals for those who entered in H-4 status, or even F-1 status, if they were counted previously against the general or MS quota of H1Bs.

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Chat Master : 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 am due to receive my GC within six months. Can I work in India for the next 2-3 years and come to U.S. for the required six weeks to maintain my GC status?

Attorney Murthy : The general rule about abandonment of intention of GC status does not even start or apply until one obtains the GC approval. So, in a cases such as this, if one lives abroad for a couple of years, it may be safer to switch the file to Consular Processing and, that way, avoid the problem of the I-551 or GC being regarded as abandoned while one lives and works abroad, only entering for a few weeks each year. There is no 6-week rule. In fact, if a person is outside the U.S. for more than 180 days, then the CBP can deny the individual entry and put him/her into removal proceedings to determine abandonment. This issue should be discussed in a consultation to determine the best way to coordinate the case. If you do not have an immigration attorney, see http://www.murthy.com/consult.html to learn how to set up a consultation with an attorney at the Murthy Law Firm.

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Chat User : Dear Murthy Ji, for one who is in Adjustment of Status and entered the U.S. on AP, what does the 'paroled until' date on I-94 signify? Thank you.

Attorney Murthy : It signifies nothing but the expiration of the I-94. It has no bearing on whether the individual can remain in the U.S. if the I-485 is pending. There is a technical reason the DHS changed this practice, as they previously issued I-94s without expiration dates to parolees. It causes confusion, and it should not be confused with the validity of the Advance Parole given for travel. We have seen many people misled who stayed abroad and jeopardized their I-485 and GC processing because they thought it extended their Advance Parole.

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Chat User : Hello. My I-140/I-485 was denied and my wife is working on EAD. Can she go back to her old H1B (her I-94 is still valid), or transfer H1B to the company for which she is working currently?

Attorney Murthy : A person is only allowed to work for the H1B employer for whom the petition was approved. So, if the earlier H1B employer in this situation has not revoked the earlier H1B petition approval, presumably it is still valid for the individual to work with that H1B employer. Even if that petition was revoked by the employer, one is allowed to work for a new H1B employer that may file a new H1B petition. There is an issue regarding the validity of the H1B status in this situation. The USCIS has been extending the EAD in cases where the person will file an MTR or appeal of the I-140/I-485 denials.

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Chat Master : 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.

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Chat User : What happens if we stay with an expired I-94 card (issued at the port of entry). Are we considered illegal even with a valid visa and I-797?

Attorney Murthy : Well, it depends on various factors including the applicability of the last action rule. A person needs to ensure that s/he is, in fact, considered to be in legal status. If the H1B petition was approved with the tear-off portion of the I-94 card, it is possible that s/he may be in legal status. If there is doubt, it is best to discuss the matter with one of our attorneys. One option for fixing the I-94, if it was issued for a wrong time period, would be to go to the port of entry and get a correction of the I-94 card that may have been improperly or incorrectly issued for a shorter timeframe. It is usually, but not always, the last action taken by the government that governs status.

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Chat User : What is the minimum requirement for a startup company to file for green card?

Attorney Murthy : There is no legal minimum requirement for a start up company by law, but showing bona fide operations, revenue generation, net profits, the number of employees are all taken into account when the DOL and the USCIS determine if the PERM/LC or the I-140 petition may be approved or not. The company must have the ability to pay the offered wage as of the date of the labor certification filing, and continuing until this issue is addressed at the I-140 stage.

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Chat User : Can a company apply for a green card for an employee on L-2 visa if the employment is part time? Also, can this person take up another part time job?

Attorney Murthy : An employer may file the GC for a person who is on L-2 or not working or living abroad, etc, except that the employer must meet the financial ability-to-pay test in order for the individual to obtain the I-140 approval to get the GC approval. Often this is the most common problem with employers who offer only part-time employment, or when the filing is based on a future job offer. The LC job must be a full-time job offer, and the employer must have that job available and be able to pay the offered wage from the priority date onward. Discuss it with an experienced immigration lawyer to understand how to overcome the issue and obtain the approval.

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Chat Master : Whether you are an individual or a company representative, you may request our fees for handling your case by eMailing a brief outline of your situation to law@murthy.com. More information is available at http://www.murthy.com/repre.html.

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Chat User : My renewed H1B expires in a year and my labor in PERM process has not gone through, yet? Is this a concern?

Attorney Murthy : It is not a concern if the PERM/LC is pending, but it is a big concern if the PERM is denied for any reason and the individual has less than one year left to start and file a new case to be eligible for the annual H1B extensions based on the PERM/LC filed at least 365 days earlier. It is possible to continue to obtain extensions, as long as the GC case is pending 365 days or more.

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Chat User : What will be the impact on I-485 pending application with approved I-140 if company is debarred or blacklisted?

Attorney Murthy : Sometimes, the USCIS goes back and revokes the previously-approved I-140 petitions of such an employer, and that could jeopardize the pending I-485 case. Other times, they do not go back and revoke earlier approvals of the I-140s. There is potential risk, so one option is to start a new PERM/LC, if at all possible, and attempt to transfer the earlier PD from the first case to the second LC/I-140, before the first I-140 is revoked. Also, AC21 portability potentially may allow one to continue the GC with a new employer if the new job is in the same or similar job occupational classification, but a backup case is a good idea, since the GC case is based upon the original LC/I-140.

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Chat User : Hello, Ms. Murthy. Can I go on H-1 and if my stamping is not successful? Can I use my AP to return to the U.S.?

Attorney Murthy : Yes, we often recommend that an individual attempt to obtain the H1B visa stamping and, even if it is denied for most reasons, one should be able to reenter on the AP, barring fraud or security concerns. Even if there is a security issue, the person may be able to board the plane, if the passport is returned, but the CBP is allowed to deny entry to one seeking entry at the airport or sea port, etc, because of the security issues. Thus, the AP is a good backup strategy, but not a guarantee of entry to the U.S., if there is a problem with the visa application.

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Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.

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Chat User : My I-94 on 797 expires later than my I-94 from Port of Entry. Which one overrides the other?

Attorney Murthy : As explained above on this same matter, usually it is the last action rule, namely the latest action of the USCIS/CBP for the individual. This issue is not entirely clear with H-1s who have prior I-94 approvals with their current employers. There are arguments that all the I-94s are still valid, and the status does not expire based upon the last I-94. However, it is always best to check this upon entry, and obtain the corrected I-94, if needed, to avoid any confusion or problems. Consult your lawyer or contact us at law@murthy.com to inquire about a consultation, since we have seen problems with this type of situation.

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Chat User : Recent H-4/H-1 convert in Oct 2008. No paystubs since then. What is my status? If H-1, how can one change to H-4?

Attorney Murthy : If one has failed to maintain valid legal nonimmigrant status on H1B by not working for the H1B employer, then in most cases the USCIS will not approve the change of status back from H1B to H-4 for that person. This is because, in order for the USCIS to approve the COS, the individual should have been in legal NIV status in the U.S. One option is to attempt the COS knowing the risks or possibly traveling abroad and reentering in H-4 status.

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Chat Master : Our liaison office, Murthy Immigration Services, Pvt. Ltd., in Chennai, India is available to provide comprehensive and convenient service to our clients and prospects in South Asia who are seeking help with U.S. immigration services. Learn more about our liaison office at http://www.murthyindia.com

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Chat User : Can a university file GC under EB1 for an MS degree holder taking a job as lecturer at the university?

Attorney Murthy : The university may be able to file the EB1, but it really depends upon the job duties and the qualifications of the individual, to determine if the EA or OPR has a chance of approval!

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Chat User : I got my I-140 approved on 6 months. I am getting offer from new employer is offering 3K less than what is mentioned in my LCA. New title from employer is also different. Is AC21 possible in my case?

Attorney Murthy : With the limited information we can exchange in this chat format, it is not possible to answer your question. It is recommended that you to consult with a knowledgeable, experienced attorney. If you don't have one, then please contact the Murthy Law Firm by calling us at 410.356.5440 to schedule a regular appointment to go over the new job duties and other factors. It is better to be safe than sorry. A slight salary reduction should not create a problem in an AC21 case, and it is job duties, not titles, that govern.

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Chat User : Hi. Wish you a happy new year. I got H-4 visa issued in my home country, India. After coming to USA, I applied for H1B visa. I got an H1B work permit. Can I go to Mexico for visa stamping?

Attorney Murthy : Depending upon where a person was educated, the likelihood of obtaining the H1B visa stamp as a TCN will vary. Mexico has gotten stricter on this, and will not issue the visa in the changed H1B category if one never obtained the H1B visa stamp in the passport from the home country. The risk of the H1B visa stamp denial is that, in most cases, one is not allowed to reenter the U.S. and must make arrangements to travel from Mexico or Canada directly to India. This may cause more delays and expense, if not planned properly in advance.

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Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to http://www.murthy.com/mforum.html.

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Chat User : Hi, Ms. Murthy. Thanks for your time and chat service. Could you please provide some info on EB2 2005 (India ) predictions? I mean, when EB2 2005 will be current.

Attorney Murthy : If you and I could guess or make proper predictions, we both would be in business and make a fortune! Jokes apart, it is often difficult to tell and we often inform people that an EB2 case could take about five years and an EB3 about ten years, and these timeframes could keep increasing as the number of people applying for the GC keeps increasing. Of course, a sudden forward movement may happen from time to time, in an effort to avoid wasting immigrant visa numbers, but that will often not allow for I-485 approval, if the priority dates are current for only one, or even two months, in many cases.

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Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.

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Chat User : Hi, Attorney Murthy. Will I fall "out of status" just because I work 40 hours, even though my I-20 is authorized for 20 hours?

Attorney Murthy : Well, a person is considered to be out of status after s/he has violated the terms and conditions of the F-1 or J-1 status and the I-20 by working outside the legally-allowed number of hours.

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Chat User : While in the U.S., is employer approved extended period unpaid medical leave (6 months) allowed under H1B status, considering serious family health circumstances?

Attorney Murthy : The Family Medical Leave Act allows one to request and obtain time off, but the employer is not required to pay any salary or even benefits for such absences, in most cases. Under federal law, the employer is only required to keep the job open for up to 12 weeks in a 12-month period, but an employer may offer a more generous plan if that is their policy for all of their employees. Any such period of leave must be well documented, with proof of the medical condition justifying the leave, etc. Otherwise, the DOL/USCIS is likely to view this as "benching," and a status violation.

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Chat User : Hello, Ms Murthy. Thank for this wonderful service. I have a question about part-time H-1. Is it possible to have part-time H-1 & L-1 visas? If not, is it possible to have one full-time H-1 and one part-time H-1?

Attorney Murthy : It is not possible for a person to have two legal statuses at the same time in the example you mention. It is certainly possible to have one full-time and one part-time H1B, or two part-time H1Bs, or any combination like that.

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Chat Master : Your participation has made this the Internet's most popular chat on U.S. immigration law! MurthyChat is one of the few weekly chats on U.S. immigration law offered and run by a law firm. Another FREE and VALUABLE SERVICE proudly offered by the Murthy Law Firm and MurthyDotCom.

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Chat User : If someone uses only four months of OPT before going on I-485 based EAD, then for some reason if the I-485 based EAD is canceled (say divorce), can the person go back on OPT and use the remaining unused period of OPT?

Attorney Murthy : That is not possible, since there are timeframes or restrictions within which the F-1 OPT must be completed. Having a backup H1B for such situations is wise.

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Chat User : After transferring H1B visa, if I do not apply for AC21, can my previous company cancel the green card process?

Attorney Murthy : An employer is allowed by law to revoke the underlying I-140 petition, but is not allowed to withdraw the I-485 filed by the employee or family members. If the I-140 was approved and the I-485 pending for over 180 days, the person should be able to succeed in getting the I-485 approved even if the USCIS issues a denial or a notice-of-intent-to-deny the I-485. It is best to get some legal help with AC21, and we recommend informing the USCIS and documenting AC21 eligibility.

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Chat User : If I change my status from H1B to H-4 after re-stamping, can I get back to H-1 immediately? How much does the change of status from H-4 to H-1?

Attorney Murthy : Depending on whether the employer is willing to spend money on premium processing, the USCIS could make a decision within 15 days, or take a few months. Most likely, one should be allowed to start working for the H1B employer if s/he was previously in H1B status or had obtained an H1B visa stamping in the passport under H1B AC21 portability provisions.

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Chat Master : 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 : If I have been out of status for more than 90 days and I enter the country with a valid dependant visa, will there be a problem?

Attorney Murthy : That is an open ended question. Hopefully, nothing untoward would happen in such a situation, but it is possible that during the 90 days the USCIS or ICE could issue a Notice to Appear (NTA) or start removal (deportation) proceedings. There could be other problems in the future - particularly with visa applications - in explaining the out-of-status period.

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Chat User : Good evening, Ms. Murthy. I would like to ask if it is possible to apply for a change of status from H-4 to F-1 visa in home country, while my H1B application is still pending at the USCIS. Thanks.

Attorney Murthy : Yes, it certainly is legally possible to do that, but the H1B COS is deemed abandoned upon departing the U.S. So, although the H1B petition itself may get approved for the employer and employee based on the job being in a specialty occupation, the COS for the person will be denied under law when s/he departs the U.S.

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Chat Master : This ends tonight's session of the MurthyChat. We are sorry Atty Murthy could not respond to all of your questions. We make every effort to get to as many of your questions as possible. Check the LogFiles to of past chat sessions at http://www.murthy.com/chatlogs/chattran.html to see if your question was answered for someone in a previous chat.

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Attorney Murthy : Happy New Year, once again, to you and all your loved ones! We look forward to continuing to help you, your family, and friends in our regular MurthyChat sessions, and with all of your immigration law needs at the Murthy Law Firm in 2009 and beyond. Thank you for the opportunity to serve you.

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Chat Master : Thank you all for logging in! The MurthyChat is now held on the 1st and 3rd Mondays each month, unless Attorney Murthy has a conflict. The schedule will be posted at http://www.murthy.com/chat.html

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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 © 2009, MURTHY LAW FIRM. All Rights Reserved