Chat : January 19, 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 : To our dear MurthyChat participants, it is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with general information regarding your immigration matters. Thank you for using our services at the Murthy Law Firm.

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Chat User : What is the impact of new EB1 application rejection on existing I-485 application and EAD?

Attorney Murthy : The general rule of law on this matter is as follows. If the I-485 was filed based on the EB1, then it is a problem. However, you said this was a NEW EB1. Thus, IF the I-485 was based on an earlier EB2 or EB3 I-140, then one should be able to continue as normal, without impact on the I-485, as long as the legal basis for the earlier EB2 or EB3 filing is still valid and applies to the case or the person is able to argue the applicability of the AC21 I-485 portability provisions.

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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 : Hello. I am on H1B. My visa expired in my passport. What documents do I need to get a re-stamp in my passport when I visit India for my interview?

Attorney Murthy : There is a checklist on the consulate website in most cases and the H1B attorney who prepared the petition for your employer should provide you with a checklist, like we provide on every H1B case the Murthy Law Firm prepares. Basically, it requires submission of the H1B filing package with the USCIS, along with recent pay stubs, and sometimes evidence of the employer and its premises, etc. You may want to contact Murthy Immigration Services, Pvt. Ltd, in Chennai, as they help with visa applications at the U.S. consulates.

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Chat User : My employer is revoking my H1B visa. Can I file more than one H1B transfer with multiple employers? How much time I will have to do so?

Attorney Murthy : If the employer revokes the H1B petition, the process often takes about 3 or 4 months for the USCIS to make the revocation effective, but it is valid from the date the employer makes the request. Also, if the job is terminated, the status ends and there are issues regarding trying to maintain status. It is possible to file through multiple employers, but it may be better to focus on the strength of the H1B petition, than to attempt to file many weak cases that could result in denials.

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Chat User : Do you know why USCIS has not updated the processing time for more than two months now? Do you think EB2 India with PD of March 2005 has a chance of getting GC in 2009?

Attorney Murthy : Well, in the Feb 2009 Department of State Visa Bulletin, the EB2 priority dates for Indians moved forward by about 6 months. It is difficult to be sure when a particular priority date will become current, since it is fluid and based on worldwide demands of the limited supply of the immigrant visa numbers.

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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 : Can someone, who is deployed in India by a U.S. employer apply for the U.S. citizenship from India when s/he completes five years in green card status and has stayed the first 4.5 of those years in the U.S.?

Attorney Murthy : While filing from outside the U.S. is not specifically prohibited, it generally is not the ideal way to present a naturalization case. There are exceptions for those serving in active military duty. There are concerns of residency in the state and/or district where the case is filed, as well as maintenance of permanent resident status and continuity of residence. Continuity of residence while working abroad for a U.S. employer, may have been addressed by the filing of an N-470, if eligible. Discuss the ramifications with your company lawyer or feel free to schedule a consultation with us at the Murthy Law Firm to devise an appropriate strategy by calling or eMailing us at law@murthy.com.

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Chat User : Do I still need Labor Cert after 6 years in H1B status? May I apply for PERM SSN and green card?

Attorney Murthy : The question makes no sense. Simply because a person has been in H1B status for six years does not give the person any legal rights to file and obtain the PERM or a SSN or the GC. A person on H-1 for six years should certainly have an SSN. If the six years are up, and no GC case has started, then s/he may need to make plans to live abroad for a year or longer and hope to be selected in the H1B lottery! Discuss the issues with your lawyer or go to murthy.com to obtain some free information on how the green card and H1B extension process work!

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Chat User : If I am using my EAD and my I-485 is denied for any reason, what are my options? How long can I stay in the U.S.?

Attorney Murthy : Once the I-485 is denied, and one has no backup H1B or other nonimmigrant status, the law does not provide any grace period to depart the U.S. The ICE or USCIS is able to start removal or deportation proceedings, if they so wish; though, in most cases, there is usually a month or two lag time. One in this situation must make alternate arrangements on how to reenter the U.S. If the earlier I-140 petition was approved, then s/he presumably could reenter on a new H1B petition, filing by the same or a new employer. Obviously, you should make contingency plans by consulting with a lawyer to understand the risks depending on what you have to lose in case the I-485 is denied.

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Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at http://www.murthy.com/chatlogs/chattran.html.

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Chat User : I have been in H-1 for almost six yrs now. Can I use my EAD if my I-140 is still pending and I-485 is more than six months? RFE has already been responded to my I-140. Or should I be only in H-1?

Attorney Murthy : It is safest to maintain H1B status, since there was already an RFE on the I-140 petition, which means that the I-140 outcome remains uncertain. The likelihood of success depends upon the RFE issues; some are far more difficult or complex than others. If the I-140 is denied, then the I-485 will also be denied. Thus, it is risky to have the I-485 as the only basis for being in the U.S., particularly prior to the I-140 approval. The decision also depends upon how much stress one can bear, as some prefer to take a very safe approach to avoid risks, while others are willing to take risks.

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Chat User : If you have a pending I-140 and I-485, and encountered an accident on the job fell became under worker's compensation, can the employer fire you and terminate the petition they filed for you?

Attorney Murthy : Usually, the employer cannot terminate an employee for a Worker's Comp claim; especially if it is a potential for a discrimination claim of some sort. On the other hand, the law does not protect one from an employer discontinuing the GC process. There is always that risk that exists, especially if the employer feels that the WC claim is either baseless or exaggerated, etc. You should discuss this matter with your attorney who is helping with the WC claim, to see if there are issues that could result in greater complications.

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Chat Master : 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 Atty Murthy or one of our other experienced attorneys.

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Chat User : Thanks for your service! Can a person move out of the country after applying for EAD?

Attorney Murthy : Yes, a person can depart the U.S. after filing for the EAD, but should not plan to reenter using the AP if it was approved after the individual departed the U.S. So, reentering in H1B status is safer. The question isn't entirely clear, as the timing of the EAD application would not matter if one is actually moving out of the U.S. indefinitely.

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Chat User : What is biometric exam when L-2 applies for EAD? In how many days / months do we need to appear for this?

Attorney Murthy : A person must give the fingerprints for the biometric exam to obtain the EAD based on the L-2 status. Usually, s/he must attend on the day noted or within 30 days at the outset, otherwise there is the risk of an EAD denial.

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

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Chat User : A consulting company sponsored my H1B, but this company did not find any job for me from day one, and hence no pay check for 5 months. Am I out of status?

Attorney Murthy : A person who is in H1B status, after a change of status in the U.S. or after entry to the U.S. as an H-1, who is not working for the H1B employer, is deemed to be out of status. It is safer for one who is in this situation to depart the U.S. at some point and reenter in another valid nonimmigrant status, if possible, to avoid complications later. Consult with your attorney, or feel free to contact us at law@murthy.com to schedule a consultation with an attorney.

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Chat User : Hi, Ms. Murthy. Is it valid to stay in the U.S. if your COS is applied within 30 days from the date of resignation from previous employer?

Attorney Murthy : An individual is allowed to remain in the U.S., based upon a timely-filed request to change or extend status. To be timely filed, the COS must be submitted at a time when the applicant is in status. Thus, filing 30 days after the end of the employment is too late, as there is not ongoing status. However, we have seen instances in which the USCIS overlooked, on a discretionary, case-by-case basis, a small gap in pay stubs -, occasionally for as much as 30 days - when there was an unexpired I-94. Since this is beyond the precise, technical legal requirements, however, it is best not to remain for an extended time based upon the delayed COS filing. The risks should be discussed with a qualified immigration attorney and, ultimately, it may be necessary to plan to depart the U.S., apply for a new visa stamp in the new category, and reenter the U.S. from abroad. Of course, this has risks also, depending on the nature of the new status requested and the particular consulate abroad.

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Chat Master : Murthy Immigration Services, Pvt Ltd, in Chennai, India, is available in help in complex or routine matters for companies and individuals. Whether for visa stamping or guidance regarding H1Bs, L1As, or L1Bs, or helping parents who have been denied B-1/B-2 visas. See www.murthyindia.com or contact us at info@murthyindia.com.

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Chat User : Recent convert H4-H1 (Oct 1, 2008). No paystubs since then, so I am out of status. If I go to India, can I reenter to U.S. on already-stamped H-4, since it is valid on passport until May 23, 2009.

Attorney Murthy : One is able to travel abroad and reenter the U.S. based on an earlier H-4 visa stamp, and may obtain a new I-94 with H-4 status at the time of reentering the U.S., as long as s/he continues to be married to a person who is maintaining H-1 status.

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Chat User : I' m on H1B, which will expire in April 2009. Can I apply for F-1 and work for 20-30 hrs a week legally?

Attorney Murthy : Generally one is not allowed to work in the F-1 status unless the OPT or CPT is authorized and, in most cases, the OPT is not granted until one has been in F-1 status for at least nine months. You should discuss which programs may work out by speaking with the college or university's international student advisor. It may be worth considering changing the H-1 to part time. This option was explained in the MurthyBulletin recently. You can find the article on MurthyDotCom. It would be permissible to work 20-30 hours per week, and study on a part-time basis.

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Chat User : After using Advance Parole, do we need to extend H-4 visa for kids? (Main applicant is on H1B and AP not used.)

Attorney Murthy : Family members are allowed to file for H-4 status extensions if the H1B principal person's H1B status is being extended from within the U.S.

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Chat Master : 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 : Dear Attorney Murthy, I would like to know if going thru a foreclosure or bankruptcy has any adverse impact on future citizenship process?

Attorney Murthy : Usually, a foreclosure or bankruptcy does not prevent one from getting U.S. citizenship, since those are not considered criminal matters falling under the definition of a crime of moral turpitude. There are no questions about this on the naturalization application. One must be eligible for citizenship and meet all the other criteria.

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

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Chat User : Can I apply for EB2 after applying for GC in EB3?

Attorney Murthy : Yes, it is common for a new employer, or sometimes it is possible for the same employer, to file an EB2 after an EB3 case if the individual is eligible for EB2 and the work required those criteria even before the employee joined the GC-sponsoring employer. This issue needs to be discussed with the attorney and the employer so that all parties understand the risks of an audit or denial if the person is not eligible or the job does not qualify.

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Chat User : Are you exempt from the H1B cap if you have held H1B for six years and then applied for a new H1Bafter staying outside the U.S. for 1 year?

Attorney Murthy : No. A person is subject to the new H1B quota and the random lottery selection process if s/he was abroad for one year and used up the six years in H1B status and is not relying on the filing of the LC at least 365 days earlier or the I-140 approval. In this situation, the person would be eligible for an additional six years of H-1 time.

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Chat User : If we appeal on a COS denial, and it is denied again after some time, does the time period between appeal and denial count as illegal stay in U.S.?

Attorney Murthy : Actually, from the date of the first COS denial the individual is considered to be both out of status and unlawfully present, according to the USCIS. So any further appeals similarly provide him/her with no valid legal basis to remain in the U.S. and all that time is counted against the 180 days or one year out of status for the 3-year or 10-year bar on reentry once s/he departs the U.S. The attorney should have explained this as soon as the COS was denied, since the unlawful presence clock starts to tick from that date onwards.

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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 : Hey! I appreciate your help. I got my EAD and my I-485 has been pending the last 12 months. Now I would like to change my employer. Can my employer revoke my I-140?

Attorney Murthy : An employer is always allowed to revoke or request the revocation of the earlier-approved I-140 petition. If the I-140 was approved, one can argue that AC21 portability should apply, allowing the individual to obtain the I-485 approval. The USCIS may send a notice of intent to deny (NOID), which must be challenged by showing AC21 eligibility. The USCIS sometimes sends an improper I-485 denial notice, which must be challenged in a motion to reopen. We at the Murthy Law Firm have been successful in all such AC21 motions we have filed over these many years.

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Chat User : Do I need to be out of U.S. for one year before I apply for a new H1B? Or can I apply early, just that I can't come before one year?

Attorney Murthy : The USCIS policy appears to be that one must be eligible for the immigration benefit on the date of filing the application. This means that s/he must be abroad for one year and then file for the new cap-subject H1B petition. This could mean that the individual has to be abroad for 1 1/2 years or more, depending upon timing, and whether the case is accepted in the H1B random lottery selection.

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Chat User : I am on H1B and my wife is on GC. Should I apply for GC now or when she becomes a citizen? What do you suggest?

Attorney Murthy : Usually, the spouse of a GC holder can obtain no immigration benefits since the priority dates move so slowly. It could take five to eight years to obtain the EAD, etc. So if the spouse is eligible to obtain U.S. citizenship, it is faster to obtain certain benefits then.

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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 : How long can I be away from the country on AP while on AOS pending and I-140 NIW approved?

Attorney Murthy : A person is allowed to remain abroad and reenter before the expiration date mentioned on the AP form. If s/he attempts to enter after the AP expiration date, the individual is deemed to have abandoned the I-485 unless s/he has a valid H1B petition approval, an H1B visa stamp in the passport, and obtains H1B status at the border from the CBP agent.

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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 for 2009! We look forward to helping you, your family, and friends with all of your immigration law needs in 2009. The MurthyChat is here to help you with general questions about U.S. immigration law. The Murthy Law firm is available to consult with you on the specifics of your case, or to represent you in your immigration case. Thank you for providing us with the opportunity to help you with all your immigration matters.

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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