Chat : January 21, 2008

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 : Is it ok if the part-time, H1B-related job gets terminated as long as the full-time, H1B-based job remains active? Or is there an issue with the validity of the candidate's legal status?

Attorney Murthy : Usually, there is no problem with one's legal status if the PT H1B status is terminated, as long as the regular, full-time H1B job remains, so that the individual can maintain H1B status. An exception to this rule would be, for example, where the part-time job was the basis for obtaining the earlier, cap-exempt H1B that allowed the person to work for the full-time, cap-subject H1B employer.

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Chat User : If I quit my employer and join a new company after 180 days of pending I-485 without doing a H1B transfer, am I automatically on EAD? Do I have to inform the USCIS?

Attorney Murthy : If one has an approved EAD, then s/he is able to use that EAD to work for any other employer after the I-140 is approved and the I-485 has been pending for over 180 days. There is no need to inform the USCIS of anything in this type of situation. The use of the EAD is reflected on the employer's I-9 employment verification form. However, not having a backup H1B status could create problems if one's I-485 is denied or for some other related problem, since the individual will not have any legal basis to live and work in the U.S.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : We have filed for I-485 with my husband's company. We both have received an EAD. Can I start a sole proprietorship on an EAD? Are there any restrictions, as I am not the principal applicant on I-485? Also, the I-485 status is still pending.

Attorney Murthy : A person, like the spouse, is allowed to start a company or any business with an EAD and work as a sole proprietor. Usually, it is easier for the dependent to start a small business or other venture, since there are no legal restrictions in most cases that will require the person to perform a particular type of job. Of course, if the I-485 is denied, then the employment or small business would need to be wrapped up, since the EAD will no longer remain valid.

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Chat User : Hello, Murthiji. The USCIS sent us the sealed envelope and RFE (medical follow up form for doctor's signature-I485) but it is lost in mail and there is a time limit to send the RFE (30 days).What can we do and who do we contact in this situation? Thanks.

Attorney Murthy : Generally, one can contact the toll free number of the USCIS to request that a new RFE be issued and to send the document. If it is known for sure that the only request was the I-693 Medical Form that needs to be completed and signed. One potentially then could go to the same doctor to complete it and then mail it in with a colored sheet, following certain protocol to ensure that it is not considered unsolicited mail. We have heard of many cases in which the USCIS claims to have mailed an RFE but neither the attorney nor the employer has ever received the RFE or any other decision. Sometimes it could be a mailroom issue or some other problem. One should use AILA Liaison services or congressional intervention, if appropriate, to ensure that the I-485 does not get denied outright.

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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 : Hi, Attorney Murthy. Is it possible to transfer an H-1 without paystubs?

Attorney Murthy : Generally, it is not easy for the USCIS to agree to issue a new H1B approval as an extension of status with no pay stubs. Sometimes, the USCIS could approve the H1B petition with the extension of status (meaning that the I-94 card is attached to the approval notice). In most cases, however, the USCIS will approve the H1B petition if the job is considered to be in a specialty occupation and the employer is bona fide, then deny the extension of status, requiring the person to travel abroad and reenter the U.S. in H1B status, with an I-94 obtained at the border or port of entry. So, without pay stubs, the H-1 petition can be approved, but not the request for extension of status.

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Chat User : Can I apply for L-2 EAD based on L-1 petition approval without L-2 stamping in passport?

Attorney Murthy : It is possible to obtain an L-2 EAD, if the principal spouse has an L-1 petition approval and the L-2 spouse is in the U.S. in another status and can file the change of status to L-2 with the EAD request with the USCIS. There is no need for an L-2 visa in the passport, but it is necessary to hold L-2 status, as reflected on one's I-94.

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Chat User : How does the status of the company (startup v/s older ones) affect the status of the green card application? Are newer companies at a disadvantage?

Attorney Murthy : Generally, a smaller company has a slight disadvantage than a larger and more established company since the PERM application asks if the employer has fewer than 10 employees, and may subject them to greater scrutiny. Also, profitability may be an issue for new companies in the first few years and unless the employer is paying the full prevailing wage for the GC candidate or showing substantial profits to include the person's salary and benefits, if the sponsorship is based on a future job offer. The I-140 petition could be denied based on the ability to pay. So, both for H1Bs and for the GC process, an older or established and profitable company generally will fare better from the USCIS point of view.

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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 : Can a person, who is on an H-4 visa, travel abroad after his/her H1B (with status transfer) is filed and is in process? If so, will the H1B petition be canceled if the petition is approved before the person returns to U.S.?

Attorney Murthy : Yes, the USCIS rule about the last action rule could pose a problem in such cases if one's last status upon reentering is the H-4, in this example. The earlier H1B status is canceled by the individual's having traveled abroad and reentering ion H-4 status. The Pearson Memo of Jan 2001 mentions that, departing the U.S. after filing a change-of-status application results in the COS application being deemed abandoned by the USCIS. So, in this situation, the H1B petition may remain valid, but the individual would not be in H1B status.

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Chat User : Can one apply for a new H-1 without being counted against the quota for the remainder of years not used? How long does the window remain for applying for an H-1 with remainder available? Can it be with a new employer?

Attorney Murthy : A person can always apply for a new H1B with a new employer as long as s/he filed and was in H1B status within the last 6 years and was counted against the H1B cap. One is eligible for the balance of time remaining in H1B status and there is no stipulation of time as to when one can apply, except for the 6-year rule. But the 6-year max time does not apply, as you may know, if the GC process was begun at least one year earlier or if the I-140 petition was approved, granting 1-year or 3-year H1B extensions, respectively, as the case may be.

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Chat User : If I have an H-1 with a nonprofit organization, when can I start to work if I want to change jobs to a for-profit organization. Do I need to wait until April to file?

Attorney Murthy : Many nonprofits are not H1B cap exempt, so one who was previously already counted against the H1B cap does not need to be counted again for at least 6 years or longer. If one was approved under the cap-exempt category, s/he is safer waiting to file on April 1st, with an Oct 1st start date, but there is no guarantee that it will be possible to obtain the H1B petition or status approval if the person is not selected in the random, computer-generated lottery system. There is some debate on the issue of starting work under AC21 H1B portability, but one must stop working if the H1B is approved without the I-94 card attached, or if the start date is from Oct 1st onwards, even though there has been some debate and discussion and it is possible that the person may be able to work while the H1B petition is pending at the USCIS.

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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 : Good evening. After taking advantage of portability, can one just use EAD and avoid getting another H-1 with potential new employer?

Attorney Murthy : It is possible to simply work on the EAD but the risk is in case the I-485 is denied for some reason and one has no backup legal status. Many people have no option when the new employer refuses to file an H1B petition and that is fine as long as all the parties understand the risks involved in such a case.

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

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Chat User : Is it safe to travel with a new approved I-797/I-94 and use the unexpired H1B visa stamp associated with an old employer to reenter the country?

Attorney Murthy : It is possible to do this, but one must ensure that the CBP Inspector at the airport stamps the validity date of the H1B on the I-94 card to match the latest approval notice date on the I-797, and not the earlier validity of the visa stamped in the PP. This is a problem that occurs often and must be corrected immediately to avoid creating problems of status and eligibility to work after the latest I-94 card expires.

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Chat User : I am getting my master's degree in the U.S. Should I file my H-1 in the master's cap and the regular cap?

Attorney Murthy : In most cases it would not make sense to file in both categories, especially if one is clearly eligible to file and obtain the H1B approval under the U.S. master's quota, since that is more likely not to be met on the first day, unlike the regular H1B quota.

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Chat User : I have filed my green card case. How long is it going to take to get an approval?

Attorney Murthy : No one can be 100 percent sure since this is based on the category in which one files for the GC, the priority date, the country in which s/he was born, and how the priority dates will move over the next several months or years. At this point in time, most EB GCs for those born in India generally could take anywhere from 1 year in EB1 to about 3 to 8 years on average with the lengthy delays expected in the movement of priority dates. But these are simply approximations.

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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 : Hello, Ms. Murthy. I am on H-1 with I-485 filed as derivative & EAD / AP received. I started working for another employer on EAD, while still finding projects with H-1 employer. I am travelling outside the U.S. Should I enter on AP or H-1?

Attorney Murthy : If one wishes to maintain H1B status, then s/he must enter on the H1B visa stamp. But, if the person wishes to work on the EAD with another employer, s/he should enter on the AP as a parolee. The rules allow for an H1B extension if the person works for the H1B employer, even after entering on the AP under existing Legacy INS / USCIS memos.

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Chat User : Can one apply for H-1 through more than one company?

Attorney Murthy : Yes, a person can file for an H1B with several employers, for a full-time job and part-time jobs concurrently, or for separate jobs, but there are potential ethical concerns in promising two employers that one will work on a full-time basis with an employer when the intention all along was to break that promise after making the employer spend thousands of dollars on a false promise. It is important for H1B candidates to understand the consequences, especially if an employer chooses to sue for breach of contract, even though it may rarely occur.

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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. Thank you for your service. From when is the 180-day waiting period for the AC21 application counted? Received date or the notice date of the I-485 application?

Attorney Murthy : As mentioned in our recent article on AC21, available on MurthyDotCom, the date is when the USCIS received the I-485 package properly with the fee and signatures and not when it issues the receipt date weeks or months later. The USCIS has confirmed this in recent memos and discussions with AILA.

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Chat User : Is it allowed to attend school full time on EAD while I-485 is pending?

Attorney Murthy : One is allowed to attend school and work anywhere with the EAD, since the EAD / I-485 pending status is right before the GC approval and seems to be broad to cover most scenarios, like studying or working, etc. If one is the primary, there needs to be an ongoing job offer in order to ultimately obtain approval of the I-485. The dependant does not have this restriction.

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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 : Hi. Considering the current EB2 backlog, are there any constitutional rights that can be applied to resolve the issue?

Attorney Murthy : Unless there is a change in the law, there is no constitutional right to demand and get something that the law specifically limits in terms of the number of immigrants allowed into the U.S. each year. In fact, if the USCIS approves more GC cases than allowed by law, that would be considered illegal.

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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 : Sheelaji, my maximum stay in the U.S. on visa has expired and my I-824 is in process. How long can I stay in the U.S. after my I-824 is approved?

Attorney Murthy : The approval of the I-824 does not provide a person any legal and valid basis to remain in the U.S. One must obtain some other valid legal status to live and work here, otherwise s/he must depart and not accrue time out of status or become unlawfully present in the U.S.

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Chat User : Dear Attorney Murthy, Once my CP process has started, does the 180-day rule (to be with same employer back home) apply?

Attorney Murthy : If a person obtains the GC through the CP instead of AOS, s/he should work for the employer for at least 6 months to one year at a minimum, since AC21 portability does not apply if one never filed for the AOS.

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Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : We look forward to continuing to help you, your family and friends in our regular MurthyChats and with all of your immigration law needs at the Murthy Law Firm.

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Chat Master : We wish you all well this evening, on the day Dr. Martin Luther King, Jr's birthday is observed, and hope that, in your own way, you have been able to honor his memory. Check http://www.murthy.com/chat.html for the schedule of the next chat session.

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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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