Chat : February 02, 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 : Welcome to the MurthyChat! We invite you to submit your questions so that we can provide some general guidance to you on your immigration matters.

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Chat User : How likely is it that the 20,000 limit on H1B visas for MS/PhD students will exceed this year, considering the poor state of economy?

Attorney Murthy : No one can be sure, but there is a chance that the 20,000 will not be met during the first five days of filing, which must be considered, at a minimum. In fact, some people think that even the 65,000 may not be met during the minimum five-day filing period. But it is risky to assume anything, given the pattern in recent, strong-economic years, about 2 or 3 times the allowed H1Bs were filed. Even if it is a weak economy, it is likely that the H1B quota will be exhausted in the beginning, so plan accordingly. If the quota lasts a few weeks, then there is nothing lost, but by filing the H1B before the quota is met, there is everything to be gain, as late filings will not be eligible for the H1B lottery.

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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 : Is I-485 the best way after my wife become citizen or before on the approval on I-130?

Attorney Murthy : Your question is not clear. After the spouse becomes a U.S. citizen, one can either pursue the I-485 with the EAD and AP from within the U.S. or file for consular processing. In fact, one needn't wait for the I-130 approval to file the I-485 or request for consular processing. The latter is often faster to obtain permanent residency (the green card); but the former permits one to work on the EAD in the interim. The I-485 cannot be filed without an available visa number. Therefore, if the I-130 is approved while the spouse is still an LPR, the I-485 may still have to wait due to priority date issues.

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Chat User : 10th yr I-129 renewal pending since Nov 2007. What is a realistic way to approach the USCIS and get a decision since it is > 1 yr? Is writ of mandamus common?

Attorney Murthy : It is not common for the H1B 10th-year renewal to be pending for over one year. Filing the writ of mandamus on both the pending H1B and the new one that is filed is an option; though, with the newly-filed case, one must wait a few months before demanding an answer. Remember, the writ simply means that the USCIS will provide a decision. It is no guarantee that the decision will be favorable.

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Chat User : What happens when H1B holder, 485 pending, with a valid AP, goes to India for marriage? Can he return to the USA on AP and wife on H-4?

Attorney Murthy : One enjoys dual intent while in H1B status, with the I-485 filed. It is safer for the principal to reenter in H1B status and the spouse in H-4 status to avoid any confusion. The primary spouse cannot enter on AP and have the spouse enter immediately on the H-4. For the H-4 to be appropriate, the primary spouse must be in H1B status. Thus, the primary could enter on H1B with the spouse on H-4, or the primary could enter on AP and regain H1B status by filing an extension or amendment. Once that is approved, the spouse could enter on H-4. To be on the safe side, one should file and obtain the AP approval before departing the U.S. in case of a delay or denial in the H1B visa issuance. It is possible for the consulate to issue the H-4 visa for dependents, even if the principal is not issued the H1B visa stamp.

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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 : Can I work in two jobs at the same time when my I-140 is still pending - the first job on H1B with the green card sponsor and the second job in EAD for a different company?

Attorney Murthy : Generally, when one works on the EAD, s/he is deemed to be working on the EAD, although this issue is not entirely clear. The EAD allows unrestricted employment, so it would be possible to have two jobs on EAD. The law also allows the H1B petition to be extended if the H1B employer is willing to file the H1B extension on behalf of the employee. Having the backup H1B status provides an individual with more security (and any family members) in case the I-485 is denied for any reason.

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Chat User : Can I work for my current employer on H1B and also do some part-time work for another employer on EAD? In doing so, are there any risks involved with respect to green card?

Attorney Murthy : As explained above, this is possible but the law is not clear on the details. The safest approach is to maintain both H1B status and the EAD in case of a problem with either the H1B or the I-485.

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Chat User : I am doing my graduation in computer engineering in California. Can I work for a mechanical / marine-based job in OPT and apply for an H1B visa thru that company?

Attorney Murthy : It depends on the minimum qualifications for the mechanical / marine-based job. The work on OPT must be related to the degree program. If any engineering degree is sufficient, then obtaining the H1B and the GC later is potentially possible.

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Chat User : How many times can one use AC21 to change between I-140 app and GC?

Attorney Murthy : The law does not provide for any limits on AC21 change in jobs or employers, but the Legacy INS memos do mention that it is expected that one notify the USCIS of any new change in employers or jobs. We at the Murthy Law Firm generally recommend filing the change of job or employer so that there is no issue of fraud or misrepresentation or other uncertainty in the future.

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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 H1B experience with an employer be counted for employee's total experience when the same employer files for green card?

Attorney Murthy : Generally, it is difficult to show that the experience gained with the same employer is a minimum requirement for the job offered. The U.S. Department of Labor requires that the new job with the same employer be so different that at least 50 percent of the job duties do not match the earlier job in order to use the experience gained with the GC-sponsoring employer. While there are circumstances in which this can apply, it is safest to avoid the problem altogether.

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Chat User : On H-1 visa, how many days or months I am entitled to go on leave WITH and WITHOUT pay, with my employer's consent?

Attorney Murthy : The law does not provide any formula except that an H1B employee is required to work and be paid the H1B prevailing wage. Employers may not "bench" the employee due to lack of work. The employee may genuinely choose to request time off, but this is viewed skeptically and should be well documented. Situations covered under the Family Medical Leave Act, are clearly covered. Other situations involving documented personal or family emergency may also be possible. Anything else can result in the employer and employee being considered to be in violation of the law.

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Chat User : My J-1 approval is pending and my OPT is expiring in one week. What will my legal status be?

Attorney Murthy : When a person has filed for a change of status from F-1 to J-1, for example, s/he is allowed to remain in the U.S. based on the pending nonimmigrant status extension, but cannot work in the J-1 status until it is approved.

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

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Chat User : Can an H1B approval be transferred without pay stubs if one never was in H1B status? Extension of stay for H-4 was filed before start of H-1 (Oct 2008).

Attorney Murthy : It is possible to file for a new H1B without having the earlier H1B paystubs if, as in this example, the H-4 extension of status was requested after the H1B approval but before it became effective. It would be best to contact our office for a consultation to discuss this matter.

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Chat User : If I graduated in 2005 with an MA in Organic Chemistry, and my OPT period ended in Feb 2006, if I am still on F-1 visa, am I eligible for OPT STEM extension?

Attorney Murthy : In order to obtain the STEM extension, an individual must be in OPT status currently. It is not enough to simply be in F-1 status after previously holding OPT. If one has continued to maintain valid F-1 status by enrolling in other programs, s/he may be eligible for an additional 12 months of OPT after completion of a higher level degree. If that is received, then the STEM extension could be granted if all other requirements, such as the type of degree and employment with an eVerified employer, are met.

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Chat User : If the priority date for GC becomes current, can one apply for labor, I-140 and I-485 at the same time?

Attorney Murthy : One cannot file the I-140 until the LC/PERM is approved. Only the I-140 and I-485 may be filed together without the I-140 approval. Of course, in that case, if the I-140 is denied, the I-485 will also be denied.

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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 for 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 : J-1 approval is pending and OPT is expiring in one week. Can one continue to work?

Attorney Murthy : One is allowed to stay in the U.S. but cannot work until the J-1 approval is issued. The other option is to depart the U.S. and obtain the J-1 visa stamp from abroad and reenter the U.S. in J-1 status to be able to work faster.

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Chat User : My wife was born in India and she is the primary beneficiary of our GC process. I was born in Singapore. Can she use my priority date at I-485 for faster AOS? Can you explain the concept of 'cross chargeability’?

Attorney Murthy : It is possible to request "cross chargeability," based on this fact pattern. Please do a search on www.murthy.com for how cross chargeability works, since I believe that we have some articles or answers on this matter. The case would not change priority dates, since that is set by the LC filing date. One would request the spouse's country of chargeability, under the "all countries of chargeability except those listed" column in the Visa Bulletin. This would potentially improve the timing and processing of the I-485 considerably, depending upon the EB category.

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Chat User : I have been in H-1 status since October 2008. Can I go for studies on H-1? Do I need to produce paystubs? Can I use the same H-1 after my studies are complete?

Attorney Murthy : A person is able to pursue education on an H1B, as long as s/he continues to work for the H1B employer and the education is considered incidental to the H1B work. Otherwise the individual may be required to file for a COS to F-1 and stop working in H1B status, if the wish or school program requires s/he focus on the education and not the work. You are welcome to search for information on www.murthy.com on this matter, since we have a lot of useful information on many topics. We can also consult with you to try to devise a plan to accomplish your goals.

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

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Chat User : Does the cap gap apply to pending H-1s or H-1s that are approved?

Attorney Murthy : Actually, cap-gap relief applies to pending H1Bs or if they are approved until the start date of the H1B. The benefit of the cap gap stops when there is a denial of the H1B petition or status.

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Chat User : Is it possible to file for AC21 if one does not have copy of I-140 (approved) and labor?

Attorney Murthy : It is possible to file for AC21 portability, but how can one show the USCIS that the new job is considered to be in the "same or similar job occupational classification," unless there is something to show in the way of proof? If one is confident of the job category / title / duties, that information can be used without the LC copy. Some people have copies of the advertisements or drafts of the language used in the LC. The I-140 approval notice is also not needed, but it is necessary to be confident that it has been approved.

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Chat User : GC labor denial says ETA application doesn't contain address of the appropriate certifying officer at national processing center (Atlanta center). What is the success rate if we appeal such a case?

Attorney Murthy : This question isn't entirely clear, but it appears that you may be asking about the Notice of Posting, which must contain the proper DOL address. This may be a difficult issue to overcome, as it is a requirement. There may be an argument that it should be regarded as "harmless error."

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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 : Hello, Murthiji. Recently I was laid off and transferred my H-1 to H-4, will this time of my H-4 visa be counted towards my H1B period? Please help.

Attorney Murthy : No, luckily for you, under the de-coupling memo issued a few years ago, the time in H-4 status is no longer counted towards the full 6 years in H1B status.

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Chat User : Hello, Ms. Murthy. I am on my 4th year of H-1 and planning to transfer to F-1. What will be the duration of my second H-1? Thanks in advance.

Attorney Murthy : The maximum time allowed in H1B status is 6 years in the U.S., unless one has filed for the LC/GC or the I-140 petition is approved. So only the balance of 2 years remaining is allowed in as situation like this, unless the individual files the PERM/LC or the I-140 and it is pending for at least 365 days.

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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 : What happens to I-94 validity if a person starts working on both H1B and EAD at the same time?

Attorney Murthy : Well, if the person works for the H1B employer only it is presumed that s/he is working in H1B status. On the other hand, working for another employer means that one is using the EAD. The I-94 for the H1B remains valid under the dual-intent doctrine and, in fact, the individual is allowed to file for the H1B extension even if s/he used the EAD or reentered the U.S. on the AP, at some point.

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Chat User : I am on H-1 and was on temp layoff with 50 percent salary. What will be the impact on an H-1 visa holder in this situation, and also on employer at this stage?

Attorney Murthy : An H1B employer cannot reduce the salary and benefits for its H1B employees below the LCA wage, even if they reduce the wages for U.S. workers. The H1B employer is required to pay the wage as mentioned on the LCA. If the Department of Labor investigates the employer, the employer may be liable for all back wages. Also, the H1B employee is not considered to be maintaining valid H1B status if s/he is not working, as stated in the LCA and the H1B petition. This could possibly impact the I-485 approval later. It could also be an issue when applying for an H1B visa. You may want to discuss this with our office in a consultation, so that efforts can be made to minimize the problem.

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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 MurthyChat sessions. Thank you for the opportunity to help you and your family 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