Chat : February 05, 2007

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 : Thank you for your active interest and participation in our MurthyChat. We appreciate this opportunity to help you with your immigration matters.

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Chat User : Good evening! I’m from India. I have an approved I-140 NIW and I-485 pending. My 5 years will be complete on September 1, 2007. Are there any restrictions on the kind of job I do on EAD after September 1, 2007, since I never went through PERM?

Attorney Murthy : The rules for NIW are slightly different, since the NIW has a waiver of the job offer requirement. So the new job must be in the same field that benefits the U.S. as a whole in the national interest. Some local USCIS examiners could argue and deny the I-485 if they believe that there is a disconnect, so there is always some risk. The rules were based pre October 2000 before AC21 law came into effect. Since you have mentioned five years, if this is the physician-specific NIW and the required 5 years of service have been completed, then there is no longer a restriction on the work that can be performed.

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Chat User : My H1B expires in December 2007. What is my deadline (month) for getting my PERM labor certification paperwork filed to the INS in order to ask for an extension next year?

Attorney Murthy : The LC should be filed with the U.S. Department of Labor, not with the INS (or USCIS, actually) at least one year earlier. This means that the LC should have been filed before December 2006. The only other hope is with the new PERM rules, if the LC and I-140 are approved within the next 6 to 8 months, then one is allowed to file for the 3-year H1B extension, but if there is an ability-to-pay issue for the employer, or if the employee has a 3-year degree, that may be difficult to equate to the 4-year U.S. degree. Then it will create a problem for the person to obtain that I-140 petition approval. The three-year rule assumes that there is not a visa number available for the particular category / priority date.

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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 : Thank you, Sheelaji, for this great service!! I am planning to relocate to India this year. I plan to change jobs and change my AOS to consular processing. Can I continue my GC with a new employer? Does AC21 apply? What documentation would be needed?

Attorney Murthy : There is some guidance from the U.S. Department of State that, in certain circumstances, the CP process may allow for AC21 portability, only if the I-485 had been pending for over 180 days, presumably after the I-140 petition approval. The documents that are required will depend on the nature of the job and the person's ability and credentials to perform that job. You should speak with the new employer's immigration counsel on the possible list of documents or information to submit at the consulate. If they do not have an attorney, please contact us at law@murthy.com, or call us to schedule a consultation to understand the nature and scope of documents that may be required in such cases.

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Chat User : While on OPT, if I am offered a job and the employer is willing, can they apply for my H-1 before I start working for the firm? For example, can they apply for an H-1 on April 1st if I am starting work on, say, May 1st?

Attorney Murthy : Of course, the employer should apply by April if it is a new cap-subject H1B to work in the future. In fact, if it is a cap-subject case, then the person cannot start working legally in H-1 until October 1st, when the new H1B quota numbers are released. S/he can work while awaiting the H-1 if OPT has been approved for the proper period. It is possible to file an H1B petition 6 months prior to the start date.

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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 : Greetings! I am planning to bring my wife on H-4 in June, but her company in India is sponsoring her H-1. Can she come here in H-4 and then do a COS to H-1? Is there any timeframe for the COS?

Attorney Murthy : It is possible for one to enter on the H-4 after the H1B has been filed by April 1, 2007 with a start date of October 1, 2007, but there is a catch. One will need to file an H1B amendment after entering the U.S., since s/he would need a new H1B approval, but this time with the change of status tear-off I-94 card attached to the bottom of the H1B approval notice. The logistics of this situation should be discussed with an immigration attorney.

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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 : Can a person working on EAD (I-485 pending, EB3) incorporate an S corporation along with a GC holder? Is it possible to do multiple jobs with EAD?

Attorney Murthy : A person on an EAD is allowed to work with as many employers as s/he pleases, as long as s/he is able to show that there is one job offer that matches the LC and PERM with the GC-sponsoring employer or with another employer if AC21 portability is in effect. The only limitation on the EAD is to keep renewing it so that there is no gap in time and one's personal limitations physically or mentally to work so much!

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Chat User : I will complete my 6 years on H-1 by June 2007. My current employer has applied for the green card, and I got my I-140 approval. If I apply for an H-1 transfer along with the copy of my I-140 approval from the current employer, will I get a 3-year extension?

Attorney Murthy : Yes, it is possible to file for a 3-year, H1B extension with a different employer even if the LC and I-140 are approved with another employer, since the GC is based on the concept of a future job offer.

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Chat User : Hi. Thanks for this service. I am currently in the U.S. on a B-2 visa. I want to file for H1B this year. My wife is on H1B. Should I go back to India for H-4 stamping and then convert the H-4 to H-1, or should I file for a COS from B-2 to H-4 here and then again file for H1B?

Attorney Murthy : Whatever the options to consider, one must consider the fact that if the new H1B job is an H1B cap subject employer, then there is not much time to fool around with since the H1B employer must file the H1B petition to reach the USCIS by April 2, 2007 to try and make it within the 2007 FY quota. Then one has to consider other legal issues like the doctrine of preconceived intent or fraud that does not recommend that one file any COS for about 90 days after the person enters the U.S. from abroad. It sounds like you need to understand the legal issues before doing something that could jeopardize the ability to work for another year. Please consult with your lawyer or eMail our law firm at law@murthy.com, or call to schedule an appointment with one of our attorneys.

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Chat User : Thanks a lot for your service. I have just started a company, and I have one employee only at this point. Can I start processing the GC for the employee? Please let me know what the risks are. Thanks.

Attorney Murthy : Although the size of the employer is not the sole determining factor, in fact, there is some concern that a really small employer may be processing a GC case for a family member or the owner when in fact there is no bona fide job opportunity that exists. Also, another factor is the employer's financial ability to pay the full required prevailing wage since the tax returns need to show profits or payment of the full wage to the person going through the GC process. Presumably, there is one employee and one employer so that the sponsoring entity has 2 full time people, but that could result in an RFE or issues like I have listed here.

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Chat Master : There are about 25 minutes remaining in tonight's MurthyChat.

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Chat User : I have one I-140 from my company. Now my old labor was approved. Can I file another I-140 from the same company?

Attorney Murthy : Please understand that there are possible ways to do this to minimize the delay and file the I-485 especially if the earlier PD is current based on the earlier LC approval. It is possible to have more than one job offer from the same company.

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Chat User : Is there a possibility that H1B does not start on October 1st? What happens if someone’s H1B gets approved in November and his grace period ends in October?

Attorney Murthy : The person should either be willing to pay $1,000 to get an earlier answer by requesting a premium processing, or the person will be required to stop working for that one month, even though that may not be convenient or practical for either the employer or the employee, or both. The person would be lawfully in the U.S. as long as the grace period covered until at least the requested start date of the H-1, even if the case was still pending on that date.

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Chat User : Under the new decoupling provisions, can a person who has completed 6 years on H-4 and is now on a 7th year extension apply for a new H-1 visa?

Attorney Murthy : Under the USCIS decoupling memo, a person is allowed to file for the full 6 years of H1B status after completing 7 years on H-4 status since the time on H-4 no longer counts against the max time of 6 years on H1B 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 : Hi. Thanks for taking my question. My employer has applied for an H1B transfer with premium processing. Is it safe to travel to India during this process before we know the result?

Attorney Murthy : When a person travels abroad while a change of status (COS) is pending, then the COS application is deemed abandoned upon departing the U.S. This means that the H1B petition remains valid, but the COS is deemed abandoned. However, it sounds as if your employer filed an H-1 extension. It is possible to travel in this situation, but there are some potential issues at the port of entry. You will want to be prepared on that topic, so you should consult an immigration lawyer before traveling. It may be better to use premium processing to expedite the case result, so that it will be acted on before departure.
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Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.

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Chat User : Dear Madam, I am carrying out consular processing from South India where I am located. My LC substitution (PD of February 2002) has been I-140 approved. Are there risks in this approach? How can the risks be mitigated?

Attorney Murthy : As long as the employer intends to keep the job offer open for the person and the employer and employee intend to continue the employment relationship, as evidenced by letters and other documents, then the CP should be adjudicated and the immigrant visa approved at the consulate.

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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 : Good evening, Ma’am. Do you think priority dates for I-485 EB2 India category will move in the next eight months to June 2003? Otherwise, I'm thinking of filing for H-1 for my wife if the EAD is going to take longer. Thank you.

Attorney Murthy : Since no one can predict the movement of priority dates with any degree of certainty, it is safest to proceed and file the H1B for your spouse, since in the worst case, if the PDs progress, the H1B will not adversely affect your spouse to keep working and living legally in the U.S. The worst case is that some money would have been expended, but since the cost benefit analysis is that she will likely make up the costs of the H1B filing within a month or less, or that the employer will file it and incur the costs, it is something to consider.

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Chat User : Hi. Can I renew my EAD after it's expired? My I-485 is pending. Do I have to pay any fine or else?

Attorney Murthy : There is no fine to pay, but a person is not allowed to keep working after the expiration date of the earlier EAD and before the start of the new EAD. That time may be considered and added to the unauthorized time towards the 245(k) timeframes to determine if the person's I-485 should be approved or not. If a person is not using the EAD to work, but just keeping it as a backup, then this is not an issue. The fact that the old EAD expired does not create problems in obtaining a new one. It is just that any work performed must be done pursuant to proper authorization. Unauthorized work can create substantial immigration problems.

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

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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 © 2007, MURTHY LAW FIRM. All Rights Reserved