Chat : February 16, 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 : 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 on your immigration matters. Thank you for using our services at the Murthy Law Firm.

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Chat User : I am a derivative I-485 applicant with EAD and AP. Can I stay legally and work in the U.S., using my EAD, if I get laid off by my H1B employer?

Attorney Murthy : The derivative person is allowed to remain in the U.S. on the I-485 with the EAD and AP. Persons with I-485s pending are in a "period of authorized stay." There should not be a problem as long as the I-485 was properly filed and there was not an earlier failure to maintain nonimmigrant status.

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Chat User : Please let me know if "bachelor's degree plus two years OR master's degree" come under EB2? Does USCIS go by their definition of "bachelor's degree plus five years OR master's degree?" Please explain.

Attorney Murthy : The law itself states that, if the minimum requirements are either a bachelor's degree plus 5 years of relevant work experience or an MS degree, then it would equate to the employment-based, second preference category( or EB2). If the labor certification contains the possibility of qualifying based upon a bachelor's plus two, then it is not EB2, but EB3. Additionally, in reality, if an advertisement is placed for only an MS or MA degree for a particular position, then it is unlikely that the related LC would be approved, especially in the current economy, as there are likely to be qualified U.S. workers / applicants.

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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 have graduated with a PhD, and am currently working on an OPT. Can my company or I apply for a green card directly, instead of first getting an H1B?

Attorney Murthy : It is possible for an individual with F-1 OPT to file a GC application if s/he is eligible to do so based either on a self-petition process or an employer-based process. It is unlikely that a recent PhD graduate would qualify under EB1 as a person of extraordinary ability, in most cases. If an NIW case is possible, which is also not likely for most recent graduates, then the H-1 would still be needed for nationals of China and India.

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Chat User : Labor has been appealed by company A. I moved from company A to B. Can I move back to company A to use the same labor, if it gets approved later?

Attorney Murthy : Yes, it is possible to go back to an earlier GC-sponsoring employer and continue with the process, since the GC is filed based on the concept of a future job offer.

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Chat User : What are conditions that I need to meet to keep the same priority date when I move to some other company? How fast will my new labor be?

Attorney Murthy : A person is only eligible to carry an earlier priority date after the I-140 petition is approved. Simply filing the LC and moving to another employer will not permit the earlier PD to be transferred to the new filing. The LC/PERM can take anywhere on average between about 6 months to 14 months for the Department of Labor to make a final determination after it is filed.

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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 : On what basis or under what circumstances does U.S. consulate determine that a particular applicant falls under "Administrative Processing?"

Attorney Murthy : Usually, this occurs when there are concerns either about the employer and their bona fides or the employee's qualifications, etc; then the consular official will place a 221(g) administrative processing on the file.

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Chat User : My wife and I are on H1B/H4 visa, I would like to change our status to F-1/F-2, is there a premium processing for COS of F-1/F-2?

Attorney Murthy : There is no premium processing for the COS to F-1/ F-2. There is always a risk of the F-1/F-2 denial, since one must show strong family and financial ties to the home country to be eligible for the F-1/F-2 approval. That is a high burden to meet, in many cases. It is possible to attend school while the F-1 COS is pending.

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Chat User : When applying for green card, does job offered and education (such as masters degree) should be in the same field / discipline? If it is not related, what are the consequences? Please explain.

Attorney Murthy : If the degree is not related to the job, then it normally would not be a job requirement. The employer sets the minimum job requirements based on their need and the industry standard. The sponsored individual must at least meet those minimum requirements. The question is not entirely clear.

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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 : Dear Ms. Murthy, I got my EAD and my I-485 is pending in EB3 category. Now I would like to change EB3 to EB2. Please let me know the procedure. What are the pros and cons?

Attorney Murthy : One needs to be eligible for the EB2 position before starting work with the GC-sponsoring employer and the offered position must require EB2 level minimum qualifications for the position. The DOL must agree that the job requirements are appropriate, and may consider the industry norm must be for these minimum requirements. It is always beneficial to be eligible for the EB2 classification, in most cases. The procedure is to file a fresh new PERM case and then, when filing the I-140, request the transfer of the earlier PD from the first case to the new filing.

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Chat User : I am currently working as a full-time employee for Employer A. Can a different Employer B apply for my GC?

Attorney Murthy : Yes, a GC filing based on a future job offer is possible, but the catch is that the new employer filing the GC must establish the financial ability to pay the full prevailing wage for the entire time from the date of filing the LC/PERM case. The USCIS must also be convinced that it is a genuine job offer, so it is best to start working for the employer prior to the USCIS decision on the I-485.

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

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Chat User : Premium processing for H1B - is it advantageous or a waste of money?

Attorney Murthy : Well, it depends on the situation, of course. At times, it may be a waste of money, and at other times it is a valuable tool. If one is changing jobs, it is best to get an approval with the new employer before quitting. PP takes care of this problem. It also is needed in situations when one needs to travel and must have the approval to apply for a visa stamp abroad. There are other times when it is essential, if there is a good chance of denial of the LC or the I-140 upon which an extension beyond the six year limitation is based. It is possible to have direct contact with USCIS in PP cases. And, finally, for some people the peace of mind of an approval is worth the $1000.

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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 : Currently I am on OPT. Can I travel outside U.S. when my H1B application process is pending with USCIS?

Attorney Murthy : The USCIS position is that any change of status from the F-1 to H1B, for example, is deemed abandoned by law when one departs the U.S. This could be risky for the individual and the safer approach is to obtain the H1B approval and then travel abroad and reenter the U.S., either with the new H1B visa stamp and in H1B status or, if before the start of the H1B status, for him/her to travel and reenter the U.S. on the F-1 visa stamp and status. The student on OPT needs to have valid employment in order to return.

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Chat User : It's been more than 9 months and our "Motion to Reopen" is still pending. How long does it usually take for processing? How can this be expedited?

Attorney Murthy : An MTR can take many months. An appeal can take about 2 years. Sometimes, MTRs end up being treated as appeals. There is no premium processing. It is possible to do follow up and, if there are urgent issues - status and otherwise - request action.

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Chat User : My I-140 is pending and I just changed my job. My old employer is willing to continue with GC process. Is this allowed?

Attorney Murthy : I just answered this exact same question above. Yes, it is allowed if certain conditions are satisfied. There must be an ongoing genuine job offer.

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Chat User : I am a GC holder. I want to stay in India more than 6 months. Can I apply for reentry permit, asking for 2 years?

Attorney Murthy : One could jeopardize her/his GC status by living outside the U.S. for over 180 days. It is necessary to maintain proper ties and residence in the United States. Filing the reentry permit helps to retain the GC and is the proper document to request reentry as an LPR, but it is not any guarantee. Also, an absence from the U.S. of 180 days or longer will break the continuity of residence for filing for citizenship. You may want to set up a consultation to discuss these matters by calling our office. Information is available at http://www.murthy.com/consult.html.

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

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Chat User : I'm an MS graduate from EE. I’m on OPT now and am planning NOT to apply for H-1 this year. Am I eligible for OPT extension? Should I work in the same field?

Attorney Murthy : It is possible to request a 17-month OPT extension for STEM graduates in science, technology, engineering, or mathematics, as listed by ICE. The work must be related to the degree program.

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Chat User : What is the process to go from H-4 to H-1. Are the pay stubs needed for COS?

Attorney Murthy : One must show maintenance of status to be eligible for the COS. The spouse's paystubs could be required to show eligibility for the filing. The H-4 should not have paystubs, as s/he is not authorized to work.

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Chat User : Hi, Murthy Ji. I was on H-4 visa but recently got converted into H1B and started working from Oct 01. Is my H-4 visa still good? Can I switch back to H-4 if my employer lays me off? Please advice.

Attorney Murthy : One will need to file the COS back from H1B to H-4 to return to H-4 status. The other option is to travel out of the U.S. and reenter on the H-4 visa and obtain the H-4 status at the port of entry at the time of reentering the United States.

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Chat User : GC approved. Is it best to cancel my pending H1B 8th-year extension, or forget about it?

Attorney Murthy : The USCIS will deny the H1B 8th-year extension. There is no harm in notifying the USCIS that they have approved the I-485 and, hence, the H1B is no longer required.

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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 : We are currently in OPT from Dec 2008. I would like to file for H1B this year, but what do you suggest? Should I file H1B this year or continue on OPT?

Attorney Murthy : Well, it depends on whether you would qualify for STEM or not. Without STEM it is always safer to file for the H1B, as many opportunities as possible. Also, given the lottery system, it may be best to try for the H1B this year, so that there is one more option for the next year.

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Chat User : Ma'am, I have not received EAD approval noticed. Online shows it as approved. What to do?

Attorney Murthy : Usually, the process and mailing could take a few extra weeks. If it is over 30 days, then one could call the toll-free USCIS number to inquire. It is also possible to check with the USCIS in an Infopass appointment.

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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 : 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 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