Chat : February 18, 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 : It is wonderful to have so many of you with us again today.

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Chat User : I want to change jobs. My I-140 is not approved, yet. Can I move the priority date to a new case with a new employer?

Attorney Murthy : The priority date can only be retained or transferred after the I-140 petition is approved. If there is an RFE on the I-140 petition and the prior employer decides not to respond to an RFE, since the employee has left their employment, then there is nothing to carry forward to the new case.

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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 : How can we find out if an I-140 petition was retained at NSC or transferred to TSC? Can an employer request a transfer to TSC to take benefit of the 4 months lead time between the two?

Attorney Murthy : The employer cannot request a transfer after the case has been filed at a particular service center or if the service center transfer files internally. The filing of I-140s is based upon jurisdiction issues. There are sometimes ways to try and file a case so that it is processed at a particular service center, but even so, the service centers are allowed to allocate and transfer cases between themselves to ensure a more balanced workload distribution.

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Chat User : I want to know what your opinion is about all the people who filed their I-140s in July 2007. Do you think there is a possibility to obtain the GC this year (2008)?

Attorney Murthy : Actually, for all of the I-140 / I-485s filed in July 2007, the USCIS cannot approve the I-485s if the priority dates are not current. There is a new TSC PLUS Pilot program to process all I-140 and I-485s filed concurrently to save time and money in efficiencies for those cases to get processed in record time, but the I-485s (green cards) cannot be approved without available visa numbers, as reflected in the DOS Visa Bulletin, based upon the priority dates.

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Chat User : Dear Attorney Murthy: Can H1B renewal and transfer be done at the same time? How much time and money is involved? Do I need to wait for the transferred H1B before starting the work at new company?

Attorney Murthy : Well it depends on whether one was maintaining valid, legal status in the U.S. in NIV status. If so, the extension (renewal is used for the same job and employer) and the "transfer" or new filing with the new employer is possible to accomplish at the same time. One does not need to wait for the H1B petition approval to start work with a new employer, but there is a level of risk in starting before the approval in case the H1B petition is denied, leaving the person with no options but to depart the U.S. and attempt to return to valid legal status. This type of coordination of filings is something that should be discussed with a qualified attorney.

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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 : Hi, Ms. Murthy. Can one who is in AOS and maintaining H-4 status go to India and come back a year later, after the expiry of AP but with stamped H-4 visa?

Attorney Murthy : Yes, that is certainly possible to do, but that presumes that the principal spouse has not lost the H1B employment or the H1B employer is willing to extend the H1B after a year. Many employers prefer not to maintain the H1B status for various reasons, so there is that risk if one relies exclusively on H-4 status to reenter after the expiration of the AP.

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Chat User : Hi, Ms. Murthy. After entering the U.S. on Advance Parole, if the H1B extension (based on I-485 is pending) is approved after using AP what will the status of a person be? Should one need to use EAD?

Attorney Murthy : If one's H1B extension has been approved in the U.S. with the I-94 card attached to the bottom of the approval notice, after s/he has entered on the AP, the person then is back in H1B status.

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Chat User : Hello, MurthiJI. Is it ok to stay in USA on vacation / break for 2 months (without pay slip) on H1B visa?

Attorney Murthy : Generally, it is not allowed for the employer to bench an employee, since that is a violation of the LCA and H1B laws and regulations. On the other hand, if the employee requests personal time off for a true family emergency or under FMLA, etc, then it is possible for one to maintain valid H1B status even when not working. There would need to be documentation of this type of situation (such as medical records, etc), as this "personal leave" is overused as an excuse when benching occurs. The general rule is that an individual in H1B status must be working and getting paid. Otherwise, it is deemed that s/he has failed to maintain valid legal status in the U.S. This could cause problems / delays in obtaining another NIV status if one wishes to change jobs or employers, etc.

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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 one work on using EAD for the H1B employer when s/he has EAD and H1B? Is one able to renew the H1B with the same employer if something happens to the I-485 application?

Attorney Murthy : It is possible to work for the H1B employer with whom one has an H1B and rely on the EAD to work for that employer. It is possible that, if the I-485 application is denied, one may be required to depart the U.S. and apply for an H1B visa stamp abroad; especially if the earlier H1B status has expired in the interim.

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Chat User : Good evening, Ms. Murthy. I-485 application is pending at Texas Service Center for more than 20 months due to pending FBI checks. Does USCIS pre-adjudicate such cases, and when the FBI check is received, process the application? Any insights into this process is highly appreciated.

Attorney Murthy : No one is exactly sure of the internal workings of the FBI and the USCIS with respect to security issues. Based on the Feb 4, 2008 Michael Aytes memo, the USCIS could adjudicate the case, if 180 days have elapsed. However, some people do not believe that the USCIS will move on cases pending for many more months or years, so they are still proceeding with filing the writ of mandamus lawsuits to compel the DHS and/or USCIS to issue their I-485 approvals. Miraculously, cases that have been pending for months or years seem to get resolved and the I-485s have been approved in record time when the lawsuit is filed.

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Chat User : Is it legal to continue employment past the EAD expiration date after receiving just the renewal application receipt from USCIS and not the actual, renewed EAD? Please advise.

Attorney Murthy : Under current law and regulations it is NOT legal for one to continue working simply based on filing the EAD extension. That is considered unauthorized employment. The only time one is allowed to work based on filing the extension is, in certain instances of filing for extensions of work-authorized nonimmigrant status (such as H1B and L-1) and, even then, depending upon the situation, there can be limitations in terms of time, like 240 days for extensions, etc.

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Chat User : I am on L-1 currently. Can 2 different companies file 2 H-1s for me this year? Will there be any problem later because of multiple H-1 filings?

Attorney Murthy : The only risk with this is if both H1Bs are accepted. In such a case one could be using up two numbers under the limited H1B quota. But there is no prohibition under law for a person to file with different employers other than the possibility of a breach of contract when one promises multiple employers that s/he will work on a full-time basis for each employer.

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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 : Can one file for H-1 transfer when a case (H-1 2nd 3-year extension) is pending with USCIS for more than 8 months with the receipt notice from the first petition. Will it be valid, even if H-1 and I-94 have expired?

Attorney Murthy : This issue relates, in part, to the Polodny memo on a person using an earlier status to bridge status. The USCIS position is that the earlier H1B petition should be approved for a future H1B filing to be valid as a request to extend status. The H1B petition could potentially be approved, but maybe not the extension of status (I-94) in the US, depending upon the result in the earlier filed extension request. It looks like you need to analyze the facts carefully and go through the issues with a knowledgeable lawyer to avoid problems, such as working without authorization, or getting the new H1B petition extension of status denied for failure to maintain status.

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

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Chat User : I have applied and am waiting for Advance Parole extension / renewal for me and my family. Now can my family travel to India for extended stay while I remain in USA to receive the approval?

Attorney Murthy : It is not safe for one to depart the U.S. before the AP is approved, since the CBP Inspector has the legal right to deny entry to such a person if s/he departed the U.S. prior to the AP approved. If the family is maintaining H-1/H-4 or L-1/L-2 status, and is willing to file for and obtain any needed visa stamps from abroad, then they could take that risk and depart. Otherwise, it is not advisable since they could be stuck abroad for many years, especially if the employer refuses to file an H1B/L-1 extension for the principal candidate, or there are other problems with nonimmigrant status.

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Chat User : My L-1 (blanket) & my spouse's L-2 visas are set to expire on 06-20-2008. We plan to visit Canada sometime in May 2008. Will there be a problem for us at the POE of USA or Canada?

Attorney Murthy : Well, you raise a lot of questions. Have you obtained the visas to enter Canada? If so, and if there are no further L-1 and L-2 extensions possible for the principal and family members the CBP could allow them to reenter the U.S. for the time set forth under the L-1 and L-2 approval notices, if the trip to Canada is for fewer than 30 days and the family members do not apply for any visa stamps at the consulate. There can be issues at the POE when the individual has only a little time left in her/his status. Please discuss possible complications with your company lawyer or, if they are unable or unwilling to help you, please consult with our law firm by sending an eMail to law@murthy.com to request info on scheduling a standard consultation with an attorney.

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Chat User : Can I change my working field from software to marketing after my I-140 and I-485 have been filed? Will this require new H-1 and/or labor certification, or can I use the existing one? I am currently on 7th-year H1B.

Attorney Murthy : The general rule is, if the job duties are considerably different, then a new H1B petition would likely be required. This is not a cap problem. It is simply necessary to have the H1B petition (and underlying Labor Condition Application) accurately reflect the job duties. Similarly, a new LC and I-140 could be required in some instances where there is a substantial change in the job duties that does not qualify under AC21 as a "same or similar" job classification." This sounds like a major change in job duties and not simply a minor change that can be overlooked. You need to discuss the details of the duties with your immigration attorneys to seek appropriate counsel and not jeopardize your legal 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 : If I get my I-140 NIW case approved, can I complete a medical residency and still get my green card case approved?

Attorney Murthy : If the USCIS approved the I-140 for a person based on his/her promising to do NIW-type of research work in the future, that is deemed to be in the national interest of the U.S., it could be considered tantamount to fraud and misrepresentation for the individual to then no longer wish to work in the field for which the NIW was granted. By choosing to work as a medical resident, one could void the I-140 and, at the I-485 stage if there is a RFE, the USCIS could very well deny the I-485. However, if the applicant continues to engage in research during the medical residency, and there is a connection between completing the residency and the field / intent set out in the NIW petition, then the case may still remain valid. We have seen this work in instances where individuals are PhDs / MDs or otherwise involved in academic medicine. It is necessary to discuss this in detail with an attorney as we are starting to see more and more revocations of the GC in recent times based on fraud or misrepresentation when the individual does not work for the GC-sponsoring employer or the line of work after obtaining the GC. That could be a violation of the intent and the letter of the law.

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Chat User : Hi, Ms. Murthy. Can I get an 8th-year extension based on my I-140 pending, but my labor certification does not satisfy 365 day period.

Attorney Murthy : There is no such rule - either the person's LC was filed over a year ago or the I-140 must be approved. If one does not satisfy either criterion, then s/he must consider whether time can be recaptured abroad and then try to bridge the gap or depart the U.S. for a few months in the interim. Consult your attorney or the Murthy Law Firm if you do not have an attorney.

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

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Chat User : My I-140 EB2 was denied recently and I reapplied in EB3 with the same labor. Will it be accepted? I also opened MTR, since labor is older than180 days.

Attorney Murthy : It is not possible for any lawyer in the world to answer this question without additional information. It depends on your credentials, the employer's financial ability, and various other factors. MTR is possible even if the LC was filed over 180 days ago. The re-filed I-140 is also proper after 180 days, if the first one was filed in time. We at the Murthy Law Firm have successfully filed many EB3 cases when the prior attorney had improperly filed an EB2 case that should not have been filed in the first place.

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Chat User : My H-4 is expiring since I will turn 21. Can I travel after my H-4 expires? I have my work permit and advance parole.

Attorney Murthy : Well, it depends on whether there are any other reasons for the 3-year or 10-year bar to apply against one before any lawyer can advise on travel abroad. Assuming all is okay, which one needs to be sure of before departing the U.S., presumably one could reenter on the AP based upon a validly-filed I-485. It is necessary to analyze the case under the Child Status Protection Act (CSPA) to make sure that the applicant continues to be protected under the CSPA. There is no guarantee that the child is, in fact, protected since CSPA is silent on what happens when there is a retrogression of the priority dates ,as has happened with most employment-based cases in EB2 and EB3 for nationals of India and China.

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Chat User : My husband's H1B extension is processing for last 15 months and is under security check. Meanwhile, due to I-485 filing, we have advance parole and EAD. Is it safe to travel to India?

Attorney Murthy : There is always a potential risk when one departs the U.S. It is similar to sitting in a vehicle and asking for a guarantee that there will never be an accident. It is possible for the CBP to deny entry based on security reasons for a person on AP, but it is less likely for that to occur. Normally, travel on an approved AP is a valid option. Understand the potential risks before departing.

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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 : I am from India and my wife is from Pakistan. Can I use her country of chargeabilty, since her visa date is current? I applied for the I-485 last July. Is it possible to switch after we applied? Thanks for your help.

Attorney Murthy : It is possible to request that the USCIS use cross chargeability in such cases, but it is not easily accomplished, since there is no simple way to bring this matter to the attention of the USCIS. The process could take several months or longer and the USCIS mailroom may not know what to do with such correspondence. It is doable, however, and we have filed such requests in the past. It could take a few months, though. The USCIS Headquarters recently suggested that filing a form with the USCIS and paying a filing fee may help to expedite this process. We have tried that at the Murthy Law Firm and it can be helpful, as well.

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Chat User : Hi, Ms. Murthy. I am on L1B and have an approved H1B. How can I get my H1B stamped?

Attorney Murthy : The only way to get the passport stamped is to go and apply for the H1B visa stamping at a U.S. consulate abroad and then get into H1B status by reentering the U.S. and obtaining a new I-94 card at the border / POE.

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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 can one return to the USA if his I-485 is approved while abroad?

Attorney Murthy : Per the March 2000 and the May 2000 Legacy INS Memos, one could presumably use the AP to reenter, if one has the AP approved before departing the U.S. If not, that could add more complications. The CBP inspectors could refuse entry, technically, but they are allowed to parole an individual into the U.S. If one has an H-1/H-4 or L-1/L-2, s/he could use those documents to get on the plane, and then explain the I-485 approval at the POE.

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Chat User : Dear Attorney Murthy, Can you please tell me if an H1B extension can be denied if the sponsoring company has a negative net income for last year?

Attorney Murthy : It is possible for the USCIS to deny the H1B petition based on the employer not being able to pay the required DOL wage as attested to by the employer on the LCA with the U.S. Department of Labor. Additionally, there must be sufficient professional work for the individual to perform, and this is often reflected by the revenue of the sponsoring company. But other factors can be considered. It is a totality of circumstances test to convince the USCIS.

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

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Attorney Murthy : We travel abroad later this week, so the next MurthyChat will be from India. We look forward to continue helping you, your family and friends with all of your immigration law needs at the Murthy Law Firm.

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Chat Master : The next MurthyChat session will be Monday, Feb 25, 2008, 9:00pm Eastern Time (U.S.). While the MurthyChat generally is held on the 1st and 3rd Monday of each month, Attorney Murthy will be traveling and there will be NO CHAT the first Monday in March. Meanwhile, access transcripts of past chat sessions or search for answers to specific questions.

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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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