Chat : March 12, 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 : Welcome to our MurthyChat!

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Chat User : While my H-4 extension is pending, I traveled to India and returned. Is my H-4 extension pending with the INS still valid? Do I need to take any action?

Attorney Murthy : The USCIS policy is that an extension of status continues to remain valid with foreign travel, unlike a change of status that is deemed abandoned under law. However, the last action rule may come into play, so that the last action of the DHS would control. If the H-4 extension is still pending after reentering, then the latest action of the USCIS will govern, so it may be safer than if the earlier H-4 validity date is the last action of the government.

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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, Ms. Murthy. I got my approval for H1B (from H-4) on October 6th. I have not started working yet. Can I change my status back to H-4 even without a paycheck? Thanks.

Attorney Murthy : The general rule, under immigration law, is that a person must be maintaining valid, legal status to change from one nonimmigrant status to another. In this case, since it appears that you have not maintained valid H1B status, the USCIS cannot approve the change of status to H-4 from within the U.S. One option may be to apply for the H-4 visa stamp from abroad or reenter on an earlier H-4 visa stamp if it has not yet expired in the passport as long as the principal H1B spouse is still maintaining valid H1B status.

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Chat User : When considering new petition H1B approvals, does it matter to the USCIS if a company is sponsoring 5 or 25 individuals? Is there any type of a limit? Thank you very much.

Attorney Murthy : Generally, the rule is that, if an employer has 25 or more employees, the H1B training fee is $1,500 instead of $750, and if the employer is heavily H1B dependent with more than 7 of the 25 employees or over a certain percentage being H1B employees, the employer had additional attestations to comply with under the 1998 law called ACWIA. The company must be able to offer the listed professional employment to the individuals for whom petitions are filed. The USCIS could consider the number of petitions filed and inquire regarding that issue.

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Chat User : Greetings! Is it valid to apply for two different I-140 petitions with two different employers and choosing one of them (after approval) to apply for I-485?

Attorney Murthy : Yes, it is possible to consider two job offers for a permanent position, since the GC is based on a future job offer. However, if a person is not working for the GC / I-140 sponsoring employer, then the employer must submit evidence of additional profits on their tax returns to establish the payment of the salary and benefits for the sponsored individual from the date of filing the LC for that person.

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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 : I was in L-1 status, and I just changed my status to H-4 in premium. I am now in H-4 status. I’m planning to apply for H-1 this April and travel to India and get stamped for H-4 and return to the U.S. before June. Can I continue to work in the U.S. after October in H-1?

Attorney Murthy :  There is no option to file H-4 in premium. Only H1B can be filed in premium, and the H-4 spouse enjoys the incidental benefit of the USCIS processing both cases under the H1B premium processing program for all dependents filed with that filing. It is not possible to start working on an H1B approval since the H1B cannot be approved with the change of status if a person departs the U.S. before it is approved. If one departs after it is approved with the I-94 card attached to the bottom of the H1B approval notice, this means that the change of status was approved. Then the person is allowed to start working for the H1B employer after October 1, 2007, under the approval. One will not obtain the I-94 card if s/he travels abroad while the H1B petition is pending with the USCIS.

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Chat User : My OPT expires the end of May. An I-20 will be issued before OPT expires. School starts in the fall. Am I in legal status before school starts while being only on I-20?

Attorney Murthy : The F-1 OPT is valid for 60 days after the expiration of the time on the I-20 or the EAD. Students on OPT are eligible to transfer through the end of their OPT grace periods. If they meet this deadline, then they must start school within five months of completion of their respective OPTs.  

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Chat User : My husband and I both are applying for H1B. After getting the H-1, if I change my status to H-4, what impact will it have on my H-1 stamped and my 6-year eligibility to work on H-1?

Attorney Murthy : If a person obtains an H1B approval, then obtains an H1B visa stamp in the passport but does not enter the U.S. to work for the H1B employer (choosing to enter in the H-4 status), then the person is not considered to have used any H1B time. Instead, that person could presumably start working with any H1B employer by filing a change of status to work for 6 years, since s/he would have been counted against the H1B quota upon approval of the H1B and the visa issuance by the U.S. Department of State.

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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 : Murthyji, have you heard of candidates being called for a standard interview to the local immigration office for a 3-year H1B extension after I-140 approval?

Attorney Murthy : That is unusual. It could be because there is a security concern or that the local office is not clear about dual intent issues for H1Bs, but something does not seem to make sense to call a person in simply based on one having filed a 3-year H1B extension after the I-140 petition approval. There may be a fraud concern if one never worked for the GC-sponsoring employer, and the individual's intention is something that the government is allowed to investigate, presumably.

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Chat User : I am applying for H-4 to H-1 status. If I travel outside the U.S. when my petition is pending, does it affect my H-1 petition if I come back on H-4? If yes, what is the procedure to validate my H-1?

Attorney Murthy : As explained above, a change of status application is deemed abandoned if one travels before it is approved and while it is pending. The person must either wait for its approval and then travel and reenter before the October 1st start date, or s/he will need to have the employer re-file the H1B case to request a change of status from H-4 to H-1, valid from October 1st.

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Chat User : I have already worked for a year on EAD (L-2 visa), and now I am going to apply for my H1B. How many years, at a stretch, will I be able to work on H1B? 5 years or 6 years?

Attorney Murthy : The total time of 6 years on H1B counts time on L status, under the regulations. This is an interesting issue since the decoupling memo separated time in H-4 and L-2 status from the total time allowed under that status. So presumably, one could argue that the full 6 years is still available, but one must be prepared for 5 years in case the USCIS does not issue the H1B for the balance of the full 6 years, but it should be arguable for the full 6 years.

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

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Chat User : Hello, Madam. Myself and my wife are in India processing our EB3 CP (PD is February 2002). My wife is now carrying. What additional paperwork would I need to do should the baby be delivered before the PD is current? Would appreciate your advice!

Attorney Murthy : Congratulations on the expected birth of your baby! As long as you can submit the child's birth certificate showing you both as parents and discussing with the consulate, depending on where you are at the time of the child's birth, what other documents are required, you should be all set. The rule for people who are already permanent residents is that a child born abroad that enters under the age of 2 years, at the parents' first trip back to the U.S., is a permanent resident, but this appears to be a variation of that rule.

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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 a person's (and spouse’s) H1B / H-4 has expired and they are revalidating, should they list each other in the DS156 as husband / wife in the U.S. with a status? Thanks.

Attorney Murthy :  The question is not clear, but I believe that what is meant is that the visa stamps in the passport have expired, not the status (shown on the I-94). If that is not the case, then please consult with an attorney in cases where a person was out of status, since it could have severe consequences on the family's ability to live and work legally in the U.S. If the couple is abroad and applying for visas together, the question on the DS156 about relatives in the U.S. could be literally answered "no" for the spouse since they are not in the U.S. It also could be interpreted more broadly to mean normally residing in the U.S. Either answer should generally be acceptable, as long as it specifically answers the issue raised and can be explained if questioned by the consular officer.

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Chat User : What are the chances of H1B petition approval filed by an employer for an I.T. job (say Systems Analyst) for a person who has done M.B.A systems in India and had about 1.5 years of non-IT experience?

Attorney Murthy : The general rule is that the H1B can be approved for a person who has the equivalent of a 4-year, U.S. degree in the field of study. In this example, it appears that the subject area is the same or closely related, so one could argue that it is a specialty occupation and eligible for the H1B. The work experience is not relevant and does not need to be mentioned at all for the H1B, though it may be useful when filing the GC, so could be mentioned as having occurred but has no bearing in the issuance of the H1B petition or the H1B visa stamp approval.

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Chat User : Thanks for keeping us posted with the NewsFlash and MurthyBulletin on MurthyDotCom. What is the timeline of the proposed rule of "substitution labor elimination and 45 day validity of LC" moving through OMB and then becoming effective? Will it happen in the next 30 days, or will the DOL make it effective from a certain date?

Attorney Murthy : It is a pleasure to provide information to help you and others in our community. Thank you for using our services. The proposed rule is already with the OMB, and they can finalize it within 90 days, and then send it back to the DOL for publication in the Federal Register. The exact text of the rule is still a secret and also the effective date is not clear, but it may be from the date of its publication or from a certain date in the near future after it is published, usually not retroactive.

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

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Chat User : After filing for a COS from H-4 to H1B through normal processing in April 2007, can a person travel outside the U.S. before receiving the approval? If not, then is there a way out?

Attorney Murthy :  As explained to several other people in today's MurthyChat, it is possible if one files for the H1B under premium processing, and then travels abroad after it is approved but reenters before the October 1st start date. It will be useful to discuss this with your H1B attorney or consult with our law firm if you do not have an immigration law attorney to guide you through this process since you don't want to jeopardize your options in such a case.

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Chat User : If a person is in his 6th year of H1B and decides to go to grad school on an F-1 visa, is he eligible for another 6 years of H1B upon graduation? Your insights will be very much appreciated. Thank you!

Attorney Murthy : The general rule, under law, is that a person can only obtain another full 6 year H1B term if the person departs the U.S. for at least one year. Merely switching to an F-1 student status and then attempting to get back on H1B for another 6-year term is not an option if one has not filed the GC at least one year earlier or after the I-140 petition is approved that would allow the person H1B extensions in 3-year increments.

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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, Attorney Murthy! I am on F-1 OPT and have applied for a Ph.D. program in the same university. Meanwhile, I am still looking for jobs. Will there be any conflict / rejection possible if I apply for H1B in case I do get a job?

Attorney Murthy : Generally, there is no conflict between the F-1 and H1B since both are considered nonimmigrant statutes, but the H1B enjoys the benefit of being dual intent, giving the H1B person options to file for the GC without jeopardizing H1B status.

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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 : I have the H-1 stamped, but I could not work on it and changed my status. My current status is H-4. Will the amount of time I spend on H-4 be deducted from my 6-year work eligibility on H-1?

Attorney Murthy : Under the recent decoupling memo of the USCIS, the time spent on H-4 is no longer counted against the maximum 6-year time allowed for H1Bs. There is a detailed analysis in our MurthyBulletin and on MurthyDotCom on this subject and the USCIS memo. Please feel free to review them for free from our website.

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Chat User : Dear Murthy, I changed my job last year and have not invoked AC21. My previous employer is very cooperative. Since I didn't invoke AC21, if I travel to India on AP, is there any problem at the POE?

Attorney Murthy : The reason that notifying the U.S. of a change of employer is helpful is that it protects the person in case the I-485 gets approved, so that there is never a fraud allegation of having failed to work for the GC-sponsoring employer after obtaining the GC. It will provide protection to the person. It should not cause a problem, in most cases, but it could raise an issue if the POE inspector asks and the person admits not working for the GC employer and has no intention to work for that employer and has not filed or notified the USCIS, as suggested under the various USCIS and even earlier Legacy INS memos on AC21 portability.

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

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Attorney Murthy : Next Monday, we will not have the MurthyChat as I will be traveling to Turkey and Dubai as part of a cultural and interfaith dialogue trip. We hope to have all of you in our MurthyChat with us in 2 weeks at the same time and place! Thank you for your interest in using the services of the Murthy Law Firm and for using the MurthyChat!

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Chat Master : Thank you all for logging in! 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 © 2007, MURTHY LAW FIRM. All Rights Reserved