Chat : March 17, 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 : 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 your immigration matters. Thank you for your interest in our MurthyChat.

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Chat User : Is an H1B holder considered out of status or will there be problems down the road if one gets paid only the prevailing wage but not the offered wage?

Attorney Murthy : By law, the employee is supposed to be paid the higher of the prevailing wage or the actual wage the employer pays to other similarly situated workers. This wage must be reflected in the Labor Condition Application (LCA), which underlies the H-1 case. If the employer does not pay this wage, then the employer is subject to various penalties and possible enforcement action. If the LCA shows the prevailing / actual wage, but the individual was offered a higher rate of pay in a letter or contract, then this would be an employment law issue. Generally, H-1 workers need to have proper pay stubs to show that they have maintained status. These should reflect payment of the LCA wage (or above). Discrepancies could be regarded as a failure to maintain status, depending upon the situation. In some situations, it may be possible to argue that it is an employer violation and not a status violation.

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Chat User : I have an H-1 and EAD and am working on H-1 for H-1 employer. If I travel to India on AP and come back, will I be able to work on H-1 when I come back?

Attorney Murthy : A person must work on the EAD if the person chooses to enter on the AP, unless he is returning to work for the H1 employer. Please review the Legacy INS memos of March 2000 and May 2000. Under the memos, working on the unexpired H1 is not regarded as unauthorized employment. Additionally, the person is allowed to file an H1B extension to work for the same employer on H1B status even if the person entered on AP. It is generally good to have an EAD in this situation, so that there is no question of ongoing authorization for employment.

Edited 03.26.08. The nature of the MurthyChat allows for brief, general answers to participants' questions. We have provided a more expanded answer to this particular question, for purposes of clarification.

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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 : Thanks for great service! My spouse has GC and 1 year yet to apply for citizenship. I am on H1B. Madam, is it advisable to apply for my family-based GC now or to wait for my spouse to get citizenship first?

Attorney Murthy : The wait time for the spouse of a GC holder to obtain GC status is about 6 to 8 years, but it is within a year if the I-130 is filed by a U.S. citizen for his/her spouse. So in most cases it may make sense to file the I-130 for one's spouse after becoming a U.S. citizen, unless there is a strong reason to file the I-130 for other purposes, like obtaining a priority date or if there is a concern that the principal may not obtain U.S. citizenship, etc. If the I-130 is filed for one as the spouse of a GC holder, it does not have to be refiled when the GC holder obtains citizenship. It is upgraded. So, if citizenship is not likely to be granted for another 2-3 years, it may make sense to simply file the I-130.

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Chat User : I have an approved EAD and am not using it. Can I reenter the U.S. on AP rather than on stamped visa, and still maintain H1B status?

Attorney Murthy : A person using the AP can work on an unexpired H-1 after entry, under Legacy INS memos. S/he would be wise to also obtain an EAD. One is allowed to file the H1B extension when it is time to renew if s/he is still working for the H1B employer.

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Chat User : After 6 years on H1B, if I leave the country for one year, can I come back on a fresh H1B term? What are the conditions?

Attorney Murthy : One is allowed to reenter on the full 6 years again. The downside of that, however, is that if that person had not started the LC/GC at least a year earlier, s/he will need to be counted against the H1B quota, which is risky since, based upon last year, fewer than 1 of 2 H1Bs will manage to obtain an H1B petition approval if one hopes to get in through the random lottery selection.

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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 : Dear Muthiji, me & my spouse are on two 485 applications, one applied thru my employer & other applied thru her employer. We recently go EAD based on her 485. So if I want to this EAD to work for a new employer, will I have to forgo the 485 applied thru my current employer?

Attorney Murthy : No, one can work on either EAD it is irrelevant and the other I-485 could continue. The problem that I see in this case is that the USCIS has advised against filing 2 separate I-485s to avoid delays and confusing the USCIS examiner. We have written articles on this issue so the potential problem here is the error of you or your attorney in allowing multiple I-485 filings for the same person. The safer approach is to file only one I-485 and then try to do CP on the other person's case to be able to take advantage of both I-140 approvals in applicable cases.

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Chat User : If H1B is valid for less than 3 months, can it be transferred to another employer or should it be extended first, and then transferred?

Attorney Murthy : If one has three months left on the current H1B petition with Employer A, but has another 3 years remaining on the balance of 6 years available on the H1B, s/he can file for the 3-year H1B petition with Employer B directly, without having to file the extension with the first employer if the intention is to only work for Employer B. H-1s are not transferred, so it is not necessary to obtain the H-1 time with employer A and then move that time over to B. If one is eligible for more H-1 time, and is in H-1 status, s/he can move directly to requesting the additional time through B.

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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 : I am currently on L1B and applying for H-1 in April 2008. If my H-1 is approved, is it legal to continue working on L-1 starting October 2008?

Attorney Murthy : After the USCIS approves one's change of status, effective from Oct 1, 2008, the status is changed to H1B. The only way that one could continue on L-1 would be to travel abroad and reenter in L-1 status. Otherwise, one's status changes to H1B and, by not joining the H1B employer, one potentially may be considered out of status, working without authorization, and, at the very least, confusion may be created.

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Chat User : Will the H1B processing be affected by going out of U.S. after filing for the visa? Even if the H1B is approved, will there be any problem in reentering U.S.?

Attorney Murthy : If a person has filed a change of status, then travel abroad is deemed to abandon that change of status application. On the other hand, if one was simply filing an H1B petition extension of status with a new employer or the same employer, then travel abroad does not result in the extension being deemed abandoned.

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Chat User : Hello. I would like to know how long before the 6-year H-1 expires should the LABOR be cleared so as to extend beyond 6 years. Is it one year before or any time before the H-1 6-year expiration? Thanks in advance.

Attorney Murthy : The LC in such a situation must have been filed at least one year before the end of the 6th year on H1B. This means that, before the completion of one's 5th year in H1B status, the LC must be filed and pending at the DOL. It has nothing to do with when the LC clears, since that is beyond a person's control.

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Chat Master : This is a moderated chat. If you want to know how the Chat works or have other Chat questions, you can visit http://www.murthy.com/aboutchat.html for MurthyChat FAQs.

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Chat User : If one is currently on F-1 and applies for H-1 through a consultancy and gets accepted, can s/he wait to join the job until after graduation?

Attorney Murthy : If a person in F-1 status files the H1B on April 1, 2008, to work for an H1B cap-subject employer, like consulting company jobs, then s/he is not allowed to start working for the H1B employer until Oct 1, 2008, when the new fiscal quota of H1Bs will open up and that will also be the start date on H1B petition approval.

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

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Chat User : When apply for H-1 transfer is it ok to start working if received FedEx / UPS delivery confirmation or EAC # needs to be received from INS in order to start?

Attorney Murthy : The law states that one who was previously in H1B status or had an H1B visa stamp is allowed to work upon the filing of the H1B petition. S/he is able to work upon filing the petition, but the safer approach is to ensure that it was received at the USCIS when the receipt notice is issued. It depends on the person's risk tolerance in case the USCIS claims that they do not have the H1B petition package, sometimes the employer or attorney delays in filing the case and sometimes there is something that causes the case to be rejected entirely by the USCIS. Then the work done before the petition is filed is considered unauthorized employment. The work after the filing also then would be unauthorized in most situations because the H-1 portability rules that allow people to work based upon pending cases does not apply to people who have worked without authorization.

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Chat User : What are the chances of getting I-140 approved when requested with Motion to Reopen after I-140 was denied because of mistakenly selecting EB2 category instead of EB3 category in I-140 application?

Attorney Murthy : Well it depends on how the arguments were presented in such a case and what strategy is used. If the attorney simply argues that it is a typographical error, and that an opportunity to amend should have been provided, the chance that the USCIS will consider that a typographical error and approve it is 50-50. We have developed a strategy that supplements the standard approach, and have seen higher rates of approvals / acceptance of the I-140 in EB3 than is typical in this situation.

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Chat User : I recently entered on AP and my I-94 was issued for just one year. Will I be out of status when the I-94 expires? Please advise.

Attorney Murthy : The expiration date of the I-94 card on the AP is irrelevant since one's status is determined based on the pending I-485 or the underlying H1B petition approval, if the person intends to extend the H1B petition. It is confusing and we have discussed this issue with the USCIS in various meetings, but the CBP issues the one-year AP, since their manual requires them to do so.

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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 : A person has been in the U.S. since 2001 on L1A. Will s/he become eligible for filing H1B in April 2008?

Attorney Murthy : No. The time on L-1 and H1B are counted together for the max time allowed. Such a person cannot obtain an H1B extension unless s/he departs the U.S. for one year to become eligible to file under the new H1B cap / quota under the current regulations.

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Chat User : Does the 6 month rule for name check apply to I-140 also?

Attorney Murthy : The general rule of law is that the I-140 petition is not subject to the same timeframes as the I-485, based on the Aytes memo. The surprising thing is that, unless one sues or demands, even today, there is no guarantee that the case will be approved within the time that it is supposed to, especially in cases dealing with security checks or security delays.

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

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Chat User : I got one I-94 while entering USA on H-4 and after that got another one in my H1B approval (I-797). Now do I need to submit both I-94s or only one (which one?) when leaving USA for a trip to India? Thanks a lot for your help.

Attorney Murthy : Generally, one can submit the I-94 that has not yet expired to avoid a potential problem when reentering the U.S. If both of them have the same I-94 card no., then there is less risk since the USCIS/CBP computers would have linked the two cases under the person's name. Usually, it is appropriate to submit the last I-94 that was issued, but there may be reasons to take a different approach in some cases.

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Chat User : I am doing my MS. Can I apply for H-1 using my bachelor's degree this April 08 and OPT at the same time? What are the problems if both are in progress, since the outcome is not known till June or July?

Attorney Murthy : If one applies for the OPT now, the EAD should be issued within about 3 months for one year. Then if s/he files the H1B petition, there is only a 1 in 2 chances, at best, that it will be accepted and the potential benefit in this type of case is the ability to work for 3 months during July - Sep 2009. After completion of the MS degree, the chance of becoming eligible to file and be selected seems much higher, based on recent filings. The law does not prevent multiple filings but it is expensive and may not be necessary in some cases.

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Chat User : Hi, Sheelaji. I've recently resigned and applied for a change of status from H1B to H-4. If I get a new job, should my new employer file a new H1B or can he transfer my previous H-1?

Attorney Murthy : One is not required to be counted against the H1B quota if s/he was previously in H1B status and counted against the H1B quota within the last six fiscal years. One would need to file the change of status from H-4 to H1B, but could presumably work while the petition is pending, based on having previously maintained H1B status or having had an H1B visa stamp in the PP. Some employers may take a conservative approach and require the person's H1B petition approval before allowing him/her to work for the employer.

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Chat User : EB2 India category is current in April 2008 for December 2003 priority. Would there be any issue if we have to travel to India urgently during April 2008?

Attorney Murthy : Well, it depends on what your question is, since if your priority date is current and you have not yet filed the I-485, then it would have to be filed in April 2008 while you are in the U.S., just in case the PDs retrogress during May 2008. One would know about this by mid April 2008, so that one can determine if s/he must rush back to the U.S. or can stay longer abroad. If you have filed and are worried about returning in case the I-485 is approved, then an advance parole would be advisable. Consult your attorney, since you seem to imply something in your question that you are not clearly articulating and hope to accomplish, based on the specific facts of your case.

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Chat User : Hello. I have heard about 3-year bar and 6-year bar and so on. Does this happen when you are not on the payroll of a company or does it happen if you stay after your I-94 departure record expires?

Attorney Murthy : There is a 3-year bar and a 10-year, under Section 212(a) (9) (B) of the Immigration and Nationality Act, if one stays for either 180 days or one year beyond the date mentioned on the I-94 card. If one was not on payroll for over 180 days, that could prevent him/her from obtaining the I-485 approval within the U.S., since there is a max 180-day grace period when one could be out of status and still obtain the I-485 approval within the U.S.

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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 MurthyChats and with all of your immigration law needs at the Murthy Law Firm.

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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.

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