Chat : March 23, 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.

We at MurthyDotCom have conducted chat sessions and provided individuals with answers since the year 2000. For your convenience, rather than repeat many of the basic questions and answers in the weekly transcripts, we now select the most relevant and timely Q/As from each session. Search the chat database for information not included here.

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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 : Is it true that premium processing attracts a higher degree of scrutiny and people receive more RFEs in PP compared to general processing?

Attorney Murthy : We at the Murthy Law Firm use premium processing regularly. We do not find that there are higher rates of RFEs. Generally, supervisors tend to review PP cases and so they may pick up on certain details and issue RFE based on these. However, as their are more likely to have greater understanding and knowledge than the average USCIS examiner, they may be in a better position to exercise discretion or approve cases without asking more questions. It is not a guarantee, but PP allows for direct telephone access. We often find that if the law is on our side, having a supervisor to speak with can help to quickly resolve case problems.

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Chat User : There are no updates from USCIS on how they will pick H1B application for masters quota, yet. Is it true that last year rule of lottery will apply this year, too?

Attorney Murthy : Yes, if  what is meant is the acceptance of cases for the first five days of filing, and a lottery if the cap is reached within that timeframe. This was a change in the regulations made last year. On Friday, March 20, 2009, the USCIS did issue FAQs on this coming year's H1B random lottery system. These were a bit confusing, as they did not reference the five-day rule. However, it is our strong recommendation that cases be filed for delivery on April 1, 2009, to allow for any potential delivery problems or unexpected delays.

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Chat User : Do I need to file H-4 again (was on H-4 before H1B), as I never started a job on H1B but have Social Security number?

Attorney Murthy : If a person had a prior H1B approval with a change of status (COS), but never worked for the H1B employer, generally s/he is deemed to be out of status. Most likely the USCIS will not approve the COS for an individual in this situation within the U.S. It may require the person to depart the U.S. and reenter in valid nonimmigrant status. If one is out of status beyond 180 days, there is a risk that the individual's I-485 (last stage of the GC process) could be denied in the future. Failure to maintain status is also a basis for removal (deportation) from the United States.

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Chat User : Do I need to apply for H1B in order to be considered for OPT extension?

Attorney Murthy : For the cap gap extension to apply, one needs to have filed and been selected under the H1B lottery. On the other hand, for the STEM extension for 17 months, one is not required to have filed for the H1B petition. So it depends to which OPT extension one refers in this case.

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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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