Chat : April 07, 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 : Dear Ms. Murthy, thank you very much for your time. Is there a way to withdraw an H1B application before it is approved and I would really appreciate, if you could let us know the procedure for doing it?

Attorney Murthy : It is simple enough - the employer can contact the USCIS and request they withdraw the petition before a decision is issued. Unless there is a reason to do it in advance, the employer can also withdraw the application even after it is approved, but the impact can be different depending upon the circumstances.

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Chat User : Murthy-ji, I-485 processing time for EB2 was July 2nd last month and now, instead of moving forward, it has gone to June 6th. What can be the explanation for this? Please help to explain this confusion.

Attorney Murthy : The processing times listed for the USCIS service centers are based upon the oldest "ready to adjudicate" case. They do not mean that all earlier-filed cases have been processed, or that no cases filed after the stated date could be processed. It is simply a rough guideline. Thus, if the dates went backward, it is simply a reflection of some older cases now being ready for review when they may not have been ready the last time the processing dates were issued. This process is somewhat difficult to fathom.

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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 : My wife and I have our advance paroles and work on our EADs. Our H1B and H-4 along with our I-94s expired this Jan. Besides our passports, advance paroles, and EADs, do we need any other document to reenter the U.S.?

Attorney Murthy : Those are the basic documents but, if the CBP inspector believes that something is not making sense or if s/he has questions, other documents or information may be requested, including evidence that the principal person is working for the same or similar employer in the same or similar job duties, etc. Most often, this additional information is not required unless there are concerns of fraud, etc. Of course, if one has a criminal record, or even a DUI charge, then documents pertaining to the case may be required at the border, if questioned.

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Chat User : When will the H-1 cap lottery be complete? When will we know if our cases have been accepted?

Attorney Murthy : The USCIS has not released the timeframes. They accepted packages for the first 5 business days in April 2008. Then they may take another 2 or 3 weeks at least to complete the random lottery selection process. Unlike last year, this fiscal year the USCIS plans to issue receipt notices only for those candidates whose H1B petitions have been accepted so that they will not have to refund fees or mislead those who feel that their case was accepted when they obtained a receipt notice. So within 6 weeks, we expect those who are selected to obtain the USCIS receipt notices. Those who are not selected will receive their packages back from the USCIS.

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Chat User : I have H1B (valid for another 3 years) with employer A? Can I work with employer B part time on EAD, but maintain my H1B with employer A?

Attorney Murthy : The law itself does not specifically address this issue directly, but does seem to allow a person to maintain H1B status if s/he continues to work for the H1B-sponsoring employer. However, this is not at all clear, and the use of the EAD is not consistent with holding H1B status. It would seem that the safer route is to return on the AP if one has used the EAD, per the USCIS liaison meeting discussions after the March and May 2000 Legacy INS memos.

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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 : If one has finished his MS and does not have a job in hand, can one go back to the home country (India) to USA while on OPT and come back again and search for the job?

Attorney Murthy : A person is allowed to travel and reenter on the F-1 OPT, but after the OPT is approved, the regulations state that the student must be returning to resume employment. This has been interpreted to include returning to commence an employment offer obtained before departure, but does not include seeking employment. The CBP inspector might be willing to exercise discretion on this point, in limited circumstances.

The new regulation published on April 8, 2008 requires the person to be working with an employer and has a max of 90 days with no employment in the 12 months of OPT or 120 days total in 29 months of F-1 OPT for STEM degree holders.

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Chat User : Hi, I am almost at the end of my 6 years. Is it possible for me to change my status to H-4 based on spouse's H-1? Do they count earlier 6 years, since it's the same class of H visa?

Attorney Murthy : The general rule of law is that the USCIS no longer includes the time in H1B and H-4 together. We have written an article on the decoupling of time on H-4 from the 6 years in H1B status. So in this case, one could obtain more time beyond the 6 years even if one has not started the LC/GC process after 6 years in H1B, if the person switches to H-4 dependent status.

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Chat User : Hello, Murthy Ji. I'm on H1B and recently got laid off. Now I want to convert my H-1 to H-4. How can I do that? How much time does it normally take?

Attorney Murthy : If one files for the Change of Status (COS) with the USCIS promptly, either while one is still in status or shortly thereafter, the USCIS may excuse the out of status for a short period. If the individual waits for a while, then the USCIS will likely deny the COS and require the person to travel abroad and apply for the visa stamp at the consulate based on the person's failure to maintain legal status in the U.S. This could also impact one's ability to file and obtain the I-485 approval later towards the GC within the U.S.

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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 : Dear Ms. Murthy, can one apply for a driver’s license with I-485 receipt notice or is the EAD needed?

Attorney Murthy : Generally, most DMVs will only issue the DL when one has some clear legal status like H-4 or H1B status. The I-485 should be sufficient, in most cases, and the problem is often that the DMV staff is not as well trained with immigration documents. By requesting to speak with the supervisor, one may be able to obtain the DL based on the I-485 receipt notice, since all that the law requires as evidence that one is legal in the U.S.

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Chat User : Hi. My wife and I are both in H1B status. I got laid off 7 days ago, so I may have to go to H-4. Then, when I get the opportunity, can I file for H-1 immediately, or will I have to go through the H-1 cap for next year?

Attorney Murthy : Please see our articles on this topic. If a person was previously counted against the H1B cap within the last 6 years, then s/he is exempt from being counted again, unless s/he becomes eligible for a full, additional six years. Thus, even after the 6 years, one is exempted if s/he had filed the LC/GC at least one year earlier, or has an I-140 approval and no available visa number.

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Chat User : Dear Murthyji, does AC21 deprive a person from getting an H1B extension beyond 6th year sponsored by the new employer?

Attorney Murthy : It was AC21 law that allowed one to obtain either the annual H1B extensions based on having started the LC/GC at least one year earlier or the 3-year H1B extensions based on the I-140 approval. The new employer is able to file and obtain the 1- or 3-year H1B extensions, per the various USCIS memos. Please review articles available on MurthyDotCom that explain this concept.

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

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Chat User : Murthy Ji, after filing I-485, does the priority date need to be current through the process and until the I-485 is approved?

Attorney Murthy : The PD does not need to be current during the process, but for the I-485 to be approved by the USCIS the PD must be current. During the processing it is not current for most people, but even then luckily, the law allows them to extend their H1Bs or EADs and APs, etc. They can even enjoy AC21 portability after the I-140 is approved and the I-485 has been pending for over 180 days.

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Chat User : Is there any way to expedite an H-4 extension application? If I upgrade my regular H-1 extension application to premium, will that automatically apply to my wife's H-4 extension application, too?

Attorney Murthy : If the H1B and H-4 were filed together, then it is possible that the USCIS may process both on an expedited basis, but there is no guarantee especially if the files were separated. The safest way is for the H1B and H-4 filings to be filed together, and the H-1 to utilize the Premium Processing Program to try and ensure that both the H-1 and H-4 obtain a review and possibly the decision within 15 business days.

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Chat User : I am a student in F-1 status, who applied for H-1 this year. I am planning to go INDIA in May. Will I have any problem with the H-1 visa or any problem at port of entry?

Attorney Murthy : Well, it depends on what your status is after the termination of the F-1 status and the start of the H1B on Oct 1, 2008, assuming you are selected under the random lottery system. By departing the U.S. and requesting consular notification on the H1B, one does not enjoy the cap gap protection that the USCIS recently provided by interim regulation.

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Chat User : Hi, Ms Murthy. I am working in H1B and I am on AOS with EAD. Can I use AC21 to change employer but work as an independent contractor?

Attorney Murthy : It is technically possible, if one works for one's own business or company, but there are additional possible questions that the USCIS may ask to ensure the financial viability of the new business. One generally must be an employee even of one's own company, rather than just an IC without an actual qualifying full-time job offer.

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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 : My wife has been staying on her pending I-485 petition (receipt date July 31, 2007) after her H-4 expired in October 2007. Would this ‘Pending I-485 Status’ ever be considered as ‘Illegal Stay’?

Attorney Murthy : The law does not consider the I-485 pending status to be "illegal," but it is clearly not "valid nonimmigrant status" either. So, if one's I-485 is denied for any reason, s/he starts to accrue unlawful presence from the date of the USCIS denial, even if it takes a few days in the mail to obtain it. A person is in a "period of authorized stay" based upon the I-485 pending.

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Chat User : Can one work part time on EAD and not lose H-1 status while working for primary employer on H-1?

Attorney Murthy : I replied on the same issue earlier in today's MurthyChat. Basically, one could maintain H1B status but if a person uses the EAD, s/he is not clearly maintaining H-1 status. One is safer reentering the U.S. on the AP if s/he intends to use the EAD after entry.

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Chat User : Hello. I was on H1B for about 2 years, changed companies, and started using EAD from today. If I have to go back to H1B next year will I fall under the yearly H1B quota?

Attorney Murthy : As explained previously, no, but it may require one to depart the U.S., apply for a new H1B visa stamp and then reenter on H1B status from the U.S. border.

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

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Chat User : Under AC21 law, will I be able to take up an internal job promotion in my company that has job duties NOT “same or similar” to my current job duties?

Attorney Murthy : If the new job is NOT the same or similar, and you have made that legal determination, then obviously there is no protection any longer under AC21 law. If your interpretation is not accurate under the USCIS guidelines, then most likely there is a chance it may work depending on how one can view the new job duties and show that the same skill sets were required for both jobs. The requirement is that the new job be in a same or similar job category, this is arguably a fairly broad standard. Most people do not move into completely different jobs, unless they obtain additional education etc. You may want to discuss this with an attorney before you assume that the new job will not work under AC21.

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Chat User : My wife filed as the dependent for I-485. She is already using her EAD as a W-2 employee? Is she eligible to work for another employer in 1099?

Attorney Murthy : One on an EAD can work for multiple employers in various jobs as long as s/he can humanly manage this. The only restriction on the EAD, especially for the dependent family members, is its expiration date. One must file the EAD extension each year at least 120 days before to avoid having to stop work.

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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 : My F-1/OPT time started in Feb 2008, but I am still looking for job. Will I be also eligible for the F-1/OPT extension if this rule comes through?

Attorney Murthy : As you know, the rule did come through and the public notice was issued today, April 7, 2008. Check our website for information. You might be eligible if you have a STEM degree (science, technology, engineering or math), and if you otherwise meet the timing and employment requirements.

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Chat User : Dear Ms. Murthy, thanks for your time. I wanted to know the procedure to get the duplicate copies of I-94. We lost our passports along with the latest copy of I-94 during a trip, but have already managed to get new passports.

Attorney Murthy : The USCIS has a form to apply for duplicate I-94 cards. If one has a copy of the I-94 card, then s/he could send that along with the Form I-102 to request duplicate copies. Also, if one has obtained any extension approvals, then the latest I-94 card will replace the I-94 card stapled in the PP.

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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 : Attorney ji, if I have applied for my H1B visa with company X this April, and I get another job today with company Y, and want to transfer my H-1 visa to company Y as soon as I can, I have to wait for paychecks after Oct 1?

Attorney Murthy : No, it is not necessary to wait until Oct 1st or for pay checks to file though company Y. It is necessary to obtain the approval through X first. However, there is less than one in 2 or 3 chances that a person will be selected in this year's lottery for H1Bs based on last year's demand and the expected number of filings this year.

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Chat User : I have recently received my employment-based GC through my employer (EB2-US MS Degree). I wish to quit my job and pursue higher studies (Ph.D.). How soon can I do so without getting into trouble?

Attorney Murthy : The safe rule is about a year or longer if one has not worked for the GC-sponsoring employer. If s/he has worked for many years with the GC-sponsoring employer, then possibly as little as 6 months to 1 year after getting the GC. The only reason the USCIS / U.S. Gov't is issuing the GC an EB candidate is based on a U.S. employer requiring the person's services on a full-time and "permanent" basis, and the mutual promise to work for the employer after the GC is approved. Failure to work for a substantial period of time could be construed as fraud and misrepresentation.

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

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Attorney Murthy : We hope we have really helped you today in our MurthyChat. We at the Murthy Law Firm look forward to continuing to provide help to you, your family, and your 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.

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