Chat : April 09, 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 : 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 : I am currently on H1B and would like to change to F-1 status. My husband (GC holder) has filed an I-130 petition for me. Will this prevent me from changing my status to F-1 while in the U.S.?

Attorney Murthy : Generally, once a person has had an I-130 immigrant petition filed on her/his behalf, it is much more difficult for the USCIS to approve the change of status from a dual intent status, like H1B, to a pure nonimmigrant status, like the F-1. It is likely that the USCIS will deny the COS.

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Chat User : Could you please update us on the 20,000 category H1B for advanced-degree holders? Thank you.

Attorney Murthy : As of Thursday, April 5, 2007, the USCIS issued a preliminary report that, of the cases they had sorted, about 4,800 were advanced-degree cases filed on the first 2 business days of April (the 2nd and 3rd) 2007. That is quite a high number, so it is likely that the U.S. advanced-degree quota will be exhausted in the near future. We expect updates shortly.

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Chat User : Can one travel abroad and enter the U.S. without valid visa stamping in the passport, but with advance parole and a valid H1B petition while the I-485 is pending and not applied for the EAD?

Attorney Murthy : The general rule, per the USCIS / Legacy INS Memo of March and May 2000, is that, after one enters on the AP, s/he is no longer in H-1 status. Therefore, the individual normally works on the EAD. However, even when one enters on the AP, s/he is still allowed to file an H1B extension after that. Additionally, under the Memos, since they are treated as having H-1 privileges in some matters, these individuals can work for the H1B employer for the duration of the H1B. However, it is safer to file the EAD rather than to simply rely on the H1B.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : Will the filling of THE 65,000 H1B cap have any effect on the 20,000 visas for the advanced-degree quota? Can I file for H-1 (advanced-degree quota) with my transcript and letter from the university, stating that I completed all the requirements except receiving the degree certificate?

Attorney Murthy : I believe that we have addressed this specific issue in one of our MurthyBulletin articles. It is worthwhile attempting to file with the letter from the university confirming completion of all the degree requirements (especially when there is a real concern of the advanced degree cap being met any day). We have generally found that the USCIS will accept the proof of completion of all requirements, even when there is not yet an actual diploma.

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Chat User : Is there a specific quota for different countries, specifically India, when applying for a green card under the national interest waiver category?

Attorney Murthy : There is no specific quota for NIWs, in particular, but since NIWs fall within the EB2 (employment-based, second preference) quota, then of course each country in the world has an annual limit under the per-country quotas that cannot exceed the seven percent of the total usage. So, yes, in that sense; India and every country in the world is subject to the max quota in each EB, and even in the FB categories, which causes the longer waiting lines for nationals of certain countries in certain categories.

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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 : On pending approval of I-485 and with an approved EAD, can you work part time for the company that sponsored your green card and work part time with another company with a similar job description?

Attorney Murthy : With an EAD, one is allowed to work for any number of employers legally. If the question is whether the USCIS will approve the I-485 based on two part-time jobs, that is more difficult, since the GC-sponsoring employer must demonstrate both the good-faith intent to hire the foreign national on a full-time basis, and the foreign national must intend to work for the GC-sponsoring employer on a full-time and permanent basis upon obtaining the GC.

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Chat User : After I get laid off from a company where I had done AC21 portability, what happens if I can't find another job on time before my GC gets adjudicated? Can they deny my GC during the interview process?

Attorney Murthy : Yes, it is likely that the USCIS will deny the GC/I-485 for one who cannot show that s/he has a full-time and permanent job offer in the same or similar field, as required under AC21. The only reason that the U.S. government is giving EB applicants the GC is based on a U.S. employer requiring the services of the foreign national.

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Chat User : For EB1, is it a must that an individual meet the minimum of three years of experience? Can the Ph.D. research years be counted towards experience?

Attorney Murthy : Depending upon the category of the EB1, for example, with the EB1-1, only one year abroad is needed with the foreign company or its branch or subsidiary. For the EB1-2, in the EA category, there is no minimum timeframe, but one should have reached the top of the field of endeavor. With the EB1-3, for the OPR category, one must have three years of experience, but generally the experience gained during the Ph.D. research can be counted if the person has actually obtained the Ph.D. degree, and if s/he also either had full responsibility for the class taught or if, in the case of research, the research has been recognized as outstanding in the academic field.

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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 : One employer has sponsored my H-1 as a COS from L-1, but my L-1 was expired when he applied for L-1 to H-1 conversion. Today, I have gotten the approval from INS for the L-1 extension. Will the new H-1 application will be rejected?

Attorney Murthy : If there is an RFE on the H1B COS, then showing the L-1 extension will likely be very helpful to show that one maintained lawful, nonimmigrant status throughout the stay in the U.S. Generally, the USCIS will provide an opportunity for to demonstrate one's maintenance of valid status, and it is often a good idea to mention the pending L-1 extension, in such cases, in the cover letter or on the Form I-129 to show valid status. The H-1 petition could be approved for consular processing, even if the COS is denied.

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

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Chat User : Hi. I am on OPT. Can I change my current employer once my H1B petition is approved and before October 1st? Do I have to wait until October 1st to change my current employer, or I can transfer the H1B before that?

Attorney Murthy : It is possible to file for a change to a new employer, since one has to establish that s/he is maintaining valid status on the date of filing the new H1B petition, and show that one was already counted against the H1B quota so that s/he is eligible for another H1B with another cap-subject employer. There is another issue regarding ethical concerns of promising two employers of working with them on an H1B, and based on that promise, the employers are spending thousands of dollars on the good-faith promise of the H1B employee. Besides the ethical dilemma and good faith issue, from a purely immigration law issue, there is no USCIS prohibition in a person filing for more than one H1B after the person has been counted against the H1B quota in a particular fiscal year. Of course, the new H1B can only be approved with an October 1st start date or later.

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Chat User : Thanks, for your great service. I got my H1B approval for company A in 2004 while I was in India, but I did not get the visa stamping. Am I cap exempt if company B files for my H1B? Currently, I am in the U.S. on L-1.

Attorney Murthy : Actually, we have seen it work both ways. The USCIS is supposed to count a person against the quota upon the approval of the H1B petition, but, apparently, there is some complex formula whereby the U.S. Department of State is to release that H1B number if that person never applies for the visa stamp. The problem is that one is allowed to apply for the H1B visa stamp with that employer in any fiscal year, not just in the fiscal year when the H1B petition was approved, making this formula complex. We have won cases when the H1B petition was approved and pointed out that the individual was counted against the cap already and succeeded on an appeal, as well, when the employer had filed the H1B through another lawyer.

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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 : Can a candidate appear for H1B visa stamping at the Delhi / Bombay consulate even though his work experience and education are from the south?

Attorney Murthy : One is allowed to file for the visa stamp in the consular jurisdiction where s/he now lives or has a permanent address. It is not dependent upon where the person studied in school or college. So if one studied in the south but now works in Pune, which is in the Mumbai jurisdiction, then the only consular post that has jurisdiction for the visa stamping for that person is Mumbai and not Chennai.

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Chat User : I successfully completed my master’s thesis defense in August 2005. Then I joined company A in October 2005. I was awarded my master’s degree in December 2005, during the graduation ceremony. Can I claim that I had completed my master’s degree before joining company A, and can I use it for filing for a green card under EB2 category?

Attorney Murthy : If the degree requirements were completed prior to starting with the employer, that should be sufficient even if the actual diploma had not been issued. We generally will obtain a letter from the university attesting to the completion of the educational requirements on a certain date. We have used this in EB2 cases successfully and have been able to show that the individual possessed the required master's degree before starting employment. Ultimately, it is what the employer actually requires as the minimum for that position and shows that it was not tailored only for the individual's benefit, but, in fact, it is a reasonable option that the employer would provide to all job applicants.

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

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Chat User : Is it possible for the master students who will graduate in August and have submitted the application under the general cap to resubmit their H1B applications under the advanced-degree cap?

Attorney Murthy : It is certainly possible to resubmit the case under the advanced-degree cap. However, it is likely that the U.S. advanced-degree quota will likely be exhausted quite early, since the USCIS has announced that about 5,000 of the 20,000 H1Bs have already been used during the first two days of April (the 2nd and 3rd) 2007, and that is not a complete count, because they are still sorting. So file the H1B at the earliest to avoid being left out of both categories!

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Chat User : How are the advanced-degree H1Bs awarded? Are they awarded on a first-come / first-serve basis? What if the USCIS received more than 20,000 advanced-degree H1Bs? Will these 20,000 be decided by a lottery system as well?

Attorney Murthy : Yes. Whenever there are more H1Bs filed than are legally permissible, the USCIS will use the computer-generated lottery system to pick those that will be eligible for the limited H1Bs available for the last day when the cutoff is reached. If the maximum number of cases are filed on the first day of filing, then a lottery is held for the first two days. As explained, merely by filing the case under the premium-processing program and getting a USCIS receipt does not put one in any higher quota or higher likelihood of getting the limited H1B quota.

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Chat User : I have been working on EAD for the past year on AC21. My H1B is expired. I am in 7th year of H1B. Can I apply for an H1B transfer now? Will I be given an 8th-year extension on an approved I-140?

Attorney Murthy : On an approved I-140 petition, one is eligible not just for the 8th-year H1B extension, but for the 3-year H1B extension, under the law. The USCIS is allowed to issue the 3-year H1B approval, but if the individual is not maintaining valid, nonimmigrant status, then the USCIS may require the person to travel abroad, apply for the H1B visa stamp, and reenter the U.S. in H1B status, after the H1B petition approval.

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Chat User : I have received the WAC number? What does it mean?

Attorney Murthy : It is a receipt number for a case filing. For most cases, it means that the case has been accepted for filing, and a decision will be made. However, for an H1B petition filing, receiving the WAC number or the EAC number is not determinative that the individual has already become eligible for the limited H1B quota. If this is a regular cap case, it simply means that one is eligible to participate in the random lottery since her/his petition was received within the first two business days of April 2007.

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Chat User : Good evening, Sheelaji. My I-140 is approved, and I need to file an I-485. My wife is in India. Can I get her medical done in India? Thanks.  

Attorney Murthy : The only time that the spouse or family members can get their medicals done in India, or anywhere abroad, is when the family member/s plan to consular process the case and wait abroad for many years until the principal obtains the GC. Then the dependents obtain the immigrant visa at the consulate abroad. In those cases, the medicals are done right before the consular interview. In the meanwhile, the principal should file the I-485, in case the numbers retrogress. The family members should plan to reenter the U.S. before any PD retrogression, however, since there is often at least a month's advance notice, in such cases. Please note that, in order to file the I-485, it is necessary to be in the U.S.

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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 : Hi, I am on H-4. I applied for H1B cap this year. I have been told by someone that conversion from H-4 to H1B is only a change of status and doesn’t count in the cap. Is that correct?

Attorney Murthy : That is not correct. If a person was not previously on H1B, then the person needs to be counted against the H1B quota for this fiscal year.

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Chat User : Murthiji, how long does it take for an I-140 to be revoked? Can this be done simultaneously with re-filing?

Attorney Murthy : For substitution cases, it is always done with the new re-filing to request the revocation of the earlier I-140 approval and then to reuse the same underlying LC for the new candidate. It can take anywhere from a few weeks to several months.

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Chat User : Does a valid H-1 expire if one uses advance parole to travel?

Attorney Murthy : The H1B does not expire merely when one uses the AP to travel abroad and reenter the U.S. It is expected that the person will reenter and work on the EAD after entry on AP, but the person is also allowed to file an H1B extension under the May 2000 Legacy INS memo.

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

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family, and your friends with all of your immigration law needs.

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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.

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