Chat : April 21, 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, so feel free to post them for our consideration.

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Chat User : We filed our green card petition under the EB1 category and got I-140 approval. We also filed the I-485 concurrently. We have not heard anything about it. How much time it will take?

Attorney Murthy : Usually the I-485 receipt notice is issued within a few weeks and then the USCIS could take anywhere from 6-8 months if one is lucky, or over a year to process the I-485. The USCIS is still catching its breath from last summer's filings, so don't expect the faster turnaround until they are fully caught up later this year.

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Chat User : Can one on EAD work for H1B employer and also run the business and keep H1B status valid?

Attorney Murthy : The law itself does not clearly answer the question and the USCIS has not issued any regulations on this specific matter. It could be argued from various memos of the USCIS and Legacy INS (predecessor of the USCIS) that a person potentially can maintain both the H1B and EAD statuses but, if one works on the EAD, presumably this is not consistent with the H1B status, so it is not so clear. The safer approach is to extend the H1B or amend it to ensure maintenance of H1B status.

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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 : Even when I am into my 7th-yr extension, can I transfer H-1? Please advise.

Attorney Murthy : Yes, one is allowed to do so per the various memos and other documents. Our law firm has processed many cases successfully but it must be based on either the LC/I-140 filed at least 365 days earlier for the one-year H1B extensions or the I-140 approval for the 3-year extension (does not require the 365-day rule). The H1B extension does not need to be with the same employer.

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Chat User : Is it ok not to be working for the GC-sponsoring employer at the time of I-485 approval but have an offer letter from another company in a "similar" field? Thanks!

Attorney Murthy : This really depends upon the facts of the case. In the best situation, the individual would have recently ended employment with the GC sponsor, and would be starting the new job almost immediately. If that is not the case, then the situation is less clear and, depending upon the facts, there could be some concerns that it could be deemed as fraud or potential fraud by the person at some point. The expectation, but not actual requirement, is that one must submit evidence of the "same or similar" field of work during the GC process by notifying the USCIS under their various memos. If these procedures are not followed, and there are other irregularities in the case, it could cause problems at a later point.

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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 : Attorney Murthy, I am currently in L1B status (year 1 out of 3) and seeking permanent residence. However, my employer is unwilling to sponsor my GC process. Do I have other options besides employer sponsorship?

Attorney Murthy : Well, it depends on your resume and background. It may also depend on your single or marital status, since a person can obtain sponsorship through a U.S.-citizen spouse, for example. For self sponsorship without an employer, the person must have a really strong resume to be eligible for the "extraordinary ability" or the "national interest waiver" categories. For more details on eligibility criteria and to obtain free information, visit MurthyDotCom.

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Chat User : While on 1yr extension, can one transfer H-1 to another company?

Attorney Murthy : One always could potentially transfer to another employer or company, as long as s/he is eligible for additional H1 time, but the real issue would seem to be whether one has other long-term plans to ensure that, after that one-year extension, the individual will not have to pack up and depart the U.S. So, a longer-term plan is wise to ensure more than just the 1-year extension, assuming the person wishes to remain in the U.S. on a long-term basis.

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Chat User : Hello, Ms. Murthy! Can a person, who is already in the U.S. in H2B status, to change status to H1B if got a valid job offer from U.S. employer? I satisfy all requirements for H1B visa. Thanks a lot in advance for your help.

Attorney Murthy : Generally, a person in one nonimmigrant status is able to file a change of status to another nonimmigrant status if certain terms and conditions are complied with. Among them are eligibility issues and other considerations. One potential concern is whether the USCIS could deem it to be fraud to enter on the H2B and then file the COS to H1B. Also, unless the H1B employer is cap exempt, like a university or gov't research institution, etc, the individual will have to wait until April 1, 2009 to file a new H1B cap-subject case.

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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 : Does USCIS need pay stubs of previous employer while going for H-1 transfer?

Attorney Murthy : Well, the USCIS needs evidence that the person requesting an H1B transfer with an extension of status maintained valid legal nonimmigrant status in the U.S. The simplest way to show this evidence is usually with pay stubs from the prior employer. If one cannot submit the pay stubs it is often an indication that the person is falling out of status, so that the USCIS will not approve the H1B extension of status, even if the USCIS can approve the H1B petition itself.

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Chat User : Can I transfer my H-1 while I am in India for my short vacation? Also can I get my expired H-1 stamped on my last employer's name? I left him before a week ago due to unavailability of assignment.

Attorney Murthy : Well, if one files for an H1B visa stamp with an employer s/he has just left and submits that as evidence of a new, valid job offer, this is considered fraud and could result in a visa denial or worse, permanent or long-term ineligibility to obtain another nonimmigrant visa stamp. The only safe option is to file for a new H1B petition with the new employer, obtain the approval through Premium Processing if necessary and then apply for the H1B visa stamp through that H1B approval notice. This is particularly relevant where, if the consular officer requests more information from the employer, the earlier employer will certainly not be willing to submit it and may respond to the Consular officer of the employee having terminated employment or having quit the job. Even if the case is approved, it is still fraud to try to obtain a visa based upon a nonexistent job, and then fraud again would be committed upon trying to enter the U.S. using the visa. There is a huge difference in using a prior employer's H1B visa stamp, previously obtained with a new H1B approval notice, and filing for a visa stamp based on a prior employer. The latter is considered fraud and misrepresentation to a consular officer and also at the Port of Entry.

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Chat Master : For anyone in need of advice on a specific matter, you may wish to visit http://www.murthy.com/consult.html following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Atty Murthy or one of our other experienced attorneys.

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Chat User : Atty Murthy, I have reduced my work hours from 40 to 30 hours per week because I am pregnant. Does this affect my H1B status or pending I-485 application in any way? Thank you very much.

Attorney Murthy : Generally, the law allows a variation in the work schedule if the employer would normally have given a change in schedule to other U.S. workers similarly situated. In various memos, the USCIS has agreed that, where an employer and employee comply with other federal laws like the Family Medical Leave Act, an employee may be allowed to be considered in valid nonimmigrant status. When reduced hours are at issue, rather than leave time, it would be best to consider filing an H1B amendment, especially if the change in hours is going to be long term, rather than taking the risk of the change being considered a violation of status. For the pending I-485, there must be a full-time job offer, but it is not necessary to be working full time for the sponsor while the case is pending.

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

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Chat User : Entered on H1B. I have a gap of 3 months (no pay stubs) between the initial employer and the current one. Is that a problem?

Attorney Murthy : Well, it is a problem if the USCIS does not approve the extension of status with the I-94 card at the bottom of the approval notice resulting in continued problems. It will also result in problems in filing and obtaining the I-485 approval, which is the paperwork for the last stage of the GC.

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Chat User : I will be resigning from my current job during this week. I'm under NON-CAP H1B status. How much time do I have before I can leave the country, after my official resignation date?

Attorney Murthy : The law does not provide any grace period to a person who is terminated or resigns from a job. If s/he completed the full 3 years or the H1B term, then 10 days are allowed after the termination date to pack one's bags and depart the U.S. But such leeway is not allowed for one who resigns. The burden is on the individual to file for a change of status or depart before the last day of work technically. Discuss the issues with an attorney.

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Chat User : Can we know when the USCIS will start mailing the rejected petitions for FY2009 H1Bs back to the petitioners? Have they started doing that already? Any information?

Attorney Murthy : We started receiving the H1B receipt notices over a week ago for the H1B premium processed cases. The USCIS had mentioned that they would return unused cases to employers by early June, since they have an initial list and a backup list in case sufficient H1Bs are not issued against the initial selected list of people. We wrote about this soon after the USCIS released the information on MurthyDotCom, so feel free to review the details there.

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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 : Hi, madam. Thank you for this great support. Madam, I am on J-2 visa and my EAD is pending. Can I travel outside the USA?

Attorney Murthy : One is allowed to travel abroad while the EAD is pending. This is different in cases where a person has filed for an Advance Parole. If one has the J-2 visa stamp in the passport, s/he is allowed to reenter the U.S. and then can start working after the EAD is issued.

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Chat User : Murthiji, is there any stipulated time of overseas stay when one wishes to use AP while entering U.S.?

Attorney Murthy : As long as the AP is valid and unexpired at the time of entry and as long as the I-485 is still pending, one is allowed to reenter on the AP. This is different from the Reentry Permit where there is a risk for a GC holder who files the similar form but with much more serious consequences. The reason is that a nonimmigrant is allowed to travel abroad and live and work freely until s/he becomes a GC holder. After getting the GC, one is required to live and work permanently in the U.S. or the GC status is jeopardized.

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

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Chat User : When would I be notified if I am rejected or wait-listed, given that premium processing has been used for H1B petitioning?

Attorney Murthy : Well, it will be much earlier, hopefully, than the regular cases which have been given an early June 2008 response date. We have started receiving premium processing receipts and even approvals, but, as of today, we don't have any rejection notifications or wait list letters.

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Chat User : AC21 - Can it be filed after joining the new employer using EAD?

Attorney Murthy : Yes, that is when it is most often filed with the USCIS by notifying them of the "same or similar" job duties as required to satisfy the AC21 I-485 portability requirement.

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Chat User : My I-140/485 got denied due to my 3-year degree in Brazil. What should I do? My H1B expires in June 2008. How can I at least extend my H1B visa?

Attorney Murthy : Well, the least you can do is to consult with an attorney to consider all possible options, including potentially filing an appeal to obtain the 1-year H1B extension, etc. I am sure that you have discussed all possible options with the company attorney, but you are free to call the Murthy Law Firm to consult with an attorney to ensure that options are considered. The problem with the 3-year degrees is that it is not safe to rely on them as being equivalent to 4-year U.S. degrees, so filing an EB3 or simply as a skilled worker is a safe backup option ASAP. File a new PERM to attempt to stay on in future years at the earliest. Please, for your own sake, consult a good lawyer to discuss the options since they really do exist but it is up to you to move quickly and understand which options make sense for you and your family, if applicable.

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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 : Is Premium Processing for I-140 applications starting any time soon?

Attorney Murthy : As mentioned in our article on MurthyDotCom, the USCIS has indicated that they will reinstitute it when they can, but that it will be in stages based on some type of categorization, possibly first for those whose H1B status is expiring, and then the simpler cases, etc.

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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 filed the I-485 for my wife during the past summer, along with my case. At that time, my wife was not in the U.S. and the USCIS rejected her case. Is this right? What can I do?

Attorney Murthy : Of course the USCIS is supposed to follow the law and reject the case if the spouse was not around when the I-485 had to be filed. Most people realized the seriousness of the issue and that it could be many years before a window of opportunity would open up again. You do need to understand the risks for you and your family, since this may require that the principal maintain H1B status throughout until the spouse is able to file the I-485, thereby limiting job opportunities or AC21 portability, etc. Did you speak with an attorney before simply filing the I-485 for the spouse? If not, consider investing some time and money to understand the risks and the situation. It was in your collective hands to make a decision and, by staying abroad at that critical time, a decision was made and now you must deal with the consequences, understand the limitations, and pray for another window to open up again at some point.

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Chat User : Can my daughter, who is a Canadian citizen, do an internship in the U.S. for 2-3 months on a TN visa?

Attorney Murthy : The TN visa is primarily for those with bachelors' degrees to work in the U.S. under the terms of the NAFTA. It is not clear if your daughter is a high school intern or a college grad intern, so review Schedule 2 of NAFTA and see if she is eligible under its provisions, since you have not provided sufficient information for me to provide you specific or meaningful guidance.

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

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Attorney Murthy : We hope we have helped you to think of possible options in cases similar to yours in our MurthyChat today. There are always variations and subtle issues that could completely change the options available to a person. We look forward to continuing to help you, your family, and friends with all of your immigration matters 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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