Chat : May 14, 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 : It is wonderful to have so many of you with us again today in our MurthyChat. We welcome your questions and look forward to helping you with your immigration matters.

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Chat User : My I-140 was approved, and I am from India. My wife is from Nepal. Can I use her country’s priority date for my I-485 filing?

Attorney Murthy : It is possible to try for cross chargeability based on the spouse's country of birth, but there is some debate when trying this through the USCIS. The U.S. Department of State clearly allows either the principal or the dependent's country of birth for chargeability purposes when the couple processes for immigrant visas together at the consulate. We generally have found it to be possible in connection with adjustment-of-status cases at the USCIS, but the rules are less clear.

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Chat User : I have applied for labor substitution under premium processing, and if the rule comes saying labor substitution is eliminated effective immediately, will I be affected? Also, did the EB3 visa dates move?

Attorney Murthy : First, great news on movement of priority dates. Both EB2 and EB3 for India moved substantially with almost 2 years in EB3 for Indian nationals, as I had discussed about 2 weeks ago with Charles Oppenheim, the head of the Immigrant Visa Processing Control Unit at the U.S. Department of State. That was exciting news! With regard to LC substitution, we believe that it should not affect cases already filed, but we cannot be 100% sure, since the final rule has not been published. Generally, most regulations do not affect something that was allowed at one time, even if the law is changed in the future; but some laws can be retroactive.

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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 : Ms. Murthy, for labor certification, what are the best ways to prove past work experience? Thank you very much for this service.

Attorney Murthy : The safest evidence is the prior employer's letter detailing the dates of employment, the job title, and the list of job duties. Backup evidence can be job offer letters, affidavits from colleagues or former bosses, W2s, and other objective evidence. The weakest form is a self affidavit, but that alone will likely not work out in most cases since it could be deemed to be self serving.

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Chat User : Hello. I am currently on an H-4 that expires in July, and I just got my H1B approved. Can I travel to India and come back before my H-4 visa expires and start working in October without going for H-1 stamping?

Attorney Murthy : If the H1B has been approved with the I-94 card attached and with the start date of October 1, 2007, then one presumably is allowed to travel in the H-4 status and reenter on the H-4 visa and status but start working effective from the future start date based on the Efren Hernandez letter of the USCIS. The risk with most informal opinions is that the USCIS may change the law in the future, but at least that is better than no guidance to help with a written legal opinion for the present.

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Chat User : My company has been acquired by another company. My I-140 has been filed by the old company. Will this pose a problem for me at the time of filing the I-485?

Attorney Murthy : If the earlier I-140 was filed in the name of the earlier company, then either an I-140 amendment must be filed or one could argue that AC21 portability could apply if the I-485 has been pending for over 180 days and the I-140 petition has been approved. There must be a valid job offer from the company named in the I-140 petition at the time of filing the I-485 AOS application in order to file the I-485.

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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 : Is there any way an H1B visa holder can do small business (less than $100K) outside his work? Is it mandatory to have a green card or citizenship to do business?

Attorney Murthy : It is not mandatory to have the GC or U.S. citizenship, but one must at least have an employment card or EAD that is not restrictive or have an H1B to work for that other business as concurrent employment, if possible. Simply wanting to work with other employers while having a single-employer H1B is not legally permissible.

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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 : If an I-140 application was applied for under premium processing, and if no response was received in 15 days under those circumstances, will the amount charged for premium processing be returned?

Attorney Murthy : If the USCIS does not return it voluntarily, then one can request the U.S. Treasury to refund that $1000 premium fee. Keep in mind, the USCIS promises either to issue an RFE or the decision within 15 work days, which means 3 weeks, not just 2 weeks, but often they give the decision or the RFE within the first 2 weeks, instead of using the full 3 weeks.

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Chat User : I am in 7th-year H1B extension (3years) with an approved I-140. If I change my job now, can I keep my old priority date? If my new employer doesn’t file for the GC, can I change employers again?

Attorney Murthy : If one has an I-140 petition approval, s/he can apply for the H1B for 3 years with another employer. However, if the earlier employer cancels the I-140 petition, then there is a risk that the person may not be able to use the earlier PD, so the safer route is to start another new PERM and I-140 petition with the new employer at the earliest opportunity. If the earlier I-140 petition has not yet been canceled or revoked, then another H1B petition can be filed with another new employer, but unless the individual wishes to return to the first employer and work under that LC and I-140 petition, some other LC and I-140 must be filed for the GC process to continue.

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Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at <http://www.murthy.com/chatlogs/chattran.html>.

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Chat User : Hello, Attorney Murthy. My labor was approved a couple of months back, and my priority date just became current. Can my employer apply for I-140 and I-485 at the same time?

Attorney Murthy : Yes, that is the whole benefit of the priority dates becoming current again! It is a wonderful opportunity to file the I-140 and I-485; and later  the EAD and AP can be filed for the person and spouse to be able to work, start a business, etc. Even if the priority dates retrogress (or go backwards) again in a few months, one can enjoy AC21 portability after the I-140 approval; and, if the I-485 has been pending for over 180 days, the spouse and all children over 16 years of age can work legally on the EAD. It is a wonderful advantage, so the I-485 must be filed as long as the PDs remain current. The U.S. Department of State has stated that they expect the dates for India to move forward even further next month! Good news!! Go for it!!

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

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Chat User : My I-140 is already approved through labor substitution, and I’m now eligible for I-485. Should I also continue with my original, regular LC to be on the safe side?

Attorney Murthy : It generally is possible to continue with the regular LC case and the substitution case, presuming that they are different job offers. Sometimes, people will do one case as an AOS and the other as a CP. This may be good in case the priority dates retrogress again in the fall of 2007, as expected, or if the case is impacted in some way by the substitution regulation that is expected soon. Another suggestion is to maintain backup H1B status in case something goes wrong with the employer or the job.

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Chat User : Hi. I recently applied for an I-94 extension. I am planning to travel soon, and I have not heard back from USCIS regarding the extension. Can I leave the country with this? How do I go about traveling?

Attorney Murthy : The general rule is that the extension of status or EOS is not deemed abandoned upon departing the U.S. unlike with the change of status, which is deemed abandoned if one travels while it is pending or filed. Departing the U.S. is not the problem. Reentry is the more difficult issue if the person does not have a valid petition or status to reenter the U.S.

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Chat User : I just got my LC (RIR conversion) approved. My PD is current. My employer is about to file the I-140 and I-485. Is there any benefit in filing the I-140 with premium processing?

Attorney Murthy : The main benefit of filing the I-140 under premium processing is that one can enjoy AC21 portability after 180 days of the I-485 pending if the I-140 petition has been approved. The second potential benefit is that one can file a 3-year H1B extension with that or any other H1B employer. Plus, it is always a good feeling to know that the second stage of the I-140 has been cleared if it is approved while the employer is willing to assist with the process.

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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 : Another company (not my employer) is offering me a pre-approved labor. Since the final rule for eliminating pre-approved labors is yet to be released, is it a right time to take it , or is it risky at this point? What would be chance of rejection, since it is not from my current employer?

Attorney Murthy : It is not relevant which employer offers the pre-approved LC, as long as that employer can show the ability to pay or profits on its tax returns from the date of that original LC filing or its priority date until the present. If one is not working for the GC-sponsoring employer, then the profit margin shown must be much higher, since it must include the value of the full prevailing wage and benefits from the date of the original LC filing. Since it is expected that substitution will be eliminated in the near future, it is now or never with the substitution cases. There is a risk that the case will not end up working, if the regulation eliminating substitution becomes effective before the case is far enough along in the process.

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Chat User : My husband is on H1B and is about to file for his I-485. I am currently on an F-1 visa. Do I have to convert to H-4 to file for I-485 with my husband, or can I file while being on F-1? Please advise.

Attorney Murthy : A person can file the I-485 while still in F-1 status, but unlike the H1B/H-4 or L-1/L-2 which are dual intent, the F-1 is a pure nonimmigrant status. This means that, upon the I-485 filing, one is no longer considered to be in F-1 status, but converts to an adjustment applicant, eligible for the EAD and AP, etc.

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Chat User : I am applying for a green card. Can my wife work (H-4) on green card application pending status after 1 month of applying?

Attorney Murthy : The general rule of law is that the spouse who is on H-4 must file her own I-485 or adjustment of status application and then also file the EAD. Then, only once the employment authorization document is approved and received, can the spouse work on that EAD. Otherwise, simply working based on the spouse having filed the GC is not a legal option.

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Chat User : Ms. Murthy, if a name check is pending for more than 2 years, generally, what's the cause of the delay, and what action can be taken to expedite it? Many thanks.

Attorney Murthy : Generally, name checks have to do with people having similar names, possibly one of them signaling a criminal or security concern. The USCIS must ensure that it is not that person. One may contact the AILA liaison or the TSA that has contact information for this purpose on their website. If the case is in consular processing with the DOS, there is a separate DOS visa office contact who can find out the reason for the delay and if something can be done.

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Chat User : Is it possible to travel to the U.S. every 6 months and live in the country for 15 days and still maintain valid LPR status and fulfill residency requirements for citizenship?

Attorney Murthy : The law states that a person must live a minimum of more than half the time in the U.S. within the last 5 years (or 3 years if married to a U.S. citizen), and that no one absence can exceed 180 days outside the U.S. to be eligible for citizenship filing. On top of that, after filing the N-400, one must not be absent from the U.S. for more than the 180 day timeframe. Plus, good moral character and the other requirements for filing the N-400 must apply. There are also issues of abandonment of permanent resident status. Articles on these topics may be found on MurthyDotCom. We have information on extended travel by permanent residents, as well as naturalization requirements.

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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 to completely revoke a GC application so that I can go to school full time? My LC was approved, and my H-1 visa expires in November 2008. Can I apply for premium processing so I get the I-140 approved so I can change jobs early next year?

Attorney Murthy : The question you ask is confusing, so you should consult with an attorney to ensure that you get the appropriate legal information to proceed as you deem in your best interest. If the I-140 petition is approved, one can obtain a 3-year, H1B petition approval and work for the new employer or work and study while in H1B status, as long as the education is incidental to the H1B job. One must intend to return to the GC-sponsoring employer and work permanently after getting the GC approval, or before the I-485 is approved, to continue to take advantage of the earlier I-140 and LC approvals.

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Chat User : I got a pre-approved labor (EB3) from my employer, and I applied for the I-140 in September 2005. It’s still pending. Can I upgrade the processing to premium category?

Attorney Murthy : The USCIS has stated that they will allow PPP for the LC substitution cases as long as the original labor certification was included and sent with the I-140 filing. If the I-140 petition is approved, then if the PDs are current with the forward movement of the priority dates substantially from June 2007 again, it will allow for AC21 portability benefits to apply along with 3-year H1B extensions in appropriate circumstances.

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Chat User : My passport place of birth and original birth certificate place of birth does not match. Would this create any problems while applying for I-485?

Attorney Murthy : The USCIS usually gives priority to the birth certificate, since that is considered the primary evidence. Documents like the passport are considered secondary evidence. The problem when there is a discrepancy among documents is that it creates confusion, since the USCIS does not understand the reason for the discrepancy. They could suspect fraud or some other problem. If the inconsistency can be rationally and reasonably explained, that may help, but there is a risk.

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Chat User : Ms. Murthy, I already have the H-1 status. I got an offer from another employer who is willing to file for a new H-1. Should it be done before April, like all H-1s, or can it be done anytime in the year, since I already have an old H-1? Thanks for this excellent service!

Attorney Murthy : The law allows an employer to file another H1B at any time as long as one was either granted H1B status or has an H1B visa approved in the last 6 years. All that is required when filing the new H1B is to show that valid H1B status is being maintaining valid, H1B status with the earlier employer or otherwise maintaining valid, legal status and then file the new H1B by showing that the person was already previously counted against the H1B cap. Of course, one must be eligible for the additional time on H-1, either within the initial six years or for extensions beyond six years.

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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 : Any predictions on today's Visa Bulletin for EB3?

Attorney Murthy : I am not sure what you mean, since the Visa Bulletin shows how much the dates have moved forward, as we reported they would in our MurthyBulletin articles over the last month and as confirmed by Mr. Oppenheim in late April 2007 during the AILA DC Chapter Conference in Washington, D.C. If you are referring to future predictions after June 2007, Mr. Oppenheim has stated that the numbers may move again, depending on how many I-485 approvals are issued by the USCIS within the next month or two.

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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 matters.

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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.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved