Chat : May 19, 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 : We welcome your questions and look forward to helping you with general information for your immigration matters in tonight's MurthyChat. Thank you for using our services of the Murthy Law Firm.

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Chat User : Can a person who enters on AP work on H1B that is valid and not stamped? Also, can his wife alone use the EAD and work?

Attorney Murthy : The spouse may use the EAD if s/he entered on the AP. There is lack of clarity from the USCIS on the issue of entering on the AP and working solely based on the H1B petition approval. On the one hand, the Legacy INS Memo seems to allow for it; but on the other hand, there is no statute or regulation on this matter, raising questions. The safer approach is to work on the EAD after AP entry, but the May 2000 Legacy INS Memo allows the H1B extension in such cases when it is time for renewal to allow the person to get back onto H1B status clearly.

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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 : Hello, Ms. Murthy. When an I-140 is denied and MTR is applied, is it possible to apply I-140 again using the same labor? If yes, is it possible link the I-485 to the new I-140 application (assuming that the I-485 case is reopened.)? Thanks.

Attorney Murthy : Well, the MTR could keep alive the I-485, especially if the USCIS reopens it based on the I-140 approval. The problem with filing a new I-140 is that, if the earlier I-140 is denied, then technically speaking the I-485 is no longer valid, so a new I-485 may need to be filed rather than simply being able to "interfile" the new I-140 petition with the pending I-485.

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Chat User : My spouse's H-4 expired in Jan '08. I got my H1B approved, but my company forgot to apply for her H-4 extension and filed it in March end. Can she stay in the U.S. beyond her 180 days of I-94 expiry, if no decision is made on her case?

Attorney Murthy : It is not safe at all for the spouse to remain for even a day beyond the 180 days. The case requesting the H-4 after the expiration is very discretionary. Why should one take such a huge risk of being subject to the 3-year or 10-year bar, unless there is some other bigger risk for him/her to depart the U.S. You must discuss this issue with your attorney. If you do not have an attorney or wish to consult another attorney, then you are free to contact us at the Murthy Law Firm for a consultation, since the potential risks for your family in ignoring this matter could be devastating, as we have seen in cases where the employer or the attorney forgets / neglects to file for the H-4 extension, causing major problems.

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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 : I applied for my H1B this year (advanced-degree quota, premium processing) but did not get a receipt yet from USCIS. Can I still expect an approval notice?

Attorney Murthy : It is unlikely but the USCIS had mentioned something about keeping some cases in a sort of holding pattern to see how many cases would be accepted and approved before rejecting the last batch. It is possible for a case to be accepted, but chances are not high, if no receipt notice has been issued as of yet, particularly in a Premium Processing case.

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Chat User : I am working for Company A and got my labor substituted I-140 (Priority Date is now current) approved for Company B. Can I file I-485 thru Company B and get my GC while still working for Company A?

Attorney Murthy : While it is possible to file for the I-485 based on the I-140 approval through Company B, while working for Company A, based on a future job offer, the USCIS does like to ensure that the employer and the individual are not misusing the legal system or committing fraud by failing to intend to work for the sponsoring employer. It is safest to work for the GC-sponsoring employer for a reasonable period prior to the anticipated review of the I-485, as well as for a reasonable duration after approval. The USCIS does not have to approve a case based upon a promise to work for the employer. They must believe, and be convinced, that there is a genuine job that the employer is offering and that the foreign national intends to take. The best way to prove future intent is by present actions.

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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 : I am currently working on an H1B (valid until 2010). I want to leave my job and pursue my MBA. Is it better to apply for my F-1 visa in India or in Canada? If my F-1 is denied, will my H1B be revoked as well? Thanks.

Attorney Murthy : Well, it depends on one's background and credentials, among other factors; including if the person obtained the bachelor's degree from abroad or from a U.S. college or university. Generally, if the F-1 is denied, the H1B status is not revoked unless there are issues of fraud or misrepresentation on the part of the H1B employee.

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Chat User : DS-2019 for J-2 dependent (from India) has maiden name with old passport details, new passport after marriage will have husband's family name. Will it be a problem during the visa interview?

Attorney Murthy : Generally, it should not pose a major problem if one's earlier details were all correct, since many people get married and the information regarding the spouse in most cases can differ. As long as the consular officer can verify that the information is for the same individual, the J-2 visa may be issued by law.

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Chat User : How long L-2/EAD can stay and work in USA, if L-1(blanket) returns to India but maintains the validity of L-1 visa while in India?

Attorney Murthy : The L-2/EAD spouse is not allowed to remain separately for months or years on end in the U.S. while the principal on L-1 returns to the home country. The L-2 dependents are supposed to remain in the U.S. only as dependents. A few weeks or months when, presumably, the L-1 is briefly on work assignment abroad could be allowed, but if the L-1 has been sent back by the L-1 employer abroad, then L-2s are supposed to depart with the L-1, or shortly thereafter, if the reason for staying behind is, for example, for the children to complete their school year, etc. Otherwise, the L-2s could be deemed to have violated their legal status in 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 : How many years of experience are needed to prove when applying for green card? Does it have to be exactly in the same position or can it be in different positions, such as network analyst and programmer analyst added together?

Attorney Murthy : That is a strange question since the number of years required will really depend on the job title, job duties, and salary, among other factors. What did the employer really and truly require for the position when the foreign national was hired at the company?

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Chat User : Must the dependent H-4 visa be re-stamped for reentry to the U.S. if the H-1 visa holder changes employers?

Attorney Murthy : Generally, not only does the H-4 dependent not need to obtain a new H-4 visa stamp in the PP to be able to travel abroad and reenter the U.S., even the H1B principal is allowed to use the earlier H1B employer's visa stamp, until its expiration date, with the latest H1B petition approval issued by the USCIS to reenter the U.S. in valid H1B status. The I-94 given at the Port of Entry should be valid for the length of the petition approval to work for the new employer. This means that the old employer's visa stamp remains valid until its expiration date for the H1B and for the H-4 dependents.

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Chat User : Applied for AP, but meanwhile going for H-1 extension and wife's (from H-1 to H-4) stamping in Canada. Will this invalidate our AP application?

Attorney Murthy : As you may be aware, H1B and H-4 enjoy dual intent status, so that travel abroad before obtaining the AP does not invalidate the AP or the I-485 AOS application. If the H1B and H-4 are Canadian citizens, then no visa stamp is required. If they are foreign nationals or TCNs applying in Canada (as the question seems to suggest), however, then the risk is that if the H1B and H-4 visas are denied in Canada, the family cannot reenter the U.S., but should make plans to travel to the home country from Canada.

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Chat User : Hi, Murthy. We really appreciate the help. What is considered a duplicate application when applying for H-1 (with existing H-4 status)? Is it allowed for one person to apply through 2-3 different employees / consultants?

Attorney Murthy : Under the latest USCIS regulations, a person is not allowed to file for multiple H1Bs through the same employer since the USCIS could reject all of the H1Bs for that person. It is allowed to file for H1Bs with different employers but there is a potential issue of breach of contract when a person files multiple cases through various employers.

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

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Chat User : Will opening an SR help expedite I-140 approval process? Has the rule changed on I-140? Why is there this big delay?

Attorney Murthy : Sometimes an SR may help, but other times this could result in an RFE or denial. If the time for the I-140 is within four months of the dates mentioned by the USCIS, then it is a waste to bring attention to a case for no good reason, unless it is well past the processing time. The USCIS received a great number of I-140/I-485 cases in the summer of 2007, as well as a huge number of citizenship cases. This is part of the reason for the delays.

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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 : In a multiple H-1 filing, one case was selected in lottery and another not yet known. Does the USCIS send RFE?. What will happen to another case?

Attorney Murthy : Well, it depends. If the other case is rejected, the USCIS will not issue an RFE on that ground. There may be many other reasons, however, that the USCIS could issue an RFE.

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Chat User : Now I am on H-4, I have applied for H-1 and am waiting for confirmation. I would like to visit Canada in July this year. Is it possible for me even if my H-1 is approved? Please advice.

Attorney Murthy : If a person departs the U.S. while the COS application is pending, then the USCIS could approve the H1B petition but deny the Change-of-Status application, requiring the person to travel abroad again and reenter in H1B status before Oct 1st, or requiring another H1B amendment filing after reentering the U.S. This could cost more time and money. If the COS is approved prior to one's departure then travel is potentially possible. Discuss / consult with your attorney on the risks.

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Chat User : I have filed for a change of status. How long can I stay in the U.S. based on this case?

Attorney Murthy : Generally, a person is allowed to remain for as long as it takes, up until the requested length of time for the new or extended status. Initially there was a 120-day rule. The USCIS recognizes that their delay should not make one become "illegal" or out of status, so now it would appear that the individual is in status as long as the EOS or COS has been filed before the earlier status expired and assuming that the person was maintaining valid NIV status at the time of filing the COS or the EOS. However, the limit on this is that the length of time permitted cannot be longer than the end date of the new status.

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Chat Master : There are about 10 minutes remaining in tonight's MurthyChat.

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Chat User : Hi. Can I apply for L-2 within a month of getting L-1 stamped from my company? I will be resigning from my current job.

Attorney Murthy : There is no minimum time one must wait before filing a change of status from L-1 to L-2 but, of course, that means that the spouse is in L-1 status in the U.S. This presumes that all statements and representations made in connection with the L-1 visa application were correct.

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Chat User : My wife wants to travel and will need a new H-4 visa stamp to return. I extended my H-1 status, but have not traveled or obtained a new visa. Will my wife have a problem because I don't have a visa?

Attorney Murthy : There is no requirement by law to obtain any H1B visa stamp at all in the PP either with the current employer or the earlier employer for the spouse to be able to file and obtain the H-4 visa stamp, as long as the principal H1B holder has been maintaining valid legal status.

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Chat User : I am in the 5th year of my H1B and applied for I-140 with my current employer. I wanted to know, if I change the employer, now, will I be able to get an H1B extension after 6 years, based on current, approved labor.

Attorney Murthy : One is not eligible for the 1-year H1B extension unless the LC was filed over 365 days ago. If that is the case, then it would be possible to obtain an H-1 extension up to the sixth year, plus one additional year (so 2 more years) based upon the current green card case. However, the potential risk is whether, after the extension, one will be able to remain in the U.S. with the new employer if another new LC/I-140 was not filed at least 365 days earlier. In a situation such as this it is necessary to file a new GC case right away.

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Chat User : After getting EAD, I changed my status to H-4. Do I need to travel out of the country to work on EAD?

Attorney Murthy : One is allowed to work on the EAD with no problems in this type of an example, as there is no need to travel and change status in that manner. The H-4 can simply use the EAD once it is issued.

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Chat Master : This ends tonight's session of the MurthyChat. We are sorry Atty Murthy could not respond to all of your questions. We make every effort to get to as many of your questions as possible. Check the LogFiles of past chat sessions at http://www.murthy.com/chatlogs/chattran.html to see if the answer to your question was provided in a previous chat.

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Attorney Murthy : We appreciate the opportunity to help you through our MurthyChat. Thank you for referring so many of your family and friends to us. We are delighted and honored to have your trust. We know your immigration matters! (SM)

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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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