Chat : May 21, 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. 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 : Once my sponsor's I-140 is filed to the USCIS for
consular GC processing, can I apply for an F-1 visa to study in the U.S.?
Attorney Murthy : A person who has expressed an intent to immigrate
to the U.S. cannot apply for the F-1, which is a pure nonimmigrant visa. The
consular officer must deny the F-1 after one has an I-140 petition
filed on his/her behalf.
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Chat User : My priority date is August 2001 and we are planning to
go to India in June on AP. If our GC comes in our absence, can we return on
AP or not? Will we need the GC to enter?
Attorney Murthy : The general rule of law is that a person is allowed
to reenter the U.S. using the AP, as long as it has not yet expired. One is paroled into the U.S. to either go and get the passport stamped or
to get the I-485 approval with the GC, or the I-551 card being mailed to
her/him later on.
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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 : Dear Murthyji, will CIR have any impact on EB
retrogression?
Attorney Murthy : Well, it may have an impact if the EB numbers are
increased, as is proposed to clear out the backlogs in the Senate version that is being debated. Otherwise, we do not know its impact yet, since there
is no one specific agreed-upon proposal that translates to CIR. There are
many variations of CIR, depending on the people who envision what they would
ideally like in CIR. The recent proposal by a bipartisan group in the U.S.
Senate has many interesting and problematic issues.
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Chat User : My I-140 is approved, and I’m planning to change
employers. Can my employer cancel my approved I-140 petition without stating
any reason to the USCIS? If so, will I lose my priority date? Please advise.
Attorney Murthy : An employer has the legal right to cancel or revoke
the I-140 petition at any time, since the LC and I-140 belong to the
employer, by law. Generally, the USCIS has been providing the original or
earlier PD, even after the revocation, but there is a greater risk of losing
the PD where the I-140 petition has been revoked.
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Chat User : Is it possible to file an I-485 with a letter of offer
from an employer (current employer) who is different from the GC-sponsoring
employer (past employer), under whom the I-140 approval was received, if the
job descriptions are identical?
Attorney Murthy : It is not possible to file the I-485 with a new
employer unless one starts a brand new PERM or LC with the new
employer. Then, after it is approved, files the I-140 petition, and if the PDs are current, then file the I-485 with the new employer. In the
alternative, AC21 portability will allow a person to change employers only
if the I-485 has been pending for over 180 days and the new job is
considered same or similar, plus the I-140 petition must be approved or at
least approvable. The I-485 must be supported by a valid job offer from the
LC/I-140 sponsor at the time of filing.
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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.
----------------
Chat User : After my I-140 was approved but before going for consular
processing, my company was sold to another company. When do we need to
do the amendment? Thanks.
Attorney Murthy : It is safest to file the I-140 amendment at the
time of the sale when there is a successor in interest entity that agrees to
take over the obligations of the earlier I-140 process. If the PDs are
current, then the I-140 amendment can be filed with the pending I-485 with
the EAD and AP, where required.
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Chat User : If I start a new labor substitution today, would I be
able to have it approved by July 16th? Please advise. Thanks.
Attorney Murthy : Under the DOL regulation published on May 17, 2007,
there are statements that say that it is not required for one to
obtain the I-140 LC substitution approval before July 16, 2007. The
explanation to the regulation and the confirmation from the DOL is that the
person is only required to file the I-140 LC substitution case so that it
reaches the USCIS before that date. However, the actual wording of the
regulation and the various interpretations are less clear on this
point.
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Chat User : Hello, Attorney Murthy. Regarding the new LC substitution
elimination rule - does it eliminate LC substitution at the I-140 stage as
well?
Attorney Murthy : The LC substitution process is usually done at the
time of filing the I-140 petition with the USCIS. The principle behind LC
substitution is that a new person can step into the shoes of an earlier
person for whom an LC was previously approved. Due to fraud and misuse in
the LC system, the Department of Labor published the final rule to eliminate
LC Substitutions with an effective date of July 16, 2007. It does include
substitutions at the I-140 stage, since the authority for that comes from an
agreement with the DOL.
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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 : Good evening. My change of status from H-4 to H1B is
pending. I am traveling to India in August. Should I appear for my H1B in
India, or should I go to Canada in September for H1B?
Attorney Murthy : If one travels abroad when a change of status
(COS) has been filed and is still pending, s/he is deemed to have
abandoned the COS application. Depending on the education of the person,
s/he is supposed to go to either the home country (India), or to Canada, if
the person has a U.S.-based education that can be verified by the consular
officer in Canada.
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Chat User : Ms. Murthy, I greatly appreciate your service. I have a
question on I-485 filing. My I-140 is approved, and my wife is traveling to
India. Can I file the I-485 for her while she is out of the country?
Attorney Murthy : An I-485 can only be filed when a person is in the
U.S., since the term "adjustment of status" means that one adjusts
status from a nonimmigrant to an immigrant status within the U.S. It is
worth it for her to cut short her vacation and return in a hurry, since we
have seen some cases where the priority dates retrogress and the person is
stuck abroad for 2 or 3 years, or if one could enter in the H-4
status, s/he falls out of status and cannot get the EAD until the PDs
become current again. You both must fully understand the risks of your
actions, since this could have serious consequences for your family and your
peace of mind.
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Chat User : My H-1 application was filed this year in the lottery
system. My filing fee check was cashed on April 25th.
However, I received no receipt, yet. Does this mean I have been selected for
the lottery?
Attorney Murthy : Based on the information that your check was cashed
after the date notified by the USCIS for finalizing the random lottery, and
the fact that the USCIS requested additional time to issue H1B receipt
notices, it seems likely that you may have been selected under the computer-generated lottery system. Of course, the USCIS may issue further guidance
modifying their position, but, as of now, it is a hopeful sign for you. Good
luck!
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Chat User : Is it advantageous to file the I-485 and I-130
concurrently, or should the I-130 be done first and then proceed with
consular processing?
Attorney Murthy : Well, that really depends on the circumstances of
the case, where the person who will benefit from the application is living,
the wishes of the family members, and the time that one is willing to
wait to get permanent resident or GC status. Each of them have their pros
and cons. Consult with a professional who you believe can explain the pros
and cons, or undertake further research from MurthyDotCom so that you
can go over the sorts of issues that will help in the decision of which avenue to
pursue.
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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 : Hello, Ms. Murthy. Given the fact that labor substitution
is coming to an end, can an employer revoke an approved I-140 (and
underlying LC) for any reason?
Attorney Murthy : An employer can still revoke, and they do not need
a reason or explanation. One reason is that the employer may wish to ensure that
the employee cannot benefit from a process on which the employer has spent valuable
money and effort to help one who has not fulfilled her or his part of
the bargain. The LC and I-140 traditionally belong to the employer, so that
they will likely continue to have the right to revoke the I-140 simply to
cancel the process for the person. There are times when an employer will
want / need to revoke an I-140, as the USCIS sometimes sends RFEs for ability
to pay in an I-140 case asking for proof that that company can pay all the
people for whom it has petitioned. If some are no longer with the company,
it may be necessary to revoke their petitions in order to address ability-to-pay issues.
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Chat User : Hello, Murthiji. July 16, 2007 is the cutoff date for LC
substitution. What will happen to the pending LC substitution cases if they
are not approved within the cutoff date?
Attorney Murthy : The DOL has stated that, as long as the case is
filed, then even if it takes the USCIS many months to process those cases
they will remain valid and can be used to file the I-485 or consular
process. They have stated this in the notes to the regulation and have
confirmed this with us directly, in person. However, the wording of the
actual regulation is far less clear on this point.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : Is there premium processing for EAD through I-485 for
first-time applicants?
Attorney Murthy : There is no premium processing available for I-485s
or for EADs, as of now. It is not relevant if the person is a first-time or
second-time AOS/EAD applicant. That option is simply not available at this
time, under law.
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Chat User : Hello, Murthy. Thank you for your excellent service. I
have noticed that the priority dates for EB3 and EB2 have moved quite a bit.
Will it be the same in the near future?
Attorney Murthy : The U.S. Department of State has explained that it
is likely that the PDs will move for another month or two, and then the
dates will likely retrogress to where they were before the forward movement
of the dates. It is possible that they may go back even further if too many
people file for the I-485 and there is an expected excess demand of
immigrant visa numbers. We have written many articles on this topic on
MurthyDotCom that will help you to gauge the movement, but there is no
way to be certain.
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Chat User : Hi, Sheela. Is traveling outside the U.S. permitted post
N-400 filing? I plan to travel for 3 months. Also, should I have a U.S.
employer during this filing process or be employed in the U.S. during this
time?
Attorney Murthy : It is possible for one to travel abroad after
filing the N-400 for naturalization. However, s/he should not remain
outside the U.S. in any one trip for more than 180 days since that time
results in a presumption of having broken the continuity of residence for
citizenship purposes. Having a home, assets, job, membership in social or
community organizations, etc, are evidence of one's strong ties to
the U.S. in case the USCIS or CBP threatens to confiscate the GC.
The person must show good moral character, and one way is to show
filing of U.S. tax returns each year, among other examples.
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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 : Good evening, Murthyji. My name check has been pending
for the last 2 years. Is there any way to expedite the process? Please
advise. Thanks.
Attorney Murthy : Although the USCIS has recently announced that they
will not expedite a name check simply because a person has filed or
threatened to file a mandamus law suit, it has generally helped a person's
case move much faster. We don't know if that will continue in the future,
but it is a problem when so many people are stuck for years on end with
security-related concerns when one person's name matches another person's
name, especially with common names in many countries.
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Chat User : My parents recently got a visitor’s visa for the U.S. for
a span of 10 years. I was told by many that they have to come to the U.S.
within 6 months. Do they have to? Can they come after 6 months? Please
advise. Thanks.
Attorney Murthy : For the B-2 tourist visa, there is no timeframe
when a person must enter. One can enter anytime before the end of the
10 years, and at the airport or POE, the person on a B-2 tourist status will
get 6 months of stay allowed in the U.S. The rule to enter within 6 months
applies for green cards or immigrant visas; not for B-2s or other
nonimmigrant visas. I hope this helps.
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Chat User : Good evening. When a person gets the EAD, does his/her
nonimmigrant visa lose status? Can the person with the EAD use his/her visa
to travel to India?
Attorney Murthy : Even after a person obtains the EAD, if s/he
continues to maintain H1B status and work for the H1B employer, s/he
may use the H1B visa stamp and the H1B petition approval to reenter the U.S.
That is the principle of the dual intent H1B where the person can maintain
both the nonimmigrant and the immigrant status.
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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 : Could an employer revoke an approved I-140 even after
filing the AC21? If so, does it affect the PD of the employee?
Attorney Murthy : Where an employer requests the revocation of the
I-140 petition after the law allows the person to enjoy AC21 portability
benefits, one can and should be able to argue and get the I-485
approval based on the earlier PD and without having to start a new GC
process with a new employer all over again.
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Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : Hello, I am on an H1B visa working as full time and
permanent employee, and I want to apply for a part-time H1B. Is the part-time H1B subject to the cap regulation, or we can apply now? If so, what is
the procedure?
Attorney Murthy : If a person already has an H1B petition approval,
then s/he is allowed to file another new H1B with another employer, for
either part-time or full-time employment. Actually, under the wording of the
law, one can work for the new employer, even if it is a cap-subject
employer, as long as s/he continues to work with the H1B cap-exempt
employer. It is the language of the AC21 law, and the USCIS senior officials
have agreed with this interpretation. If the person stops working with the
cap-exempt employer, then s/he will need to be counted against the
cap. In your question, it is not clear if the first employer is a cap-subject or cap- exempt employer, but I have tried to answer the question for
you in both situations.
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Chat User : When we apply for AOS, we have to be in the country.
After it has been applied for, can we leave the country for a week and come
back on a valid H-1 or H-4 visa?
Attorney Murthy : It is possible to travel abroad after filing the
I-485 and reentering in H1B or H-4 status with the visa stamps that have not
yet expired in the passport, assuming that one is not subject to the 3-year
or 10-year bar.
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Chat User : My OPT ends in June. My H1B starts in October 2007. I am
planning to use one month of the grace period and stay in the country until
say July 17th. Will using one month of grace period affect my
green card processing in the future?
Attorney Murthy : Actually, the law allows a person to stay legally
in the U.S. for up to 60 days, so staying for one month should have no
adverse impact on the GC process at all for such a person, generally.
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Chat User : Hello, Murthyji. How many times can I transfer the
earlier priority date of an approved I-140 to a new I-140 of other future
employers if I keep changing jobs, provided the I-140 is not revoked?
Attorney Murthy : The general rule of law is that there is no limit
in transferring the earliest priority date to future filed GC cases unless
there is a concern with fraud or misrepresentation by promising so many
employers that one intends to work for them on a full-time and permanent basis for after obtaining permanent resident status.
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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 Master : This ends tonight's session of the MurthyChat.
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Chat Master : Thank you all for logging in! The schedule will be
posted at <http://www.murthy.com/chat.html>.
----------------
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
Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.