Chat : June 02, 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 through the MurthyChat. Thank you for using our services at the Murthy Law Firm.

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Chat User : Hi, Ms. Murthy. Our 1-485 and I-140 are pending approval now. Will our H-1 be cancelled if our I-485 is approved when we are outside USA (traveling in valid H-1 visa stamped, no AP).

Attorney Murthy : Generally, the CBP Inspector at the POE is not able to check whether one's I-485 has been approved when a person attempts to enter the U.S. in H1B status, based on an H1B petition approval and an H1B visa stamped in the PP. Since H1B and H-4 enjoy dual intent, if one finds after having entered the U.S. that the I-485 has been approved, s/he will obtain the I-551 / green card in the mail. It should not pose a problem. The potential risk is that one is not supposed to enter in H1B if s/he knows about the I-485 approval, since that could be deemed potential fraud / misrepresentation. Therefore, it is best to have an Advance Parole to present in this situation.

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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 : I am changing my employer by invoking AC21 portability provision. Is one required to inform USCIS about this change?

Attorney Murthy : It is safest to notify the USCIS of a change of employer under AC21, particularly since we are starting to hear that the USCIS is denying the I-485 based on the prior employer revoking the I-140 petition where the employee failed to inform the USCIS of AC21 portability. The USCIS has repeatedly stated that they expect to be notified and even obtaining the I-485 approval will not protect one if the USCIS determines that the I-485 was approved based on misrepresentation / fraud. Why take a risk for something like this and jeopardize one's status?

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Chat User : When would be the last date to get selected in H1B quota? What would be the procedure to resign from H1B employer?

Attorney Murthy : The USCIS has not determined the last date for selection under the H1B quota. An employee must follow whatever the employer's standard policy is in terms of resigning from a job to ensure compliance. In addition, the employer often will revoke the H1B petition after the employee resigns.

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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 : Good evening, Ms Muthiji! I am working on EAD. I also have my H-4 stamped. I am planning to visit India. When I come back to the USA can I enter on my H-4 visa or do I have to use AP to continue working with the same employer? Your help is highly appreciated.

Attorney Murthy : Generally, the safe rule is to reenter on the AP after one has worked on the EAD and intends to work for the EAD employer. However, one could enter in the H-4 status and resume EAD employment, since H1B and H-4 enjoy dual intent. Various Legacy INS Memos from March and May 2000 (over 8 years ago at this point), however, seem to indicate the safer route is the EAD with the AP to reenter the U.S. By entering in H-4 there is a representation that one will act in a manner consistent with H-4, rather than working the next day on EAD.

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Chat User : Hi, Ms. Murthy. My H-1 transfer is denied. I am in project. What is the solution?

Attorney Murthy : Well, it depends on your options, based on your having another H1B approval with a prior employer, your education, experience, and ability to file another H1B petition ASAP, travel abroad and reenter on short notice to resume H1B employment. You must consult with a knowledgeable immigration law attorney, since it is important to understand why the H1B petition was denied and what recourse is available, based on the reasons for the denial.

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Chat User : Hi. If spouse's name is not included in I-140 by mistake, can it be done during I-485? will there be any complications in this situation?

Attorney Murthy : Generally, it is possible to add the spouse and any other dependents at the I-485 stage, even if their names were omitted when filing the I-140 petition. The spouse is not actually "added" to the I-485, the spouse files his/her own I-485 at the appropriate time. This can be done without the spouse being mentioned on the I-140, as is often the case when the marriage occurs after the I-140. If the marriage occurred earlier, there is a chance for some questions about this discrepancy.

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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 : Madam Murthy, I am on H1B. I have joined a job fulltime. Meanwhile, I have received a very good offer from a stable company at different location. Is it ok to work on EAD (under GC) for the second company when my H1B for the prior company is under process of transfer?

Attorney Murthy : After a person has obtained the EAD, s/he is allowed to work for any other employer on the EAD legally. If the person wishes to work for the H1B employer also, s/he may work on the H1B but, generally, after starting to use the EAD to work for a different (other than the H1B) employer, one is deemed to be in EAD status and must preferably use the AP to reenter the U.S. from foreign travel, etc. In general, one can use the H1B status if s/he wishes to work only for the H1B-sponsoring employer.

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Chat User : Good evening, Ms. Murthy! PERM/GC says masters degree required as educational level. If I wish to use AC21 (I-140 approved / I-485 pending over 180 days), must new jobs have the same educational requirements? Thanks in advance.


Attorney Murthy : AC21 law and the USCIS have not insisted that the person must have the exact same minimum education or work experience as mentioned on the LC or I-140 petition. The law requires that the new job be considered the "same or similar" under AC21. Those terms are not defined under the law, but only by various USCIS memos and mostly during conferences, liaison meetings, or discussions with senior-level officials.

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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 : Attorney Murthy, is it risky to use AC21 to change employers if my I-140 has not yet been approved?

Attorney Murthy : If the I-140 petition gets an RFE or is denied, then the earlier employer will likely not respond to it or fight the denial. That would jeopardize the entire case for you. In this situation, one does not even have the benefit of being able to use the earlier Priority Date when starting a full new LC/GC with a new employer. It is worthwhile to consult with an attorney before taking a risk and losing it all at this stage, unless one has no choice due to having been laid off or fired, etc.

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Chat User : Attorney Murthy, appreciate your service. My I-140 was filed in Nov 2006 at TSC. The status has not changed even after a couple of SRs. What should be done to have my I-140 expedited?

Attorney Murthy : In some cases the USCIS is investigating some employers or there may be a reason for the denial. If all other employees in the same organization are having a similar delay, then an employer investigation is likely. If not, then it may be worth going through the AILA Liaison request or a Congressional enquiry.

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Chat User : Hello, Attorney Murthy. My wife has H-4 visa. She is planning to come to USA. Can she come here and apply for a Change of Status before or after getting the H-1 approval? Kindly advise. Thanks.

Attorney Murthy : If the spouse enters in H-4 status and then intends to file a COS after entering the U.S., s/he can do so if the spouse was previously in H1B status or is filing with an H1B cap-exempt employer by filing for the H-4 to H1B COS any time after entry, generally without worrying about the 30 - 60 - 90 day doctrines of fraud or waiting to file the COS. However, all representations regarding one's intent should be correct on the visa application as well as in response to any questions at the Port of Entry.

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Chat User : If someone currently on H-1 has a COS to H-4 and wants to change back to H-1 after 6 months, then will her new H-1 application still be considered against the H1B cap (cos her first h1b must have expired in Oct 2008)?

Attorney Murthy : The general rule is that if a person obtained an H1B approval within the last 6 fiscal years by gaining H1B approval to work for a cap-subject employer, then s/he should be exempt from the quota for the balance of the maximum time remaining against the 6 years of H1B under law.

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Chat User : I am on H-4. Got selected in H1B lottery, however, I want to continue to study. Once H-1 is approved, I will change status to F1. In future, when I apply for H-1, do I come under H1B quota?

Attorney Murthy : As explained above, one should not wait until the H1B becomes effective, but should file the COS from H-4 to F-1 after the H1B petition is approved and then the person has been counted against the quota and generally would not have a cap problem in the future. It can be confusing when multiple conflicting requests have been filed with the USCIS, so it is best to discuss the strategy with an attorney.

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Chat Master : There are about 25 minutes remaining in tonight's MurthyChat.

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Chat User : I am on H1B and have 3 weeks left for my 6 years to expire. I-140 was filed in January and is still pending. Can I apply for an extension on my H1B?

Attorney Murthy : The information you have provided is clearly not sufficient to respond to this issue. I would expect that you would discuss such an important issue with your employer and the attorney before making a life decision, packing your bags, and departing the U.S. within 3 weeks. In order to file the H-1 extension, the labor would have to meet the 365-day rule to permit a one-year extension.

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Chat User : After applying for EAD renewal, shall I travel outside USA? Would the application be denied?

Attorney Murthy : One is allowed to travel after filing the EAD renewal - problems and issues arise with the AP and with the H1B or extensions or changes of status.

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Chat User : Ms Murthy, my H-1 extension was denied last month and my company has filed an appeal. My H-1 expired in Oct 07. Until when can I work in the U.S. during the appeal? Can I transfer my visa to other employer?

Attorney Murthy : One is not legally allowed to work for the H1B employer in H1B status based solely on an H1B appeal - it is deemed both out of status and unlawfully present since Oct 2007 - since it is already past the 180-day mark, the 3-year bar has already accrued, unless there is some other case or filing that has not been mentioned that would prevent the unlawful presence. This is a very serious matter with severe immigration consequences for you and dependent family members! The USCIS cannot approve a new H1B within the U.S. for a person who is already out of status and unlawfully present, and by departing the U.S. to apply for the visa one becomes subject to the 3-year or 10-year bar upon reentry. The only hope is if the appeal is successful and one obtains the H1B approval. Then it retroactively makes the status okay. Otherwise, it is very risky at this time. Consult an independent attorney or contact us at the Murthy Law Firm if you are not sure of the advice from the employer or the employer's attorney.

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Chat User : I-140 approved, returned and working in India while waiting for CP. Does it effect CP approval or is there any max period one can / should stay outside U.S.?

Attorney Murthy : There is no max time that one can or must stay abroad - one can enter on CP when the PDs become current and the GC-sponsoring employer must continue to offer the individual a full-time, permanent job in order for her/him to be able to reenter the U.S. as a GC holder.

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Chat User : Filed H1B with Company A and received EAC number. Can Company B apply for my H1B now after having assigned an H1B quota number to me already?

Attorney Murthy : Well, until the H1B petition is approved, there is no H1B number assigned since the USCIS realizes that many cases will be denied for various reasons, including the employer or employee leaving the job, etc. So, until the H1B petition is approved or the H1B visa stamp issued, one is not allocated an H1B number under law.

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

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Chat User : Hi, Ms. Murthy. I am on OPT valid until Dec 08 and I have my H1B approved. Can I visit my home country and return by the last week of Sep?

Attorney Murthy : Generally, if one returns by the end of Sept, s/he will need to apply for the H1B visa stamp and reenter the U.S. in H1B status after Sep 20, 2008, since most new H1B cap-subject cases have a start date of Oct 1, 2008.

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Chat User : Hi. I have applied for an extension of my B-1 visa. I haven't gotten a response and my visa is going to expire on the 19th. I have an exam the 1st week of July. Will I face any problems if I overstay until I get a response? I have a 10-yr multiple entry.

Attorney Murthy : As explained in our articles and in various postings, if the USCIS denies the B-1/B-2 extension, then the 10-year visa is deemed void by law and the person cannot use it again to reenter the U.S. after overstaying even for a single day. Check out section 222(g) of the Immigration and Nationality Act to understand this position and the risks involved. If the extension is pending, one is lawfully present in the U.S. until either a decision or the requested end-date of the extension.

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Chat User : Hello, Ms. Murthy. My Husband added me to his existing I-485 in March 2004 just after our marriage. My husband got his GC in April of 2006. Mine still hasn't come. Could our applications have been separated somehow?

Attorney Murthy : Well, if you filed the I-485 separately from his after the marriage, then of course, the cases will be processed separately based on the USCIS processing methodology. Also, if the PD is not current for his PD based on the EB category, then by law the USCIS cannot approve the case. I am sure you must have discussed these issues with your attorney to get a sense of what is going on and if there is a delay or an error to bring it to the attention of the USCIS or contact the AILA Liaison, etc.

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Chat User : Dear Madam Murthy, do you see a problem if one sends his passport to Indian Embassy for passport extension when his EOS (H1B visa) has been pending? Does one get the whole 3-yr extension or only until the previous passport expiration date?

Attorney Murthy : The USCIS is allowed to approve the H1B extension for the full 3 years. The restrictions only apply if one travels abroad and the CBP Inspector is only allowed to give the H1B validity until the date of the PP expiration. This does not apply if one is simply extending the H1B status while within the U.S.

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Chat User : Dear Murthy, is there a chance that premium processing for I-140 will start anytime soon - especially if they stop concurrent filing? Thanks.

Attorney Murthy : The USCIS has expressed an interest in considering Premium Processing, especially where one's H1B is expiring or about to expire but no date has been given for if and when it will start.

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Moderator : 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 to of past chat sessions at http://www.murthy.com/chatlogs/chattran.html to see if your question was answered for someone in a previous chat.

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Attorney Murthy : We appreciate the opportunity to help you in 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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Moderator : 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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