Chat : June 04, 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 : I hope you had a peaceful and meditative Memorial Day last Monday. It is good to be back with you today. We look forward to helping you in this MurthyChat.

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Chat User : My employer has a 2004 pre-approved labor certificate. Will a labor substitution in 2007 change the priority date?

Attorney Murthy : If the person seeking to use the previously-approved LC is qualified with all of the minimum requirements from before the date of filing the earlier LC, s/he will be able to use the substitution and obtain the earlier PD. The employer must show financial ability to pay the full prevailing wage from the earlier PD.

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Chat User : Hello, Madam. I have a valid EAD and advance parole, but the I-140 is not approved, yet. Can I go to India for a month? Thanks.

Attorney Murthy : One can travel and reenter on the AP, as long as it is valid and has not yet expired. The risk is if the I-140 petition is denied and the I-485 based on that case is denied while the person is abroad. Then the individual risks not being able to reenter the U.S. unless there is a backup status, like H1B or H-4.

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Chat User : Hello, Murthiji. If the new immigration bill comes into picture, can I still port my I-140 even though my I-485 is not applied for yet?

Attorney Murthy : Well, it really depends on what the final clauses in the immigration bill may be. No one is 100 percent sure that any immigration bill will even pass. If one does pass, we can't know what issues it may involve. If it is similar to the present position, a person cannot port unless the I-140 is approved (or at least approvable) and the I-485 is pending for at least 180 days.

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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 have a priority date of December 2006. At the prevailing rate of visa releases, when do you expect my priority date to become current?

Attorney Murthy : We have no clue. It is possible that the priority dates will move slowly after this summer, especially if there have been many filings this summer. It will also depend on EB2 or EB3 categories, among other factors.

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Chat User : I am on H1B and planning to send my family for H-4 stamping at the consulate, but the problem I have is I do not have the marriage certificate. What should I do? Is there any way of handling this? Please advise me.

Attorney Murthy : It is possible to use at least 2 affidavits from those who personally attended the wedding ceremony, as well as photos and other evidence of the marriage like the wedding invitation, etc. It is wise to register the marriage during your next visit to ensure that the GC process can go through smoothly. Otherwise, there is a risk of the spouse and children, at times, being delayed or denied derivative status without adequate proof of the marriage.

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Chat User : In the new immigration bill, are the number of EB green cards likely to increase from 140,000 to 247,000 or decrease to 90,000? There are differing opinions on this.

Attorney Murthy : The reason for the differing opinions is that there are many versions of various immigration bills being put forth by various legislators.

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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 : I became a U.S. citizen. I want to sponsor a green card for my 25-year-old, unmarried sister. How long will it take for her to get the green card because she is unmarried?

Attorney Murthy : The sibling of a U.S. citizen is allowed to file the I-130 brother or sister, and it is not relevant whether the person is married or not. The wait time is about 10 to 15 years, at present, for most of the world, and much longer for those from the Philippines.

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Chat User : We recently filed an I-485 petition. What happens if the sponsoring company is acquired by a new company? How will that affect the I-485 petition?

Attorney Murthy : Generally, if there is a successor in interest after the filing of the I-485, there are at least two options. First, the new company could refile the I-140 with an amendment and request to interfile the new I-140 with the pending I-485. Second, the parties could wait until the I-140 is approved and the I-485 pending for at least 180 days, and then the person could use AC21 portability and argue same or similar job, if that applies.

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Chat User : Dear Murthyji, once we apply for a 7th-year H-1 extension, is there a time period in which the application has to be approved? If we don't get any decision from the USCIS, what are the options?

Attorney Murthy : There is no time limit under law other than possibly the earlier rule about the 240-day extension in cases of same employer extensions. Another option is simply to file under premium processing in case a quick response is required for some reason, like travel abroad and requiring the approval for the visa application process.

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Chat User : My employer filed an H1B cancellation by mistake. Can the application be voided or cancelled? The USCIS hasn’t received the application yet.

Attorney Murthy : Generally, there is no revocation of a request for revocation. Under general principles of contract law, it may be possible to request the revocation before the USCIS can act on it, but it is usually difficult. A better and safer option may be to file an H1B amendment, for example, under premium processing, and obtain a new approval notice so that the earlier revocation request will not affect the later-filed and later-approved case with a different WAC or EAC number.

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Chat User : After waiting for 4 years with the same employer, the PD became current. Now the employer, a medium-sized company, is finding one reason after another to delay my filing of I-485. The deadline for us to file is June 30th, as we don't know what the USCIS will do in the next visa bulletin. Can we file the I-485 by ourselves? Can we do anything with this kind of employer?

Attorney Murthy : It is certainly possible to file the I-485 on one's own since all that is required is a copy of the I-140 petition approval. We generally require a supporting letter from the employer verifying employment. The I-485 is the person's application to adjust status and obtain an approval as long as s/he is admissible, meaning no criminal issues or health conditions, etc that bar admission. This is the stage when one can file without the employer's support, other than obtaining an employer letter confirming the job offer or recent pay stubs to show continued employment. Also, it is likely that the PDs will remain current for another month or two, but there are no guarantees. One will know by the middle of June.

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Chat User : Hi, Murthy. I know it is hard to predict anything, but based on your insight, do you think in the proposed immigration bill the current amendments against family-based immigration (especially the annual cap per parents) will eventually get into bill? What do you think about the bill becoming law?

Attorney Murthy : It is possible that the bill eliminating or reducing family-based immigration may pass, since we have a pro-business, Republican-based Congress. If nothing passes by this summer, say around July 2007, then it is likely that nothing will pass until after the presidential elections next year.

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Chat User : My first I-140 was filed incorrectly under the outstanding ability, and an amended petition was filed subsequently. Currently, both petitions show up as current status. What happens to the incorrect petition? Would this affect my overall green card process in any way?

Attorney Murthy : There is no category as "outstanding ability" as there is an "extraordinary ability," which is the EB1-1, and the Outstanding Professor / Researcher, which is also an EB1 but an employer-based petition under EB1-2. There is also EB2, exceptional ability. Depending on which classification and why the amendment was filed, it may make a difference in whether one is denied and the other approved.

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

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Chat User : When we respond to an RFE for a premium H1B case, how long can the USCIS take to respond? They already took a month for my case. Thanks.

Attorney Murthy : The USCIS is only supposed to take 15 business days, at most, for a PPP case, and 15 business days, at most, after obtaining the response to respond. If the USCIS took over a month to respond, then the employer is allowed to request a refund of the $1000 premium fee. However, if you are measuring from the point of filing, the USCIS may be within their timeframes, depending upon how long it took to respond to the RFE. That time is not counted within the USCIS's time limit for a decision.

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Chat User : I have received an H1B transfer receipt notice today. Am I safe to give my resignation to my current employer? If my current employer revokes my visa, will it affect me now after my transfer application has been accepted at the USCIS? Thanks.

Attorney Murthy : Generally, if the new H1B has been received at the USCIS and the receipt notice issued, the person is safer to start working even if the earlier employer revokes or cancels the earlier H1B petition. However, if the new H1B is denied, then the person will be out of status if s/he has stopped working for the earlier employer. Thus, is safest to wait for an H1B approval, if possible, before changing employers.

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Chat User : I received a transfer notice a couple of months back saying that my I-485 case was transferred from VSC to TSC. My EAD is expiring in 90 days. Where should I file my EAD renewal? At the VSC, where I initially filed my I-485 application, or the TSC, where my case was transferred and is pending now?

Attorney Murthy : We wrote an article on this issue for our MurthyBulletin that would be available on our website. My recollection is that it can be filed to the new location with a copy of the transfer receipt notice and a copy of the original receipt notice, with notes written on it to show that the file was transferred. That way, the TSC can verify if the file is complete to issue the EAD.

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Chat User : My I-140 just got approved. Do I need to wait for 6 months or any timeframe before I change jobs and use AC portability? Also, can the new company apply in EB2 category (earlier was EB3) without losing the priority date?

Attorney Murthy : AC21 portability is not an option until the I-485 has been filed and pending for at least 180 days. If the earlier I-140 petition is still valid, then a new employer can file a new LC and I-140 and request the transfer of the earlier PD from the earlier file.

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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 : Can an employer, after filing for an H-1, file for an extension of F-1 status before OPT expires, which can allow the beneficiary to work legally for some time in a gap period?

Attorney Murthy : Generally, the extension of the F-1 status does not authorize the person to work in the U.S. during the H1B gap before the start date of the H1B status. OPT is limited to a year, and cannot be extended. There is no conflict of interest that would prevent a person from applying for the H1B and the F-1, but one must show his or her intent to enroll in a course of study if the wish is to file an EOS to F-1 for the summer.

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Chat User : I arrived in the U.S. with an F-1 visa. I’m currently on H1B. My dad, who is a U.S. citizen, had filed an I-130, which has been approved. I have an option of choosing consular processing or AOS. Would consular processing be a good choice to make? I have maintained my legal status at all times.

Attorney Murthy : The general rule of law is that it depends on the time of changing one's status from F-1 to H1B and then having the I-130 petition filing. Also, for the CP or AOS, the priority dates in the family-based case must be current. Merely having an approval is not sufficient to obtain the "green card." It will depend on one's short-term and long-term plans, since the EAD is a useful option for many, though the GC could be faster after the PDs are current under the CP option.

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

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Chat User : I am filing my I-480 soon. Can I travel to India after that? I may need to visit India twice in the next six months. Can I still use my H1B?

Attorney Murthy : A person is allowed to travel abroad and reenter on an H1B visa and in H1B status even after filing the I-140 immigrant petition under the dual intent doctrine. I presume you mean I-140 and not the I-480 which may be a typo. If you meant I-485, then the answer is still yes, travel is permitted either with an advance parole or on an H1B.

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Chat User : I came to the U.S. with a K visa on January 28, 2007. I married a U.S. citizen on February 15, 2007. It was a court marriage. I don’t know whether my spouse applied for adjustment of status or not. How do I find out whether I can legally stay in this country or not?

Attorney Murthy : One must file the I-485, and it is your responsibility, not that of your spouse, since all of the forms must be signed personally by you as the AOS applicant under penalty of perjury. If there is a problem with the marriage, then it is safer to find out earlier and make alternate arrangements instead of living in a world of expectations.

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Chat User : Is there any possibility that priority dates for India will be current in the near future?

Attorney Murthy : The PDs for Indians is current in EB1. It is not likely to become current for EB2 and EB3 unless the immigrant visa numbers are greatly increased. Under the present quota system, it will take several years to clear the current backlogs, but this does not mean that the numbers will be current.

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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 it faster to renew an EAD by eFiling or regular filing?

Attorney Murthy : There are pros and cons to each method of filing, but so far, we have found that the regular filing accepts all the documents at one time, so it is easier to keep track of the documents. On the other hand, getting a receipt notice may be faster with eFiling.

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Chat User : Dear Ms. Murthyji, thanks for your great service. My current visa with my old employer expires in September. I have an approved I-140 with my new employer, and I got my 3- year extension. I already completed my 6 years. Is it safe to travel to Mexico to get the visa stamped?

Attorney Murthy : Well, obtaining the H1B visa stamping in neighboring countries will depend on where one obtained her or his education. Usually, if it is U.S.-based, it may be safer than obtaining a degree from one's home country that Mexico and Canada cannot verify as easily. In addition, if one is working in a sensitive technology field or if s/he is from a country designated as a state sponsor of terrorism, etc, there are other important factors that are taken into account in determining if a country other than the home country will even entertain that visa applicant.

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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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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