Chat : June 16, 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 : It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with general information for your immigration matters during our MurthyChat. Thank you for using our services at the Murthy Law Firm.

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Chat User : Can I shift my company after I-140 is approved and come back to work for same company for applying for the I-485 after a year or so?

Attorney Murthy : Yes, that is certainly possible under the concept of the GC process being for a future job offer. In case there is another RFE at the I-485 stage with the USCIS asking about the GC employer's financial ability to pay the prevailing wage, then their tax returns or other appropriate financial documentation must show ample resources to cover the full PW salary, since you will not be working with them during that year.

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Chat User : Ms Murthy, my son is on H1B and completed one year in OCT 08. This fall he is going for MBA on F-1. My question: is he entitled to apply again for an H1B after completing his MBA without being subject to cap?

Attorney Murthy : The general rule of law is that a person is not required to be counted against the H1B cap / quota if s/he was approved for the H1B status within the last 6 fiscal years of the USCIS. Based on the limited facts provided, it would appear that he should be eligible to file a COS from F-1 to H1B after completion of the 2-year MBA program. Of course, to obtain the COS from H1B to F-1 now, your son would still be required to satisfy the USCIS of his clear intent to return to his home country, since the F-1 is a pure nonimmigrant status.

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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 lost my job with 140 and 486 pending. My previous employer will not inform about my position and will respond positively if there is any query. Is it okay now to work on EAD or should I get H1B and work on H1B? Thanks.

Attorney Murthy : Generally, it is safer to obtain a backup H1B status, but it is not essential or mandatory for one who is eligible under AC21 to port to a new employer after the I-485 has been pending for over 180 days. It is far more risky to use AC21 when the I-140 has not been approved. Even if an earlier employer agrees to help and keep a job offer open, there could be issues that cannot be properly answered in an RFE. Additionally, there can be changes in management and other reasons, including costs that an employer may choose not to respond to in an RFE. Also, if the I-140 is denied in this case the risk is high. So it depends on how much risk one is willing to take and still sleep well at night. That decision varies from person to person!

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Chat User : I am currently on H-4 and have received an H1B and COS approval. If I leave the country and return on H-4 before Oct 1, can I start working on H1B without the H1B stamping?

Attorney Murthy : Although there is no specific law or regulation that addresses this issue, in an opinion letter in another matter the USCIS took the position that, with an F-1 changing to an H1B from Oct 1st, the person was allowed to travel and reenter prior to Oct 1, and be considered to have a status change to H-1 on Oct 1st. Conceptually, it should work the same way for other categories, but since this is a guidance letter and not a law / regulation, or even a memo, it is not 100 percent clear cut. So, there is always some risk that it could be viewed differently by the USCIS at a later time. To be completely clear, it would be possible to apply for the H-1 visa while out of the country and enter in that status as of October 1st.

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Chat User : Murthyji, my EAD expires in 120 days and my PD is not current. To be eligible for 2-year EAD Renewal, do I need to wait until June 30 to send in my application?

Attorney Murthy : It does not appear from the guidance that it is necessary to wait until June 30th. The guidance applies to cases that are pending (awaiting decision) on June 30th. It is better in most instances to file it at the 120-day point rather than risk a gap in employment authorization.

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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. Murthy. Thanks for your wonderful service to the U.S immigrant community. My wife is in India now and her AP has expired. Will I be able to renew her AP while she is not present in the U.S.?

Attorney Murthy : A person cannot file for an AP extension if s/he is not physically present in the U.S. Hopefully she has an H-4 or L-2 visa stamped in her PP and you are maintaining your H1B orL-1 status, otherwise she may not be able to reenter the U.S. if she is not able to obtain either the AP or the H-4 or L-2 status.

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Chat User : Typically how long will the H1B application process take through the cap-exempt institutions?

Attorney Murthy : There is no time difference if the institution is cap exempt or cap subject. Most H1B petitions take about 3 months on average through regular processing nowadays and about 15 days and upwards for Premium Processed cases.

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Chat User : What is the maximum length of time recommended to stay out of the U.S. on company business at one stretch during AOS processing?

Attorney Murthy : There is no limit other than the expiration of the H1B status or the AP expiring while the I-485 is pending. The rule about staying abroad and losing the GC status applies after one becomes a permanent resident of the U.S. under the legal theory of abandonment by failing to live and work in the U.S. That prohibition does not apply while the I-485 is pending but only after it is approved!

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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 : Dear Murthy, can the dependent enter USA with AP and work on H1B visa?

Attorney Murthy : As mentioned in previous MurthyChat sessions, if a person enters on the AP, then the USCIS guidance seems to suggest that the safer approach is to work on the EAD but the person is able to file an H1B Extension of Status in case it is going to expire, thereby resuscitating the H1B status when the extension is approved. Otherwise, there is some potential risk and the safer approach is to attempt to obtain the H1B visa stamp from the consular post abroad if the person wishes to only work in the H1B status or failed to apply and obtain the EAD.

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

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Chat User : Murthy ji, is it absolutely required BY LAW to notify the USCIS of change in employment 180 days after filing of I-485, as per AC21?

Attorney Murthy : The statute is silent like it is on many of the issues dealing with U.S. immigration law. When there is no clear statutory law or USCIS regulation on a specific issue, the only legal documents on which we all rely are USCIS memoranda or guidance issued by USCIS Headquarters. In all of their memos on this issue, the USCIS has repeatedly pointed out that they "expect" that the person WILL notify the USCIS of the new employer and show how it is same or similar. We have started seeing I-485 denials issued by the USCIS when the earlier employer revokes the I-140 petition and the person has not bothered to follow USCIS guidance and file the AC21 notification. Also, even if the I-485 is approved in such a case, if the USCIS investigates later, the individual could jeopardize the GC status if it appears that there are irregularities in the approval or other issues that were not disclosed.

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Chat User : Good evening, Ms Murthy! GC was filed for the position which is different from the current position held in company. Do I need to work for the position (mentioned in GC) before using AC21? Thank you in advance!

Attorney Murthy : Well, technically, the GC is based on a future job offer so if one intends to work in a new position and not return to the earlier employment, some employers and their attorneys will require that person to start and file a new PERM for the GC. The question is the level of risk one wishes to take by not filing a new PERM but hoping to be eligible under AC21 in such cases. It is similar to the situation above person where, by silence, the USCIS may presume one is continuing employment with the original GC-sponsoring employer in the job mentioned on the LC/PERM, instead of the new employer or new job that the person is going to take.

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Chat User : With new I-140 premium rules, does one need to wait for the I-140 approval before applying for the 6th-year H1B extension?

Attorney Murthy : One does not need to wait for the I-140 approval to simply file a one-year H1B extension. The I-140 approval is required an instance where one wishes to obtain the 3-year H1B extension and qualifies under the I-140 PP, based on the LC not having being filed at least 365 days earlier and the PDs not being current.

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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 : Primary applicant I-140 is pending. Dependent H1B 6 years crossed visa expiring in Oct 2008. Are there any options to get back to H-4?

Attorney Murthy : Yes, since the USCIS changed their legal position in a Memorandum decoupling H1B and H-4 time, the spouse is entitled to file and obtain the H-4 COS along with the principal spouse, since the time on H1B and H-4 together is now no longer limited to a total of only 6 years.

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

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Chat User : Hello, Murthyji. Thanks for helping the community. I have a bachelor's degree from an Indian University and I have 10 yrs experience in the IT field. Am I eligible to file my GC under EB2? Please help.

Attorney Murthy : Based on the information you have provided, it is not possible to answer this question since it is a somewhat complex analysis of when one qualifies for an EB2-type position. There are 3 criteria required by law and, on top of that some foreign BA/BS degrees, if they are only 3-year degrees instead of 4-year degrees, will not be considered sufficient for one to have the equivalent of a BA or BS for GC purposes, even though it is sufficient for H1B purposes. You must discuss this with your attorney. If you do not have an attorney, then feel free to schedule a standard consultation with an attorney at the Murthy Law Firm by sending an eMail to law@murthy.com.

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Chat User : Dear Ms. Murthy, what are the consequences of working on EAD when waiting for a Motion to Reopen for a wrongfully denied I-485?

Attorney Murthy : Well, if the I-485 is reopened and the USCIS agrees that it was wrongfully denied, then one should be fine. On the other hand, if the I-485 denial is reaffirmed, then the USCIS could take the position that the EAD was not valid for employment authorization and the person worked without valid documents and, therefore, violated status and could be subject to removal. If one has an H1B petition approval, then there is some possible backup H1B status, in case the I-485 denial is reaffirmed. It also can depend upon the language in the I-485 denial, and whether there is a specific revocation of the EAD in the denial.

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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 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 : Hi, Sheelaji. Thanks for your service. I have a pending I-485 for 10 months, approved EAD and my H1B visa is valid thru 2010. If I change to a new employer now, do they have to start my green card process all over again?

Attorney Murthy : The new employer may want to file a 3-year H1B extension based, presumably, on the I-140 petition approval that is implied in your question but not explicitly stated. Second, if the I-140 is not approved, then it is risky to rely on the earlier filing. It is possible one could be eligible for AC21 portability. It certainly makes sense to consult with your lawyer or hire an attorney on a matter dealing with your green card status or losing your status through not understanding all of the legal ramifications and issues pertaining to your background and situation.

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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 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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Chat Master : Thank you all for logging in! Since Attorney Murthy will be traveling July 7th, there will be a chat on Monday June 30th. After that the regular schedule will resume with the 3rd Monday in July. The schedule can always be found at http://www.murthy.com/chat.html.

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Attorney Murthy : We at the Murthy Law Firm look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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 © 2008, MURTHY LAW FIRM. All Rights Reserved