Chat : June 25, 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 :
Dear
MurthyChat participants, it is wonderful to have so many of you with
us again today. We welcome your questions.
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Chat User : Hi, Murthy G. If I have a labor in hand after July 1st,
can we apply for I-485 and I-140 concurrently? Thanks.
Attorney Murthy : Yes, a person with an LC in hand in that person's
name, or even in another person's name if it is an LC sub case, must file
the I-140 and can file the I-485 concurrently as long as the PDs are
current. For LC sub cases, the I-140 petition filing must reach the USCIS
before July 16, 2007.
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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, Murthiji. My wife is on H-1. Do I need to submit
her pay stubs for filing I-485? She got the H-1 in October 2006 and still
has not started working.
Attorney Murthy : A person needs to show that s/he has been
maintaining valid, legal status in order to be eligible for the I-485
approval. If one has failed to maintain status for beyond 180 days,
there is a risk of the I-485 being denied. If the person is able to travel
abroad and reenter the U.S. in valid, nonimmigrant status, it is possible to
argue that the I-485 should be approved under 245(k) of the Immigration and
Nationality Act (INA), but the USCIS may deny the I-485 if the person
has failed to maintain status. One way to show maintenance of status on H1B, is submission of recent pay stubs, among other evidence.
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Chat User : Hello, Murthiji. After the USCIS fee hike (since the fee
includes EAD and AP), if the I-485 is filed after July 30th, will
it be required to renew the EAD and AP on a yearly basis? Thanks in advance
for your chat service.
Attorney Murthy : A person will need to renew the EAD and AP each
year, but the USCIS will not charge a filing fee for those annual
extensions, unlike now. So the fees will increase from around $400 to $1,000
per person for the EAD and AP, but it will include renewals. On average,
most people may file 2 to 3 renewals, so it still seems like a high fee. The
goal of the USCIS was to make a decision on all I-485s so that one
will not need to file EAD and AP extensions, but if the dates retrogress, it
will throw a wrench in their plans to streamline the system and adjudicate
all I-485s within 6 months or less.
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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 : My wife has a German birth certificate. Can I submit it
as it is, or do I need to get a translated version?
Attorney Murthy : Any document that is not in the English language
must be accompanied by a translation of the document, as well as a
certification by the person translating it swearing under oath that s/he is competent to translate from German to English (in this case), and
that the document translated is an exact translation of a document from
German to English of an original, unaltered document. It should be signed to
the best of the person's knowledge, information, and belief.
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Chat User : My family left for India 2 weeks ago. With the PDs
becoming current, what options do I have? My family needs visa stamping in
Chennai, and the earliest date is July 19th.
Attorney Murthy : Prepare the package for their I-485s ASAP, and keep
everything ready, but leave the I-94 card portion to be copied and faxed on
the date that they return back from India. Then file the package with the
USCIS. By mid July 2007, we will know if the priority dates are going to
remain current for another month until August, so that way, they can decide
if they need to return immediately after the visa stamping or if they can
stay another week or two.
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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 : Thanks in advance for your time. With all the EB1
categories being current now, what are the strategic differences in terms of
getting a GC through EB1-EA (outstanding researcher) and EB1-NIW?
Attorney Murthy : First, EB1 for EA or OPR is an EB1, and those PDs
are expected to remain current, or if they retrogress in the future, they
will move faster than the EB2 or NIW cases. Note that NIW is not EB1, but an
EB2 case. Each higher employment-based category has a better chance of the
dates moving faster than a lower EB category.
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Chat User : Thank you for excellent service. Can an employee legally
pay for his H1B and I-140 premium processing fees? I heard that laws are
changing as of July 16th. What happens to employees who have
already paid for it?
Attorney Murthy : Under the DOL final regulations, one who has
paid the fees before July 16th should not have a problem. After
that date, the employer must pay for the PERM process of the fees, but the
rest of the fees that go to the USCIS do not appear to pose as many problems
as the PERM legal fees or the USCIS H1B training fee that must be paid by
the employer. The DOL believes that these are employer-related expenses.
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Chat Master : For the latest news in U.S. immigration and what it all
means to you, subscribe to MurthyBulletin - our FREE, weekly
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to find out how.
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Chat User : Hi, Murthy ji. What lead time does INS provide to
complete the fingerprinting process after they send the fingerprinting
letter to me?
Attorney Murthy : Usually, the USCIS will provide a date, but if one is able to request a postponement in advance of that date, or go
within the timeframe listed on the notice, it should not pose a problem. If
the person is traveling abroad, then s/he is able to request at least
one postponement, though we have heard of the USCIS incorrectly rejecting or
denying the I-485. Then the person must file an MTR or appeal to point out
the USCIS error in the incorrect denial.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : Murthyji, will a misdemeanor sentence for speeding affect
a green card application and H1B re-stamping?
Attorney Murthy : A misdemeanor sentence will, at the minimum, need
to be revealed both on the form I-485 and on the DS 156 when applying for
the visa stamp at a U.S. consular post abroad. It will likely delay the case's
being approved and, depending on the nature of the offense under state law
and any other issues, it may pose problems. It should be investigated, and
it may be okay, but it requires some analysis to be sure.
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Chat User : Once the I-485 is filed and getting the EAD approved, is
a person able to open his own business without affecting his I-485
processing?
Attorney Murthy : A principal, whose GC case is
being processed, must be able to show that s/he is eligible for AC21
portability with the new job being considered "same or similar." The person
may also need to continue working with the GC-sponsoring employer for at
least 180 days. Otherwise, the employer may decide to notify the USCIS, and
that will result in the I-485 possibly being denied, in such a case.
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Chat User : Can we transfer an H1B within 2 months of a previous
transfer? Is there any timeline to transfer an H1B? Do frequent transfers
affect the chances of an H1B extension or GC processing?
Attorney Murthy : Frequent H1B transfers are not prohibited by law,
but it will likely make a future employer wonder about the stability of a
person who keeps changing employers frequently. The risk from the GC
point of view is that some employers will require the employee to work for at
least 6 months before starting the GC process, so there is a risk of not
starting a GC process with frequent job changes. It is also expensive to
file new H1B petitions each time one changes employers, since the
filing fees and legal fees are about $5000, especially with premium
processing nowadays.
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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 : Hi, Murthy. Thanks for your help. Will the medical test
results impact my GC (I-485) processing if one of the test results is
positive? Any chances for a rejection by INS?
Attorney Murthy : It depends upon which result is positive. If it is the
TB skin test based on vaccinations as a child, then it should not pose a
problem if there is not positive test of TB. On the other hand, if the
person is HIV positive, then s/he must establish coverage
by private health insurance, that s/he will not pose a public danger, etc. So a Memo
outlining this process must be sent to the USCIS with the I-485 or down the
road, when there is an RFE to show the exception to inadmissibility based on
having a serious communicable disease.
----------------
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 : Follow to Join or I-485/AOS? What should one choose to
file his wife's I-485 if priority dates are current and the husband's I-485
gets approved before filing the wife's and she goes out of H-4 status?
What's the safe period to file such an application?
Attorney Murthy : If the wife's I-485 package is ready to be filed by
July 1st, 2007, for example, then it is not likely that the spouse's I-485
will be approved on the very first date, in such cases. Should the
principal's I-485 get approved, then one could argue under 245(k) that
the spouse's I-485 should be approved if the total time unlawfully present
or out of status does not exceed 180 days. Of course, one could be subject
to removal within that 180 day timeframe, though the chances are not that
high.
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Chat User : Ms. Murthy, any updates on the PERM center in Atlanta?
The whole purpose of the PERM concept against the traditional process is
defeated with these delays. I’m wondering if MurthyDotCom has any
latest updates on this.
Attorney Murthy : It is true that the PERM processing center in
Atlanta is taking much longer than the other one. It is still much better
than under the pre-PERM system, where the LC process took 3 to 5 years. Now,
it only takes 3 to 6 months in Atlanta, but it is longer than it should be.
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Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : Murthy Ji, I have a pre-approved labor. If my I-140 is
rejected, can I use the same priority date for a new I-140 from the same
employer?
Attorney Murthy : If the I-140 petition is rejected or denied, then a
person cannot use that earlier PD for filing with a new case. The earlier PD
is only available after the I-140 petition is approved.
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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 : What is the expected approval time for an I-140 filed
now? Can we file an I-140 (and I-485), and if it’s not approved in 4 to 5
months, convert the I-140 to premium to take the benefits of AC21?
Attorney Murthy : Yes, that is possible to convert a regular I-140 to
a premium case, at some point, if the employer / employee wish to do that.
The standard processing time is about 3 to 8 months, depending on RFEs,
etc, though some cases take over a year or two, and others get adjudicated
within 3 to 6 months.
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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 : Can I extend my H-1 to a 9th year if my I-485
is pending and advance parole is pending or not pending?
Attorney Murthy : Yes, a person is able to file the 1-year H1B
extension if the I-485 is pending, irrespective of whether or not the person
has filed the AP.
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Chat Master : This ends tonight's session of the MurthyChat.
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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 in our MurthyChat and with our MurthyBulletins and
on MurthyDotCom. Thank you for your support.
----------------
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
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