Chat : June 30, 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 : Dear MurthyChat participants, 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 regarding your immigration matters.

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Chat Master : Please post your questions now. Remember to make them as BRIEF and GENERAL as possible.

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Chat User : My lawyer filed my PERM under EB2 by mistake instead of EB3. My H1B expired in April 2008. Now I'm on EAD what to do? Please advise. Thank you.

Attorney Murthy : This question is not possible to answer since the options depend upon one's background. Assuming that the EAD is based on having filed the I-485/AOS, the options depend upon on-going eligibility for H1B status, and whether there is any argument that the I-140 can be approved. Also, it is not 100 percent clear if there was an error in the EB2 filing or if that was the best strategy. It appears that you need to schedule a consultation with your attorney to discuss these matters regarding your specific case. If you don't have or feel confident with your current attorney, you are welcome to contact our law firm.

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Chat Master : Please make your question as brief as possible.

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Chat User : Hi, Murthyji. I obtained my GC 3 yrs ago. My husband is working in London and has been accepted in graduate school in the U.S., is it possible for him to come with student visa?

Attorney Murthy : It is possible for any person to apply for the F-1 visa at the U.S. consulate abroad after obtaining the I-20 from the university, along with the other required evidence. But, the problem with a pure nonimmigrant visa like the F1 is that it will be very difficult to obtain if the spouse is a permanent resident, living and working permanently in the U.S. Your husband will have difficulty establishing that he intends to return "home" permanently, whether he is originally from the U.K. or India, since one applying for the F-1 visa needs to satisfy the U.S. consular official of the strong ties to the home country.

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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 : With I-485 pending and priority date not current, can one let EAD cards expire and renew them at a future date when needed? The priority dates may not be current when EAD cards are required to be renewed at a future date.

Attorney Murthy : Oh, yes, that is not a problem under the existing / current USCIS policy and regulations, since one is allowed to file for the EAD at any time, as long as the I-485 has been filed and is expected to remain pending. Although the law does allow it and it gets expensive to renew the EAD when one has an H1B, sometimes a person suddenly loses the job or is laid off, or gets an unexpected, incredible job offer for which the new employer will require him/her to start quickly. The EADs can take several months to process; often three or even more. In such cases, I find that the cost of the EAD is minor compared to losing income for several months or losing better job opportunities. The EADs also are supposed to be issued for two years now, if the priority date is not current. Of course, one must make the decision based on her/his own life and finances, but I think it is helpful to get a perspective on the potential benefits versus the costs.

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Chat User : Can AC21 be filed and used in case of an I-485 filed for a future job green card? In other words, is it required for one to be working with the sponsoring employer for the 180-day period to count against AC21?

Attorney Murthy : Technically, it may not be required but there is always the issue of fraud or potential fraud or misrepresentation when one has never worked for the GC-sponsoring employer and the only reason that the USCIS / U.S. gov't is agreeing to give a person the GC is based on the particular U.S. employer requiring the services of the person for which no other U.S. worker was available. So, one must understand that there are risks associated with a decision never to work for the GC-sponsoring employer, and be prepared for the worst case scenario. This may not make sense in most cases.

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Chat User : Good evening, Ms. Murthy. Are U.S. green card holders fingerprinted and photographed at the U.S. Port of Entry? Should one be concerned if she was not fingerprinted at her recent entry into the U.S. using green card? Thank you very much.

Attorney Murthy : Well, there is no need to be concerned on this issue, as GC holders are not required to be FPed or photographed. That is only required for nonimmigrants entering the U.S. So, you can rest easy on this issue.

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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-485 is pending as a dependent on spouse's primary application and priority date not current. Can dependent apply for EAD & AP at a later date than the primary applicant?

Attorney Murthy : As mentioned above on the exact same issue, yes, it is allowed. It is simply necessary to have the I-485 pending.

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Chat User : Dear, Murthyji, can I respond to an I-140 RFE through a new company after exercising 180 days AC21? Will the USCIS accept such response from a new company?

Attorney Murthy : As has been explained by the USCIS, and by our firm in various articles and MurthyChat responses, it is not safe to leave the GC-sponsoring employer and take advantage of AC21 unless the I-140 petition is approved and the I-485 has been pending for at least 180 days. It may be possible to leave based on the I-140 being "approvable," but the risk is that the USCIS may consider it not approvable when filed. Also, there is no provision whatsoever for the new employer to respond to the I-140 petition that is filed and must be approved based on the earlier / current employer's financial documents and the applicant's work and education history, etc.

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Chat User : Hi, Murthy. Thank you for your service. I am working on L-1 visa and my wife is on L-2. I got the H-1 in 2007. I would like to do the change of status for my wife and myself. How long will the process take?

Attorney Murthy : It is not clear from your eMail whether the H1B was filed with a change of status earlier, in which case, both of you may already potentially be considered out of status since 2007, if the H1B petition was approved with the tear-off I-94 card at the bottom and neither of you has traveled abroad since then. If one has been out of status for over 180 days, then s/he could be prevented from obtaining the I-485/AOS approval from within the U.S., under current USCIS policy. If, on the other hand, the case was only requested for consular processing, then it may be safe to file a new H1B with a new employer. Otherwise, there are some risks that the USCIS will deny the new H1B extension of status with the new employer, based on the couple's failure to maintain lawful nonimmigrant status in the U.S. This situation is very fact-specific, a consultation is needed.

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

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Chat User : Hello, Murthy Ji!! I am on H1B, EAD approved. Have dependents on H-4. Got laid off. What happens to my depends' visa status if I start working on my EAD? Any remedies? Thx in advance.

Attorney Murthy : The dependents presumably have also filed for their I-485s; and so, based on their I-485s pending, they are allowed to live legally in the U.S. but cannot work until they obtain their own EADs. If their I-485s have not yet been filed, then it could create a major complication since the principal must maintain H1B status for the dependents to remain legally in H-4 status.

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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 : If I-140 is approved, working full time on EAD, can one work part time at another job? Is any paperwork needed for that?

Attorney Murthy : On an EAD a person is allowed to work with multiple employers in any capacity, as long as the principal GC applicant continues to work or submits evidence of the intent to work for the GC-sponsoring employer or in the same or similar job as mentioned on the LC under AC21 portability. The standard paperwork that every employer requires an individual to fill - like the I-9, etc - will be required when one works with another employer, but there is no notification / filing that needs to be made with the USCIS.

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Chat User : Can a person reenter USA using Advance Parole and work on H1B, which is not a stamped H1B visa, but an approved H1B petition? S/he did not apply for EAD, as well.

Attorney Murthy : The general policy of the USCIS appears to be that, one who chooses not to apply for the H1B visa stamp and reenter in H1B status should work on the EAD after entering on the AP. However, such a person is allowed to file the H1B extension and then get back into H1B status when it is time to file an H1B extension or amendment, etc.

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Chat User : Hi, Sheela Ji. I am right now on L-2 visa and working on EAD. Can my employer sponsor an L1A visa for me to take up a managerial position in their organization? What would it take for my employer to do this?

Attorney Murthy : The employer will need to file an L1A petition, but that presumes that you worked for at least one year in the 3 years before entering the U.S. for the foreign subsidiary, parent, branch, or affiliate of the U.S. entity abroad in a managerial or executive capacity.

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

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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 : I have an I-140 approved in EB3 with a priority date in 2004. Can I use this date in an EB2 case filed by my current employer?

Attorney Murthy : The general rule is that a person is able to retain the priority date and carry it to any other future job or employer or even if the person changes the EB category when filing the new LC/GC case from an EB3 to an EB2 case, for example.

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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 : My H1B expired on March 2007. I worked in the U.S. for a year in 2004 - then went back to India. Now I am on H-4. Can I use the old H1B visa to start working?

Attorney Murthy : It is not possible to start working on an expired H-1, but it may be possible to get back into H-1 status. The general rule of law is that a person is able to regain H1B status if s/he was counted against the cap in the past six years or is not eligible for an additional six years. So, if there is time left in the six-year H-1 period, it would be possible to change status to H-1 through an employer's filing of an H-1 petition. Under a changed policy, this can be done without the need to be counted against the H-1 cap, even if the person was out of the U.S. for a year. They can get the "remainder" of the six years of H-1 time.

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Chat User : Currently, I'm in L-1 and H-1 2009 is under process (as a fresh H-1). Can one leave the USA if H-1 2009 is under processing? Is that possible to file H-1?

Attorney Murthy : If a person departs the U.S. while a COS petition / application is pending, then by his/her departing the U.S. the law considers that the COS is deemed abandoned. This means that the petition itself can be approved, but not the COS, thereby requiring the person to travel abroad, apply for and obtain the H1B visa stamp from abroad, and then reenter the U.S. in H1B status, assuming it gets approved.

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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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Attorney Murthy : Next Monday we will not have the MurthyChat as we travel abroad. We expect to have all of you and others in our MurthyChat with us in 3 weeks at the same time - on the third Monday in July 2008. Thank you for your interest in using the services of the Murthy Law Firm and for using our MurthyChat.

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Chat Master : 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.

Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved