Chat : July 09, 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 : We welcome your questions and look forward to helping you with your immigration related issues. Thank you for your interest in our MurthyChat.

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Chat User : I thank you so much for your chat session. It’s been very helpful for me. Can you please answer a question? Did the USCIS do something illegal by revising the July bulletin? Even if we win the lawsuit, isn’t it true that the USCIS legally cannot accept any applications if there are no visa numbers available? I am just trying to speculate what will happen if we win the lawsuit.

Attorney Murthy : First, the USCIS did not revise the Visa Bulletin. The U.S. Department of State did that. Either way, it is true that, if there are no visa numbers available, the government cannot create them out of thin air. It will be argued in the lawsuit that, based on established policy and precedent actions that the general public relied upon to their detriment, the USCIS must accept the I-485s filed during July 2007 and issue EADs and APs to everyone who filed. It is true that many of these people may not be able to get their I-485s approved until the visa number is available again for their priority date, but that does not mean that the USCIS can create a new rule simply to collect higher fees, or for whatever reason, in violation of its own policy and practice.

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Chat User : Dear Ms. Murthy, what are your expectations for the worldwide availability come October 2007? Also, is it true that the CP interviews will not be cancelled and will continue as scheduled? Thanks.

Attorney Murthy : Yes, is it our understanding that CP interviews are going on as scheduled, since most consulates actually take the visa number in advance of the month when they schedule interviews for the following month. The DOS Visa Bulletin, revised on July 2, 2007, simply states that a fresh quota of visa numbers becomes available from October, with the start of the new fiscal year. Although no one can be 100 percent sure, I believe that the numbers will be similar to the dates mentioned in March / April 2007 - not those of June / July, before the July 2nd retraction.

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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, Ms. Murthy. Do you have any information on anybody getting a rejection / acceptance notice for filings on or after July 2nd? Also, do you have any update on the lawsuit from AILF? Thanks, as always.

Attorney Murthy : Yes, actually. AILF just sent me an eMail confirming that they are proceeding with their lawsuit. We posted an update this evening on MurthyDotCom. We will issue a summary and attach the three documents that AILF wants every person to review before joining in the lawsuit. We have heard of rejections of July 2nd cases, but our law firm, so far, has not yet received any rejections of the July 2nd filings. We have received approvals from USCIS dated July 2, 2007 of cases filed much earlier that were pending at the USCIS, but the strange thing is that, technically, there were no more visa numbers available from July 2nd onwards, according to the U.S. Department of State and the USCIS. We have to review what this really means for people and if the government made mistakes and approved cases incorrectly, etc.

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Chat User : I had filed for H-1 in April and have not received any response, as of yet. Does it mean that visa numbers are still being issued or they are in the process of denying the remaining applications? Thanks for your help.

Attorney Murthy : Actually, just today, I reviewed an update from the USCIS stating that they are trying to finish up the receipt notices of the cases filed in April 2007! Hopefully, the fact that you did not obtain a rejection means good news, but one cannot be sure, since the USCIS was holding many cases. Yes, they may still be issuing visa numbers on cases.

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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 for your excellent service. I-485 / EAD / AP were just filed in June. Will the USCIS fee hike taking effect July 31st for EAD and AP be applicable to my next renewal of EAD / AP?

Attorney Murthy : You are welcome. Yes, most likely a person will have to pay the much higher fees for the EAD and AP renewals for those renewed after July 27, 2007.

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Chat User : For applications that landed at USCIS on July 2nd (PD not current), is it better to request the USCIS send the application back, in case they accept it by mistake? That way, a later denial (2 yrs later) can be avoided? The questions / answers under the lawsuit FAQs are of much help. Thanks!!

Attorney Murthy : Actually, my argument may depend on the case. For example, if the I-485 was received before 11am, I may argue that the case was filed when there was a visa number available. Also, we have received approvals dated July 2, 2007 from the USCIS. This potentially means that there were visa numbers early in the day on July 2nd. Of course, it could just be a delay in issuing the approvals. Second, if the I-485 is accepted, then EADs and APs can be obtained for all in the family members, and the applicant can take advantage of AC21 portability, arguably, even if the I-485 is later denied. So I would not make a hasty decision to request the application be returned.

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Chat User : Hello, Ms. Murthy. Can an H1B employee leave his/her EB2 GC sponsor temporarily and travel outside the U.S. for a year while waiting to file the I-485?

Attorney Murthy : Yes, of course that is possible to do. In fact, there are many such cases in which individuals are still working abroad for their employers. Since the GC is based on a future job offer, that is not a problem. AFTER obtaining the GC, it is much more risky for the person to live and work abroad, since that could jeopardize one's GC.

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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 : My I-140 has been approved and I-485 / EAD / AP are pending. Currently, there are no visa numbers for any priority dates. Am I eligible for a 3-year H1B extension, even if my EAD gets approved in the next 3 months, and assuming my PD is not going to be current in October 2007?

Attorney Murthy : Whether or not your PD becomes current in October is not relevant to an H-1 extension now. You are entitled to obtain the 3-year H1B extension approval now, if you had filed requesting the 3- year extension, since the priority date is not current for you. Even if one obtains the EAD, there is no relationship between that and the government having to issue the 3-year H1B extension, as allowed under law, if the H1B and H1B LCA are valid for the entire 3 years.

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Chat User : Once my I-140 and I-485 is pending with a future job, can I apply for an H1B visa with another company for a backup plan and obtain an H1B approval notice in the U.S.?

Attorney Murthy : Yes, a person is allowed to obtain a 3-year or 1-year H1B extension with an employer other than the GC-sponsoring employer, at anytime. The USCIS allows this, and it makes sense from a legal point of view. The ability to do this in the U.S. assumes that the person is maintaining status.

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Chat User : Hi, Murthy ji. I have an approved H-1 petition for 2007. Can I transfer it to some other employer?

Attorney Murthy : If a person has an H1B petition to start working from October 1, 2007, s/he is allowed to file a new H1B petition with a new employer starting October 1, 2007, as long as the individual can show that s/he is in valid status now, when requesting the H1B with the new employer. Since the person was already counted against the H1B quota, s/he is not subject to the quota again.

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

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Chat User : Do you think there will be a surprise on the August 2007 Visa Bulletin for Employment Based?

Attorney Murthy : There is pretty little chance of any surprises for August 2007 in the EB category, since we have been informed that the worldwide quota has been used up for all nationals in all EB categories, per the USCIS / DOS.

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Chat User : Hi. Thanks for an incredible service. Does the unavailability of visa numbers, as per the July Visa Bulletin, impede the adjudication of a pending derivative (spouse) I-485 petition (primary’s GC issued recently in EB1 category, non-retrogressed country)?

Attorney Murthy : You are welcome! Yes, since all EB categories are not available, the spouse of a person, even in EB1 from any country, is not eligible in July 2007 for an approval until October 2007, since every country is expected to be retrogressed in the employment-based categories until September 30, 2007, per the U.S. Department of State revised Visa Bulletin of July 2, 2007.

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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 : Ms. Murthy, I have filed an I-140 in regular processing, and it was approved. Can I change now to I-485 Consular processing? If so, what do I need to do? Thanks.

Attorney Murthy : Yes. As mentioned on the I-140, for a person to switch a case from AOS to the CP option, she must file the I-824 to request the processing of the case to the particular consulate abroad. That process takes several months and the USCIS will forward the file to NVC. Then, when the priority dates are current or about to become current, NVC will send the file to the particular consulate.

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Chat User : Thanks for this service. I am a U.S. citizen planning to file for the green card for my mother. She is not currently in the U.S., but does have a 10-year multiple entry visa. Can I file the I-130 for her now and then later, when she comes to the U.S., file the I-485, etc?

Attorney Murthy : Although it is possible to do that, it is actually faster and safer for her to process the entire case through the consulate in the home country, since AOS can take several months (or sometimes years) longer, in such cases. Also, there is the doctrine of fraud or preconceived intent whereby, a person who enters on the B-2 as a tourist files for an adjustment of status after entering the U.S. Discuss these issues with your attorney, rather than regretting later that you did not fully understanding the potential problems.

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Chat User : Ms. Murthy, my husband's I-485 was approved in the last week of June. I could not file mine in time before the numbers became unavailable. I lost my H-4 status. Now, can I apply for a change of status to F-1? Can I remain in the country beyond 6 months if my COS petition is pending? Will that count as unlawful presence? Thank you.

Attorney Murthy : Well, there are issues of being out of status and issues separately, also, of unlawful presence for purposes of the 3-year or 10-year bar. It is possible that, when the spouse is a permanent resident, it is more difficult for one to obtain F-1 status, which requires a strong intent to return to the home country. One is allowed to stay in the U.S. while the COS is pending, usually up to 120 days, or, in some cases, until the case is adjudicated. Discuss the legal nuances of your case and the risks and options with your attorney.

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

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Chat User : For an AOS plaintiff, can AILF not request the court to keep the identity confidential to protect from any possible scrutiny?

Attorney Murthy : It is possible that most people's names will not be mentioned in the lawsuit, and the majority of the hundreds (or thousands) of people are expected not to have any special scrutiny. Also, it is possible not to send in the questionnaire at all, but if a person has filed the I-485 during July 2007, the AILF lawsuit will protect that class without the person even joining the lawsuit. Only those who do not file may not be as protected, but even there we discussed, and AILF is including them as a potential class of plaintiffs who were affected by the government's actions.

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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 : Hello, Ms. Murthy. I am waiting for my H-1 approval. Can I go to India after I get my approval and return to the U.S. before October? Will I have to go for stamping for my H-4. Is it possible? Thanks a ton for the advice!!

Attorney Murthy : A person who departs the U.S. while a change of status is pending from H-4 to H1B is deemed to have abandoned the COS application. After the H1B is approved, s/he will need to either travel abroad again or file a new H1B to request that the USCIS issue the I-94 card at the bottom of the approval notice. Otherwise, the individual is not allowed to work simply upon the H1B petition approval, unless the change of status is also granted. It would be better, in most situations, to upgrade to premium processing so that the H-1 potentially could be approved before departure.

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Chat User : Is there a limit on the number of times one can take advantage of AC21portability? Should there be a letter sent to USCIS when changing employers to notify?

Attorney Murthy : By law, there is no limit. Though, from the employer's and the USCIS's perspective, it may make them wonder about the stability of one who cannot stay in one job for long. It is safer to send the AC21 Memo, along with the cover letter and the new employer's job offer, each time one changes employers under AC21, since the USCIS memos expect notification.

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Chat User : Any idea when is AILF is planning to file the lawsuit?

Attorney Murthy : AILF is planning to file the lawsuit soon. They have just issued an update this evening, Monday, July 9th, 2007, updating their FAQs, adding a questionnaire and a retainer agreement. Go to murthy.com for information after this MurthyChat session. We are going to link those documents.

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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 : I applied for OPT in March. It has been almost 110 days, but I have not received an approval yet. What can I do at this stage? What would you recommend to expedite my case?

Attorney Murthy : Some delays are due to security matters or name-check verification. Go to the local USCIS or contact the school to see if they can communicate with USCIS / ICE on the possible reasons for the delay in your case. Most cases take up to 90 days, so anextra 20 days by the USCIS, with all that is going on with them, is not that unusual.

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Chat User : Ms. Murthy, is there a way to relinquish a green card within the country and revert to previously held valid status (H-1 in my case)? Thank you.

Attorney Murthy : Yes, it is possible to do that, though it takes more persistence, time and effort to explain why one needs to do that, since the USCIS likes to do minimal work for the maximum fees that they can get - unlike the U.S. Department of State that will more easily help with this process.

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Chat User : Is a person eligible to get an F-1 visa, if she was a part of a GC application, which is currently not existing (denied /cancelled)?

Attorney Murthy : Generally, the answer is no, since one previously expressed an intent to immigrate, unless s/he can show why and how circumstances have now changed to make the intent different from before.

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Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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Chat Master : Thank you all for logging in! 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 © 2007, MURTHY LAW FIRM. All Rights Reserved