Chat : July 21, 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 for your immigration matters in our MurthyChat. Thank you for
using our services at the Murthy Law Firm.
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Chat User : If I have been in the U.S. for 5 years and go back out of
U.S. for 1 year. The next time I come, can my H1B be reset, or will I just
have 1 year left on the H1B?
Attorney Murthy : An individual is allowed to choose between either
getting the one year left on the H1B or being eligible for the full 6 years
in H1B status. If s/he chooses the full six years, s/he will be subject to
the H-1 cap and should expect to go through the selection process under the
H1B lottery. Another option might be to file for the GC through a U.S.
employer and, after it has been filed, entering the U.S. for the one year
and obtaining annual H1B extensions or 3-year H1B extensions after the I-140
approval.
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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 applied for L-1 to H-1 change of status. When I go for
my stamping in case I'm denied my H-1 at the consulate, will I still have my
L-1? Can I come back into the U.S. on L-1 immediately?
Attorney Murthy : One is able to reenter on the earlier L-1 visa
approval, as long as s/he intends to continue working for the L-1 employer
after entry to the U.S. Most likely, the consulate will not cancel the L-1
visa if the consular officer is told that the individual will return to work
for the L-1 employer, if the H1B visa stamp is not issued to the person.
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Chat User : Good evening, Ms. Murthy. My wife has three I-94 cards.
One she got when she arrived at the port of entry and the other came with
her H-4 visa extension. Does she have to turn in all three I -94 cards to
the airlines when she leaves the U.S.?
Attorney Murthy : No. One is only required to turn in the latest I-94
card that shows the individual maintained valid legal status in the U.S. and
that the nonimmigrant status has not yet expired. If all three I-94 cards
have the same I-94 number, then the USCIS database will show that the
earlier I-94 cards have been extended. The safest approach, therefore, is to
submit the latest, correct I-94 card or the one that shows that one's status
has not yet expired so that, hopefully, there will be fewer problems upon
reentering the U.S. from foreign travel.
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Chat User : Murthyji, do you know why TSC is processing I-140s at
such a snail's pace? Are they processing I-140s based on priority date or
other criterion? They seem to be processing I-140s in random and not in FIFO
order. The processing date is not moving.
Attorney Murthy : The USCIS aims to catch up on their I-485s, since
the priority dates have moved forward by 2 years in the EB2 category. So,
sometimes they reallocate their resources to deal with different pressures
to meet certain deadlines. If the PD is not current they likely will give
less importance to quickly processing the I-140, since they may have to
complete certain other cases within a tight timeframe. It is frustrating
when there is little or no explanation as to why certain cases are being
processed before others. Generally, they will process cases for which the
PDs are current before those with backlogged PDs.
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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 : If I file AC21, does it mean that I am automatically on
EAD and I have to give up my H1B?
Attorney Murthy : No. One can file an AC21 portability case and also
file for an H1B to work with the new employer without having to work on the
EAD. AC21 does not mean that one has to work on EAD.
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Chat User : Is someone with a valid F-1 visa allowed to return to the
USA, if his/her name is included in the spouse's I-140 application?
Attorney Murthy : Generally, if one's name is included in the
spouse's I-140 petition, s/he should still be allowed to enter in F-1
status, since s/he has not filed her/his own GC paperwork. Only after the
I-485 is filed does the person express clear immigrant intent and, even
then, there is support for the F-1 to remain valid.
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Chat User: My L-1 employer was bought by a new company. Should I
file a new L-1 petition, or not?
Attorney Murthy : Generally, there is no problem if the new employer
has the same FEIN or is considered a successor-in-interest but, in some
cases, a new L-1 petition may need to be filed since the L-1 is based on
having worked for a related entity abroad. The issue is whether the new
employer continues and assumes all of the obligations and liabilities of the
earlier employer, and whether it continues to maintain the relationship with
the foreign entities, like the earlier employer.
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Chat User : If I receive the green card for my spouse and me when I
am in the U.S. and my spouse is in India, can I take my spouse's green card
with me when I travel to India, so that she can enter the U.S. on her green
card?
Attorney Murthy : It is generally possible for the spouse to reenter
the U.S. showing the I-551 card to reenter the U.S. If s/he had the AP also,
the spouse should be paroled in, as well, if s/he does not have the I-551
card. But the GC is usually a safe option, as long as the visit outside the
U.S. does not extend beyond 180 days to jeopardize the GC status.
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Chat User : I am working on an H1B visa and my wife is an F-1
student. Will my applying for GC affect her F-1 status? Will she have a
problem getting her visa stamped when she travels to India next?
Attorney Murthy : Whenever a person has lived for many years in the
U.S. and has family members, including a spouse, living in the U.S. in any
status, the consular officer has the legal right and discretion to deny the
F-1 visa stamp since the F-1 is a pure nonimmigrant visa status. Under law,
every nonimmigrant is presumed to be an intending immigrant and the burden
is on the F-1 visa applicant to overcome the automatic presumption of
immigrant intent by showing strong family and financial ties to the home
country, which is often difficult if s/he has been living in the U.S. for a
few years and has family living with her/him in the U.S. at the time s/he
applies for the F-1 visa. Of course, s/he can overcome the presumption with
strong countervailing evidence. The nonimmigrant visa application asks
whether one has a spouse in the U.S. or if the spouse has U.S. citizenship
or permanent resident status. The application does not ask if the spouse has
started the green card process, although the officer could ask.
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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 : If I have applied COS L-2 to H-4, (my husband's COS from
L-1 to H-1 is approved), if I go for H-4 stamping with his approval, will
there be any issues?
Attorney Murthy : As long as the person applying for the H-4 visa has
been maintaining valid nonimmigrant status and the spouse has been
maintaining valid H1B status and can show payment of prevailing wage with
pay stubs or tax documents, etc, in most cases it does not pose a problem.
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Chat User : When a substituted labor I-140 is denied in EB2, is there
an option to re-file in EB2 or EB3 using the same labor, as the expiration
on the labor holds for applying I-140 for first time.
Attorney Murthy : The Department of Labor's policy on this issue,
announced in press releases, is that a labor substitution case cannot be
re-filed after the deadline, even if an I-140 requesting substitution was
filed for the case prior to the deadline for substitutions. It is possible
to file a Motion to Reopen or an appeal within 30 days of the denial, if
there is a legal basis to contest the decision. However, it is not possible
under DOL interpretation to re-file the substitution case. This is different
from the ability to re-file an I-140 for a non-substitution case after the
labor certification has expired, as long as the first I-140 was filed before
the labor certification expiration.
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Chat User : Can a candidate transfer his H-1 during his "after 6
years extensions (1yr or 3yr)" and can still forward priority date for his
new GC application?
Attorney Murthy : The question is really not clear at all - generally
a person during H1B extensions is allowed the same rights in most cases as
if s/he was here all along, except for certain rights like the USCIS now
apparently refusing to allow premium processing for such a candidate who has
already completed 6 years in H1B, etc. Most other rights remain the same. It
is potentially possible to retain the priority date from an approved I-140
into a new I-140 at any point in time. If you need an answer for a
time-sensitive situation, you should consult with an attorney right away.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : Can my wife's I-485 be applied for next month, while we
renew our EAD and Advance payroll using our previously-filed I-485, using my
labor?
Attorney Murthy : One is allowed to file another application while
renewing the EAD and AP, but the USCIS has repeatedly told AILA attorneys
that they prefer that one not file multiple I-485 applications even if the
two spouses are processing different cases. The safer route is to either
interfile the second I-140 approval into the current I-485 or for the second
spouse's case to be consular processed, to keep both options open. Consult
your attorney or feel free to schedule a consultation with us at
law@murthy.com or by calling the Murthy Law Firm, if your attorney is not
able to help you both.
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Chat User : I received my GC three years ago and got married last
year. What is the fastest way for my husband to be able to live in the U.S.?
Attorney Murthy : Well, it depends upon what his credentials are and
whether or not he can enter in his own legal capacity? If not, then
generally you would be able to petition for his permanent residence, but it
will take many years unless you become a U.S. citizen. Many people try for
an H1B or L-1 employment or even, possibly, by studying - but the F-1 or J-1
visas are more difficult if the spouse is a permanent resident of the U.S.
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Chat User : Can a person apply for an L1B extension, even if he has
an approved H1B from another employer this year?
Attorney Murthy : If one has obtained a COS from L1B to H1B with the
I-94 card attached, with an Oct 1st, 2008 start date, s/he cannot file an
EOS on L1B after the status has changed. If, however, s/he files before the
COS has occurred by filing for the EOS now, before Oct. 1st in this example,
then it may be is possible to obtain the EOS approval. The other option is
for the individual to travel abroad and reenter the U.S. in L1B status, by
applying for the L1B visa stamp from abroad. It can create confusing
situations when there are multiple requests to change and extend status.
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Chat User : Can an individual have two H1B's, H1B (cap subject) and
H1B (cap exempt - nonprofit) at the same time?
Attorney Murthy : A person can have 2 H1Bs. If, however, the person
wants to work for two employers, the second case should be filed for
concurrent employment.
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Chat User : I filed for my I-485 last year and I have received my EAD
and AP. As of today I have not received my FP notice. Is it normal or am I
in trouble here? How can I check the status of it?
Attorney Murthy : The USCIS does not always issue the FP notice right
away. Getting an early FP notice does not necessarily help move the case
along. As you may know, the FP is only valid for up to 15 months, so it is
necessary to redo the fingerprints if the PDs retrogress. This becomes
expensive for the USCIS, so sometimes they prioritize the fingerprinting to
cases that are eligible for approval based on the PDs. This is nothing to
worry about in most cases.
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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 : I want to change to H-4 status from H-1. I have not
worked for my H-1 employer for a few months and do not have pay stubs. Can I
make this change?
Attorney Murthy : A person who has failed to maintain valid
nonimmigrant status in the U.S. cannot obtain a new nonimmigrant status from
within the U.S. since the USCIS will deny the COS. If the period of being
out of status exceeds 180 days, then it may also prevent one from obtaining
the I-485 approval for the "green card." One may be able to obtain an H-4
visa stamp from abroad, but even that can be risky. It is useful to discuss
these issues with your lawyer or contact us at the Murthy Law Firm if you
don't have an attorney who can explain these legal risks and consequences,
and to prepare you for the various risks and how to minimize the damage in
these circumstances.
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Chat User : Hi. Will the applicants who file for EAD and AP get two
year validity now? My application was submitted on June 13, 2008. Thanks for
your clarification.
Attorney Murthy : The USCIS has clarified that the 2-year EAD option
is only available if the I-140 petition has been approved. Additionally,
they will review PDs at the time of filing and also consider the PD
availability at the time of adjudicating the EAD. So, there is no assurance
that the 2-year EAD will be issued unless the I-140 is approved and the PD
is not current at the time of filing, as well as at the time of
adjudication.
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Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : I need to travel. I have my H-1 extension pending, and
also have I-485 and AP. If I use my AP, do I have to work on an EAD when I
return?
Attorney Murthy : One who chooses to travel and reenter on the AP
must then work on the EAD to be on the safe side. Another option is to
request premium processing of the H1B to obtain a response within 15 days,
so that one, hopefully, obtains the H1B approval before departing the U.S.
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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 : H,i Murthiji. Do I have to stop my job if I don't receive
my EAD (renewed) card before the current one expires? How long do I have to
leave the U.S. in that case?
Attorney Murthy : In the case of an EAD, the law states that, unlike
with an H1B extension with the same employer, where the person is allowed to
work at least for 240 days, s/he must stop work from the date that the
earlier EAD expires and until the new one is approved. That is why we
recommend that individuals file the EAD extension at least 120 days before
the expiration of the earlier EAD. One cannot start working again until the
new EAD is approved.
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Chat User : Hi, Murthy. I came to USA on H-4 visa. My visa expired
but my husband has a valid visa .We have not applied for an extension.
Please let me know my status.
Attorney Murthy : If the spouse on H-4 in this situation did not file
for an extension of the I-94 (not the visa stamp from the consulate), but is
solely relying on the principal's H1B extension within the U.S., it could be
a very serious matter. If the spouse who was in H-4 status has an expired
I-94, s/he is most likely now both out of status AND unlawfully present.
This is a very serious matter with long-term consequences. The amount of
time that has elapsed since the expiration is very important for potentially
regaining lawful status and for obtaining the green card in the U.S. You
should immediately consult with an attorney on an emergency basis to discuss
the options in this situation!
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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 : Currently employed with employer A on H1B. If another H1B
is approved from employer B, can I continue to work for employer A?
Attorney Murthy : It is possible to continue working for Employer A.
The easiest way to make this situation very clear is to file an H1B
extension or amendment with Employer A's H1B petition or to travel abroad
and reenter on Employer A's H1B petition so that it governs the person's
status. Consult an attorney to ensure that it works out in a manner suitable
and safe.
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Chat User : Hello, Ms Murthy. Is it safe to travel outside the
country when I-140 is pending? My H1B was not picked in the lottery and I am
in F-1 status right now. Please advise.
Attorney Murthy : Well, it depends upon one's background and issues.
Having filed the I-140 petition, and expressing an immigrant intent, the CBP
Inspector has the right to deny the person's entry into the U.S. in F-1
status.
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Chat User : There is an RFE on my green card case. My case has taken
a very long time. Can I use AC21 and what can I do to make my case go
faster?
Attorney Murthy : Well, it depends on the reason for the RFE and the
cause of the delay. If it is based on the employer's financial ability, then
if the I-140 is denied, the person cannot enjoy AC21 portability or any
legal benefits. If the delay is based on the I-485 only, after the I-140
approval, then filing a writ of mandamus may make sense. A writ of mandamus
can be filed even for an I-140 delay, but all that the writ does is to
ensure a faster response by the USCIS. There is no guarantee that the I-140
will be approved, especially if the employer's financial documents are weak.
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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 : We look forward to continue helping you, your
family and friends with all of your immigration law needs at the Murthy Law
Firm.
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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
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