Chat : August 04, 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 : We welcome your questions and look forward to helping you with general information regarding your immigration matters in our MurthyChat. Thank you for using our services at the Murthy Law Firm.

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Chat User : If my pending I-485 is approved while I am outside the USA, will I have any problem reentering the USA? Currently I have a valid H-4 and DO NOT have an ADVANCE PAROLE.

Attorney Murthy : Based on current USCIS policy and observed CBP practice, the inspecting officers at U.S. ports of entry (POEs) have been permitting individuals to apply for readmission in H1B visa classification (provided they have valid visas) or another classification that enjoys the doctrine of dual intent or apply to be paroled into the United States pursuant to a valid Advance Parole document if the I-485 was approved when they were abroad. If someone at home is checking the mail and finds that the I-485 has been approved, it is a good idea for a copy of the approval notice to be mailed abroad to show the CBP inspector upon return, in case s/he checks the I-485 status and finds the I-485 has been approved. With the short time that the inspectors are supposed to review arriving passengers, it seems unlikely that one will actually review the I-485 status, but it is something to be prepared for each time.

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Chat User : My wife’s H-1 is applied as Change of Status and it is approved now. Can she go to India and come back before Oct 1st on her H-4 (validity until Nov 30, 2008)?

Attorney Murthy : There is a USCIS opinion letter on a similar issue of the change of status (COS) from F-1 to H1B with an Oct 1st effective date. There is a last action rule that is inconsistently interpreted by the USCIS, which could be problematic. The issue here seems to be the expiration date of the H-4 status. It is safer to request it at the port of entry only until Sep 30, 2008, with the new H1B effective from Oct 1st, and carry a copy of the Hernandez opinion letter. Notwithstanding this, it may not be an issue even if the H-4 validity goes beyond Oct 1, 2008 and even without the extra documents.

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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 : Good evening, Ms. Murthy. My PD is current and I am done with my fingerprinting. Do I have to be physically present in the U.S. when my green card is being issued?

Attorney Murthy : One can be abroad and reenter the U.S. on the AP status; then, after entry, the I-551 card (physical card to evidence permanent resident status) should be in the mail at home. It is not essential to be physically in the U.S. on the date the I-485 is approved, but one needs either the AP or the H1B/H-4 status in order to reenter the U.S. - and for the I-485 not to be considered abandoned.

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Chat User : My petition for L1B to H1B COS has been selected in the lottery and I am waiting for approval. Can I still extend my L1B with my current employer?

Attorney Murthy : Yes, one can extend the L1B with the current employer, but there is the last action rule, whereby the USCIS's last action for the individual may supersede an earlier status or approval. So, depending upon which status one wishes to maintain in the U.S., it is important for the employer to revoke the other petition or for the person to travel abroad and reenter the U.S. in the status s/he wishes to retain for the future to avoid confusion regarding maintenance of legal status later. This is crucial; especially when applying for the I-485 - the last stage of paperwork to file for the green card.

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Chat User : I applied for my EAD renewal in July. However, there was an error in my birth date and I want to know what I can do to correct this. Should I just file another I-765 application?

Attorney Murthy : One option is to attempt to contact the USCIS service center and request that the officer correct it before the EAD is approved and issued. Or wait until the card is issued and then show it to the employer in order to keep working legally and return it for correction after confirming eligibility for employment. There is a likely chance that the USCIS could issue an RFE to request clarification on the DOB issue.

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Chat User : What are the options for resolving an EB2 PERM application if it has been pending for over 15 months?

Attorney Murthy : Generally, most PERM cases are completed within a few months unless they are being audited. The Department of Labor has confirmed that audited cases can take anywhere from 12 months, with some exceeding 15 months. If there was no audit issued, then it is possible that the mail was lost. Discuss it with your lawyer, who may be able to work to resolve it through the AILA Liaison with DOL, if needed.

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Chat User : My H-1 is approved and starts Oct 1. What is the main difference in transferring an H-1 visa before and after Oct 1? I am currently on OPT and unemployed to date. Is it still a transfer before Oct 1? Thanks!

Attorney Murthy : As long as one has a valid F-1 status until Sep 30, 2008, the USCIS will issue the H1B approval notice with the I-94 card attached, with the start date of Oct 1, 2008. On the other hand, if the individual has failed to maintain status, by not working for beyond the total of 90 days under the 12-month F-1 OPT rule, or a total of 120 days under the new STEM extension DHS regulation, if a future employer files for a new H1B petition the person cannot obtain the H1B extension of status (EOS) if s/he failed to maintain valid nonimmigrant legal status in the U.S. Once one has been counted against the H1B quota, there is no requirement to be concerned about the H1B quota. One still needs to establish maintenance of lawful nonimmigrant status, however, to be eligible for the EOS by the USCIS.

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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 : When one is on H1B and working for the H1B employer and also working for somebody using EAD, does that cancel the H1B?

Attorney Murthy : This issue is not clear under existing law and regulations. The Legacy INS memos seem to imply that, once a person works on the EAD, s/he must use the AP to reenter the U.S., but s/he is also allowed to extend the H1B status with the H1B employer if the intent is to work for the H1B employer. Since there is dual intent of the H1B with the I-485, in reality, it may not make a huge difference.

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Chat User: Can I file my green card for my family when my employer files the I-140 petition for me?

Attorney Murthy : The I-140 petition is only for the foreign national employee and family members cannot file anything, unless the priority dates (PDs) are current. When the PDs become current, then each family member can file an I-485 for adjustment of status. Of course, the names of family members and dates of birth, etc. should be mentioned on the Form I-140 when filing it with the USCIS. Discuss this with your attorney to understand the GC process. We have a detailed article on www.murthy.com on the various steps involved in processing the "green card" and the legal requirements for each stage that you may review for free.

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

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Chat User : I am current from Aug. Will there be any advantage in opening service request? Thanks for your service.

Attorney Murthy : The USCIS cannot complete the processing of all cases that become current from Aug 1, 2008 onwards. It is not possible. One could check on a case, but the USCIS policy is that individuals should wait about 4 months or so from the time the date becomes current and from the date mentioned as being within their processing report.

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Chat User : Dear Ms Murthy, I am awaiting I-485 approval with a PD of Aug 2004. I have an approved EAD. I am looking to change my job. Does my new job specification have to be similar to the current one?

Attorney Murthy : Yes, under AC21 Adjustment of Status portability the new job needs to be either the "same or similar" to the current job. The USCIS has not issued regulations on this point, but there are a couple of memos and have been various discussions during conferences on terms and definitions under the AC21 law and the USCIS interpretations of the word "similar" in this context. It could be risky if the jobs are not considered similar, since the USCIS potentially could deny the I-485 solely on that basis, though they have tended to be generous in the interpretation of that term, so far. One must review the job duties carefully and make a decision as to the level of risk s/he is willing to take in such cases.

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

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Chat User : Dear Attorney Murthy, can I interfile an I-140 petition if I have a pending I-485 based on my husband’s I 140/485, which are both still pending?

Attorney Murthy : We have successfully done that before and been able to obtain the I-485 approval based on the fact that the spouse's priority date is current. In an AILA Liaison meeting with the USCIS, the USCIS has stated that the interfiling preferably should be of the same person's petition. Here again, there is no statutory or regulatory guidance on this issue, so it is a matter of procedure and different USCIS offices and officers may view it differently.

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Chat User : Is it required to file a new LC for a new employer for the same kind of work? I-140 denied applied MR pending. I am on 7th year under H1B.

Attorney Murthy : The general rule of law is that, each time a person changes her/his employer, the entire green card process must start from scratch. The only exception is when AOS AC21 portability may apply, which cannot apply in a case where the I-140 is not approved or approvable, as in the example you have mentioned. The priority date cannot be transferred to the new employer's filing, since the I-140 petition was never approved. So the entire process must restart and there is a risk that, if the MTR is denied, the person cannot obtain the 8th-year H1B extension. So, move quickly to obtain that approval before the MTR possibly could result in a denial.

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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 do not maintain my H1B status and work on the EAD, can I file for an H1B with a new employer?

Attorney Murthy : As long as one is eligible for the H1B, based on her/his having used up the full 6 years of H1B or having the I-140 approval, etc, s/he is able to file a new H1B with a new employer. S/He may need to travel abroad and reenter in H1B status after obtaining the H1B visa stamp if valid H1B status has not been maintained.

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Chat User : I'm on L1B and got my H1B approved and still continued to work on L1B,to get back my L1B status. What should I do and what will happen to my H1B at that time?

Attorney Murthy : If one's status already changed from L1B to H1B, then the person may already be considered to be out of status at this time by working for the L1B employer after the H1B status has taken effect. One option may be to travel abroad, possibly obtain a new L1B visa stamp and reenter the U.S. in the desired status - like L1B in this example. Discuss the risks and pros / cons with your immigration attorney to understand the position and not jeopardize your future options, such as the ability to file and obtain the I-485 approval within the U.S. at a later time.

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Chat User : Murthy ji, what will be one's status if s/he uses H1B stamping and s/he uses AP to reenter the U.S.?

Attorney Murthy : Each person has the right to choose which status to enter on. The principal can choose to enter on H1B status and the dependent(s) on AP status. That is legally permissible since each person is a separate entity under law.

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Chat User : Can I join a new employer when my labor is pending and I have only 8 months left on H1B to reach six years?

Attorney Murthy : One is always able to join a new employer, but the risk is that s/he may have to pack up and leave the U.S. upon reaching the full 6 years! Unless the LC was filed over a year ago, one is not entitled to obtain another 1-year H1B extension and, after the one-year H1B petition approval, a year later, s/he has to deal with the same problem unless the new employer has filed the LC/GC, at least 365 days earlier. There are risks and one must really discuss these types of issues with an attorney - and not plan to make major life decisions based on a brief response on general legal principles.

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

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Chat User : I-140 approved. I then returned and am working in India while waiting for I-824/cp. In the meantime, I need to come to U.S, for conference and visiting spouse. What needs to be done?

Attorney Murthy : Well, the safest approach is a dual intent visa, like the H1B or L-1, if available, rather than attempting the B-1/B-2, which is a pure nonimmigrant visa/status. This will likely be denied after having expressed immigrant intent. Discuss the options with your company's counsel or with one of our experienced lawyers at the Murthy Law Firm, if you do not have an attorney.

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Chat User: Ms. Murthy, do I need a job offer my I-485 is approved? Does the new job need to be a similar job to the green card job?

Attorney Murthy : A person must show that s/he has the same or similar job with a new employer in order for the USCIS to issue the I-485 approval, especially if the USCIS issues an RFE on the case. It is a problem if there is an RFE and no job on hand at the appropriate time, which is when the USCIS is ready to make a decision on the I-485 application, since the entire GC process is based on the concept of a future job offer.

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Chat User : Madam, my AP is valid until Nov 08, but when I entered the USA last month, the officer at the POE stamped me as "Paroled until Jan 09." Does this mean that I can leave the USA and come back before Jan 09?

Attorney Murthy : No. Please read the AP document carefully. It is only valid through the date until which it was originally stamped. We had requested the CBP not to stamp it like this, but some officers still use their old stamps or may think it is the responsibility of the individual to realize that s/he cannot use that stamp as legal authority to travel abroad and reenter the U.S., since the document explains that it is only valid for the dates listed and not beyond. It simply means that one is valid in the U.S. to live here but nothing about the Advance Parole being used as an entry document is an option based on the CBP stamp, which is admittedly confusing. The law states that ignorance of the law is no excuse for violating it, so be careful. It is good that you are checking now!

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Chat User: Is the person deportable / removable if s/he is not working for the H1B employer?

Attorney Murthy : An individual who is not working while inn H1B status is in violation of the H1B status, which requires employment with the H1B employer only. Yes, ICE or USCIS is allowed to start removal proceedings in such cases.

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Chat User : Hi Murthy. Applying for COS H-4 to F-1. Is it possible to file I-140 (nursing based) while F-1 visa is in progress OR should I file I-140 before applying for F-1? Thanks.

Attorney Murthy : If one files the I-140 before, the USCIS cannot approve a pure nonimmigrant status like the F-1 after the individual has expressed an immigrant intent. This is risky. It is safest to wait until the F-1 status has been approved and then, after a while, file the I-140 petition otherwise risk obtaining the F-1 denial.

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Chat User : Can a person continue working while waiting for EAD renewal with having receipt even if EAD expired?

Attorney Murthy : No, the USCIS regulations require the EAD to be actually approved in order for one to be able to work legally. The individual is required to stop working when the EAD expires. It is considered unauthorized employment to work without the EAD approved. That is why it is recommended that one file the EAD extension exactly 120 days before the earlier one expires under the latest USCIS guidance in filing EAD extensions.

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Chat User : Can a dependent go from H1B to EAD and come back to H1B, if the principal applicant's GC is in trouble?

Attorney Murthy : It is possible, but the USCIS may approve the H1B petition for a person who entered on the AP as an H1B consular notification approval, requiring the person to travel abroad and apply for the H1B visa stamp at the consular post abroad and reenter the U.S. in H1B status. So it takes some planning and costs to ensure that the process works smoothly. It can get complicated, so discuss the options with your attorney, or consult the Murthy Law Firm if you don't have an attorney.

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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 enter USA on AP if my H-1 stamping is rejected?

Attorney Murthy : Yes, one is allowed to enter the U.S. on AP, as long as the I-485 remains pending. The risk is, if the I-485 is denied while one is abroad, then the CBP inspector has the right to deny the person's entry on AP into the U.S.

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Chat User: Do you expect the EB3 dates to move and when?

Attorney Murthy : Well, the U.S. Department of State has explained that EB3 is not likely to move ahead until the start of the new fiscal year, on Oct 1, 2008. At that time, the visa numbers likely will move forward to use the new immigrant quota available under FY2009.

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Chat User : Any updates on I-140 processing?

Attorney Murthy : We just wrote an article on I-140 processing update that was published on Friday, Aug 01, 2008, in our MurthyBulletin. It was about too many people incorrectly requesting premium processing and delaying the USCIS by requesting premium processing of I-140s. The processing is generally slow on I-140s after last summer's rush of case filings, in particular.

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

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