Chat : August 13, 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 : It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration matters.

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Chat User : Hi, Murthyji. Thank you for the excellent service. Can a person who is out of status (H1B) for 4 years apply for I-140 and I-485? Thank You.

Attorney Murthy : Thank you for your kind words. It is always a pleasure. The USCIS cannot approve the I-485 for a person who is out of status for over 180 days. Under 245(k), applicable in employment-based cases, one is protected up to a maximum of 180 days for being out of status. If the person was both out of status and unlawfully present, then it is an even bigger problem, since the I-485 cannot be approved from within the U.S. and one cannot travel abroad to obtain the GC at the consulate, since the 10-year bar will apply. This is a serious issue, so you should consult with a qualified lawyer to find out the possible options in such a serious matter on an emergency basis. The other exception to this would be under 245(i), for cases that were initially filed before April 30, 2001.

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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, I'm on H1B and waiting for EAD. My wife has approved H1B from 1st October 2007. Do we need to wait for EAD or can she start working? Please advise.

Attorney Murthy : The spouse cannot start working until Oct 1st or until the EAD is approved and in-hand, in order to start working legally.

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Chat User : Thank you for taking my question. USCIS received my I-485 application on August 2, 2007. Can I travel to India, even before getting the receipt notice from USCIS? Is there any risk involved?

Attorney Murthy : There is a Legacy INS regulation that requires the original I-485 receipt notice but the CBP / Inspectors now do not seem to require the I-485 notice. There were policy announcements regarding this in 2002. However, the regulation was not changed. Hence, there is some confusion. The safe approach is to have the receipt, even though that part of the regulation regarding abandonment of the I-485 generally is not enforced. Most times, the CBP does not ask, or even need, the I-485 if the person is entering on the H1B visa stamp with the original H1B petition approval.

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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 : Can one file AP without notice of concurrent filing of I-140 and I-485?

Attorney Murthy : One does not need to show I-140 concurrent filing to file the AP. S/he must file the I-485 in order to file for the EAD and AP and, ultimately, for the I-485 to be approved it must be a bona fide, legitimate, valid I-485 filing.

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Chat User : Thanks for providing this chat service on immigration matters. I have a question on Labor Certification hard copy. If we got our Labor Certification approval this week, can we apply for the I-140 and I-485 without the hard copy?

Attorney Murthy : There is a risk that the USCIS could deny the I-140 petition without the original LC approval, since the USCIS position is that it is primary evidence of eligibility and priority date eligibility. If one is lucky, the USCIS may issue an RFE on the I-140. But if they act as they ordinarily do, and require the LC original with the I-140, then they could reject it for filing or accept it and then deny the entire case. In that later instance, all the legal fees and USCIS filing fees will be wasted when the I-140 and 485 are both denied.

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Chat User : My husband has applied for concurrent I-140/I-485/EAD/AP in July '07. At this stage, can I join a school for my studies on a part-time basis and still be on H-4 visa?

Attorney Murthy : A person is allowed to study or attend classes while in H-4 status. Since the I-485 and the H1B or H-4 status are dual intent, there is no problem if one has also filed the I-485 with the EAD and AP, as one can maintain H-4 and AOS concurrently. You do not say that you have filed the I-485, but it is implied. If you have not filed it, then it must be filed now, while the PDs are current for you also.

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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 User : Murthyji, ON H1B cancellation with current employer, would the initial labor filed date be carried forward on new GC process, to be filed by new employer?

Attorney Murthy : No, the only time the PD can carry forward is when the I-140 petition previously has been approved. The LC filing is applicable only in circumstances like the 245(i) filings, where there were some rights preserved based on a valid LC filing, but that does not apply for transferring the PD.

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Chat User : If one uses the EAD to make a job change (before final approval of I-485), what happens to the H-4 status of the dependents, if the dependents have not yet gotten their EADs? What precautions must one take to avoid being out of status?

Attorney Murthy : Generally, there is no requirement for the H-4 dependents to have EAD, since the EADs are only required to work. EADs are not a status. They are a benefit that is available if a person has filed the I-485. If the dependents do not intend to work, then the filing of the AOS gives some rights to stay legally in the U.S., but not the ability to work. It is usually safer to maintain both the AOS and the H-4 status, since each acts as a back-up for the other status.

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Chat User : My wife's EAD has been filed but the receipt notice has not been received. Can she start working while EAD is pending? Or does she have to wait to work until her EAD is approved?

Attorney Murthy : The law requires that the EAD must be approved in order for one to work legally. That is why it is recommended that one file the EAD extensions each year, about 5 months prior to the expiration of the earlier EAD, to avoid a gap in the ability to work legally.

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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 : Hi, Murthiji. If I use AP, does my H1B become invalid? Appreciate your service.

Attorney Murthy : There is nothing that clearly states that, by using the AP, the H1B status become invalid or void. In fact, there are Legacy INS memos from March and May of 2000 that provide that a person can enter on the AP and then, presumably, work on the EAD and also still extend the H1B status, since H1B enjoys dual intent status under the Immigration Act of 1990, also called IMMACT. The entry on the AP does make one a "parolee" or an H-1. S/He keeps some of the privileges of an H-1 and could get back into H-1 status by having an extension / amendment filed.

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Chat User : Hi, quick question: My H1B expired and presently I am on H-4. Can I change to H1B now, or must I to wait for next year's quota?

Attorney Murthy : As long as there is still available H1B time, either part of the initial six years or, through eligibility for extensions based upon the LC filing at least a year earlier or the I-140 petition approval even if it is less than one year.

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Chat User : Hello, Atty Murthy. If one has filed for the AOS without the EAD, can s/he file the EAD at a later date?

Attorney Murthy : Yes, one can file the EAD at any later date. The reason that the Murthy Law Firm filed every person's EAD before August 17th, if they wanted us to file, was because the USCIS filing fees for the EAD and AP are increasing quite a bit. So, to help folks who requested it and send all the required paperwork, we filed their EADs and APs. However, there is no legal requirement that it be filed at the same time, if one does not need the EAD in order to work.

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

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Chat User : Murthiji, I filed for I-485 in July for myself and my wife. However, my wife is on student visa who is going to be on OPT from October. What has happened to her current status, as per the law? What will change for her?

Attorney Murthy : Actually, there is some debate on this. By law, a person in F-1 status is no longer considered in F-1 status upon the filing of the I-485. However, just this week we were analyzing and debating this issue by reading the regulations and going over it in detail. We are presenting the issue to NSC for clarification, as well, but it appears that one can use the OPT / EAD issued with the OPT that may still be valid in such cases. It is not 100 percent clear. It is more clear when the OPT is approved before the I-485 is filed.

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Chat User : My wife is the principal applicant for I-485 and I am derivative. Once we get our EADs, if I use EAD, will my wife's status also automatically change to EAD or she can maintain her H1B?

Attorney Murthy : The spouse can maintain H1B status if the dependent spouse works on the EAD, since each person is allowed to maintain her/his own, independent status in such cases without jeopardizing the other spouse's ability to extend H1B status, etc. This may be different if the principal works on the EAD and does not maintain H1B status affecting H-4 dependents.

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Chat User : Hi Ms. Murthy. Of late there are a lot of folks receiving RFEs for H1B applications applied through California Service Center. Can you tell what the reason is for this sudden rise in RFEs and what can be done to mitigate this? It would be helpful if you can suggest something for folks who already received RFEs. What are the next steps? Thanks Much for your service.

Attorney Murthy : Well, that really depends on what the issues are that are raised in the RFEs. If the RFE deals with the employer's business or bona fides, then one must show the employer's legitimate operations. If the RFE deals with the candidate's work or education or prior experience, then that must be responded to with copies of the DOT, OOH, and other legal criteria to show eligibility under the H1B law and regulations.

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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 :  Can I travel and reenter without the I-485 receipt notice? I have heard rumors both ways on this issue.

Attorney Murthy : There is an old INS regulation that seems to imply that the I-485 could be deemed abandoned upon departing the U.S. if one does not have the receipt notice to show at the time of reentering. There is also some INS guidance from Dec 2002 to state that they will not enforce this reg, since the USCIS, even back then, was taking too long to issue the I-485 receipt notices. So not much has changed in 5 years, except the USCIS filing fees!

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Chat User : Hi, Murthy jee. I appreciate your taking time to answer our questions. If my wife uses her EAD to work, does that force me to use my EAD as well, or can I safely continue working in H-1 status?

Attorney Murthy : As explained above, if the principal uses the H1B and dependents use the EAD, it should not jeopardize the principal's ability to extend the H1B status.

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Chat User : Dear Madam, thank you for your great help to online Indian community on this most important subject. Can I file H1B transfer now through a different company, while last week I filed my I-140 and I-485 through my current employer? Is there any conflict of interest?

Attorney Murthy : There is no conflict of interest, in and of itself, since the H1B is for a current job and the GC is based on a future job offer. But one must intend to work for the GC-sponsoring employer and the employer must intend to offer the person a full-time job to work on a full-time, permanent basis, and both parties must have valid, good-faith intent. If the plan is to use AC21 portability after 180 days, it is safer to wait until after 180 days to make job changes.

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

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Chat User : Can one file for EAD and I-485 at the same time, without waiting for the receipt notice of the I-485? If there is a delay in issuance of the receipt notice, will there be a delay in getting the EAD?

Attorney Murthy : Yes, one can certainly do that and that is what we do with concurrent filings.

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Chat User : Hi, Murthyji. I need to travel to India for an emergency. I have applied for 1-485 to USCIS, but have not yet received the receipt number. When is it safe to travel? Will the application be rejected if I travel before getting the receipt? Please advise. Thanks for your services.

Attorney Murthy : The USCIS could rely on the earlier INS regulation to deny the I-485, but they have, in principle and in discussions, agreed that they will not likely enforce that provision to require the original I-485 receipt notice to reenter the U.S. The safest approach is to wait, but if one is willing to take a risk that there could be a delay (or a denial in some cases), then one could travel on the H1B visa stamp and the original H1B petition approval notice to reenter the U.S.

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Chat User: Do I have to be in the U.S. when I file my I-485? Can I travel in an emergency? What are the basic rules on travel and filing the I-485?

Attorney Murthy : A person must remain legally in the U.S. on the date of filing the I-485 and on the date that it reaches the USCIS to avoid having the I-485 considered abandoned by departure from the U.S. on the date of filing and on its receipt at the USCIS.

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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: Will I need to be counted against the H1B quota when I was on H1B and then switched to H-4 status or F-1 status? Do I have to wait until Oct 1st of next year to work in H1B status again?

Attorney Murthy : If a person was previously in H1B status, or had obtained an H1B visa stamp, then s/he has already been counted against the H1B quota within the last six years, so does not need to be counted against the H1B quota again.

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Chat User : I filed my 140/485 with my future employer (not current employer). When should I go on to the payroll of GC-sponsoring employer?

Attorney Murthy : The safe rule is to join the future GC-sponsoring employer at the time of filing the I-485, or latest a few months before the final approval or even before an RFE. It is difficult to be sure when the RFE or approval will come through, but as the PDs move, one hint is to be sure to join before the PDs become current to avoid the possibility of I-485 approval before one can file the AC21 portability or join the future GC-sponsoring employer.

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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 am GC holder for past 3 yrs and applied for I-131 as I will be outside USA for over 6 months. Since I didn't yet get I-131, is it safe to travel and come back with INS receipt proof of I-131?

Attorney Murthy : A GC holder is allowed to travel abroad even before the I-131 approval, unlike one who is not yet a permanent resident. The address in the U.S. is where the reentry permit will be mailed for such a person. The reentry permit is different from the AP for a person who is not yet a GC holder, even though both use the same form! There is a helpful article in our rumors section on MurthyDotCom about extended travel by permanent residents. It is located at the very bottom of the rumors section. You may wish to read that to get more information.

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Chat User : Hi. Does Interim EAD still exist? Thanks

Attorney Murthy : The local district offices are not supposed to issue the interim EADs under the stricter security requirements, so in most cases it is no longer applicable.

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Chat User : Does I-485 receipt come to applicant's home or lawyer's office?

Attorney Murthy : If an attorney has filed his/her G-28, Entry of Appearance, the receipt notice should be sent to the attorney on record.

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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