Chat : August 17, 2009

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.

We at MurthyDotCom have conducted chat sessions and provided individuals with answers since the year 2000. For your convenience, rather than repeat many of the basic questions and answers in the weekly transcripts, we will now select the most relevant and timely Q/As from each session. Search the chat database for information not included here.

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Chat User : Hi. Can one go out of the U.S. on current advance parole and come back before it expires while advance parole renewal is pending? Will there be any risk to I-485, new advance parole, etc?

Attorney Murthy : If the person travels abroad and reenters before the expiration date of the current AP, this is permissible. This does not disrupt the I-485 or the pending AP. The AP that was pending could be used for a later trip, meaning a trip that originates after it is approved. Keep in mind that entering on an AP means that one is simply being paroled into the U.S. and is not considered to be legally "admitted" into the United States. As explained, s/he can use the new AP after it is approved to travel at a future date. The problem arises when the current AP expires and one is abroad when the new AP is approved, then the CBP can deny entry to the person on the new AP that is forwarded abroad by family members so that s/he could reenter the United States.

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Chat User : How long should one wait after EB-based I-485 interview considering the priority date is current? It's been more than 110 days. Is there any way to expedite the process? Please advise.

Attorney Murthy : If the PD is current, as you mention, then the USCIS local office should make a decision within 2 or 3 months, on average. The USCIS examiner can often provide the typical processing time information at the interview, if asked. If there has been an extended waiting time, it would be wise to go for an InfoPass appointment to check on the case, particularly since the PD is current. This will help to ensure that the file is being processed and not misplaced or otherwise being overlooked.  

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Chat User : Once my I-140 is approved, can I change my employer and retain the priority date, even if the new job profile is different from that in the original labor?

Attorney Murthy : After the I-140 approval, it is possible to request to retain the PD in a new GC filing, at the I-140 stage. This will often or almost always require a new LC / PERM filing and a new I-140 filing. This would apply when there is a new job / new employer. Sometimes, if the earlier I-140 petition has been revoked, there may be a problem or delay in transferring the PD. However, the USCIS policy is to allow the retention of the PD, even in such cases, unless the I-140 revocation was done by the USCIS, based on fraud or misrepresentation.

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Chat User : Hi. I am in OPT and filed for H1B. Today I got a denial notice for my H1B. What are my chances of filing again?

Attorney Murthy : The law does not prevent multiple filings for H1B after a denial. It is sometimes possible to re-file through the same employer, if the reasons for denial can be overcome. It may also be possible to re-file through a different employer, if there is another employment opportunity. Of course, in order to be able to change status in the U.S., one must have been maintaining valid NIV status throughout, or be eligible for "cap gap" relief. If the earlier OPT has expired, and the grace period has expired, the USCIS cannot approve the COS. The H1B petition can be approved requiring the person to depart the U.S. and apply for the H1B visa stamp after the new H1B petition approval.

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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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