Chat : August 18, 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. Welcome to our MurthyChat today! We invite you to submit your questions so that we can provide some general guidance to you on your immigration matters.

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Chat User : What are the options, if the labor process has not been started before the end of 5th year H1B? Can the employee stay out of country (after the end of 6th year) and reenter after the I-140 is approved?

Attorney Murthy : Yes, under current USCIS policy and interpretations, that is certainly possible to do or reenter for one year, 365 days after the labor is filed. Or other options may include leaving the country after filing the LC for about 2 or 3 months, then recapturing that time abroad to file an H1B extension, etc. There may be some time spent outside the U.S. during the past five years that could be recaptured. You should discuss these and any other possible options with your lawyer. If you don't have one, please schedule a consultation with us at the Murthy Law Firm.

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Chat User : Is it ok to request premium processing of H1B when there is already an RFE raised for application?

Attorney Murthy : Yes, this could be done with the RFE response. In that case, after the USCIS receives the RFE response, it is supposed to respond within 15 days of paying the premium fee and filing the appropriate form to convert the case from a regular processing case to a Premium Processing case.

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Chat User : Attorney Murthy, I entered U.S. on F-1 and now I am on H-4. If I go to India, do I have to get H-4 stamping even though my F-1 visa stamp is still not expired?

Attorney Murthy : Yes, if one is in H-4 status and intends to hold that status upon return after foreign travel, it would be necessary to have the H-4 visa "stamp" in the passport. It would be inappropriate to use the F-1 stamp, unless one was still eligible to enter in that category.

Chat User : I have been in the U.S. on L1B for 4 yrs. My employer doesn't sponsor GC. Is there a way I can process the GC myself.

Attorney Murthy : The general rule of law is that a person needs a family member, an employer, asylum, or other ability to process the "green card". The one way is if the person is considered a person of extraordinary ability (EB1) or if her/his work will help the U.S. in the national interest (EB2); then a self-sponsored petition is possible. For this the standards and criteria are quite high and only a very limited group of people will qualify. We at the Murthy Law Firm have written many articles on these topics that are available on MurthyDotCom. You are welcome to review the criteria to see if you may qualify. Or we could consult with you at a mutually convenient time.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : Can H1B visa be denied after getting selected in the lottery. If denied can we appeal again.

Attorney Murthy : Of course the USCIS will treat the H1B petition as any other - meaning that if the individual is not qualified or if the employer is not eligible to obtain H1B approvals, the case will be denied. An employer filing an H1B can file a Motion to Reopen or an appeal, but there must be a basis for the motion or appeal - meaning there has to be some argument that the denial is legally incorrect. Depending on the facts of the case, the appeal or motion may or may not succeed in obtaining the approval. More importantly, one is not considered legally present in the U.S. during the appeal / motion processing unless the H1B petition is finally approved with the extension or change of status approval.

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Chat User : Regarding travel during change of status, can a person with valid H-4 dependent visa reenter the U.S. with an approved H1B petition in the month of October?

Attorney Murthy : When a person travels abroad after filing the COS application with the USCIS, the travel abroad results in the COS being deemed abandoned by law. The only way one can reenter during Oct, after the H1B petition validity date, is for him/her to then apply for and obtain the H1B visa stamp with the U.S. consulate abroad and obtain valid nonimmigrant status when reentering the U.S. on H1B status.

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Chat User : Can a person with approved H1B petition go for Visa stamping in Mexico or Canada before s/he starts working (usually in the month of October)?

Attorney Murthy : It is possible for a third-country national to apply for a visa in Mexico or Canada under standard visa processing rules and procedures. As with any visa stamping, if the visa stamping is denied in Canada or Mexico one is unable to reenter the U.S. and normally must depart from the third country, and return to the home country on an expedited basis. One must understand the risks and make travel arrangements, etc, to ensure that s/he is not stuck abroad or likely to lose the employment. It is often not necessary to obtain the visa stamp, since it is not required to start working legally if the USCIS approved the person's change of status within the U.S. by approving the I-94 card and attaching it to the bottom of the H1B approval notice.

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Chat Master : For anyone in need of advice on a specific matter, you may wish to visit http://www.murthy.com/consult.html following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Atty Murthy or one of our other experienced attorneys.

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Chat User : I-485 pending, prior on H-4, now EAD used for 1 month job. What would be legal status? Would AP be renewed for 2 years, as well?

Attorney Murthy : Generally, a person has both the I-485 pending status and the back up H-4 status under dual intent, though the rules are not crystal clear on this issue when a person has used the EAD. The USCIS has not agreed to issue the AP for 2 years, since AP is only meant for foreign travel and to reenter the U.S. after a short visit.

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Chat User : Can a person travel outside the U.S. when the Advance Parole application is pending?

Attorney Murthy : If one travels abroad while the AP extension is pending, and s/he holds H-1/H-4 or L-1/L-2 status and intends to reenter in the same status, then it is fine. If the person hopes to reenter on the AP, and does not hold the H-1/H-4 or L-1/L-2 status, traveling prior to the AP would be an abandonment of the I-485.

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Chat User : I have obtained H1B approval. Can I transfer it before Oct 1 without pay stubs from employer who filed the current petition?

Attorney Murthy : It is certainly possible for another employer to file an H1B petition in this situation, without any paystubs and before starting the H1B employment on October 1, since the H1B number has been allocated to the employee, who has thus been counted against the cap.

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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 : I got my green card in May 2007 and my wife is on AOS Pending status since then. Now, after more than 1 year, I would like to change my field of work. Does it cause any problem for her green card?

Attorney Murthy : Generally, when the principal changes employment or jobs more than a year after obtaining the GC, it should not adversely affect the pending I-485 for the spouse, since she is considered an independent person under the law for her separate I-485 eligibility and approval. Although she is considered your dependent for the I-485, under law she needs to qualify separately with regard to health issues, criminal issues, and other factors to obtain her I-485 approval so the employment of the principal is no longer a concern at this point in time.

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Chat User : I've noticed that the NSC and TSC have been approving I-485s randomly and not based on priority dates. Due to this, many of us who have PDs in 2002 to 2004 have been set aside and all 485s in 2005 and 2006 are being approved. Could you please shed some light on this?

Attorney Murthy : All of the USCIS service centers, including NSC and TSC, will process cases as they are assigned to officers. If one has a security check pending, that person's I-485 could take many years to clear. There were over 300,000 cases with extensive delays in the security clearance problems. The TSC and NSC will often process cases that they believe are clean and approvable, but keep aside a case that may have potential concerns with the employer or employee's qualifications or with respect to security clearances. That has always been the case; and when the PDs move suddenly, it becomes more obvious. The cases are supposed to be processed by order of the filing of the I-485, not by PD. Therefore, it is entirely possible that a person with a 2002 PD had his or her LC stuck in the backlog center and may have filed the I-485 well after one with a 2005 or 2006 PD, based upon a PERM LC.

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

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Chat User : I entered U.S. on H-4 and now I got H1B visa and not applied for COS. If I go to India and get H-4 visa stamped, will my H1B visa be valid?

Attorney Murthy : It sounds as if there is an H1B petition approval (without COS) not an H-1 visa, meaning the "stamp" in the passport. In this situation, if one enters as an H-4, the H-1 petition will remain valid, but one does not hold H-1 status unless a visa stamp is obtained from the consulate and then the individual enters the U.S. in H-1 status OR the H-1 petition is re-filed and a change-of-status request is granted.
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Chat User : Good evening, Attorney Murthy. It has been just two months since I got my GC. I have got an internal job promotion in my company that has job responsibilities completely different from the job for which my GC was applied. Will U.S. Immigration Department have any concerns in me taking this job promotion?

Attorney Murthy : Technically, the entire GC process was meant to be based on the concept of a future job offer and if the person is no longer working in that job for that employer, then if there is a USCIS investigation or the matter is addressed during a naturalization interview, the USCIS could cancel / revoke the GC approval. They can also deny the naturalization, even if they don't revoke the GC.

When a job changes fairly quickly after getting the GC, there can sometimes be a valid explanation that is offered. The risk could be less when remaining with the same employer, and getting a promotion. Normally, in the naturalization context, the question that is asked is how long one worked for the sponsoring employer after the GC was approved. Thus, as a practical matter, the USCIS may not focus as much attention on this issue when the individual continues employment with the GC-sponsoring employer. It may be helpful to set up a consultation on this matter.

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Chat User : What are the options if the change of status (L-1 to H-1) is pending for more than 8 months? Can a new COS be filed on an approved H1B petition?

Attorney Murthy : The question is not clear, but a person can always file another case with the USCIS at any time, as long as the person has maintained valid NIV status with the prior or current employer. Premium processing is an option. The delay can be due to any RFEs that were issued and are sometimes related to concerns about the company.

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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 one has an H-4 visa and if her H-1 visa stamping denied, can she come back on H-4 and later? Can she apply for change of status to H-1?

Attorney Murthy : Generally, a person should be able to reenter the U.S. in H-4 status in such cases, as long as the H-4 visa stamp is not canceled. The H-4 visa could be canceled if there is suspected fraud, but often it is not canceled in most other cases.

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Chat User : What are the risks in applying for an extension of my parents' visitors' stay? I want them to be able to stay here longer.

Attorney Murthy : There is always a risk when a person attempts to extend the B-2 status within the U.S. If the extension is denied, the person's 10-year visa stamp is deemed canceled and becomes void under Section 222(g) of the Immigration and Nationality Act. So, it is risky, especially when the person has been visiting the U.S. on such extended trips that are more like living here and not just considered a short visit.

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Chat User : Hi, I'm an H-1 employee and so is my husband. Our I-485s are pending. If we adopt a child outside of the U.S., what is the fastest way to bring the child to the U.S.? File I-485 for the child, or apply for H-4 or anything else? Thanks a lot!!!

Attorney Murthy : The entire area of adoption is very complex and difficult for any person who is not a U.S. citizen adopting from an orphanage. For H1Bs, the couple must have lived with the child for a minimum of 2 years to establish both legal and physical custody; otherwise, the H-4 visa cannot be issued under law.

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

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Chat User : I am working on L1B. I got H1B from a different company. I want to continue on L1B, retaining my H-1 petition after Oct 1st. Could I know what needs to be done?

Attorney Murthy : As explained to others in earlier MurthyChat sessions, one could travel abroad and reenter the U.S. in L1B status, using the L1B visa stamp. This travel should commence prior to October 1 and the reentry should be after October 1. In this situation, it will be necessary to either obtain another change of status to H-1 by re-filing the petition or, later, traveling and obtaining the H-1 visa stamp. It is best to discuss the pros and cons with your lawyer or consult with us at the Murthy Law Firm, if you wish.

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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. Can I change my employer when my I-140 (NIW) is pending? Will the I-140 still be valid, or do I need to fill a fresh I-140?

Attorney Murthy : If the I-140 was a self-petitioned NIW, then one may change employers, since the NIW is exempt from the job offer requirement, but s/he must be able to demonstrate that the work will be in the same field as when the original NIW was filed and will continue to prospectively benefit the U.S. in the national interest for the USCIS to issue the NIW approval. Sometimes, the USCIS will issue an RFE, asking for a lot more evidence in NIW cases, to consider whether such a case should be approved.

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Chat User : My I-140 is approved under EB2. I applied for I-485 last July. If I decide to change jobs, who decides if job is "similar" or not? What is the definition of similar? Is there any risk in changing jobs?

Attorney Murthy : There is always some risk in changing jobs. The term "similar" has not been defined under the statute or any USCIS regulations. There are some USCIS memos on this matter, which are important to understand. This topic has been addressed in general in a few articles on MurthyDotCom. It is wise to discuss and analyze the job duties in the original LC / PERM and the new job duties to determine if they are similar. Consulting with an attorney is also the way to go. If you don't have an attorney, you are welcome to contact the Murthy Law Firm at law@murthy.com for information on setting up a consultation with one of our attorneys.

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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-140s are taking a long time. This means that I cannot safely change my job and use AC21. This is unfair, why is this happening?

Attorney Murthy : When the USCIS is very busy trying to catch up with a backlog of cases, their policy is that they must focus on cases that can be approved and completed, rather than looking at cases piecemeal, increasing the processing time of all cases. Of course, the USCIS has no interest in helping individuals to enjoy the benefits of AC21 portability or encouraging the movement of employees - especially in a weak economy.

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Chat User : I-140 and are I-485 both still pending. I already changed my employer. What was the effect of this situation in my application?

Attorney Murthy : Well if the I-140 is issued an RFE and the earlier employer is most likely not going to waste time and money responding for an employee who has left their employment, then the entire I-140 and I-485 will be denied. Many employers will not respond to RFEs on I-140s for former employees, as the I-140 is a reflection of an ongoing job offer. The only possible safe option is to try and file a new PERM case ASAP and, hopefully, well before the start of one's 6th year in H1B status and hope that it is approved before a possible denial of the I-140/I-485 in such cases. Discuss the issues with an attorney to minimize the risks and have backup plans, since a lot rides on such an important decision that was apparently made without any backup plans and without sufficient understanding of the risks involved.

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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 continuing to help you, your family, and your friends with all of your immigration matters at the Murthy Law Firm.

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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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