Chat : September 15, 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.

----------------

Attorney Murthy : We welcome your questions and look forward to helping you with general information for your immigration related issues in our MurthyChat.

----------------

Chat User : When or how soon does one have to apply for re-capture of days outside U.S.? What specific documentation is required for this?

Attorney Murthy : One must be able to show s/he was outside the U.S. to recapture days abroad. The earlier rule about "meaningful interruption" that the USCIS required to recapture days no longer applies. The person should submit copies of airline tickets, boarding cards, and passport stamps and anything that would be evidence of the travel outside the U.S. S/he usually can apply for the specific petition as early as 6 months before one's status expires or until a day before the earlier status expires, in order to extend status in the U.S.

----------------

Chat User : Can we apply for premium processing for H1B, after the RFE has been answered and received by USCIS and the application is in process?

Attorney Murthy : Yes. It is possible to send a request for premium processing at any time, as long as the case is still pending. Note that, if there is a security delay, the USCIS will not process the case under the Premium Program and sometimes ends up keeping the extra $1000 Premium fee, so one could end up losing all around in such cases!

----------------

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.

----------------

Chat User : What happens to an approved H1B status (which kicks in on Oct 1) when the employer goes bankrupt and I lose my job? I am currently on F-1/OPT.

Attorney Murthy : Well, the silver lining in this type of situation is that, since you have already been counted against the H1B cap / quota, you simply need to find another employer to file a new H1B petition for you to start working right away upon the filing of the new petition under the H1B portability provisions under the AC21 law.

----------------

Chat User : Upon approved I-140, can a company apply for I-485 and continue the GC process for an employee if s/he wants to leave the company and join again upon the I-485 approval?

Attorney Murthy : Yes, the entire GC process theoretically is based on the premise of a future job offer. The potential problem is this type of case could be if one plans to work for the future employer, but decides to take advantage of AC21 AOS portability and never works again for the GC-sponsoring employer. This could result in the USCIS or ICE believing that there was potential fraud / misrepresentation on the employee's part and possibly the employer's. Concerns similar to this resulted in the U.S. Department of Labor's decision to eliminate the LC Substitution process, when it was evident that the entire process was fraught with fraud and misuse as never intended under the law.

----------------

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.

----------------

Chat User : My friend had GC, went to India, and was not able to come back immediately. Can he come back to the U.S. after 1 year; then apply for a 2 year permit?

Attorney Murthy : There is a risk for any GC holder who chooses to live for over 180 days outside the U.S. The CBP Inspector could end up confiscating the GC at the time of attempted reentry and paroling the individual into the U.S. to undergo proceedings before the immigration court to determine whether the individual's residence was abandoned. Then the issue could come up that the USCIS may deny the person's 2-year reentry permit unless the individual can show valid and bona fide reasons requiring s/he stay abroad for such a lengthy time right after obtaining the GC. Even if the reentry permit is granted, it does not assure reentry into the U.S., as it is still necessary to be residing permanently in the U.S. to return as GC holder.

----------------

Chat User : Can Advance Parole only be used for emergency travel?

Attorney Murthy : In an employment-based GC case, while the I-485 is pending, the AP no longer needs to be used only for emergency travel. That was the earlier rule but about 10 years ago the rule was changed to allow an EB GC applicant to use any legitimate reason to travel abroad.

----------------

Chat User : Can an H1B, which has been applied for and approved but will start or become effective only on Oct 01, be 'stopped' or cancelled?

Attorney Murthy : Yes, the employer is certainly allowed by law to request the USCIS to revoke a previously-approved H1B petition. In spite of the employer revoking the H1B, the employee is allowed to find a new employer and process a new H1B petition and can start working legally from Oct 1st, simply upon filing the new H1B petition. There may be some other options, depending upon the person's status. This should be discussed in a consultation.

----------------

Chat User : What are my options if my H1B visa STAMPING gets rejected? Can I take another appointment for VISA stamped against the same I-797?

Attorney Murthy : One is allowed to keep applying for the H1B visa stamp based upon a valid petition. Generally, when the consular official denies the H1B visa it often is based on the employer's bona fides or the employee's credentials. Usually, if one submits the evidence requested to the satisfaction of the consular official, the H1B visa likely will be issued. If not, the consular official can deny the visa, and return the H1B petition to the USCIS with a request that it be revoked, based upon the information obtained at the interview.

----------------

Chat Master : After tonight's Chat, browse MurthyDotCom - your best source for a wealth of information on U.S. immigration issues. Our Bulletins, Updates, Chat Transcripts, and FAQs are all there to help in your search for details and answers. Begin at: http://www.murthy.com

----------------

Chat User : I am on my OPT. My company applied for H1B visa this year and it has been approved (Oct 1, 2008). I lost my job recently. How much time have I got to apply for another H-1 petition?

Attorney Murthy : Since the new H1B is presumably valid from Oct 1st onwards, the safe approach is to find a new H1B-sponsoring employer and start a new H1B filing with the Oct 1st effective date. Another option is to travel abroad and reenter soon after Oct 1st, the H1B start date, in the earlier F-1 OPT status, if the earlier F-1 OPT card did not expire for a few months. That could result in reinstatement of one's earlier F-1 status by law and then s/he would have a few extra months to obtain a new H1B employer to file a new H1B petition with a start date on the date that the OPT expires. This is a creative way to get a future start date and get a few extra months to hang onto the earlier F-1 OPT status. This can potentially be difficult in F-1/OPT, however, due to the SEVIS system. The option of reinstatement to F-1 status by travel should also be discussed with the DSO.

----------------

Chat User : Why is there so much retrogression, particularly in AOS Priority dates, when a new year is commencing?

Attorney Murthy : The reason that the PDs moved forward a lot was that a lot of unused immigrant visa numbers from worldwide category that would have been wasted ended up being made available to Indian and Chinese nationals. India and China had used up their numbers for FY2008 months earlier, and would have been "U" (unavailable) had the "extra" numbers not been shifted. Now from Oct 1st, with the start of the new fiscal year of the USCIS, we return to the standard allocation of numbers, which are not all available in one batch. They are limited to certain percentages of the total for each quarter. The backlog is realistic based on the number of immigrant visas available for each country and the number of visa applicants whose cases are pending at the USCIS. We have written detailed articles on this topic in our MurthyBulletin and you can find the analysis as shared by the U.S. Department of State on MurthyDotCom.

----------------

Chat User : Good evening, Ms Murthy. Thank you for the great service. I went to India in July 08. Before going to India, I had my H-1 extended until 2010. I didn't go for stamping. I re-entered U.S. on Advance Parole (AOS). Can I work on my H-1 now?

Attorney Murthy : The USCIS policy seems to be that, if a person travels and reenters in AP, s/he must use the EAD to work legally. The only safe way to reenter in H1B status is to attempt to apply for the H1B visa stamp and reenter in H1B status. So now you would be a parolee and need to work on the EAD to be on the safe side. It is possible to regain H1B status by filing an extension or amendment of the H1B petition. We have an article on this issue on MurthyDotCom.

----------------

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

----------------

Chat User : My aunt recently traveled to the U.S. and, since it's her second visit in 1 year, the Immigration Officer stamped the I-94 for three months and wrote NO EOS, NO AOS, and NO COS. Is it possible to apply for an extension of her stay and what would be the future issues with her visa? Thank you for your time.

Attorney Murthy : It is never safe for one to spend more than 6 months in any 12 months period in the U.S. In case she applies for the B-2 extension of status and it is denied, then if she has a 5- or 10-year B-2 visa, it becomes void by law and she most likely will not get any future B-2 visas at the U.S. consulate after her EOS is denied. In most cases it is really risky. The notation on the I-94 is not binding on the USCIS, so if there were a life and death emergency, an extension may still be possible. If a person has a life and a job or other connections / obligations in any country, can they live elsewhere for so long? It comes back to the issue of establishing strong family and financial ties in the home country and visiting the U.S. so often means that the person does not have strong ties in the home country and that could be the reason to send the person back if she attempts to enter again in less than 6 months to the U.S. even if she returns this trip within the 3 months! For most situations involving true temporary visits, a few months, and certainly six months, is more than enough time.

----------------

Chat User : I am working on EAD while 1-485 is pending (Family based). I had H1B in the past but never worked on it. Is it possible for me to get stamped as H-4 when I visit India?

Attorney Murthy : This question is not clear. A family based petition must be filed by a USC or LPR relative. Perhaps this is an employment-based dependant situation. The answer depends upon whether there were status violations. If the spouse is on an H1B, since you mention filing an H-4 status, and the spouse's GC is being sponsored by her employer, then it is considered an employment-based case and not a family-based case, which could provide up to a maximum of 180 days where one could have fallen out of status or worked illegally.

If one previously failed to maintain status in the U.S., then s/he will most likely not be able to obtain the I-485 approval in a family-based case unless the FB case is filed based on an immediate relative petition, which does not appear to be the case here. The eligibility for an H-4 visa depends upon prior status violations. This situation should be discussed in a consultation.

----------------

Chat User : If both husband and wife file for GC, one in EB2 and other in EB3, at what point do they need to merge the processing?

Attorney Murthy : There is no need to merge the processing, though in most cases the EB2 is more likely to faster than the EB3 case. However, it also depends on the priority date for each person. Generally, we tend to use one person as a CP case and the other for the AOS to keep parallel processes alive and take advantage of a jump in visa dates for our Murthy Law Firm clients. We offer the options and pros and cons to each couple in this type of scenario and try to come up with what makes both spouses comfortable, based on their needs, cost considerations, and other factors.

----------------

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

----------------

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

----------------

Chat User : I work for a company on H-1 visa that is being acquired. If I travel abroad during this time, will I have any problem reentering the USA?

Attorney Murthy : Under the Visa Waiver Permanent Act, it is possible to travel abroad and reenter, but there is some risk if the CBP Inspector is not familiar with the law or feels that there is some fraud or misrepresentation where one company is listed on the H1B approval notice but the letterhead stating that the H1B employee works with them is from another company. It is safest to keep a copy of the law, carry a legal memo if the employer is able and willing to provide that, and at some point file an H1B amendment, if the person will travel abroad often, to avoid delays at the POE.

----------------

Chat User : Hello. I have a Master's in Chemical Engineering and obtained H1B in software industry, where I have been working for over a year. Now I am planning to go back to Chemical field. Can I transfer my H1B from software employer to a Chemical company, or do I have to obtain a new H1B from the new employer?

Attorney Murthy : Each time a person changes jobs or employers, s/he is required to file a new H1B petition with all the filing fees, gov't fees, costs, etc. So any new employer needs to file a new H1B petition with all the fees all over again! See our MurthyBulletin article that discusses the fact that H1B cases are not "transferred." The new job does not need to match the job in the first or prior H1B petition. It is ok to have an entirely different job / field in the H1B context, if one is qualified for multiple types of "specialty occupations," due to having multiple degrees, etc.

----------------

Chat User : Can the H1B application get approved after September? What is the last date for getting approvals?

Attorney Murthy : One can obtain an H1B approval any time until the H1B expiration date. We have heard of some H1Bs taking more than a year or two to be approved, where there are multiple RFEs or the consulate denies the H1B visa stamp and then the USCIS reinstates the H1B approval after 2 years or longer!

----------------

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.

----------------

Chat User : Hello, Ms Murthy. Are the chances higher if a U.S. citizen sponsors one for the B-1 visa than an H-1 sponsoring it? My brother-in-law is a U.S. citizen and I am on H1B. We plan to bring my mother here.

Attorney Murthy : It makes little difference and, in fact, being a U.S. citizen could actually be a bit of a downside in sponsoring a person for the B-2 visa stamp, if the U.S. citizen was eligible to sponsor a GC for the individual (which is not the case with a son-in-law.) The visa application asks if one has certain relatives in the U.S., or if any of the listed relatives are GC holders or USCs. Thus, it will be necessary for the applicant (mother) to reveal that she has children in the U.S., as well as their status. The invitation should be from a person who is actually inviting her. It is a bit nonsensical for a son-in-law to be inviting her, when she has children in the U.S.
----------------

Chat User : My wife is on EAD and has started her own home business. Will this hurt us if later my employer agrees to process my GC?

Attorney Murthy : Generally, it should not hurt either of you if the spouse on an EAD starts a business at home; but if the EAD is based on an F-1 OPT, then one is supposed to work in the field in which s/he studied in the U.S.

----------------

Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

----------------

Chat User : my job position is fluctuating. I might have to leave the job soon after my I-140 is approved. Can I transfer my priority date even if I start the processing again? Any caveats? I want to be sure I can at least transfer the priority date before I leave the job. Please let me know. Thanks.

Attorney Murthy : If the I-140 petition is approved, then one can transfer the PD in another EB category in most cases, unless the earlier I-140 petition is revoked for fraud or misrepresentation.

----------------

Chat User : Currently, I am on OPT. My H1B has been approved thru company A starting Oct '08. I have a job at company B. Company B is filing for H1B this week. What is my status if H1B filed through company B is denied?

Attorney Murthy : Then the H1B with Company A remains valid and one could return to work with Company A if that employer keeps the job offer open. If one wishes to be 100% certain of the approval with Company B, then one could request Premium Processing and attempt to obtain the decision within less than 2 weeks, as is often the case.

----------------

Chat User : What is considered an acceptable timeframe to notify the USCIS of change in Employment per AC21?

Attorney Murthy : Generally, the employee must notify the USCIS within a reasonable time of starting the new job to be on the safe side, which is about 2 or 3 months in most cases. However, there is no actual AC21 notification requirement, so there is no legal deadline. It is a matter of strategy. It is normally done early in the transition to new employment, but there can be situations where one might chose to wait.

----------------

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.

----------------

Attorney Murthy : We look forward to continuing to help you, your family and friends in our regular MurthyChats and we look forward to helping you with all of your immigration law needs at the Murthy Law Firm.

----------------

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

----------------

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