Chat : October 01, 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.

---------------- Some Questions & Answers from this session were lost due to a server crash.

Chat User : While I work for my GC-sponsoring employer, I want to take a second job in an area other than my H1B specialty using my EAD. How will it affect my H1B status and its extension?

Attorney Murthy : The general rule is that one who uses the EAD must use the AP to reenter the U.S. from foreign travel. S/He is no longer maintaining H1B status. Generally, even if one has used the EAD to work for another employer, it is allowable to extend the H1B status if the person intends to only work for the H1B employer after filing the H1B extension. If one also intends to work for the new employer on the EAD later, then s/he is no longer considered in H1B status. The rules are not crystal clear, since H1B extensions are allowed in most cases, even after using the EAD.

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Chat User : Does the H-1 quota for masters graduates apply to all masters' degrees; e.g., will a person with an MFA (Master of Fine Arts) also qualify for this quota? Thank you so much for your time and guidance.

Attorney Murthy : Yes. One who has earned any U.S. master's degree is able to take advantage of the extra 20,000 H1Bs granted each year to individuals with U.S. advanced degrees. To be eligible for H1B status the person's work must be in the specialty occupation. One common misconception is that the H1B is mainly meant for engineering or technical positions. This is not the case. An English major can teach English on an H1B. Just in the last 10 to 15 years there are a lot of computer-based positions. Before that there were many other professions that are comparatively fewer, but still exist - including for MFAs, MAs, etc.

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Chat User : Hi, Murthyji. Thank you for your great service. We applied for I-485 on July 30th. Until now we have not received the receipt. What is our future course of action?

Attorney Murthy : Many people are still waiting for their receipt numbers. One just waits, as the receipt notices are being issued daily. If the filing fees were paid by the individual, then s/he can check to see if the filing fee checks have been cashed. Otherwise, this information may be available from the employer. The receipt number will be on the back of the cashed check. One is allowed to live in the U.S., but in order to work one must have the H1B status or an extension of status filed or the EAD card.

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Chat User : Is it possible to invoke AC21 before the 180-day period if relocating to a different state on same job with same employer without restarting the labor process from the beginning?

Attorney Murthy : One can invoke the AC21 rule, even if s/he leaves the current job in fewer than 180 days, but the AC21 portability notification should not occur before the I-485 has been pending for at least 180 days and the I-140 petition has been approved. Since the GC is based on a future job offer, one is not required to be working in the future job. However, to be able to take advantage of the AC21 law, s/he must comply with its terms; among which is the requirement that the I-485 has been pending for 180 days. If the I-485 is approved within 180 days, then there is no AC21 portability benefit, but that is not likely for many Indian nationals for whom priority dates are retrogressed.

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Chat Master : We will extend this evening's chat by an extra 10 minutes, because of the earlier technical disruption.

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Chat User : While my H1B extension is pending, am I allow to travel back to my home country? Will going aboard affect my extension?

Attorney Murthy : Yes. There is a risk in traveling while the EOS is pending, since, if the EOS is denied, one is not allowed then to reenter the U.S. There also are other details that should be discussed with an immigration attorney. Traveling does not abandon the request to extend status, but there are questions as to how one would return to the U.S. before the extension approval, if the prior visa has expired. To obtain a new visa, the extension must be approved. Also, if one enters before the prior petition / visa has expired, there are problems that may be created based on the timing of USCIS action on the extension request.

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Chat User : Can I be in H-1 status (and still maintaining H-1 status) in a full-time job and use my EAD to work for another company for a part-time job?

Attorney Murthy : It is certainly possible to work on the EAD for any other employer/s one chooses, as long as the intention is to work for the GC-sponsoring employer in a full-time position, so as not to jeopardize the GC process. However, working on the EAD does not equate to being in H-1 status, even if one also keeps working for the H-1 company.

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Chat User : This is great help. I am in the U.S. on L-2. I have an approved H-1 petition, effective from Oct-1-2007 without COS, but am yet to stamp H-1. Do I need to first stamp H1B in India or can I start on H-1 while I am here in U.S.?

Attorney Murthy : A person who does not have the I-94 card attached to the approval notice is not allowed to work legally on that H1B approval. The approval notice clearly states that the approval does NOT allow the person to be employed in the U.S. S/He must travel abroad and obtain the H1B visa stamp and then obtain a new I-94 card at the airport to reenter the U.S. in valid H1B status.

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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 : How can a beneficiary on an I-140 change his/her mailing address? Is it important for him/her to do so?

Attorney Murthy : It is not important to change an individual's address on the I-140 petition, since that generally is the petition of the employer. (The situation is different for self-petitions.) The change of address is crucial on the I-485 and on the EAD and AP applications, since those belong to the employee. In every case, one must file the AR-11 to notify the USCIS of the change of address within 10 days of the move or relocation, as required by law. This is done online at the USCIS website. Separately, after filing out the AR-11, one will be asked about changing the address for any applications that are pending with the USCIS.

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Chat User : I have an approved COS from H-4 to H-1, as well as an EAD. If I travel back to USA from India on an approved AP without having the H-1 stamped, will there be any problem at the Port of Entry? Thanks.

Attorney Murthy : There should not be a problem at the POE when reentering on the AP. When the current H1B expires, one could file the H1B extension, if the intent is still to work only with the H1B-sponsoring employer. Be aware that everyone who travels on AP is subject to secondary inspection, primarily to determine if the AP is genuine.

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Chat User : I applied for I-140 concurrently in Aug, with the new fee. While increasing the fee, USCIS assured they would process within a 6-month timeframe. Are they going to process the application within those timeframes?

Attorney Murthy : One was not allowed to file the I-140 with the new fee unless the I-140 was filed after July 31, 2007, per the USCIS memos/ FAQs. The USCIS is likely to come up with a reason for being unable to process within the 6-month timeframe, even with a substantial fee increase, due to the volume of filings. This the reason many people were disillusioned and believe that the USCIS should not raise the fees without vastly improving their processing times.

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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. We are extending tonight's chat for 10 extra minutes, after the earlier technical disruption.

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Chat User : I filed I-130 for my parents. The petition was approved and case was just transferred to NVC. We asked for consular processing in Chennai. How much longer will it take before my parents can come to the U.S.?

Attorney Murthy : For parents of a U.S. citizen, the process could take another 2 to 6 months, depending upon how quickly your parents complete and return the forms to the consulate and complete their processing. NVC sends the package to Chennai and Chennai will schedule their immigrant visa interviews.

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Chat User : After applying for I-485, the if H-1/H-4 visa is rejected, can we enter the U.S. with approved AP and file for EAD?

Attorney Murthy : Yes, one may enter on the AP and then file for the EAD, but one is not legally allowed to work until the EAD is issued, which could be another 3 to 4 months! This is why many people apply for the EAD, even if they plan to keep the H-1 status. That way, it is available immediately, in case of any such situation.

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Chat User : My I-140 was denied and I have only 6 months for 7th year on H1B to expire. What are the options for staying legally in USA?

Attorney Murthy : Well, it will depend on one's recapture time, the spouse's status (if married), etc. One other option is to file a new I-140 petition again and hope it works by filing the H1B under the PPP. There is a chance that the I-140 petition will be denied or rejected, but it is better to try to make a good-faith argument than simply not attempt some creative ways to survive! It is also possible to get H-1 extensions, even if the I-140 petition is on appeal. If the appeal time has not run out, and there is some valid appeal issue, that may be an option.

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Chat User : Hi, Murthy. Thanks for your service. Is it safe to assume that the I-485 may be approved, if we receive the fingerprint notification? After this, how long will it take to get the green card, if it is an EB2 case?

Attorney Murthy : The general rule of law is that one has no safety assurance simply because s/he obtains an FP notification. If the notification shows that there is a security or criminal issue, it will create serious problems that prevent one from obtaining the I-485 approval. We are seeing many of the recent I-485 applicants receive fingerprinting notices.

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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 : Hi, if a person gets his I-140 approved three months after he applies for his I-485, when is the earliest he can change jobs using AC21? Is it six months after he applied for his I-485 or six months after his I-140 was approved? Thank you.

Attorney Murthy : The rule is 180 days after the I-485 is filed and not the I-140 petition approval time. So one should notify the USCIS of the intention to change employers or jobs, as required under the June 2001 Legacy INS memo, for the AC21 portability to take effect. That is the safest and cleanest method.

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Chat User : Murthy ji, after GC approval, can the beneficiary work on two jobs at the same time (full-time for sponsor and part-time elsewhere)?

Attorney Murthy : Yes, of course, there is no problem after the GC approval in doing other jobs besides working for the GC-sponsoring employer for at least the generally recommended 1-year timeframe after the GC approval, to be on the safe side.

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Chat User : Can I extend my H1B visa thru my same employer who applied GC, if my I-485 is pending and I-140 is approved if I use EAD?

Attorney Murthy : As explained above to others, one is allowed to file an H1B extension if s/he works only for the H1B-sponsoring employer, notwithstanding that s/he has used the EAD before to work for a different employer.

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Chat User : Ms. Murthy, if we don't receive an approved advance parole in 90 days from the date of receipt, is there an option of going to the local USCIS office to pick it up? Please advise. Thanks.

Attorney Murthy : Yes, one can show the emergency requirement to request an AP from the local office. We have seen that it has been issued from time to time, though in a post-9/11 world, the local office is not as helpful as before.

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Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : Next Monday, we will not have the MurthyChat as I travel to India to meet with the U.S. Consular officials in Chennai, India. We hope to have all of you in our MurthyChat with us in 2 weeks at the same time and place. Thank you for your interest in using the services of the Murthy Law Firm and in the MurthyChat.

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Chat Master : Thank you all for logging in! 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.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved