Chat : October 05, 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 : I had my H1B (and my spouse's H-4) renewed for 3 years from Oct 1, 2009. Should I go out of the United States to re-stamp my visa?

Attorney Murthy : One only needs to travel abroad if the USCIS did not issue the H1B with the I-94 card attached to the bottom of the H1B approval notice. Since there is an approved H-4 extension, which can only be issued with an I-94, then, presumably, the H1B also has the I-94. In that situation, a person only needs a visa stamped in the PP if s/he needs or wants to travel abroad and reenter the United States.

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Chat User : My I-485 is pending with my current employer. What are the risks of quitting the job and rejoining after I-485 is approved? My employer is willing.

Attorney Murthy : In theory this could work out since the GC is based on the concept of a future job offer. However, there is a presumption in this question that the USCIS will be willing to approve the GC based on a promise to resume employment with the sponsor. The USCIS needs to be convinced that there is a genuine job offer. Even though the job is a future job, the best way to establish this is by working for the employer. Thus, there is a risk here. It would be best to discuss this matter, and consider whether it would be better to use and file AC21 with the USCIS to change jobs.

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Chat User : I am planning to join a well-known U.S. company on EAD. (My I-485 was filed in Aug '07.) Job profile is same. My current employer will also continue my GC process. Should I file AC21?

Attorney Murthy : It is generally safer to follow the USCIS guidelines and memos on their interpretation of AC21 by notifying the USCIS of the use the AC21 AOS portability provisions. There is not a specified form that is needed for this purpose. We have seen various problems, such as I-485 denials or NOIDs, based on the failure to file the AC21 AOS notification, particularly when the prior employer has revoked the underlying I-140 petition, which presumably would form the basis of the I-485 filing and approval. There are other situations in which filing the AC21 AOS notification can be helpful if a later problem arises in the case.

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Chat User : If my wife is a U.S. citizen and I received my green card based on employment, can I apply for U.S. citizenship after three years of marriage, or should I wait for a full 5 years from the date of green card, as in the case of employment-based GC.

Attorney Murthy : The general rule of law is that one can file for U.S. citizenship based on being married to the U.S. citizen spouse for at least 3 years and the spouse having been a U.S. citizen for that entire length of time, as well. It does not matter that one may have obtained the GC through an employer earlier. That is, the 3-year rule can be used even if the GC was not based on the marriage.

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Chat User : Is it still possible to apply for the H1B for 2009 quota?

Attorney Murthy : As long as there are unused H1B numbers under the 2010 H1B quota, employers may keep applying. If you visit MurthyDotCom you will see that only about 47,000 H1Bs have been used so far in the regular cap. Many H1B petitions are being denied and others are obtaining RFEs and denials for lacking end-client letters and other documents / reasons not previously used as reasons to deny H1B petitions.

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Chat Master : This ends tonight's session of the MurthyChat. Attorney Murthy has other obligations for the remaining Mondays in October. However, in response to many requests, we will return on November 2, 2009 with MurthyChat sessions EVERY MONDAY night from 9:00-9:30pm Eastern Time (U.S.). Join us then!

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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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