Chat : October 06, 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 : We welcome your questions and look forward to helping you with general information for your immigration related issues in our MurthyChat. Thank you for using our services at the Murthy Law Firm.

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Chat User : What happens when H1B holder (AOS pending ) leaves the U.S. for a year or 2 and, on H1B, rejoins the U.S. employer?

Attorney Murthy : One who has filed an I-485 may travel abroad and reenter the U.S. in H1B status with a valid H1B visa stamped in the passport under the dual intent doctrine. S/he may choose to reenter the U.S. in H1B or AP status, based on maintaining both the I-485 pending and having a valid H1B status to reenter the U.S.

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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.

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Chat User : Good evening! I am planning on traveling to the Philippines. H1B is expired; have a pending I-485, working using an EAD. Can I travel using Advance Parole? They won't ask for any visa when I am going back to USA? THANKS!

Attorney Murthy : As long as the I-485 is pending, then using the AP to reenter the U.S. is acceptable. If for any reason there is an I-485 denial or Notice of Intent to Deny issued by the USCIS, then reentry to the U.S. on the AP may be problematic.

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Chat User : Can a person travel outside the country with a valid F-1 OPT (OPT expires by year end - H1B petition was not picked in lottery) on a business trip to a company’s overseas location and reenter on F-1 visa?

Attorney Murthy : A person is allowed to reenter the U.S. on F-1 OPT as long as s/he was maintaining valid F1 OPT status by working in the field connected with the degree obtained in the U.S., and is returning to resume employment, and has not violated status under existing law and regulations. If the travel abroad and reentry on F-1 is based on work connected with the education obtained in the U.S. for the employer, it may work out; otherwise, if there are doubts, the CBP Inspector could ask questions at the airport on this matter.

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Chat User : Can I use my previous employer-sponsored approved labor (perm), pending I-140 for my H1B 7th-year extension?

Attorney Murthy : The general rule of law as interpreted by the USCIS in various memos is that one is allowed to use a prior LC filing with an earlier employer to file a one-year or longer H1B extension with a new employer, as long as the earlier PERM or I-140 has not been denied or revoked.

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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 one start one's own business on the side while employed full time on EAD (I-140 approved)?

Attorney Murthy : Generally, one is allowed to start any business on the side with an EAD, as it provides unrestricted employment authorization. S/he must keep in mind any legal / ethical duties to the existing employer, in terms of loyalty, non-compete, etc. There also must be an intent to work for the GC sponsor upon GC approval. The other risk in starting a side business is that, if the I-485 is denied and the EAD is lost, any time or money in the side business could be in jeopardy.

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Chat User : Good evening, Attorney Murthy. It has been more than a year since I got my U.S. citizenship. Due to personal reasons, I will have to leave the U.S. and live in my home country for the next five years. Do I have to own some kind of immovable property like a house in the U.S. to maintain my U.S. citizenship when I am gone for these five years?

Attorney Murthy : The current law in the U.S. does not require the U.S. citizen to spend any time physically in the U.S. to maintain U.S. citizenship. Of course, the U.S. citizen is required to comply with U.S. tax laws, and pay appropriate U.S. taxes and otherwise comply with all laws and regulations in the U.S.

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Chat User : How can I track a motion to reopen without receipt number with CIS? It has passed 6 months since was filed. 485 denied. L-1 expired

Attorney Murthy : If the USCIS has not issued the receipt number then it is possible they either did not receive the MTR or they misplaced it. One simple way to track an I-485 MTR is to check under the A number by calling the toll-free USCIS customer service number, or by checking on the website or taking an InfoPass appointment, or possibly following up with a congressional enquiry. The receipt number also is usually on the back of the cancelled filing fee payment check.

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Chat User : Hello, Attorney Murthy. My I-485 is pending in the EB3 category. Am I allowed to keep renewing my H-1 beyond 9 yrs until my priority date becomes current? I have to keep my H-1, so my wife can remain in H-4 until I can file her I-485. Thank you very much.

Attorney Murthy : Under current law under AC21, there is no limit on the number of extensions of H1B status beyond the six year limit that can be requested. The H1B can continue to be extended based upon the I-140 approval, in 3-year increments, as long as the priority dates are not current. That is the safe option when one's spouse does not have a separate, independent status and requires the principal to maintain H1B status to keep renewing the spouse's H-4 status.

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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 : Please advise how long it will take to obtain H-1 Extension in the case of filing the premium process. If I want to change the lawyer with my pending Labor Certification over one year, can I do it now or must I wait until my labor certification is approved?

Attorney Murthy : A Premium Processing case usually has either a decision or an RFE within 15 days of the USCIS receiving the H1B petition. Generally, the safer time to change one's lawyer is after a response on the PERM case, since there is a possibility that the PERM could be denied or may have been improperly filed and by changing in the middle neither lawyer may be able to help out since the strategy or thinking in filing the case may be relevant in trying to fight in case of an audit or a denial or to file an appeal, etc.

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Chat User : I applied for H1B extension and am yet to receive approved notice. I am going to India in Dec 08 with my family. I have EAD for 2yrs and AP, but I haven't used the EAD, yet. If I am not approval before my trip, then what are the options available for my reentry to the U.S.?

Attorney Murthy : One option is to convert the current H1B filing from a regular processing to a Premium case and the other option is to reenter on the AP and then, if the H1B is approved, one presumably would be in H1B status under the last action rule, though there may be some debate on the exact status of an individual in such a case.

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Chat User : With an EB2 H1B and I-485 pending approval, if another green card is self applied for through National Interest Waiver (NIW), would that have any adverse effect, such as application abandon or cancellation, on the existing I-485 application pending approval?

Attorney Murthy : There is no law or regulation that prohibits a person from filing a new NIW case while another GC case is pending, but the USCIS may issue an RFE on the NIW case asking why it should be approved if the NIW approval, for example, will result in a particular private employer obtaining the benefit of the person's work. Under existing law one must show prospective national benefit in order for the NIW to be approved and remain approvable. Generally, working with a university or where the benefit accrues to the nation as a whole, has a better chance of approval. The earlier case if there is an LC or an NIW is not considered abandoned or canceled, but the USCIS may issue an RFE if there is a conflict between the legal criteria for one filing and another.

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Chat User : Soon after receiving the GC, can I, the dependent of the primary green card applicant, go to India for three months to two years? Will it affect my GC status? Thanks.

Attorney Murthy : Once a person becomes a permanent resident, s/he is required to maintain permanent resident status in the U.S. or risk losing that status due to an abandonment of the GC status. It does not matter whether one is the principal or dependent, since legally each person must maintain her/his own legal status to be eligible to file for U.S. citizenship and not to lose GC status. Visit murthy.com for articles on abandonment of intention and consult with a lawyer to avoid losing the GC, if possible, in such cases.

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

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Chat User : My H1B with company A started October 1st. Now I want to transfer my H-1 to company B. Can I transfer without pay-stubs from company A within the next 2 weeks?

Attorney Murthy : A person is allowed to "transfer" an H1B before starting employment on Oct 1st to another H1B employer, but after the start date of employment, one must show that s/he is maintaining valid H1B status through pay stubs or another means to be able to obtain an extension of status and change of employers.

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Chat User :  Do I have to notify the USCIS if I change jobs using AC21? Do I need an attorney for this?

Attorney Murthy : Generally, it is safest for one in this situation to file the AC21 portability case with the USCIS under the USCIS expectations in various memos and also to avoid losing the GC status or being investigated for fraud or misrepresentation by failing to notify the USCIS of the change of employer. It is advisable for one to use the services of an attorney if s/he can afford it. One may engage another law firm or request the current attorney to help as long as the employee has given notice to the GC-sponsoring employer, so that there is no conflict of interest in wanting an AC21 AOS portability filing.

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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 : What will happen to 17-month STEM OPT extension if congress fails to renew eVerify?

Attorney Murthy : The Department of Labor has informed us at the Murthy Law Firm by way of the teleconference we held on the topic of eVerify that the DHS will continue to honor the 17-month STEM OPT extension as long as the employer was signed onto the eVerify system before the law shut out that option! Of course, no one can be 100 percent sure, but the DHS will need to modify that requirement if Congress does not renew the eVerify program.

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Chat User : Can a person with recently approve F-1 (H-4 to F-1) apply for an H1B even if s/he just started her/his classes on F-1?

Attorney Murthy : A person may file an H1B even if s/he just obtained the change-of-status approval to F-1, as long as the H1B is for a cap-exempt employer. Otherwise, for most H1B cap-subject positions, one must wait to file the new H1B on April 1, 2009, with a start date of Oct 1, 2009.

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Chat User : I filed to change status from F-1 to H-1, but left before the H-1 was approved. What do I do? How do I get back to the U.S.?

Attorney Murthy : If a person departs the U.S. while a change of status is pending, the COS, by law, is deemed abandoned and the individual will need to wait for the H1B decision and reenter the U.S. based on obtaining a new H1B visa stamp at the consulate or, if the F-1 status and visa stamp are still valid, then possibly reenter in F-1 status again, but then may have to file an amendment to attempt to obtain H1B status if, in the interim, the H1B petition is approved while s/he traveled abroad. It is safest to avoid travel, though an option may be to upgrade to a premium processing case.

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

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Chat User : Thanks for your services, my I-140 approved in EB2 category, and I-485 stuck in FBI name-check for more than one year. Is there anything I can do to speed up my case?

Attorney Murthy : One option is to contact the USCIS. Another is to request an AILA Liaison enquiry. A third is to file a writ of mandamus against the U.S., which often works fastest in cases where one has a clean case and the priority dates are current and the only delay is the person's security clearance being stuck for over 6 months, in the case described. The Murthy Law Firm can help in filing a lawsuit or writ to force the USCIS to make a decision on such cases.

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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 : Does H1B get cancelled when its not being used? Does it have an expiration date?

Attorney Murthy : If one is not working for the H1B employer, then that individual is no longer maintaining valid H1B nonimmigrant status. Yes, each H1B petition has an expiration date and the employer is supposed to revoke or cancel the H1B if the employee is no longer working for the H1B employer.

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Chat User : What happens when AOS applicant leaves U.S. and works for different employer abroad and, after a year joins the U.S. employer again. Does it cause abandoning H1B or AOS status?

Attorney Murthy : The AOS for the GC is based on the concept of a future job offer, so there is no abandonment if one works for the GC-sponsoring employer from the time of the I-485 approval. One may reenter the U.S. either on the H1B petition and visa stamped in the passport or on the AP, if it remains valid and unexpired. Discuss this with your attorney or contact us at the Murthy Law Firm if you are not sure what this means.

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Chat User : Hello, Ms Murthy. I am currently on H1B & I-485 pending over 180 days. My current employer is taken over by other company. Does USCIS need to know about this change? Who should let them know?

Attorney Murthy : Well, it depends upon whether one is able to argue AC21 portability, based on the I-140 approval or whether the new entity is considered a successor in interest under law. This Wed Oct. 8th, 2008 at 2 PM ET we at the Murthy Law Firm have a free teleconference planned to help people understand the risks and choices when the employer is taken over by another business or entity. We will go over some common scenarios, options, risks and benefits when there is a take over. Consider joining this 30-to-40-minute, free teleconference.

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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 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 hope we have helped you to think of possible options in cases similar to yours in our MurthyChat today. There are always variations and subtle issues that could completely change the options available to a person. We at the Murthy Law Firm look forward to continuing to help you, your family, and your friends with all of your immigration matters.

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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

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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 © 2008, MURTHY LAW FIRM. All Rights Reserved