Chat : October 15, 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.

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

Attorney Murthy : It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration matters. We are here in India doing this live chat for your benefit.

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

Chat User : My husband and I both have EADs sponsored by my husband's company. We both are on H1B visa. If I use EAD, will our H1B visa be void?

Attorney Murthy : No, the use of the EAD by one spouse does not impact the H-1 status of the other spouse. Under the USCIS guidance, a person can maintain both the H1B and EAD in limited circumstances. As long as the principal beneficiary continues to work only for the H1B employer, there is no problem. If one changes employers, then the person will likely need to use the AP to reenter the U.S., but can file H1B extensions with that or another employer.

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

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 : I am on H-4 visa. I received my EAD two weeks ago. We are planning to go back to India and want to return after we get our green card. Is that okay to go now? My I-94 is till 2010.

Attorney Murthy : A person in H-4 status is allowed to depart and reenter the U.S. in H-4 status as long as s/he also has a valid H-4 visa stamped in the passport. Otherwise, one needs to wait until the AP is issued. There is always a very small risk for anyone traveling abroad to reenter for various reasons, like security checks, etc. Once the green card is approved, it would not be appropriate to enter on H-4. It would be best to speak with an immigration attorney directly about the specifics of this situation.

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

Chat User : I have H1B visa valid till 2008. If I change my job using EAD, can I travel out of U.S. and reenter U.S. on H1B visa with I-485 receipts?

Attorney Murthy : Unless one has a new H1B approval to work for the new H1B employer, it is considered fraud to reenter using the H1B visa stamped in the passport after beginning work for the new employer solely on the EAD. It sounds like it would be necessary to have AP in this situation.

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

Chat User : My wife is having L1A and wants to file I-140 and I-485. The company has said she can do proceed with her own for GC processing. We would like to know if she can engage an attorney to file I-140 and I-485.

Attorney Murthy : Yes, of course. One may engage an attorney to file the Multinational Executive / Manager petition in the employment-based, first-preference category, if s/he is eligible based on the work performed abroad for the related employer for at least one year and the job duties in the current job, etc. As long as the priority dates are current in the EB1 category, one may file the I-485 along with the I-140. The Murthy Law Firm will be happy to help process the case if you don't have your own company lawyer to help, but any lawyer will require a lot of information and cooperation with documents, etc, to file such an I-140 petition. The I-140 petition is still the company's filing, in this instance, so they will need to fully cooperate in terms of supplying information, a proper job offer, and signing the I-140.

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

Chat Master : 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.

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

Chat User : I am on H-1 and applied for I-485, EAD, and AP for myself and my wife. We got our EADs recently. My wife also got her H-1 this year. If she uses EAD to get a job, will her H-1 be terminated?

Attorney Murthy : I have just responded to this same issue above. Basically, if she uses the EAD but continues to work solely for the current H1B employer, she is able to maintain both the H1B and I-485 pending status. She is allowed to renew or extend the H1B even after filing the I-485 and obtaining the EAD.

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

Chat User : When one had EAD and H1B and used H1B for work, then what will happen to EAD and can it be used for 2nd job?

Attorney Murthy : See the answer just above. An EAD can be used to work for another job or employer.

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

Chat User : I am a derivative applicant on I-485 and in H-1 status. Can I transfer to H-4 status even if I have applied for AP & EAD?

Attorney Murthy : Yes, a person is allowed to file for the COS from H1B to H-4 with the USCIS by showing at the time of filing for the COS that both you and your spouse have been maintaining valid H1B status.

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

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 : Is it generally better to process GC for a parent in India or U.S.? Does applying for GC eliminate the need to extend visa during processing in U.S., if one is already here on a visitor visa? Thanks.

Attorney Murthy : It is usually safer and better to process the case for a parent's GC when one is a U.S. citizen from abroad due to fraud concerns and also the speed of the GC approval. If one's B-2 status is valid when applying for the I-485, s/he is allowed to stay in the U.S., but the doctrine of fraud will come into play making it a problem when applying for the AOS, especially if it is within less than 60 or 90 days.

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

Chat User : Using EAD, I want to join a same or similar job as a computer programmer, and take a part time job in Walmart as a sales man/clerk. Is it possible?

Attorney Murthy : On an EAD, one is allowed to work for multiple employers at the same time. It is possible to have a side job of any type on the EAD.

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

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.

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

Chat User : Dear Madam, as of now I am not sure if I-140 premium processing is available. My I-140 application has been sent. Will USCIS disqualify whole of my application or disqualify only premium processing? Thank you.

Attorney Murthy : If the I-140 fee was paid separately from the premium processing fee (in two checks, rather than one lump sum), the USCIS should accept the I-140 petition and return the premium processing form with the $1000 premium fee, unless there is something else missing from the I-140 petition. I-140 premium processing is not yet available and, due to the large volume of filings, the USCIS cannot guarantee when it will be reinstituted. If the case was filed with one check for the I-140 AND premium fee, it is likely that the whole case will be rejected for having an improper fee.

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

Chat User : If I start working using my EAD and, for some reason, my I-485 is rejected, can I fall back onto my existing H1B? Will I be out of status during this time?

Attorney Murthy : As long as one continues to work for the H1B employer, her/his H1B status remains valid, even after obtaining the EAD.

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

Chat User : If I travel outside the U.S. and reenter using my Advance Parole, may I still extend my H-1 and EAD? I will work for my same H-1 employer.

Attorney Murthy : Yes, in this situation, a person can file an H1B and EAD extension after reentry to the U.S. The EAD is only used for work purposes and it is not a travel reentry document.

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

Chat User : Any idea or guess estimate as to when I-140 premium processing will start?

Attorney Murthy : As mentioned above, the USCIS has stated that, due to the volume of filings in July / Aug 2007, they cannot estimate when they will be able to restart premium processing.

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

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 30 minutes remaining in tonight's MurthyChat.

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

Chat User : My parents are currently here on a B-2 visa. We would like to apply for green card for them. Can I-485 and I-130 be filed concurrently?

Attorney Murthy : As mentioned above on this same issue, there are fraud concerns and one applying must be a U.S. citizen to file the I-130 and I-485 concurrently. Generally, processing from abroad is faster and safer in many cases.

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

Chat User : If once used EAD, could s/he return to H-4 status if spouse continues to be in H1B status?

Attorney Murthy : It is possible to file an H-4 if one no longer wishes to work on the EAD, but wishes to revert to H-4 status as the dependent of the H1B principal.

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

Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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

Chat User : I am on OPT with a valid EAD, and working as an independent contractor with a company. Can I travel to India and reenter USA safely? What documents would I need?

Attorney Murthy : One on an F-1 OPT with an EAD needs to show the unexpired F-1 visa stamped in the passport and, if asked or questioned at the airport, that s/he continues to maintain strong family and business ties to his or her home country, as required for the F-1 status. It is also necessary to have a SEVIS certified I-120.

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

Chat User : I am on H-1 and have lost my job. My I-94 does not expire until December 2008. I was told that I can stay because my I-94 is still good, so I am not unlawfully present. Is this right?

Attorney Murthy : A person is considered out of status if s/he is not working for the H1B employer and cannot submit pay stubs. The USCIS cannot approve the H1B extension with the I-94 card for such a person. Also, if one is out of status for over 180 days, s/he is not able to file for the I-485 or the last stage in the green card process and obtain its approval. So it is best to deal with this situation promptly and not accrue more time out of status. It is true that unlawful presence in terms of the 3-year or 10-year bar may not start until the I-94 card expiration, but the out-of-status time starts when one no longer works for the H1B employer.

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

Chat User : I recently transferred from H-1 to H-4 and we also received I-485 receipts. Can I stop working on H-1, since I received both H-4 receipt and I-485 receipt notice? Legally, in which status am I?

Attorney Murthy : A person is allowed to maintain both the H-4 and the I-485 pending statuses, so both are concurrent and legally allowed.

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

Chat Master : After the 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 : If I leave my job after my I-485 has been pending for 180 days, and my I-140 was approved a long time ago, can my employer still revoke my I-140? If my employer revokes my I-140, will my case be denied?

Attorney Murthy : An employer has the legal right to revoke the I-140 petition, but it is likely to be less common now that LC Substitution is no longer allowed. We have argued and won cases where I-140 denials or notices of intent to deny were received when the AC21 portability should have applied because the I-485 had been pending beyond 180 days when the I-140 revocation request was filed by the employer.

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

Chat User : How long does it take to get an EAD and AP? Do these have to go through security checks, and can they be delayed for name checks?

Attorney Murthy : Generally, the USCIS is supposed to do some preliminary name check before issuing the EAD and so, in some cases, we have seen lengthy delays in the EAD issuance. A majority of people, though, seem to get it within 90 days.

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

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

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

Chat User : Thanks for the great service. Is it possible to work on H1B and also EAD simultaneously for 2 different employers? When can one change jobs after applying for the I-485?

Attorney Murthy : It is possible to work for both the H1B employer and another employer on the EAD, as I have answered above. One can change jobs or employers more safely after the I-140 approval and once the I-485 has been pending for over 180 days, since AC21 portability would apply in such cases.

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

Chat User : The I-94 that I got at the airport after my last trip is not clear. Can I get another one so that the date is clear?

Attorney Murthy : One can file to request a duplicate I-94 card from the USCIS or one could go to the airport CBP to get a correction / clarification so that it reads clearly. They could check in their database quickly and it will save you the cost of the USCIS filing fees.

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

Chat User : Is USCIS going to do anything with Schedule A visa numbers?

Attorney Murthy : It has nothing to do with the USCIS. It has to do with the law. Schedule A cases for nurses / physical therapists still exist and are in EB3, in most situations. There was temporarily a separate allocation of visa numbers, and a separate listing in the Visa Bulletin due to a change in the law allowing recouping of some unused numbers from prior years. Once these immigrant visa numbers were used, the category in the Visa Bulletin disappeared. If the law adds more immigrant visa numbers, or changes in another manner, the USCIS will process those I-485s, otherwise not.

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

Chat User : My H1B is effective from October 1, 2008. As my title changed in the company amendment that was filed, how soon can I travel outside U.S.? Should I wait as amendment was filed just a week back?

Attorney Murthy : It is generally not necessary to wait to travel when an H1B amendment has been filed, as long as one has the H1B petition approval of the previously-approved case and a valid H1B visa stamped in the passport to reenter the U.S. However, if it is necessary to apply for a visa, and to present a current job offer letter, the difference between the H-1 approval and the title in the letter could be a problem. It may be a good idea to premium process the amendment and use that for the visa application.

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

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 : My I-485 has been filed and pending for more than 6 months. Can I change more than one employer using AC21 other than GC sponsor? If yes, do I need to inform USCIS each time when I change employer using AC21?

Attorney Murthy : One can change employers multiple times, since the law does not contain any prohibition other than requiring that one satisfy the legal requirements for AC21 portability. It is advisable to inform the USCIS when one is settled with one job to avoid the I-485 getting approved quickly and the person being considered to have committed fraud by failing to notify the USCIS of the change in jobs or employers.

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

Chat User : H1B extension was applied for in May, with a previous LCA. Got RFE, asking me to submit an LCA certified prior to filing of I-129. H1B is expiring on Oct 31st. Am I required to re-file with the ACWIA fee?

Attorney Murthy : This is a specific question that is time sensitive and has serious legal implications on your legal status and ability to live and work in the U.S. So you need to consult with your lawyer to understand how to attempt to resolve this matter ASAP. It is possible that a new H1B petition with all the filing fees will be required, if one made a basic error in filing the paperwork incorrectly, unless one is exempt from the $1500 or $750 ACWIA fee. It is always necessary to have an LCA that is valid for the dates requested in the H-1.

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

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

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

Chat User : EADs have been approved for my wife and me and I'm the primary applicant. Can my wife start working while my I-140 is still pending?

Attorney Murthy : Yes, one's spouse is allowed to work on an EAD for any employer in any job in the U.S. - even if the principal's I-140 petition is pending.

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

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

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

Attorney Murthy : We are happy to help you in today's MurthyChat and we look forward to continuing to help you, your family and friends with all of your immigration matters.

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

Chat Master : Thank you all for logging in! 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 © 2007, MURTHY LAW FIRM. All Rights Reserved