Chat : October 20, 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 : Welcome to our MurthyChat today! It is wonderful to have so many of you with us again. We invite you to submit your questions so that we can provide some general guidance to you on your immigration matters.

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Chat User : Is H1B transfer possible after using AP without H1B extension or amendment?

Attorney Murthy : It should be possible to file an H1B extension or amendment even if a person has entered on the AP, since the last action rule would make that latest H1B approval the governing status for the individual, assuming that s/he continued to work for the H-1 sponsor. If the H1B I-94 has elapsed, the H-1 case is likely to be approved for consular processing.

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Chat User : Is it possible to change employer attorney in file (for I 485 AOS) to attorney of my choice ? Will there be any issue? What is the procedure?

Attorney Murthy : Generally, after the I-140 approval and the I-485 pending for over 180 days, the I-485 employee becomes a sort of "free agent" and is allowed to replace lawyers or change employers if s/he wishes, as permitted under the law. Often, the company lawyer will refuse to help the individual due to a potential conflict if the person is working with the current employer. After s/he quits the employment, however, one is free to choose any lawyer or law firm. From the USCIS perspective, there is no specific legal prohibition except that, if the GC-sponsoring employer revokes or cancels the I-140 petition, it could result in a Notice of Intent to Deny or a denial, thereby requiring a Motion to Reopen / Reconsider or an Appeal to ensure that the I-485 continues to be processed.

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Chat User : Hello, Attorney Murthy. I have applied for H1B and the case is still pending and my OPT grace period is over. Is it legal to stay till I know whether my H1B status is approved or denied?

Attorney Murthy : Well, even if the H1B petition is approved in such a situation, if there is a cap gap then the USCIS may decide not to approve one's change of status, even if the H1B petition itself is approved. This problem was largely resolved with "cap gap" relief issued in 2008. Eligibility for the H1B petition approval is different from the change of status within the U.S. Under the April 2008 F-1 OPT regulations, most students were told that, if their cases had been accepted under the H1B quota, then they were eligible to keep working even if the F-1 OPT had expired. They are eligible to keep working, therefore. You should speak with your DSO at the School or a knowledgeable attorney, since it appears that you may have lost 2 months of salary and possibly benefits for no good legal reason! Invest in learning the law or hiring a good attorney to guide you through these matters.

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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 : I am applying for an H-1 transfer. Does my wife's H-4 also need to be newly reapplied with my H-1 transfer or will her current H-4 be valid till current I-94 validity?

Attorney Murthy : The spouse's or dependents' I-94 cards remain valid until the expiration date mentioned on the I-94 card for each person in H-4 status. Sometimes, to make things simple, the H1B and the H-4s are filed together to avoid missing the dates, since forgetting to extend the I-94 for the H-4 dependents can have disastrous consequences.

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Chat User : 6yr H1B expires in Feb 2009. I-140 EB2 denied. Labor expired. Best option, to retain status or options to go for 7yr extension?

Attorney Murthy : It sounds like the least one can do is to consult with a good attorney when things are looking so serious here. Some options seem to be to file the I-140 EB2 appeal, if there is a basis for an appeal, as this will permit time to file the H1B Premium Processing extension for one year from Feb 2009 until Feb 2010. Since it can be filed 6 months in advance, it can be filed right away before a decision is made on the appeal, even the strongest appeal is not a sure thing. Then start a possible backup LC/PERM case that is filed correctly, in the appropriate category, to avoid a delay or denial of the case again. As we advise people, a slow green card is often better than no green card! Discuss the reasons for the denial, strategy for the appeal, start a backup PERM and file it carefully this time to avoid a possible denial again, and discuss the options with a good professional. If you don't feel confident with the current lawyer, then feel free to consult with us by calling or eMailing us at law@murthy.com.

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Chat Master : Attorney Murthy will be en route to and from India on the 1st and 3rd Mondays in November. Therefore, we are scheduling two special chat sessions - on October 27th and November 24th. We hope you will join us then!

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Chat User : I applied for L-1 to H1B with status change this year. Till what maximum period can we continue with my employment staying on L-1? And if I continue on L-1 till March-April then what problems may arise, and at what stage - like in green card or in visa extension?

Attorney Murthy : A person is allowed to keep working for the L-1 employer until the change of status to the H1B is approved by the USCIS and the start date for the H1B employment has commenced. If the H-1 COS has been approved, and was effective as of October 1st, then you need to set up a consultation with a qualified immigration attorney immediately.

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Chat User : Can I change my employer when my I-140 is pending and still keep the priority date?

Attorney Murthy : No, one is not able to transfer the PD on a case until the I-140 petition is approved. In this example, if there is an RFE or a denial of the I-140 petition, then the prior employer will not likely respond to the RFE or respond by filing an MTR or appeal on the I-140 denial, so that s/he will get nothing and will need to file a new LC/GC case from the beginning with a new priority date.

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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.

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Chat User : My labor cleared in Apr 2008. My company filed for I-140 in May 2008. Can I transfer my green card processing to a new company if my present company shuts their operations? My H-1 visa expires in July 2010.

Attorney Murthy : As mentioned before, the PD cannot be transferred until the I-140 petition is approved. If this never happens, since if the USCIS issues an RFE and the employer is not able to respond, then the I-140 petition will be denied. Also, since one has never filed the I-485, there is no AC21 I-485 portability, so that one must start a fresh, new LC/GC case anyway to obtain the GC. Even transfer of the priority date is not an option until the I-140 petition is approved.

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Chat User : Hi, I am outside USA. I received my H-1 approval in June'08. For how long can I delay visa stamping? Also, after stamping is there a time limit for entering the U.S. before the visa becomes invalid?

Attorney Murthy : There is no time limit under law to file for the H1B visa stamping, except that the job offer must still be available and open to one when s/he applies for the H1B visa stamp. Unlike in the immigrant context, one may enter the U.S. at any time during the validity of the H1B visa stamp. So, legally speaking, s/he has the entire 3-year period to enter if the H1B petition was approved for 3 years. However, the case needed to be valid with an actual job as of the H1B start date. If applying well after the start date, the validity of the petition approval can be questioned, the visa denied, and the H1B petition returned to the USCIS for review and revocation.

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

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Chat User : Can parents of a U.S. citizen holding B-1/B-2 visa, enter the U.S. as tourists and then petition I-130 and stay in the country legally? If yes, upon entering the U.S., when can I-130 be filed?

Attorney Murthy : The general rule of law is that one who enters on the B-1/B-2 is informing the CBP Inspector that s/he wishes to visit the U.S. on a temporary basis. If the person intends to settle down permanently and evidence of this is found in a search of the person's luggage, it could result in his/her being denied entry and, potentially, "removed" (new legal term for deported) from the U.S. for fraud / misrepresentation. To avoid the doctrine of fraud / preconceived intent, unless there is something unexpected that changes the parent's intend during the trip, the case ideally should be processed through the consular post abroad. This is a much faster means of obtaining the GC through and will not result in cancellation of the 10-year B-1/B-2. It is acceptable to file the I-130 for consular processing during the parents' visit. It is the I-485 that is problematic.

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Chat User : My I-140 was denied Oct14th and my last year H1B expires in March'09. Now, can I use my old PERM labor date (PD) to file a new PERM Labor and go for 7th-year extension?

Attorney Murthy : As mentioned before, one cannot carry the earlier PD or transfer it until the I-140 petition is approved. One may file an I-140 appeal and then attempt to obtain the H1B extension during the appeal timeframe, or even file a new I-140 petition based on the expired LC / PERM, if there is another legal basis for the appeal or the new filing. It seems like you need to discuss such options with a good lawyer or, if you don't have one, please contact the Murthy Law Firm at law@murthy.com and consult with an attorney for this process.

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Chat User : Hello, Attorney Murthy. My H1B petition is still pending and my cap gap I-20 ends on Sept 30. I would like to know if I am in legal status till a decision is made.

Attorney Murthy : It is not possible for any attorney unfamiliar with the details of a person's specific case to provide case-specific legal guidance under law or even as a practical matter, in case there are any exceptions that may apply in a particular case. The cap gap H1B law presumably would allow one to keep working if the case was accepted by the USCIS for processing under the April 2008 F-1 OPT regulations. Discuss this matter with the school official or your attorney or consult with the Murthy Law Firm by contacting us at law@murthy.com. Also, did you consider the option of paying the premium fee to obtain an expedited response, since the loss of several months' salary is often more extensive than paying the $1000 Premium fee to the USCIS.

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Chat Master : Attorney Murthy will be en route to and from India on the 1st and 3rd Mondays in November. Therefore, we are scheduling two special chat sessions - on October 27th and November 24th. We hope you will join us then!

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Chat User : I am in L-2 status. Can an employer file a green card case for me?

Attorney Murthy : Yes. A person in L-2 status or, in fact, in H-4 status, or even one who is abroad is legally able to file for the GC since the entire concept of the GC processing is based on the concept of a future job offer.

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Chat User : My wife is on H4 visa in USA and her H1B is in pending state. Can she travel to India and return on H-4 visa (even if my H1B is approved during her stay in India) and do a COS to H1B later?

Attorney Murthy : As explained earlier on the same question / issue, it is possible to file the H1B with the request for change of status, but it must be explained, since the change-of-status application is deemed abandoned by operation of law when one departs the U.S. even if the H1B petition itself can be approved for the individual. The filing for the COS involves re-filing the H1B petition, not just filing an individual COS application.

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

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Chat User : If one working on OPT with H-1 under processing wishes to go for fulltime position after approval does, s/he need to show any paystubs from her/his current employer for the transfer?

Attorney Murthy : If one wishes to change jobs or employers after obtaining H1B status at a date after the effective date of the H1B, s/he is required to submit paystubs to show that valid H1B status was maintained in the U.S. in order to be able to obtain another H1B with a different employer - all from within the U.S. If this is not possible, there may be options for consular processing. This should be discussed in a consultation.

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Chat User : Is it safe for one's spouse to switch to EAD from H1B when the spouse's green card is approved in EB3 category and spouse's green card is pending as a derivative beneficiary?

Attorney Murthy : Generally, the law states that, after the I-485 is filed, both parties in the marriage are entitled to maintain either the H1B or other nonimmigrant status, or the I-485 pending status, and work on the EAD incidental to that status. Accordingly, it should be safer after the principal obtains the I-485 approval. However, if there is a problem with the spouse's prior legal status in the U.S. or unauthorized employment or any other legal issue, by relying only on the I-485, there is a slightly higher risk than having a backup legal status.

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Chat User : Can one switch from H-1/I-485 pending status to H-4 after one's employment-based I-485 is denied but one's spouse is on a valid H-1? Thanks!

Attorney Murthy : Well, if one was in valid H1B status then, even if the I-485 is denied, s/he is able to revert to the H1B status and does not need to consider the H-4 status as the only option. If, however, the H1B status expired or was denied, or there is no H-1 job anymore, then H-4 is a possible option, as long as the spouse maintains valid H1B status within the U.S.

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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 : My I-140/I-485 are pending. I have renewed my H1 and EAD, but my job is at risk. If I lose my job, what would be my status? What would be backup method? Please explain.

Attorney Murthy : Well, the safer method is to file a new H1B with a new employer as soon as one loses the job to maintain backup H1B status. If the I-140 petition is approved, then one is able to enjoy AC21 portability benefits and can continue the GC in that case as long as the new job is considered "same or similar job occupational classification." If the job is lost before the I-140 is approved, then it is possible to try to use AC21 to salvage the GC case, but the I-140 ultimately needs to be approved for the case to work. In that situation, a backup status and backup GC case are important.

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Chat Master : Attorney Murthy will be en route to and from India on the 1st and 3rd Mondays in November. Therefore, we are scheduling two special chat sessions - on October 27th and November 24th. We hope you will join us then!

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Chat User : Hello, Attorney Murthy. If an employer is debarred / blacklisted for short period (for 1 year), would it effect the GC processing of its employees? Or, instead, is it better to find a new employer and start a new GC processing?

Attorney Murthy : Well, it depends on what the employer is debarred from for one year. So it will depend on the terms of the penalty or the terms of the agreement between the Department of Labor or ICE. It is possible that it may not affect GC holders, only H1Bs, in which case there is no need to panic and jump ship. On the other hand, if it is a blanket debarment then it may be different. Even in this case, waiting for one year is better than starting the GC from scratch with a new employer, in most cases.

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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 are not having the regular MurthyChat on the first and third Mondays of Nov 2008 as we travel abroad at that time. So, we have planned two other sessions to help you. Join us for the MurthyChat on Monday, Oct 27th and on Monday, Nov 24, 2008, 9pm ET. We appreciate your understanding. Thank you for your interest in using the services of the Murthy Law Firm and for using our MurthyChat.

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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