Chat : October 22, 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.

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Attorney Murthy : We welcome your questions in today's MurthyChat and we look forward to helping you with your immigration related issues.

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Chat User : If my spouse and I have valid H-1/H-4 and EAD. Can my spouse use EAD and can I continue with H-1?

Attorney Murthy : Yes, it is possible for the principal to maintain H1B status by working with the H1B employer and for the spouse to work on the EAD, since each individual's I-485 application is considered a separate application for adjustment of status, even if one is the principal and the other a dependent for the purpose of obtaining the GC.

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Chat User : If a person working on H1B visa quits his/her job and goes on dependent visa, does s/he get counted against the H1B quota upon finding a new job?

Attorney Murthy : Usually a person is not counted against the H1B quota again if s/he was previously counted against the H1B quota within the past 6 years.

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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 : My wife and I received AP and EADs and we are on H1B. If we use AP to reenter, can we still work on H1B after coming and not using any EAD.

Attorney Murthy : Generally, the USCIS position is that, if a person returns on the AP, s/he must use the EAD. However, under a May 2000 Legacy INS memo, one is also able to file an H1B extension and work for the H1B employer for the duration of the H1B approval, even without EAD.

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Chat User : Hi Madam Murthy. Thanks for having this useful service. If I-140 is revoked by old employer, does that always trigger RFE for I-485?

Attorney Murthy : Generally, if the employer revokes the I-140 it is common to expect that there will be either an RFE or a Notice of Intent to Deny the I-485 or possibly even an outright denial that will require response with an Appeal or an MTR. It can get expensive and time consuming. The best way to try to avoid this is by filing an AC21 notification, if changing employers under AC21 portability.

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Chat User : If a person is laid off before the I-485 has reached 180 days, can s/he still continue with the case? Does one have to work for the company that filed the labor and I-140 for the whole 180 days after I-485?
 
Attorney Murthy : Even if one is laid off or otherwise terminated within 180 days of filing the I-485, if the employer does not notify the USCIS of the lay off or termination, then after the 180 days, the individual will only need to show that s/he has found another job that qualifies as the "same or similar" to be eligible to take advantage of I-485 portability and still obtain the I-485 / GC approval.

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Chat User : Can we rely on the I-485 processing times USCIS updated on 10/15/07? They say about 1 year and 2 months wait is expected from receipt date. I am a little skeptical about this, as I read USCIS received about 800,000 I-485 applications, and I believe the annual quota for employment-based green cards is much lower: about140,000. Thank you in advance for your advice on this matter.

Attorney Murthy : Well, the USCIS is only saying how long it will take for them to process an I-485 application if the priority date (PD) is current today. If it takes 4 years, for example, for the PD to become current, the USCIS by law cannot adjudicate or approve that I-485 until the PD is current after the 4-year timeframe. They review and process the cases, even if the priority dates are not current and then keep them aside with the goal that the person will obtain an immigrant visa number as soon as the priority date becomes current. They can issue RFEs and denials; by law, they cannot approve the I-485 unless there is an immediately-available visa number for that individual and all of his/her immediate family members.

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Chat User : Can a small LLC (currently with only the owner) sponsor H-1? Will applying for a part-time position increase the chance of it being approved?

Attorney Murthy : Generally, it is more difficult for a smaller company having one or two employees to succeed in getting an H1B approval, though it is certainly possible. It depends on the financial ability to pay and the bona fides of the company, but the USCIS (and, more importantly, the consulate, if the H1B person is living abroad) will either deny or delay the H1B issuance with very small employers.

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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.

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Chat User : Dear Attorney Murthy, how common is it for USCIS to issue more than one RFE on the same I-140 and how common are the delays in processing I-140s beyond the 60 days following a response to an RFE? Thank you very much!

Attorney Murthy : Depending on the response, if the USCIS believes that more information is required, they are allowed to issue another RFE, but it is not common and, in fact, if they cannot approve the case with the information provided in response to the RFE, they are allowed to deny the case outright at that time. It is common for a case to take longer than 60 days after the RFE response is sent, depending upon the USCIS backlogs and a particular examiner's workload, among other factors.

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Chat User : Hi! Can we apply for a green card from company A and continue working with company B until green card is approved?

Attorney Murthy : It is possible to apply for the GC with an employer based on a future job offer, but the intent of the parties must be for the employer to offer a full-time, permanent job to the individual, and for that person to work for the GC-sponsoring employer. If that is not the intent of the parties, then there may be issues of fraud or misrepresentation involved. To avoid this allegation, one ideally must work for the GC-sponsoring employer before or at the time of the I-485 approval. The USCIS may not believe that one's intent is to work for the sponsor if s/he has never worked there and are not working there at the time the case is reviewed.

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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.

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Chat User : I filed my I-485. I got approval for I-765, I-131. I am still maintaining my H1B status. I am planning to get married in my home country (India). Shall I be able to apply for an H-4 visa for my spouse from my home country?

Attorney Murthy : Yes, it is possible for the spouse of a person in H1B status to obtain the H-4 dependent status, even if the principal beneficiary has filed the I-485 and obtained the EAD and AP, since H1B and H-4 (L-1 and L-2, also) enjoy dual intent status. The H-4 can be requested as long as the principal beneficiary is maintaining H-1.

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Chat User : Hello, Mrs. Murthy. Will a dependent’s green card / I-485 be affected if the primary applicant chooses a totally new career and leaves green card-sponsoring employer after six months of getting a green card in EB3 category?

Attorney Murthy : Generally, the dependent's GC / I-485 should not be adversely affected solely on the basis of the principal's having left the GC-sponsoring employer after 6 months of obtaining the I-485 approval. But that fact, along with other criteria, could result in a USCIS investigation in some cases for possible fraud, depending upon the factors involved.

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

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Chat User : Can a spouse keep the I-485 that has been approved on an employment basis if the couple has got divorced just before the I-485 approval?

Attorney Murthy : The general rule of law is that, if the divorce took place before the I-485 approval, then the I-485 would not be properly approved. It is necessary to be married and to qualify as a spouse. This can be a significant problem if the case is ever reviewed, particularly if the person files later for U.S. citizenship and has to produce the divorce decree, which will show that the green card was not proper. This is because the only reason that the USCIS approved the I-485 for the dependent spouse was based on the spousal relationship and family unity in an employment-based case for the principal. If the parties are cooperating with each other, it may be worthwhile to delay the final divorce to ensure there is no risk of the spouse's losing the ability to live and work in the U.S. as a permanent resident.

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Chat User : For AC portability, will the USCIS consider the received date or the receipt date?

Attorney Murthy : By law the USCIS is supposed to consider the date that the I-485 was received at the USCIS and, generally, when the receipt notice is issued, the USCIS will mention the filing date as the date of the receipt of the package at USCIS, not the date of the issuance of the receipt notice, which can sometimes be months later.

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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 : Murthiji, thanks for the great service! How long does it take for USCIS to process an I-140 filed with labor substitution? Does the time vary for labor substitution and regular processing? Thanks!

Attorney Murthy : There is no specific timeframe, but generally cases filed with LC Sub take longer than other cases, since the USCIS must review each case like all I-140 petitions, but also undertake the additional responsibility to ensure that one has complied with the requirements under the original LC filed for the initial employee. Obviously, the LC Sub case must have been filed on or before July 16, 2007.

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Chat User : Is it possible to transfer a fresh Oct 2007 H1B petition of Employer A to Employer B without any pay stubs?

Attorney Murthy : Yes, it is certainly possible for one to file another H1B with a different employer, especially if the individual was maintaining another status in the interim so that s/he was maintaining valid status throughout.

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Chat User : Ms. Murthy, if a name check is pending for more than 2 years, generally, what are the steps that can be taken to expedite it? Many thanks.

Attorney Murthy : Well, depending upon the circumstances, the common options are: (1) to contact the Ombudsman (2) to eMail and talk to one's congressional representative or the aide for this congressperson to contact the USCIS on the delay (3) consider suing the government by filing a writ of mandamus to force the government to make a decision on the case.

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

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Chat User : Hello. I have to leave for India for an extended period due to family emergency and I have had a green card for three years. May I go without affecting my USA citizenship? application?

Attorney Murthy : If one departs the U.S. for more than 180 days, s/he jeopardizes her/his GC status, since there is a presumption that an absence of 180 days or longer breaks the continuity of residence for filing for U.S. citizenship. It would be best to schedule a consultation on this matter and discuss with an experienced, knowledgeable immigration attorney the steps to preserve both the green card and the citizenship options.

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Chat User : Can one claim cross-chargeability and concurrently file I-140/I-485 upon EB3 labor approval? Your initiative and service is deeply appreciated.

Attorney Murthy : Yes, it is possible to file the I-140 with the I-485 if one is able to take advantage of cross-chargeability AND the priority date is current for the particular country of cross-chargeability. EB3 is still substantially backlogged, even in the "worldwide" chargeability.

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Chat User : Mrs. Murthy, I have never filed my AR-11 for address change, would that be a problem while processing my 485?

Attorney Murthy : The law requires that one must file the AR11 within 10 days. If it has not been done, it should be done right away. This question is not asked on the I-485, and it may not come up, but it is necessary to file the AR-11 when one realizes the mistake, and should file within 10 days of any future moves. The AR-11 can be filed online, on the USCIS website.

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Chat User : Hello, Murthyji. My wife and I received receipt notices for I-485 today, but my six-year-old daughter did not get her receipt notice, though she also applied with us on 8-17-07. What can be the reason/s and what should we do? Thank you for a wonderful service.

Attorney Murthy : Hopefully, her receipt notice should be coming within a few days. If nothing shows up for a few weeks, then check to see if the checks for her filings were cashed and get her receipt number from the canceled checks.

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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 : If I get laid off before I complete 180 days on I-485, can I keep my EAD and port it to a different employer using AC21? Does my I-485/I-140 get revoked if I am laid off?

Attorney Murthy : Yes, one could potentially port the I-485 to a new job or employer. Generally, the I-140 and I-485 do not get automatically revoked. The employer can revoke the I-140, if they wish. If this happens before 180 days, then the whole case is likely to be denied.

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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 : If I use EAD now, and I would like to use H1B for the same employer, is it possible for me to do that?

Attorney Murthy : Yes, it is possible to rely on the EAD and use it and also maintain H1B status, though sometimes it may create some problems.

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

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Attorney Murthy : We look forward to continuing to help you, your family and friends with all of your immigration law matters through our law firm, MurthyDotCom, the MurthyBulletin and this MurthyChat. Thank you for giving us the opportunity to help you.

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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