Chat : October 27, 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.

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

Attorney Murthy : Dear MurthyChat Participants, it is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with general information for your immigration matters in our MurthyChat. Thank you for using our services at the Murthy Law Firm.

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

Chat User : My H1B case is still pending after more than 4 months. What should I do? Can I apply for premium processing now?

Attorney Murthy : Generally, the standard processing time for an H1B petition is, on average, about 4 to 6 months and it can be longer if the USCIS is reviewing the company or the individual's background. The attorney or company can file the Premium Processing form and pay the extra $1000 Premium fee along with the receipt notice and upgrade the case from normal to premium processing. The only risk is if the case is delayed due to an investigation of the employer or employee, in which case the USCIS will not process the case within the 15 day timeframe.

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

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 : What is the procedure to change status from L2B to H1B, with an approved H1B petition without COS? Is I-539 for the same? I am currently in U.S.

Attorney Murthy : No, the only way for a person to change status within the U.S. from L-2 to H1B is for the employer to file an H1B petition requesting that the case be converted from an H1B with consular notification to an H1B within the U.S. We have done this successfully many times before, but filing the I-539 will not help at all. Alternatively, one could apply for the H1B visa at the consulate and, if granted, return to the U.S. and obtain the I-94 at the Port of Entry.

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

Chat User : I am at 8th-year extension, and my I-140 was denied. My H-1 is going to expire soon. Can I claim the unused travel time during my first 6 years of H-1?

Attorney Murthy : It is possible to attempt to recapture the time abroad to obtain the H1B extension. Another option may be to file an appeal of the I-140, assuming that there is a basis for an appeal, and obtain a one-year H1B extension (in addition to any recaptured time) by premium processing based upon the pending appeal. Premium processing is suggested, because even the best appeals are uncertain. Then of course, one must start a fresh backup LC / PERM / GC case at the earliest hopefully carefully in a manner to avoid another I-140 petition denial.

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

Chat User : I have approved H1B visa and my fiancé is on F-1 Visa. What is the procedure to change the F-1 Visa status to H-4 visa status? What are charges and how much time would it take to change the status?

Attorney Murthy : The procedure depends upon whether the process occurs in the U.S. or abroad. If the wedding is abroad, than the new spouse would apply for an H-4 visa at the appropriate consulate and enter the U.S. in H-4 status. There would not be an H-4 filing in the U.S. until it was necessary to extend the H-4 status. Alternatively, it is possible to request to change status in the U.S. The filing fee is $300. The legal fees vary. We have reduced fees of $500 for these filings when made in connection with the H-1 filing. The fees are higher for situations in which the change of status is filed by itself, as it tends to take much longer to process and there is no premium processing option. We can provide detailed fee information upon request in response to eMail sent to law@murthy.com.

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

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 was on H1B visa before. I changed my status to F-1 a year ago. If I want to go back to H1B visa again, do I have to reapply for a new H1B, or would it be simply a transfer?

Attorney Murthy : If one was in valid F-1 status, then most likely the person is eligible to change status back to H1, without being counted against the H1B quota again. It is a new H1B petition filing each time, but there is not a cap issue in this situation.  We have done many of these types of cases successfully, though some lawyers get confused and think the person is subject to the H1B quota/ cap when that is not the case.

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

Chat User : I have conditional permanent residence, and filed an I-751 to remove conditions. I am not sure if it will be approved, can I also apply for an H1B while it is pending?

Attorney Murthy : Yes, an employer is allowed to file for an H1B with the USCIS while the I-751 is pending, but that assumes that one was previously in H1B status or that s/he has a job with a non H1B cap exempt employer. Otherwise, the individual must be counted against the H1B quota. It generally would be processed for consular processing, and used as a backup plan. Also, if there are any issues of fraud in the marriage, then this creates larger problems. This strategy should be discussed with a knowledgeable and experienced immigration attorney. If you do not have one, please feel free to contact us at the Murthy Law Firm at www.murthy.com so that we can help you.

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

Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at http://www.murthy.com/chatlogs/chattran.html.

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

Chat User : Hi! Good evening, Murthyji! My I-140 was approved this year. When can we expect the EB2 dates to be current to apply for I-485, EADAP?

Attorney Murthy : Well, it depends on various factors, but the most important is your priority date, assuming that you were born in India. It is very unlikely that all EB2 dates will become "Current," like in the 2007 summer. Please visit www.murthy.com for the movement of priority dates and the expected projections / movement under the U.S. Dept. of State guidance. If it is a recent PD, it could be a few years or longer unless one spouse was born in a country other than India.

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

Chat User : My wife's H-4 & I-94 expired on 30 Sep 08. We applied for H1B (COS) on 01 April 08, which is pending as of 30 Sep 08. Is she legally allowed to stay until we get an approval or denial of H1B?

Attorney Murthy : Yes. One is allowed to remain legally in the U.S. as long as the change of status has been timely filed and pending. The day it is denied, if the H1B COS is denied for any reason, the person is required to depart the U.S. almost immediately, since the USCIS does not grant any grace period for departure after a denial. Of course, if things go well and the H1B COS is approved, one can stay in the U.S. and start working for the H1B employer from the H1B approval with COS approval date.

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

Chat User : When EB3 AOS is pending, can EB2 be filed to port PD and select consular processing?

Attorney Murthy : Yes, it is possible to file a new EB2 case to transfer the earlier PD from the EB3 case and then select CP to ensure that the immigrant visa is issued earlier, especially if the PD is current or about to become current in the EB2 classification.

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

Chat User : Hi, Ms. Murthy. Can I re-file new I-140 EB3 based on my old PERM labor (in Feb '09), for which I-140 EB2 was denied (in Oct '08).

Attorney Murthy : It is possible, but that still does not guarantee that the EB3 will be approved unless the choice of category was the sole reason for the denial of the EB2 case.

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

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

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

Chat User : Attorney Murthy, what is the procedure of transferring from H-4 to H-1 and usually how much time does it take for the procedure?

Attorney Murthy : Well, it depends on whether or not one is not subject to the H1B quota / cap. If s/he is subject, then the earliest date to file a new H1B cap-subject petition is April 1, 2009 with a start date of Oct 1, 2009. If the employment is with an H1B cap-exempt employer, then the H1B may be filed ASAP with a start date almost immediately and if filed under the PPP, the case could be approved within a few days.

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

Chat User : Hello, Ms. Murthy. Does 4 years of bad F-1 academic record, with many F's, affect H1B stamping decision from VO?

Attorney Murthy : It could affect one's ability to obtain the H1B stamp, especially if s/he is asked why the education was not completed, though generally for an H1B visa stamp, one's eligibility to qualify and the employer's track record are given more weight. There could be some concern about the validity of the job offer, if given to a person with a very bad academic record.

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

Chat User : I am the principal applicant on my I-485. Both my wife and I received renewed EADs. Would it be legal for us to take part-time jobs in addition to the jobs we currently hold?

Attorney Murthy : Generally, as long as the EAD is valid and the I-485 remains pending, it is perfectly legal and allowed for persons on EADs to work with any employers they wish or even to start businesses while on the EAD. The primary applicant must continue to have a qualifying job offer that forms the basis of the green card case, but it is fine to do some part-time work on the side.

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

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 User : My employer filed to extend my H1B, but my I-485 has been approved. The H-1 has not been decided. Do I need to do something about the H-1? Should it be withdrawn?

Attorney Murthy : It is not necessary to do so, since the USCIS most likely will issue a denial stating that the H1B extension cannot be approved, since one in this situation has already obtained PR / GC status.

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

Chat User : Hi, Attorney Murthy. My I-140, EB2 was denied. I am applying for AAO Appeal. My 6th year H1B is expiring in the next 3 months. When exactly can I apply for 7th-year H-1 extension based on Appeal?

Attorney Murthy : Well, as explained above, the filing does not depend upon when the AAO appeal is filed but when the original LC was filed. So if more than 365 days have elapsed, then one can file the 7th-year H1B extension. Otherwise, it is likely to be denied.

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

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

----------------
Chat User : I am in L-2 status, as a dependant of my husband. I am working on an EAD. Can my employer sponsor me for a green card, even though my employer is not otherwise my sponsor?

Attorney Murthy : A person in any valid legal status, especially with a dual intent like the L-2 or L-1, H-4 or H1B is allowed to start a new GC process, depending upon the categories s/he is eligible to apply for the LC / GC.

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

Chat User : I passed 6 years of H-1 and my I-140, got denied, and I applied for MTR. Can I apply for H-1 extension based upon pending MTR?

Attorney Murthy : Yes. A person is allowed to file the H1B extension based on the pending MTR. To be safe, it is better to file the H1B under the PPP so that, if the MTR is denied and the H1B extension has been approved for one year, one at least will have one year's time to start and file a fresh LC / GC case.

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

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 : Can switching from an EB3 to EB2 be done during the PERM audit process and still hold on to the same PD as that of EB3?

Attorney Murthy : No, as explained in various articles and in responses to MurthyChat questions, the earlier PD can only be transferred after the I-140 petition is approved. The EB2 or EB3 categories depend upon the requirements in the labor certification. The labor certification cannot be amended to change / increase these requirements during an audit or any other part of the process.

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

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

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

Chat User : Hello. We filed an extension for H1B when I was in the U.S. Due to a family emergency, I had to travel to India and my visa expired. Can I go on H-4 and, when the H1B is approved, file for a status change or wait for her petition to be approved and get visa stamping in India?

Attorney Murthy : Well, if there was an extension of status filed, then the extension is not deemed abandoned upon departing the U.S. so it is possible for the USCIS to approve one's H1B petition with the EOS thereby allowing one to work legally as soon as it is approved. One must understand the risk of switching to an H-4 and reentering the U.S. If reentering on the H-4, it would be possible to file later to change to H-1 or to get the visa at the consulate abroad.

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

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

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

Attorney Murthy : We are not having the regular MurthyChat on the first and third Mondays in November 2008, as we travel abroad at that time. So to we have planned two other sessions to help you. Accordingly, we had the MurthyChat today on Monday, Oct 27th, and the next one will be on Monday, Nov 24, 2008, at the same time, 9pm ET. Thank you for your interest in using the services of the Murthy Law Firm and for using our MurthyChat.

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

Chat Master : Thank you all for logging in! The MurthyChat is generally 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

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

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