Chat : November 05, 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 at the Murthy Law Firm look forward to continuing to help you, your family and friends with all of your immigration matters in today's MurthyChat.

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Chat User : I am on H1B for the first time and wanted to know how many pay slips from that company are required by law before I can leave the company that sponsored my H1B to join a new company. Thanks.

Attorney Murthy : Generally, a person should submit about 2 to 3 pay stubs from the current H1B-sponsoring employer to show as evidence of maintaining valid H1B status before filing an H1B with a new employer. Of course, it is possible for one to change to a new H1B employer even before starting work for that employer, like when s/he obtains an H1B approval in June 2007, for example, for an H1B that only begins on Oct 1, 2007. In such an example, the person can file with a new employer before the start date of the H1B petition approval.

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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 : Currently, I am working in H1B. I got EAD through my husband. I am planning to take a break. Do I need to apply for H-4 visa?

Attorney Murthy : It is often a good idea to file for backup nonimmigrant status, like the H-4, in most cases, just in case something happens to the I-485 and the EAD, so that one has some nonimmigrant status as an alternative.

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Chat User : Murthyji, thank you so much for your service. I want to know if I can travel to India on Advance Parole while my H-4 is in process. I am currently on F-1, which will expire in Dec 2007.

Attorney Murthy : If a person has filed a Change of Status (COS) with the USCIS, then departing the U.S. while the COS is pending is deemed an abandonment of the request for the COS. So then the individual only has the AP or parole status after reentering the U.S. If the I-485 is denied, or if there is an RFE, s/he could try to file an H-4 EOS or COS at that time or s/he could depart the U.S., request an H-4 visa stamp abroad, and then reenter the United States.

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Chat User : I filed my I-485 and have an EAD. Can I start my own business?

Attorney Murthy : One is allowed to work for any business or start a business while on EAD, but there is a risk if the I-485 is denied or if the person left the employer and did not have the I-140 approval before leaving the sponsoring employer. If there is an RFE or denial of the underlying I-140 petition, this creates problems for the I-485. Of course, if one intends to work in a side business, while also working for the principal GC-sponsoring employer, then it is usually a bit safer, but depends on many variations for each person and facts of each situation.

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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 : If the dependent who is on H-1 uses EAD for few months, what are the options for the dependent to return to H1B status and no longer use the EAD?

Attorney Murthy : The dependent in H1B status can file for an H1B extension with the same H1B employer, or a new employer who is willing to sponsor the person on H1B, and that way could potentially revert to H1B status. Or, possibly, the person could reenter with a new H1B petition approval and a new H1B visa stamp (or an unexpired H1B visa stamp with a prior employer), and reenter the U.S. with a new I-94 card to get back into H1B status. These are some examples but, presumably, your attorney can discuss the pros and cons or risks depending upon the specifics of your own background, credentials, and prior status violations, etc.

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Chat User : When dependent (currently on H-1) uses EAD for the employer and if the primary applicant's I-140 is denied, what is the status of the dependent? Can s/he use the existing H-1 that is not expired? Thanks in advance.

Attorney Murthy : Generally, an H1B that is valid and has not expired could remain valid, if the H1B employer has not revoked or canceled the H1B petition. See the response above on this same issue.

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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 : I have got H-1 approval notice, however, my date of birth on the H-1 approval notice is wrong. I wrote to USCIS, but have got no response. Will this be a problem for H-1 stamping and if so what should I do? Thanks for providing this great service.

Attorney Murthy : Well, it depends on why the DOB is wrong. Was it an error of your employer or attorney or was it a USCIS typographical error? If it was the former, then one must file a new H1B petition with the filing fee only again to request the correction. If it was a USCIS error, then the USCIS will correct their error and waive the filing fee requirement.

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Chat User : Dear Sheelaji, my parents got 10yr/B-2 visa on 10/01/07.They don't want to visit this winter, so my question is: how late they can enter on such a visitor visa? Thank you.

Attorney Murthy : If your parents have a 10-year multiple entry visa, then they are allowed to enter the U.S. at any time during the 10 years. There is no timeframe by which they must enter, as there is with an immigrant visa that expires within six months of the date of its issuance. Here, they can enter after five years or six years for a week or two or longer - usually up to a maximum of six months.

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Chat User : Can we use Advance Parole, being on H-1/H-4, as we do not have valid visa stamping? Can I switch back to H-1 once I come back?

Attorney Murthy : The general rule of law is that one is allowed to enter on the AP as a parolee and then file the H1B or H-4 extension after reentering the U.S. to get back into H1B or H-4 status.

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Chat User : Ma’am, can a new employer apply for my H1B transfer, while the application for extension of my H1B petition filed by my current employer is still under process? If yes, are there any caveats?

Attorney Murthy : It is possible, but if the earlier H1B petition has expired, then the risk when filing the new H1B with a new employer is that, if the pending H1B extension is denied, the later-filed H1B with the new employer could be denied the extension of status, even if the H1B petition itself is approved. So, the bridging status must be approved to ensure the chance of approval of the later-filed H1B.

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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 : Hello, Madam. From your previous chat session regarding future employment it says "PERM may look upon GC through a future employer with suspicion." Does that mean filing LCs with a different employer, as future employment and with current employer at the same time, have a risk of LC denial?

Attorney Murthy : No, there is no fraud rule automatically by law, but there is a general concern that LC Substitutions were eliminated due to potential misuse and fraud by many employers and employees. Why would an employer that has never seen a person or her/his work sponsor thayt person for a GC? If there are two employers, then it may be less of a problem, but it will really depend on the facts of each case and the circumstances for the gov't to determine fraud in a particular case.

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

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Chat User : Does USCIS request all missing information on an I-140 in a single RFE, OR do they issue a separate RFE for each issue? What is the maximum number of RFEs on an I-140? Thank you.

Attorney Murthy : Generally, the USCIS will only issue one RFE covering all the issues and, if the person does not respond to all the issues raised or if the response provided will result in further questions, it is to the employer's and employee's benefit to try and respond to the issues raised and other potential concerns to avoid a denial or a Notice of Intent to Deny issued by the USCIS. It is rare for one to receive a second RFE to clarify the response to the first. If that happens, take advantage of it and try not to look at it as a terrible tragedy since, in fact, it is an opportunity to obtain an I-140 approval. There are occasionally second RFEs covering issues that were not raised in the first; perhaps something the examiner missed the first time. However, overall, second RFEs are unusual.

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Chat User : How long can a person stay in abroad when s/he is in AP/EAD status before getting green card?

Attorney Murthy : While one has an I-485 pending, s/he is allowed to depart the U.S. after the AP is approved / issued and reenter before its expiration date. If s/he cannot make the fingerprint appointment, it is important to notify the USCIS of travel plans and request an FP notice date when s/he expects to be back in the U.S.

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Chat User : My EAD was filed more than 90 days ago. What can I do to find out why it is taking so long?

Attorney Murthy : One could go to the local USCIS office by scheduling an InfoPass appointment to find out what the reason for the delay could be, or by calling the USCIS Customer Service number to obtain an update on when the EAD is expected to be produced and mailed. With local offices no longer having the ability and equipment to produce the interim EADs, there is a delay possible, especially since the USCIS had so many cases filed during the summer of 2007. One could contact her/his U.S. senators or other political representatives for help, too. The local office can sometimes move things along, by making contact with the service center where the EAD is pending.

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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 : I-140 got approved. EAD 180-day period met. Can a person apply for another I-485 through another employer? What happens to the first EAD?

Attorney Murthy : One should not file a second I-485, but should either use AC21 portability to move to a new job or try to interfile a new I-140 petition with the pending or previously-filed I-485. Interfiling may make sense if the new I-140 has a better EB category / priority date. We have written articles in the MurthyBulletin on this issue, which you can search on MurthyDotCom. Decisions on this matter should be made with the help of a qualified immigration attorney.

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Chat User : I am on H-4 visa. I got my H1B (Change of Status) approved. I got EAD, also, but still have not joined any work. If I go to India, is stamping necessary for me? or shall I come back using my H-4?

Attorney Murthy : A person can use the AP to travel and reenter from abroad, if the AP is approved. If one wishes to work for the H1B employer and the person has not filed for the AP, s/he must obtain an H1B visa stamp. Otherwise, reentering in H-4 status means that one reverts to H-4 status and then, if the person wishes to work using the EAD, s/he must apply for the AP later to reenter from abroad or file another COS to H1B after reentering the United States. There are articles on MurthyDotCom on this matter based on the March 2000 and the May 2000 Legacy INS (pre USCIS) memos.

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Chat User : I am on H1B visa and recently got my EAD and I am not a principal applicant. I got my EAD through my husband's green card process. Can I use my EAD right away for my new job?

Attorney Murthy : One is allowed to start using the EAD for any position, either a new employer or the same H1B employer, since the EAD is valid from the date it is approved, and the person has the EAD in her/his possession.

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Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to http://www.murthy.com/mforum.html.

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Chat User : Thanks a lot for your great service. After 180 days of AOS application, if I switch to a higher paying (at least 25-50 percent more) job with similar job duties, would I be able to upgrade my category from EB3 to EB2?

Attorney Murthy : The general rule of law is that the EB2 and EB3 have nothing to do solely with the salary, but what were the minimum requirements for the job that was sponsored for the GC. Although salary can be an issue, it is not the determining factor in most cases. The category is determined based upon the initial requirements for the job, as set out in the labor certification. It is not possible to change this by using AC21 portability to move to a better job, even if that job may have qualified for EB2, had it been the subject of the labor certification.

You need to understand that the government only issues the GC to a person since a U.S. employer mentioned that they could not find a qualified U.S. citizen or permanent resident or other U.S. worker to perform the job duties that require a certain minimum skill set. So, one option for you may be to file a new PERM case in EB2 and then, after it is approved, file a new I-140 by retaining the original PD and upgrading the earlier EB3 to a new EB2 case with the existing I-485 AOS application.

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

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Chat User : Hello. Can one H1B visa transfer take place while another transfer is still pending? What will my status be if the earlier transfer is revoked while the later one is still pending approval?

Attorney Murthy : I have answered this exact question above. If the earlier H1B is revoked before the new H1B is approved, then the USCIS cannot approve one's EOS and the person may have to depart the U.S. and reenter with a new visa, if required in that new status based on the latest petition approval. Discuss the case with your lawyer to be sure that you are doing what makes sense and you are prepared to travel abroad, etc.

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Chat User : Thank you for your great service. Is it possible for a person with EAD to do a part-time job while maintaining status on H1B for primary purposes and EAD for the secondary job?

Attorney Murthy : A person on an EAD can work with more than one employer. If s/he wishes to maintain H1B status, then the new PT employer must file for a concurrent part-time H1B status, otherwise the individual is no longer in H1B status while working with a second or third employer, etc.

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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 : Would a pending COS (H1B to H-4) application hinder a new employer from filing for H1B? Thank you

Attorney Murthy : No. A person can file for a new H1B even after filing for a COS to H-4, as long as s/he is able to show that valid nonimmigrant status has been maintained the entire time for eligibility for the Change of Status.

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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 GC gets approved AFTER baby is born in India for AOS applicant parents, how can the baby be brought to U.S.?

Attorney Murthy : If the child is under 2 years of age and the mother is a GC holder, the baby can enter as a permanent resident, if it is the mother's first return trip back to the U.S. If the parents are not yet GC holders, then the child could enter in H-4 status, if one of the parents has an H-1. Otherwise, the child of a marriage that existed before the GC approval would get the same priority date/EB category and could consular process for an immigrant visa.  

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Chat User : Can a person transfer companies on H1B while keeping pending I-140 and I-485 with current employer? Thank you for the support.

Attorney Murthy : One is allowed to work for another H1B employer while having the GC processed by another employer.

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Chat User : If I used 4 years on my H-1 and then went to India for more than a year, can a new employer file an H-1 for me for the 2 years I didn't use? Will I be subject to the cap?

Attorney Murthy : Yes, under the recent USCIS memo one can recapture the time abroad and file a new H1B for the balance of time remaining, if the full 6 years was not used the first time around. Review the article on MurthyDotCom. In this situation, one would not be subject to the cap.

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Chat User : My H1B visa stamp on pp has expired and I intend to get re-stamped from Canada, once my 3-year extension is approved. I have second BS from U.S. and my I-485 is pending. Is there any risk of denial?

Attorney Murthy : There is always some risk of denial for any person for any number of reasons, including a name-check based on matching the name of another person who has a real problem, etc. When a person departs the U.S., there is a risk of being delayed or denied entry to the U.S.

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Chat User : What type of police certificates do I need to apply for an immigrant visa?

Attorney Murthy : Generally, one is required to obtain a Police Clearance Certificate for every place s/he has lived for more than 6 months since the age of 16 years, or, if the person was living and working in the U.S., then the Indian Embassy / Consulate in the U.S. can provide a police certificate and the most recent police precinct. Check with the U.S. consulate before your IV interview to ensure that you provide what they need since their requirements can change from time to time.

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

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We are happy to help you and your family and friends with your immigration matters. Have a wonderful evening / day, depending upon from where you are joining us!

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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