Chat : November 19, 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 : 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.

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Chat User : Murthiji, is it possible to shift from AOS to CP? If yes, what is the procedure and are there any risks?

Attorney Murthy : It is possible to shift from AOS to CP, but it is something you and your family must understand clearly. Obviously, there is no EAD and AP for you and dependent family members with the CP process. For CP, the priority dates must be current for the consulate to issue the immigrant visa, etc. Also, the principal must remain in H1B status and the dependents in H-4 status; otherwise, if there is a layoff, etc, the family will all be out of status and could also possibly become unlawfully present. Even the CP can be a lengthy process. So you must understand the pros and cons by discussing the issues with your immigration attorney before making that decision. If you don’t have an attorney or don’t feel comfortable or confident with the knowledge of that person, you are welcome to engage our law firm for a consultation.

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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 : Recently, I transferred my H1B, which was approved. Can I work with my old employer? If I can, how long may work there?

Attorney Murthy : It is possible to continue working with the earlier H1B employer, but, to be on the safe side, it is best to request that the new employer revoke the later-approved H1B petition, though it is not required by law. Since this is an Extension of Status for a person on H1B, and not a change of status from H-4 to H1B or F-1 to H1B, the person's status is not changed. Generally, therefore, there is little to no risk in continuing in H1B with the current employer, in most cases.

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Chat User : Hi., My 485 application was rejected. I am on 6+ years H-1 extension my H-1 is expiring soon. Will I get H-1 extension? What are my options?

Attorney Murthy : Even if one's I-485 is rejected (not denied, but rejected; or even if the USCIS has denied it), the individual could file the H1B extension based on the 1 year or 3-year extension, if either the LC or I-140 was filed a year earlier, or if the I-140 was approved, respectively. In some cases, this may require that a Motion to Reopen must be filed, or a new I-485 filing, in other cases, if the PD is current. Discuss all possible options with your immigration attorney or with our law firm, since options will always depend upon one's individual circumstances.

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Chat User : Dear Murthy, what is difference between "FBI name check" and "background check?" I got "FBI name check pending" and one of my friends got "background check pending" for our queries for I-485 pending cases. Thanks for clarifying.

Attorney Murthy : Well, the "name check" means that one's name is being checked, since there was a match on the FBI database with another person with the same or a similar name and a birthday close enough to match yours. The "background check" is far more extensive, since it will include the name check and other issues like criminal, etc. So your situation is slightly better, but there is no guarantee which could be faster to clear up!

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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 : Respected Madam Murthy, for AC21 portability may I use H-1 or do I have to use my EAD?

Attorney Murthy : For AC21 portability it is safer for one to rely on a new H1B filing with the new employer as a backup, in case of any problems with the I-485 approval. By relying only on the EAD, one runs a small risk if the I-485 is denied or the AC21 portability argument is rejected by the USCIS. So, one can use the H1B approval to work for the new employer and not use the EAD to be on the safe side. AC21 does not require the use of the EAD.

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Chat User : My H1B visa stamp on PP got expired and I intend to get re-stamped from India. I got my EAD and am waiting for AP. Is it safe to travel to India and get stamped?

Attorney Murthy : Generally, with the AP and the option of filing for the H1B visa stamp, it is safer than having only one option. Of course, any person choosing to travel abroad, runs a risk of being stuck abroad for any number of reasons, like the law changing, delays in the issuance of the visa, etc, etc.

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Chat User : Murthyji, thank you so much for your service. If H1B visa is denied can we reenter USA using Advance Parole?

Attorney Murthy : Yes. It is possible to reenter the U.S. on the AP if the H1B visa stamp is denied at the consular post abroad, unless the I-485 is denied when one is abroad or something unusual occurs. In most cases, it should be pretty safe, but it depends upon one's background, prior out-of-status or unlawful presence issues, etc.

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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.

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Chat User : What if an employer revokes I-140 after 180 days of I-485 application? Is there a special application for AC21 portability? If so, when should we apply for it?

Attorney Murthy : An employer could always revoke the I-140 petition but, with LC Substitution elimination, there is no benefit for an employer to revoke the I-140 petition now. If it is revoked, the USCIS can issue a Notice of Intent to Deny or a denial and one will need to respond by showing the applicability of AC21 in such cases. We at the Murthy Law Firm have successfully argued and obtained approvals in most such cases. It is best to be proactive and submit AC21 proof in advance, without waiting for a Notice of Intent to Deny.

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Chat User : Out of two I-140s filed, one got approved a month before, but other recently denied based on "education." Will the denied I-140 impact the approved I-140? Thanks in advance for your kind reply.

Attorney Murthy : Generally, a denied I-140 petition should not directly impact the approved one, unless there is some other reason or an audit, etc. In most cases the two I-140s are not affected by the other; especially if one was in EB3 and the other one was in EB2, since one may be eligible under one category but not the other, etc.

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

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Chat User : Would it be possible for you to explain the recent retrogression in EB2 categories in Dec 2007 Visa Bulletin? In your opinion, how long would it take (approximately) to obtain the approval for I-485s filed in July 2007? Thank you.

Attorney Murthy : Retrogression is always based upon the limited supply of visa numbers and the demand for those numbers. Processing times depend upon one's EB category and the priority date. So, if a person has an EB2 PD of 2002, the I-485 could be processed within a matter of months, depending upon service center processing times. If the person's PD is in 2006 or 2007, then s/he could be waiting for many years, based on the slow forward movement of priority dates, especially for nationals of India and China.

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Chat User : Is there no time limit for name check? If it is pending years, what can be done?

Attorney Murthy : Well, by law, there is no specific time limit. That is why some people get tired and force the government to make a decision within a reasonable timeframe by suing under the U.S. constitution by filing the writ of mandamus. The problem with a lawsuit is that it is time consuming and expensive, as a case can drag on if the USCIS does not concede. Until recent times, just the threat of a lawsuit was sufficient for the USCIS to wrap up a case, but that has begun changing more recently and they are trying to fight back, since there are so many lawsuits filed against the USCIS over the last year or so.

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Chat User : Dear Murthi ji, is it possible to work in H-1 fulltime and use EAD for part-time employment, while still maintaining H-1 status?

Attorney Murthy : Well, per the USCIS, if a person uses the EAD, s/he is in I-485 / EAD status and must use the AP to reenter the U.S. But, if the person continues to work for the H1B employer, s/he is also allowed to file H1B extensions to work for that same H1B employer, while the I-485 is pending.

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Chat User : Hello, Murthij. Is it possible for me to study while I am on H-1 visa?

Attorney Murthy : The general rule is that a person in H1B status is allowed to attend college or study, as long as the study is considered incidental to the H1B work being performed for the H1B employer. Only if one obtains financial aid or scholarship, etc, or wishes to study full time, is s/he required to file a COS to H1B.

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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 : Hi. Any thoughts on when the premium processing for I-140 will resume?

Attorney Murthy : No clue; but the USCIS loves the revenues that the premium processing generate, so they will to bring it back at the first opportunity they can get. Don't worry, even a regular I-140 can always upgrade to premium processing, if that service is available.

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Chat User : Thank you for your great service. My I-485 was entered into system by USCIS on Oct 25, 2007. When can I use AC21 to change employers? I have used pre-approved labor with current employer.

Attorney Murthy : Well, the law for AC21 portability requires one to obtain the I-140 approval or, at least, an approvable case and for the I-485 to be filed and pending for at least 180 days. So, if the USCIS receipt notice was issued on Oct 25th, but the I-485 had been filed in July 2007 with an approved I-140 petition, the person's 180 days would start from the date of the USCIS receipt of the I-485 package, not the receipt issuance date. Of course, if the I-140 is not approved, or if it is denied, then the person takes a much bigger risk, since a new employer may not be willing to sponsor the person for the GC at all.

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

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Chat User : Dear Murthy, my spouse used EAD and later chose not to work. Is she going to be in H-4 status automatically, or out of status?

Attorney Murthy : If the spouse's H-4 I-94 card has not expired and, when the principal files the H1B extension the spouse files the H-4 extension of status, then the parties continue to maintain their H1B and H-4 statuses, respectively. Or, if the spouse travels abroad and reenters in H-4 status, the spouse is back in H-4 status again, in most cases.

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Chat User : Thanks for hosting this chat. Is it possible to have employment gap (NOT working for any employer) after receiving approved I-140 & EAD, but before adjudication of I-485? If yes, for how long?

Attorney Murthy : Actually, we do get asked this question often. Unlike a person in H1B status, a person with the I-485 filed and pending and with an EAD, is allowed to stop working or to not be working until the time of the I-485 RFE or its approval, since the GC is based on a future job offer. One must establish that s/he will work in the offered job or a job that is the "same or similar" for AC21 portability purposes only when the I-485 is about to be approved, or if an RFE is issued.

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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 current H1B (6-years period) is ending 02.21.08. If I applied for my green card (PERM) now and got Labor approval before my H1B expires, may I get a 1-year extension on my H1B?

Attorney Murthy : No. A person's LC and I-140 should both be approved for the 3-year H1B extension. For the one-year H1B extension, the LC must have been filed a minimum of 365 days earlier. So now it is a bit too late to try and obtain H1B extensions, unless I-140 premium processing becomes available and the I-140 petition is actually approved. It is going to be quite difficult since, for whatever reason, not much time, effort, or planning was done to start the PERM more than a year before. One possibility would be to recapture any time spent outside the U.S. during the time as an H1B. This may provide a way to extend the H1B for awhile.

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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 : Thank you for your great service. If one wants to change employers after 180 days, is there any special application for AC21 portability? If so when should we apply for it?

Attorney Murthy : There is no special form or application. One uses the law, cites it, points out the new job title and duties, etc, and argues how it is the same or similar job to be eligible for the benefits under the law. One should file for AC21 after joining the new employer, but after the I-140 approval and after the I-485 has been pending at least 180 days. Discuss the details with your attorney and, if you don't have one, you are welcome to consult with or engage the Murthy Law Firm to help you with this process. We have filed successful AC21 cases right after Oct 2000, when the AC21 law was passed, and have continued to do so ever since.

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Chat User : Respected Murthyji, can one file an I-140 for an approved EB2 LC using the priority date of an earlier-approved I-140 for an EB3 LC? Thanks for the excellent service to the immigration community.

Attorney Murthy : Yes, one can file the EB2 case based on the LC filed under EB2 and then request the USCIS to transfer the earlier priority date from a previously-filed EB3 I-140 petition for the same person. We have done this successfully many times. One needs to explain it clearly and carefully to the USCIS, to ensure that they follow the instructions in such cases.

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

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Attorney Murthy : Happy Thanksgiving to you and your families! We should celebrate all the good things that we have been fortunate to enjoy and let us be thankful each day for being alive. We look forward to continuing to help you, your family and friends with all of your immigration law needs. We know your immigration matters! (SM)

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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