Chat : November 24, 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 : 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 on immigration matters of concern to you through our MurthyChat.

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Chat User : My I-140 was denied today. My 9th-year H1B was applied for two months ago thru Sep 09. If this H1B is approved, can I stay legally until Sep 09?

Attorney Murthy : If the H1B petition is approved, one may stay on in the U.S. until Sep 2009. The USCIS likely may deny the H1B extension, depending upon the timing of the decision, and whether the I-140 is still "pending." So, if there is a basis on which to argue against the I-140 denial, an I-140 appeal or motion to reopen may need to be filed timely within the 30-day appeal period. A backup, new case may also need to be considered. Discuss the options with your immigration lawyer and understand the risks of the various options.

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Chat User : Hello, Ms. Murthy. Please guide us on whether an expedite request for derivative (primary approved) can be made for I-485, even when priority date is not current.

Attorney Murthy : The law does not allow for one's derivatives to obtain the I-485 approval if the priority dates are not current. No expedite is possible in such cases. Discuss the options for the derivatives with the immigration lawyer or contact us at the Murthy Law Firm (http://www.murthy.com/consult.html) to discuss the options and risks in such cases.

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Chat User : My wife will be going to India. She is on H-4 from my old employer. Does she need to get a new H-4 stamped again, or she can come back on old H-4?

Attorney Murthy : As long as the H-4 visa is stamped in the passport, even if it has the name of the earlier employer, it is valid through the expiration date. It is helpful to show the latest H1B original approval notice of the principal H1B holder at the time of entering the U.S., to ensure that her H-4 validity dates match the H1B approval notice dates. She will also need a copy of the marriage certificate, showing both names. Otherwise, after entering the U.S. in H-4 status, she will need to file an H-4 extension of status to match the validity date of her H-4 with your H1B approval notice date.

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Chat User : I have a 10th-yr H-1 renewal, pending for over a year. USCIS said it is under background check. What should be the best course of action? Thanks.

Attorney Murthy : The general rule of law is that, one who has filed an H1B extension / renewal with the same employer may only be permitted to work based upon the pending H1B extension for 240 days. After the 240 days, there is a risk that the employment is not authorized under current H1B regulations. This rule may not make sense, since one who changes employers on H1B is granted unlimited time to work legally until the decision is made on the pending H1B case. An option may be to file a new H1B petition with another employer, since the delay could be based on the employer. If the delay is based on one's security issue, and if s/he has no other legal backup status (like the I-485 pending with the EAD), it could create complications. You need to consult with a knowledgeable, experienced immigration lawyer, since there are many gray areas in this type of case.

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Chat User : I am on a valid H-4 visa visiting my parents in India with I-485 application pending for over 17 months. Can I apply for an EAD while I am outside USA?

Attorney Murthy : Yes. One is allowed to file for the EAD from outside the U.S. S/he is not allowed to file for the AP while abroad, but the EAD generally is not a problem in such cases.

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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 : Do EAD and pending I-485 documents lose validity (out of status) when one is unemployed? My I-140 is approved and I used AC21 to change jobs, but lost the job. If I am not out of status, how long can one be unemployed on the EAD?

Attorney Murthy : The general rule is that, since the green card is based on the concept of a future job offer, one does not need to have any employment or job during the processing of the GC itself. So, in this case, the I-485 remains valid and the EAD remains valid, even if the I-485 applicant has no employer or job. Of course, in order for the I-485 ultimately to be approved, the I-485 applicant must be eligible under AC21 I-485 portability, which means having a qualifying job offer. The person may remain without any employment, but in order to be eligible for the I-485 approval, there must be a proper job offer. If an RFE is issued asking for employment information, then it will be a problem if there is no job offer.

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Chat User : Is it possible to get a 7th-year extension on an H1B transfer with a new employer, when the current employer has applied for an H1B extension due to pending LC?

Attorney Murthy : It is possible to obtain an H1B extension with any other employer, based on the LC filed and pending for over 365 days. The potential problem in this type of case is at the end of the one-year when the 7th-year H1B extension expires. Unless a new LC was filed at least 365 days earlier, the person will need to depart the U.S., since most likely the earlier employer may revoke or cancel the LC or refuse to file the I-140 petition for leaving that employer. Understand the short-term and long-term risks and benefits before making a hasty decision.

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Chat User : What is a normal COS process that USCIS/DOS performs once the date becomes current for an accepted case? What is realistic “Processing Timeframe” now in TSC? Thank you.

Attorney Murthy : The USCIS and the NVC are supposed to comb through cases each month, within a reasonable period of time, after the PD becomes current. Sometimes, it can take 3 or 4 months for the combing and the assignment to an officer, which can be a problem when the dates retrogress within a month or two. The processing timeframes at TSC are posted on their website and available through MurthyDotCom. They require one to wait about 2-4 months from their current processing dates before requesting the status on a case, since the posted dates are when the case is simply assigned to an officer.

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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 : If H-1 employer revokes the H1B visa after one switches to EAD, can one go back and recapture time left on H1B visa after working on EAD in case of I-485 denial?

Attorney Murthy : The general rule of law is that a person is able to recapture the time remaining from the total of H1B 6 years if the I-485 is denied. If the 6 years of H1B time is all used, then one may need to consider filing an MTR the I-485 denial, if there is a basis to do so. This would allow the one-year H1B extension and also consider starting a fresh case to obtain the GC approval in the future.

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Chat User : Can one own and run a business with an approved EAD? Am currently on H1B (full-time work) and want to use EAD to legally buy and/or run a business after work.

Attorney Murthy : One may own and run a business on the EAD as a sideline. It is certainly also possible for dependents and potentially possible to "port" a GC case to one's own company under AC21. If the EAD is used to work for a different business while the full-time work continues with the GC-sponsoring employer, then that may work.

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

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Chat User : Hello, Ms. Murthy. Why is the current processing of green card applications (140/485) taking so much time? Will there be any signs of improvement in Mr. Obama's administration?

Attorney Murthy : No U.S. president can simply change the law, since there are three major branches of the federal government with built-in checks and balances between them. The legislature or the U.S. Congress passes laws. The president is the chief executive and as part of the administration helps to execute the laws. Then the third branch of government is the judiciary that interprets the laws and the U.S. Constitution. So, unless the number of immigrant visas increases under law by the U.S. Senate and the House of Representatives, which make up the legislative branch of government, passing a law with a majority vote, the processing time to obtain the I-485 approval will be really long, especially for nationals of India, China, and other backlogged countries.

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Chat User : If I-485 is rejected, how long can one remain in the U.S. (maximum permissible length of time), if one does not have a backup H-1 or H-4 status?

Attorney Murthy : If a person has no backup H1B or H-4 status, then the law does not give even a single day's grace period to remain legally in the United States. Sometimes the USCIS will inform the person that s/he must depart within 30 days of the decision or denial, but the USCIS potentially could start removal (formerly deportation) proceedings against the individual even within that 30-day timeframe. So there is always a risk when living in the U.S., if one has no legal status. There may be some options if there is basis for filing a Motion to Reopen the I-485.

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Chat User : Dear Madam, when an I-140 Motion to Reopen is initiated, how long will the USCIS take to reopen it?

Attorney Murthy : There is no guarantee of the processing time but, if the motion is granted, it may take 3 or 4 months. If the motion is not granted, then it could become an appeal that is forwarded to the Administrative Appeals Office (AAO, formerly called the AAU) and take up to one or two years or longer in some cases.

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Chat User : What are the consequences of filing two I-485s (one withdrawn and re-filed). Some say it will be transferred to National Benefits Center. Is it likely to be interviewed?

Attorney Murthy : The USCIS does not recommend multiple I-485 filings, but there is no interview that is always granted for a person simply because of a second I-485 filing. The consequences can be that confusion is created in the case, which can lead to various mistakes and problems. If an I-485 is denied or withdrawn and re-filing is possible, that is different from situations in which one has two I-485s filed at the same time.

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

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Chat User : If I switch my job here on H1B, which is expiring in May 2009, when should I start procedures for my visa extension?

Attorney Murthy : A person can file an H1B with a new employer at any time up to a max of six months before the start date of the new petition. If the entire six years on H1B will expire in May 2009, then there must be a GC case filed in time to allow for further extensions. This must be considered when considering changing employers. Working with a knowledgeable, experienced lawyer to plan the long-term strategy is a really good idea for your immigration matters.

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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 got my EB3 I-140 denial notice last week. Have my H1B extension for six more months. What are my options? Can I try an appeal or MTR or both? Can I also re-apply for the I-140 under EB3 (B) skilled worker?

Attorney Murthy : One's options depend upon his/her education, work experience, and level of education, etc. If the MTR / appeal is pending, a person may be able to obtain another one-year extension if the LC and I-140 were filed at least one year earlier. A re-filing of the I-140 is also potentially an option. The best approach should be discussed with an immigration attorney.

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Chat User : I already changed my employer last July 2008 and have been working for my new employer since. Is it still okay to file for AC21 portability?

Attorney Murthy : One may file AC21 portability at any time as long as s/he qualifies under the law. There is not a specific form or timeframe. We represent many individuals in this situation. Send an eMail to law@murthy.com to request information on how to start a case with the Murthy Law Firm.

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Chat User : I am on H-4 and my husband's I-140 was approved today. Can I use the EAD? If, I use the EAD, can I apply for an H-4 extension to maintain the nonimmigrant visa status?

Attorney Murthy : The USCIS may allow for an extension of H-4 if one works on EAD, but this matter is not entirely clear. They were supposed to issue a clarification, since the EAD is not consistent with holding H-4 status, yet it may be possible to revert to that status by ceasing employment.

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Chat User : Can a PhD that involves lab work be done on an H-4 visa? The candidate is not interested in any kind of assistantship or practical training.

Attorney Murthy : A person is not allowed to perform any type of work in the H-4 status at all under existing law and regulations. An H-4 may attend school or engage in an academic, unpaid internship that is a routine part of the program.

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Chat User : I want to pursue volunteer work outside the USA for five months. How will this travel effect my green card? (My case is an AOS pending more than 180 days. I am working on EAD. My I-140 is approved.)

Attorney Murthy : Until one obtains the GC approval, s/he may travel abroad freely on an Advance Parole. After the USCIS approves the GC, the individual is not supposed to travel abroad for extended periods of time. This depends upon the situation, however. The impact on the GC depends upon whether one is the primary or a dependant. The primary must always have a qualifying job offer, and the USCIS must be convinced that it is genuine. A dependant does not have this restriction, so the concern would be having AP or otherwise holding a status (H-1/H-4 or L-1/L-2) so that the I-485 is not abandoned.

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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 : I am a special ed teacher and I have had my EAD for one year, I want to know whether I may change my employer if I need to. Or, if I lose my job, what are the options for me? my receipt notice date is October 2007.

Attorney Murthy : If a person is eligible to change jobs / employers based on AC21 portability, there is no problem. Please read the information on MurthyDotCom about AC21 and call for a consultation with any further questions.

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Chat User : My GC was approved recently. What do I do with my expired I-94 when I travel? Should I submit it at the airport?

Attorney Murthy : The I-94 does not need to be submitted at the time of travel abroad after GC approval. Just keep the I-94 for your records.

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Chat Master : This ends tonight's session of the MurthyChat. We are sorry Attorney 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 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 : Here's a wish from all of us at the Murthy Law Firm: 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 for each day. We look forward to continuing to help you, your families and friends, with all of your immigration matters.

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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