Chat : December 03, 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 in our MurthyChat.

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Chat User : Thanks for your great service, I am in India with AP right now and my GC has been approved now. Is there any problem with reentering using AP?

Attorney Murthy : Generally, the CBP Inspector is allowed to use the AP for the person to be able to enter the U.S. and then the individual should get the I-551 card (GC) in the mail. In fact, if one has a family member or friend checking the mail, it could be possible to have the GC sent abroad, so that it can be used to reenter the U.S. In either event, it should not pose a problem, as long as the AP has not yet expired per the Legacy INS policy guidance on this issue.

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Chat User : I came on J visa and am working for a research project (agency issued DS-2019 form) for one month. My visa is valid until September 2008. Two-year home-country rule is applicable. Can I start processing of my application for two-year waiver rule, right now before expiry of my visa period?

Attorney Murthy : As a general rule, when one starts to file papers that show an intent different from what was demonstrated at the time of entry, it could be deemed to be fraud in many cases. The doctrine of preconceived intent / fraud presumes fraud within the first 60 days of entering the U.S. and between 60 to 90 days, the USCIS must establish fraud. So keep such factors in mind before plunging into a paper trail that could create problems later. Other than that, the J-1 waiver process can certainly begin before the expiration of one's J-1 stay.

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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 : Can I travel on H-4, even though I have applied for I-485? Until now, I have not submitted AP, as I received receipt recently and haven't received EAD, yet. Is it safe to go for H-4 stamping in India?

Attorney Murthy : Well, it depends on one's background, the spouse's H1B status, the paper trail in terms of pay stubs, the credentials of the spouse and the bona fides of the spouse's employer as to whether or not it is safe to travel and attempt to obtain an H-4 visa stamp abroad. In some cases, it is safe, in others it is not at all safe and one could be stuck abroad for weeks or months. So, depending upon the issues with your own background, status, your spouse, the employer, etc, these all factors are taken into account by the consular officer in issuing the H-4 visa stamp. Having the I-485 pending does not create additional concerns, due to the doctrine of dual intent that makes the H-4 compatible with the I-485 pending.

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Chat User : Madam Sheela Murthy, if a principal beneficiary of F-4 category IV applicant is a state government employee in India, how far will the government job affect the immigrant visa? Does the applicant have to get any sort of NOC before the IV interview?

Attorney Murthy : Generally, simply by virtue of a government job, one would not have a problem. However, if the gov't job was in a security-related area or in the CBI or another federally sensitive area of the foreign gov't, the security clearance may either take a while, or worse, may prevent the individual from entering the U.S.

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Chat User : Thanks a lot in advance for your help. I am on H1B visa and got my EAD recently through my husband’s GC process. Can I use my EAD for my next job and come back on H1B (if needed) in future without being counted against H1B quota?

Attorney Murthy : One who was ever previously in H1B status, or obtained an H1B visa stamp from abroad and reenters the U.S. within the 6-year timeframe, can choose to reenter in H1B status without being counted against the cap again. Of course, with the extensions allowed now in one-year or three-year increments, that 6-year timeframe arguably would potentially increase and allow the individual to reenter the U.S. without being counted against the H1B quota.

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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 : Have a H-1 stamped on PP for previous employer (expired). I am visiting Germany for company business. Can I get my H-1 visa stamped in Germany, or do I have to go to Canada / Mexico / India?

Attorney Murthy : One is always allowed to attempt to obtain the nonimmigrant visa stamp in a third country like Germany or Canada or Mexico, but s/he has to follow the visa application procedures for that country. One must also realize that the consular officers in that country must give preference to citizens of that country over a TCN visa applicant. Of course, if the visa stamp is denied in any third country, then the TCN will be required to fly directly from that third country to the home country and attempt to obtain the visa there. Generally, if a person has a U.S. degree it is safer to attempt to obtain the visa from a third country.

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Chat User : Good evening. Can USCIS process I-485 application ready for approval in spite of pending FBI checks when applicant date is current? Thanks.

Attorney Murthy : The USCIS can start to process the I-485, but cannot approve it under law until the FBI checks are completed, since every candidate must undergo the security checks and complete them before being granted the I-485 approval or status as a permanent resident.

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Chat User : Hello, Madam Murthy. If I have to leave USA, as my labor was not filed before 365 days prior to my H-1's 6 yrs completion and my I-140 is not approved, can I apply for H-1 extension (from India) as soon as my I-140 is approved?

Attorney Murthy : The general rule of law is that the employer is allowed to file for the 3-year H1B "extension" based on certain USCIS memos on this subject. But before one travels abroad, s/he must at least consider all options, like trying to recapture time abroad and then reentering the U.S. after some gaps to avoid being stuck abroad, should the USCIS change their liberal, broad, generous interpretation of the law.

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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 : Can one travel on Advance Parole while working on an H1B visa?

Attorney Murthy : A person is allowed to travel abroad and reenter using the AP and continue working for the H1B employer, but it is safer to use the EAD after entry on AP, even though the Legacy INS interpretation is that one is also allowed to file for an H1B extension or amendment to get back into H1B status after reentry on AP.

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Chat User : I am an H1B visa holder. My son got H-4 visa stamp 26 Sept 2007. I want to know if it is necessary for my son to come to the U.S. within 6 months from the date of visa stamp.

Attorney Murthy : The 6 months to enter rule is generally applicable for immigrant visas and does not apply to a nonimmigrant. So, one who has obtained the H-4 visa stamp is allowed to enter the U.S. anytime, as long as the visa stamp is valid and has not expired, and as long as the child is below the age of 21 years at the time of entry as a dependent in H-4 status.

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Chat User : My wife got H-1 approved in Feb '07 (from H-4), but, due to health reasons, she is not on payroll. She is planning to start working next year. Is it legal to stay on H-1 without being on payroll? Or is it better to change the status to H-4?

Attorney Murthy : Generally, after the USCIS has approved the change-of-status for a person to H1B, it is not lawful to remain in the U.S. without working for the H1B employer, unless the individual is considered to be an employee by some other law / policy allowing time off, like possibly the FMLA in this type of situation. However, if she never became an employee, then she could not claim H1B status. Failure to maintain status could prevent such a person from filing and obtaining the I-485 approval for her GC later. This is especially true in cases where the total time out of status exceeds 180 days. You must discuss the risks and plan a course of action to minimize the damage that may already accrue to her in this type of situation!

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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 : Hi. Thanks for the great service. How important are pay stubs for an H1B stamping interview? Is it sufficient if I had just 2 paystubs at the time of visa interview, because I had worked only for that long, and I needed to go to India on an emergency?

Attorney Murthy : Well, it depends on the consulate / consular officer, but often having pay stubs and showing maintenance of lawful nonimmigrant status are deemed important to obtain the H1B or H-4 visa stamps. If the H1B was approved from Oct 1st, then there should be no problem for one month's pay stubs but if the H1B was approved several months ago, then it is a potential problem.

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

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Chat User : Currently, I'm working on my EAD, which I got through my husband. Now I'm planning to be divorced. Am I going to lose my EAD status if I get a divorce from him?

Attorney Murthy : A person is not allowed to obtain the GC approval if the divorce comes through before the I-485 is approved. The EAD is arguably valid until the divorce is finalized, but one must plan ahead to obtain and retain independent status so as not to be stuck at the last minute.

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Chat User : Thanks for your service. AP pending, 3-yr H1B just got approved, hold a 2nd BS degree from U.S. I have plans to visit Canada for re-stamping. Is there a risk of H1B denial in Canada, since AP is still pending?

Attorney Murthy : AP pending is usually not the reason for the H1B denial, unless the person has a security issue or a fraud allegation or even a Technology Alert List (TAL) flag due to the sensitive subject of education or work, etc. Generally, a U.S. degree eliminates the risk of the denial based on one's not having the appropriate level of education, in most cases.

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Chat User : I have an approved H-1 and I am yet to obtain a job and get pay stubs. If I travel to India before I get job and come back to USA with an approved AP without having the H-1 stamped, then will I be able to use H-1?

Attorney Murthy : As mentioned to many others previously in the MurthyChat, the safer approach is to work on the EAD and then file for the H1B extension at the appropriate time.

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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 : Dear Sheela ji, is it safe to enter with only AP and having no visa stamp in PP? Which documents should one carry? Thanks for your unique service.

Attorney Murthy : With the AP, having a copy of the I-485 receipt notice or the original is wise, though no longer mandatory per the latest USCIS guidance. Having the H1B approval notice may help in case of any potential problems with the I-485 processing while abroad. When one enters on the AP,s/he is taken into secondary inspection and asked questions about the pending I-485 by a CBP Inspector.

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Chat User : Good evening. My older son (turned 14 yrs in July 2007) did not get his green card with the rest of the family who got theirs in August 2007. (Priority date is Sept 2005 in EB2.) How can we find out when he will get his green card? Since the priority date has moved back, will this delay his green card process? Thanks.

Attorney Murthy : Yes, the 14-year-old cannot get the GC until the PDs become current again for EB2 with Sept 2005 date. The potential problem could be that there are security requirements and fingerprinting required when a child turns 14 years old, so this may have been the cause of the problem and the potential delay. The child is allowed to remain here in the U.S. with the I-485 pending.

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Chat User : Can two H1B transfer petitions be submitted within a month at the same service center? Can both get rejected on account of being concurrent? Will the first one have any effect on processing the second one filed under Premium Processing?

Attorney Murthy : Generally, the 2 petitions should not adversely affect one another. If the second one was filed under the PPP, then it will likely be approved before the earlier filing.

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Chat User : I have an approved COS from H-4 to H-1, as well as EAD. As of now, I did not start working and I have no payroll run. Is it true that my status will remain H-4 until payroll starts in my name?

Attorney Murthy : As explained earlier in today's MurthyChat, a person is deemed to be out of status if s/he is not working in H1B status. The person does not simply revert to H-4 status after the USCIS has approved the COS to H1B with the I-94 card attached at the bottom of the approval notice. Failure to maintain status could harm one's ability to file and obtain the I-485 approval for the "green card" in the long run. Discuss these issues with your attorney or contact our law firm at law@murthy.com to minimize the damage that could accrue by falling out of status.

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

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Chat User : Dear Ms. Murthy, I was wondering about an update with regards to the FBI background checks. It seems that Secretary Chertoff indicated in a recent meeting with AILA that new changes will eliminate the backlog inside six months. Is that true? Thanks.

Attorney Murthy : Yes, it is true about the reduction of time to 6 months in many cases, but not if there are problems for a particular situation and it may not cover cases already pending under the old method. The USCIS plans to spend about $15 million each year in streamlining procedures to expedite security checks with the FBI, but Chertoff realizes that there will be a smaller group that could be stuck for a long time. Hopefully, the delays will be eliminated or substantially reduced for most people. Most courts have even held that the USCIS delays are not acceptable.

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Chat User : Good evening, after my 140 is approved, at what point can I change jobs while my I-485 is pending and is that what is known as portability? If I don't file for portability, can I maintain legal status working for another employer with my EAD?

Attorney Murthy : After the I-140 is approved and the I-485 has been pending for at least 180 days, then one potentially could shift to a new employer, as long as the new job is considered the "same or similar" to the earlier job for which the LC and/or I-140 were approved. One can start to work using the EAD, but it is safer to file the I-485 portability papers / package with the USCIS, as suggested in the June 2001 Legacy INS Memo, in which the USCIS "expects" to be notified to avoid any allegations of failure to comply with the statute or to avoid fraud allegations when filing for U.S. citizenship.

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Chat User : We have re-filed the I-485 application due to misplacing the checks and now both applications are getting accepted. Will that create any problems? What do we need to do? Please help.

Attorney Murthy : Generally, if the USCIS misplaced the checks, then they may be more willing to accept the re-filing, but if it was due to lawyer or the applicant error, the USCIS will not oblige and accept the late filings. Discuss the case with your lawyer or consult with our law firm, since your question is not clear.

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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 have been out of the U.S. for 5 1/2 months in the last five years. Can I file for naturalization from outside the country? Can I do fingerprinting and interview outside U.S.?

Attorney Murthy : Generally, one is not allowed to file for naturalization from abroad unless s/he is in active military duty. The same rule is for FP and the interview, all of which is expected to be completed in the U.S. Any absence of 180 days or longer (6 months) could result in the USCIS alleging that the individual broke the continuity of permanent resident status and s/he will have the burden to establish otherwise, which is a difficult burden to meet.

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Chat User : My wife got H-1 visa. She has yet to start working. She needs to go India due to family reasons. Can she get stamped with H-4 along with me and return to USA and, after that, can she work on the H-1 visa.

Attorney Murthy : If one chooses to enter in H-4 status, s/he cannot simply revert to H1B and start working. The individual is required to travel abroad and apply for the H1B visa stamp to work in H1B status or file another COS from H-4 to H1B. S/he will not be required to be counted against the H1B quota, though it may require payment of legal fees and filing fees, etc.

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

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Attorney Murthy : Next Monday evening, we will not have the MurthyChat as we travel at that time to India. We expect to have all of you in our MurthyChat in 2 weeks at the same time, while I will be in India. Thank you for your interest in using the services of the Murthy Law Firm and for using our MurthyChat.

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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