Chat : December 15, 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 : Welcome to our MurthyChat today! We invite you to submit your questions so that we can provide some general guidance to you on your immigration matters.

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

Chat User : If my employer revokes my H1B, will I get time to transfer my H1B to another employer?

Attorney Murthy : This all depends on timing. Most often, one is able to file a new H1B as long as s/he has been maintaining valid legal nonimmigrant status in the U.S. and has paystubs to demonstrate the maintenance of the nonimmigrant status. If there is a gap in status, then it could pose a problem in obtaining the H1B extension approval, even if the USCIS approves the H1B petition itself. The employer's revocation puts the USCIS on notice of the gap in status / employment.

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

Chat User : I am on an H1B visa and have been laid off recently. Can I transfer to a visitor visa and then transfer back to the same H-1 when I find a job?

Attorney Murthy : I am sorry to hear about the lay off and your recent job loss. It is a difficult time for many families. It is possible to file a change from one nonimmigrant status to another, as long as one has been maintaining valid legal status. Whether the visitor status is an option for a particular person depends upon various factors. One must show strong family and financial ties to the home country to be eligible for B-2 status, which is a pure nonimmigrant status. It is appropriate for wrapping up personal matters and then departing the U.S. It might be possible to regain H-1 status at a later point, as generally a person who has been counted against the H1B quota limits does not need to worry about being subject to the lottery if the new H1B is filed within six fiscal years of the original H1B filing.

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

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 : I have an approved I-140. If I switch employers, can I request a 3-year H-1 extension with my new employer? If my old employer revokes my I-140, will I lose the extension?

Attorney Murthy : After the I-140 petition has been approved, the USCIS will issue a 3-year H1B extension with any other employer for that individual, based on the I-140 petition approval. That 3-year H1B that has been approved remains valid, even if the earlier employer revokes the I-140 approval. One may then start a new PERM / LC filing and could request the transfer of the earlier priority date from another employer's I-140 petition, based on the I-140 approval. During the 3-year timeframe of the H1B petition approval, one in this situation should have sufficient time to start a new LC / PERM filing.

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

Chat User : I am an H1B spouse of a green card holder. I recently was laid off. Can I get any dependent status on my spouse? What are the options available to me for adjustment of status until I find my next job?

Attorney Murthy : Well, your options depend upon various factors. Clearly, you can derive no immediate immigration benefits as the spouse of a GC holder, since the priority dates take about 5 to 8 years, on average. If the I-130 has been filed already, the waiting time depends upon the priority date. You most likely will need to consider maintaining your own independent legal status unless your spouse is eligible to file for U.S. citizenship. Then you could file after your spouse becomes a U.S. citizen. It is advisable to consult with a knowledgeable attorney. Please feel free to contact law@murthy.com, if you wish specific advice on a case like this, to explore the possible options.

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

Chat User : Good evening, Ms Murthy. If a child files I-485 as a dependent and, subsequently, gets married, what happens to his/her I-485? Thank you for the great service.

Attorney Murthy : In most cases, a child is no longer considered a dependent after marriage under the parent's GC case, and must have separate independent status to be eligible to legally remain in the U.S. - like an H1B, or dependent status through the spouse. Your "child" is no longer considered a child under U.S. immigration law after marriage, so s/he must consult with an attorney to ensure that s/he understands the possible options. It is always better to understand the legal options before the marriage. Not finding out the detail until later may severely restrict the options to change to another legal status within the U.S.

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

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 have H1B visa stamped until Sep 30, 2010. But I changed my employer and now I am planning to visit India. Do I have to get my stamping done for my new employer?

Attorney Murthy : If the H1B employee has an H1B petition approval with the name of the new H1B employer and the visa stamp with the name of the earlier employer, s/he is allowed to use the earlier unexpired H1B visa stamp, travel abroad and reenter the U.S. in H1B status. In such cases, it is important to ensure that the CBP Inspector at the POE issues the I-94 card with the validity of the latest H1B approval notice and not the earlier expiration date as mentioned on the visa stamped in the passport.

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

Chat User : My company has been laying off some employees recently. Can they still continue with my PERM case, and place the advertisements? The lawyer is saying no.

Attorney Murthy : Well, there may be a reason for this response from the lawyer, since it depends upon the company and which employees were laid off and where and when. The PERM application asks the employer whether, within the six months immediately preceding the filing of the case, there have been layoffs in the area of intended employment in the occupation involved in this application or in a related occupation. If yes, the PERM application asks whether the laid-off U.S. workers were notified and considered for the job opportunity for which certification is sought. So, the answer depends upon what jobs were held by the former employees, whether they were U.S. workers, as well as where the layoffs occurred. If the answer to the question on the PERM form regarding this is yes, the success of the case will depend in part upon whether it is likely that the former workers are still available to return to their position, or whether they have found other suitable employment and would no longer be interested.

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

Chat User : My wife is in India. (She has H-4 stamped and AP expiring end of this year.) Will she abandon her pending I-485 if her AP expires while she is in India?

Attorney Murthy : The law recognizes the dual intent for H1Bs and H-4s, so that the spouse entering in H-4 status is allowed to do so even while the I-485 is pending at the USCIS. The I-485 is not abandoned if she held H-4 status prior to departure from the U.S. and returns in the same H-4 status. Otherwise, it is necessary to have AP before departure and return using the AP. The spouse must be physically present in the U.S. at the time of applying for and obtaining the AP approval for the spouse to use the AP to travel abroad and reenter safely. There is no abandonment of the I-485 simply based on the person's AP expiring, since under law one maintaining H or L status is not required to obtain the AP to be able to reenter the U.S.

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

Chat Master : After the Chat, browse MurthyDotCom - your best source for a wealth of information on U.S. immigration issues. Our Bulletins, Updates, Chat Transcripts, and FAQs are all there to help in your search for details and answers. Begin at: http://www.murthy.com

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

Chat User : I'm on H1B, 140 approved, 485 pending and I've been on the bench without a project for 6 months. I'm been paid only once in 6 months due to the financial problem of my company. Am I out of status?

Attorney Murthy : An employee is not in valid H1B nonimmigrant status if s/he is not working for the H1B employer. On the other hand, one is considered to be in a period of stay "authorized" by the Director of the Department of Homeland Security when an I-485 has been filed and is pending with the USCIS. This means that the individual may remain legally in the U.S. but cannot work unless s/he has a valid EAD based on the I-485 filing. Of course, in order to obtain approval as the primary beneficiary in the green card case, it is necessary to have an appropriate job offer.

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

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

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

Chat User : Dear Murthy ji , I'm left with 1yr and 5 months on my H1B. Can I still wait to start my GC Process?

Attorney Murthy : It is not wise to wait a single day at this time, since it takes about 3 to 4 months on average or longer to file a proper PERM case. Since the PERM must be pending at least 365 days for an individual to file the one-year H1B extension, it will only provide a month or two at most to file the H1B petition extension, based on the PERM/LC filing over a year ago. It is risky to waste any longer, as time is of the essence since you have just 1 year and 5 months remaining on the balance of 6 years of total time available on H1B. If you have traveled outside of the U.S. during your H-1 stay, it potentially would be possible to "recapture" that time spent abroad, if the travel dates can be established.

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

Chat User : Once the person is on EAD and Advance Parole does s/he need the H1B stamping or can s/he use AP for entering the U.S.?

Attorney Murthy : As mentioned in earlier MurthyChat sessions and elsewhere on MurthyDotCom, it is always safer to have a backup H1B status, in case something goes wrong with the I-485 and it is denied. If everything goes well, then there is no need for the H1B status backup, but the problem is that no one is 100% sure when things could go wrong - like the H1B employer going out of business, declaring bankruptcy, etc, as has been happening in this economy to so many companies. Termination of employment and subsequent revocation of the underlying I-140 petition are also concerns. However, if one is working on EAD and has AP, legally, s/he can use the AP for travel.

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

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 : I am on H1B from Oct 2008 and due to health problems I have not yet joined them. Can you tell me for how long I can be on H1B status without joining them? My company does not have an issue that I am joining late.

Attorney Murthy : The general rule of law is that one must start work for the H1B employer on the date mentioned in the H1B petition. The maximum time that the employer can wait to start payroll is 60 days under ACWIA, if the employee changes status within the U.S., and 30 days if s/he is entering from abroad. On the other hand, if one has a valid medical or health condition, as allowed under FMLA or other laws, and the employer's policies allow time off with or without pay, then the USCIS may consider that time as not being in violation of the law. Due to rampant abuse of the system, the USCIS and the Department of Labor are suspicious of employers and employees when there is a delay in starting employment and payment of wages. This could create problems later, when filing the I-485 for the GC or filing a new H1B with a new employer without any recent pay stubs. It would be a good idea to consult with one of our attorneys on this issue.

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

Chat User : Can we expect a similar movement of EB2 India during July 09 like we saw one in July 07?

Attorney Murthy : It seems highly unlikely that the U.S. Department of State or the USCIS will ever come to the point again of having the kind of fluke like what occurred in July / Aug 2007. We have never seen anything as dramatic as that in over a decade, so don't count on it to file your I-485! The forward movement in August 2008 (with a two-year jump forward) was the result of shifting visa numbers from other countries (which would have been wasted) to nationals of India and China. It is not very likely, but there could always be something similar again, but this depends upon many, many factors.

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

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

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

Chat User : HR of my new company filed my H1B late. I did not make any mistake. For the mistake of my HR, should I go back? Will this affect my future?

Attorney Murthy : Well, the impact of this mistake depends upon the situation. You may wish to set up a consultation with an attorney at the Murthy Law Firm to go over the details. Yes, the employee / client sometimes does suffer due to an incompetent attorney or when companies give responsibilities for legal cases to non-lawyers. Depending upon the situation, it may be possible to fix the mistake by re-filing the case, or by traveling outside the country. We can guide you with respect to the options at this point.

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

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 I file an I-485 for my spouse if my I-485 is currently pending? I am EB2 India with PD of 10/2006.

Attorney Murthy : A person's spouse is able to file the I-485 only if the principal's priority date (PD) is current. If the PD is not current, as in this case, then the spouse has to maintain separate, valid, independent status and cannot simply file a new I-485 since the USCIS must reject it and return it as an improper and untimely filing.

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

Chat User : My wife's H-4 extension approval notice does not contain my employer's company name; nor does it contain my name. Will this cause any problem during visa stamping?

Attorney Murthy : The H-4 extension of status is not supposed to contain the employer's name, since it is meant to be for dependents who are not allowed to work while in H-4 status. Also, the H-4 remains valid even if the principal changes to another employer, as long as the H-4 status has not yet expired within the U.S. Also, if the spouse does not have your last name, it is not a big deal at all, as long as the marriage certificate shows the two names as being married when filing for the H-4 visa stamp.

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

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

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

Chat User : Ms. Murthy, can you please tell me if it is safe to file labor certification in today's economic conditions and how long would it take for approval?

Attorney Murthy : Well, it depends on whether the employer has had any layoffs or not, and whether there are available U.S. workers. If the employer has not had layoffs, then the employer may legally file the PERM and it could get approved, depending upon whether there are complications resulting in an audit by the Department of Labor, etc. A PERM / LC can take about three months or so, if there is no audit, and about a year if there is a DOL audit.

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


Chat User : Hello, Ms. Murthy. Thanks for helping the community. I'm on H1B visa. Is there is any way I can apply for GC independently?

Attorney Murthy : Yes, a person is eligible to apply for the GC independently if s/he is considered a person of "extraordinary ability" under the EB1 category, or a person whose work is in the national interest of the U.S. under the EB2 category. For definitions of these terms, visit the free, updated information on MurthyDotCom. We have several articles and the eligible criteria for these categories. These are very limited categories.

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

Chat Master : This ends tonight's session of the MurthyChat. We are sorry Atty 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 to 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.

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

Attorney Murthy : We look forward to continuing to help you, your family and friends in our regular MurthyChats and we look forward to helping you with all of your immigration law needs at the Murthy Law Firm.

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

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

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

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