Chat : January 07, 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 : Dear MurthyChat Participants: Happy New Year to you and your loved ones from all of us at the Murthy Law Firm and MurthyDotCom. 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. Thank you for your interest in our MurthyChat.

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Chat User : Can I file a second labor from the same company as I got an RFE with my I-140 and it went to AAO department for further action? Can a second I-140 be applied for on the same labor in the same category? Thanks in advance.

Attorney Murthy : One can file another I-140 on the same LC, but the result is likely to be the same with all things remaining the same. It is sometimes possible to file the I-140 again and present the case better. Another option is to also start a backup, fresh LC or file the I-140 under the EB3, if the first one was filed in EB2. You must discuss the pros and cons of this decision with your attorney since the stakes are very high at this stage of the GC process!

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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 : I have H-1 and my wife has H-4. We've got EAD/AP, and want to travel to India on AP and return on AP. Is it possible to work / maintain H-1/H-4 status? If so, how?

Attorney Murthy : If the spouse wishes to use the AP to travel abroad, there is no problem for the principal H1B to maintain that status by continuing to work for the H1B-sponsoring employer/s. The rules and details are mentioned in various Legacy INS and USCIS memos on H1B and I-485 filings from March 2000 onwards.

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Chat User : MurthyJi, thanks for your excellent service. Is it safe to go to Mexico for H1B re-stamping a couple of months prior to the expiry date of the existing H1B visa? Will they, by any chance, cancel the existing H1B in the passport, in case there are any reasons to deny H1B extension?

Attorney Murthy : Although the consular officers do not have to cancel the earlier, unexpired H1B visa stamp, we have found that they will cancel it sometimes, especially if there are security-related concerns related to the person.

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Chat User : If my I-140 has been approved, can I use that priority date in a different green card case?

Attorney Murthy : Generally, after the I-140 petition is approved, one is able to retain and use that priority date even with a later filing with a new employer, unless the I-140 petition is revoked under the regulations. We often find that the USCIS will allow the transfer of the earlier PD in most cases, unless there was fraud on the part of the employer or employee.

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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.

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Chat User : Can both the spouses working on L-1 & L-2 EAD apply for H1B at the same time without affecting one other's work status? or should one wait for other's H-1 approval to avoid converting to H-4 (non-work status)?

Attorney Murthy : Both spouses can file for the COS from L-1/L-2 to H1B at the same time, since with the H1B quota being met on the first eligible date for filing a new H1B, one cannot wait unless it is a cap-exempt employer. The USCIS does not grant H-4 status to the spouse unless the individual files the COS from L-2 to H-4, for example. It may be a good idea to set up a consultation with your attorney to discuss how this situation can be coordinated. If you do not have an attorney, we would be happy to discuss the matter with you. Information on consultations can be found at http://www.murthy.com/consult.html.

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Chat User : Hi. My friend's visa application is suspended in 2007 under 221(g) of Immigration and Nationality Act (INA). What is the solution for this problem? Is he still eligible to apply for a new H1B in 2008?

Attorney Murthy : Well, it depends on the reason that the U.S. consulate issued the 221(g). If the reason is the employer's business or their track record, then by filing a new H1B petition with a new employer, your friend may be safe. On the other hand, if the problem is that the consulate is concerned with the individual's own credentials, education, or work experience, then it will not help to file a new H1B petition with a new employer.

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Chat User : My H-1 transfer has been denied. The previous employer has withdrawn my earlier petition. Can a third company file a new transfer petition for me? Am I legally present in USA now?

Attorney Murthy : Generally, a third employer can file a new H1B petition for such a candidate. However, it appears that the H1B employee is already out of status since the second H1B petition was denied. Accordingly, the third case must be filed with consular notification so that one departs the U.S. and reenters with a new I-94 card. It is possible that the earlier H1B visa stamp in the passport, if it has not yet expired, may be sufficient without having to apply for a new H1B visa stamp with the new employer. It is safest to discuss these matters in a consultation with a knowledgeable attorney to avoid getting into deeper problems. If you don't have an attorney, you are welcome to schedule a standard consultation with an attorney at the Murthy Law Firm. Find information at http://www.murthy.com/consult.html.

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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 : Can a person, who is already in the U.S. in H-4 status, file 2 H1B petitions (with different employers)? If both petitions are approved, for which employer can s/he work?

Attorney Murthy : If a one files an H1B petition with multiple employers, then s/he can select the employer for whom to work. It is also possible for one employer to decide to cancel or revoke the H1B job offer if it is discovered that the person promised two employers to work in H1B status, with the intention of breaching at least one of the agreements. One must be careful and honest in such dealings.

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Chat User : Is it necessary to carry original I-485 receipts while travelling on AP? Or copies can work too?

Attorney Murthy : Ajay: If you read the articles in the MURTHYBULLETIN, the USCIS introduced a regulation to eliminate the requirement for a person to carry the I-485 original or even a copy in order to be able to reenter on the H1B or on the AP. The receipt requirement was removed from the regulations on November 1, 2007.

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Chat User : What are the benefits of having an EAD as well as an H1B during the I-485 stage of the green card process? If my company does not apply for an EAD for me, will I need to restart the process if I change jobs before I receive my GC?

Attorney Murthy : The advantage of having both the EAD and H1B is that the H1B acts as a backup, in case the I-485 is denied. Similarly, if one is laid off or terminated by the H1B employer, by having the EAD, the individual is able to work with a new employer after AC21 portability, not having to remain without the ability to work. Even if the employer does not file the I-765, it can be filed on one's own as long as the I-485 receipt notice or file number is in the person's possession.

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Chat User : Murthyji, my H-1 has expired and I am working on EAD. Is it possible to work for another company on H1? If yes, does the new H-1 count against the quota? Thanks!

Attorney Murthy : Generally, filing a new H1B should not count against the quota or cap, if one was in H1B status within the last 6 years, since one can file the H1B extension for 3 years based on the I-140 approval, or for one year based on the LC or I-140 filing at least one year earlier.

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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 : I filed my I-485 in the summer. I haven't gotten my fingerprint notice, yet. Many of my friends filed at the same time and got their fingerprint notices. What should I do?

Attorney Murthy : We have seen some cases getting the FP notice earlier and others later, but often it has no direct relation on the eligibility of the case for approval or even when the I-485 will get approved. The bottom line is that, when the PDs are not current and are not expected to become current for years, it is a waste of government resources and tax payer money for a one to go back repeatedly after the expiration of the FPs.

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

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Chat User : Can I start a second job that is not "same or similar" using EAD after 180 days? Thank you.

Attorney Murthy : If you are the principal person on the GC process, then the general rule of law is that it is not a problem to work a second job that is not related to the earlier job duties, as long as you are maintaining employment with the same job through the GC-sponsoring employer or find a job with similar job duties after you are eligible for AC21 portability. The EAD allows for unrestricted employment authorization, but, in order to get the GC approved, there must be a proper job offer - either the job in the LC/I-140 or a job under AC21 portability.

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Chat User : Hi, Murthyji. I have filed I-485 application and gotten my EAD. Now, if I lose my current job, how long can I stay in the USA without job? If I get a new job using my EAD, do I need to inform the INS? Thanks!

Attorney Murthy : After one has filed the I-485, the USCIS considers that the individual is in a "period of stay authorized" by the Attorney General or the Director of the Department of Homeland Security. As long as the person is able to find "same or similar" employment after becoming eligible for AC21 portability, there should be no problem, unless a request for evidence is issued, asking for an employment letter from a period when the person is/was not able to find a job. Unlike with a nonimmigrant status, like the H1B, where a gap in employment results in one's falling out of status, there is no such problem after the filing of the I-485. When the USCIS issues an RFE, one must notify the USCIS of the new job. It is wise to notify the USCIS to avoid allegations of fraud or misrepresentation, since they expect notification of an AC21 change of employers.

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Chat User : I have I-360 approved, but my visa expired. I applied for I-129 (PENDING). Am I eligible to apply for I-485?

Attorney Murthy : Generally, the rule is that if one filed the R-1 extension of status by filing the I-129 before the expiration of the earlier R-1, or other NIV status, then s/he is deemed eligible to file the I-485. Also, under Section 245(k), there is an exception of up to 180 days in most employment-based cases for a person even to fall out of status and yet be likely for the I-485 approval. Discuss these matters with your attorney since, if there was even a day's gap when the R-1 EOS was filed, it may no longer grant the protection of valid NIV status, for example.

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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 : My 6th year is going to complete in 3 months, my company applied for my I-140 with business justification (to speed-up I-140 process). Can you please tell me how long this process will take? And any idea when they are going to reinitiate the I-140 premium process?

Attorney Murthy : There is no assurance from the USCIS if or when they might reinitiate I-140 premium processing. By simply filing for business justification, there is no expedite. There are specific criteria that must be established for expedite eligibility. If one or more of those factors can be established it will help to obtain an expedited approval. The USCIS expects a person to start the LC/GC process well in advance of the start of the 6th year and does not appreciate when s/he begins late and demands an expedite. They have often stated that one's delay in filing is simply not a good reason for them to expedite other cases and reward an individual who did not plan properly over a person who is waiting patiently in line for an I-140 decision. Of course, sometimes people start GC cases in advance, and something goes wrong at the last minute. Also, there is no guarantee of an I-140 being approved, since an RFE or a denial always exists in every case, so start considering other options. One option may be to ask for H1B time to be recaptured if there has been travel abroad.

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Chat User : I have been in the U.S. on an L-1 visa since 2004 (last 4 years), and I have an approved H-1 Visa (Oct 2006 quota). Now I’m planning to change my visa status from L-1 to H-1 by filing COS. How many years I can stay in the U.S. on H-1 visa?

Attorney Murthy : You do not mention if you had L1A or L1B, but in either event, the regulations allow only a total time of 6 years of H1B and L-1 time combined. Since your H1B was previously approved within the last 6 years, if you filed a new H1B with a new employer, it should not be counted against the cap in this situation.

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

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Chat User : Murthy Ji: I have a spelling mistake in my Advance parole document (a mistake in my last name). I am planning to travel to India. Will it cause a problem when reentering the USA?

Attorney Murthy : Depending on the error in the spelling it may or may not make a difference. One letter missing in an inconspicuous location in a name will be less of a problem than more than one letter missing or in the wrong place/s. It is safer to submit a letter to the USCIS and send it by certified mail / RRR. One should keep the copy, should s/he be asked about the error in the name at the POE.

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Chat User : What happens if my H-1 (which is pending H-4 to H-1 COS) is approved before my pending H-4 (which is L-1 to H-4 COS)?

Attorney Murthy : It depends on the start date of each petition and a possible argument that the second filing was no longer correct. It is not wise to file multiple cases at the same time with the USCIS. One option is to travel abroad, apply for a new visa stamp and then reenter the U.S. if there is some confusion under the Last Action Rule.

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Chat User : Hello, Murthy Ji. I have AP and EAD and H-1 as well, but I have not started using my EAD. Is it safe to visit India on H1B or AP?

Attorney Murthy : The general rule is that one is better off entering the U.S. in H1B status so that there is a backup status in case of a problem or denial of the I-485. On the other hand, there are some who have a fear of applying for the H1B visa stamp abroad because of the risk of a denial, so they would prefer to reenter the U.S. on AP, even if that means having to use the EAD to work for a few months until it is time to renew the H1B with the H1B employer. So, depending on your circumstances, you must decide after consulting with your attorney.

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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 : Thanks for your help, Ma'am. I applied for AOS I-485 3 months back. I want to change to CP now. Can I file I-824 now or should I wait for 180 days to complete?

Attorney Murthy : Although one can file the I-824 at any time, waiting for the 180-day mark allows one to enjoy the advantages of AC21 portability and of CP so that, if one loses the job for some reason, s/he can still continue the GC case with a new job offer with a new employer, as long as the employment is the same or similar. Please also keep in mind that, in order to obtain an immigrant visa at the consulate, it is necessary to have an available visa number. Changing to CP does not fix the retrogression problem.

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Chat User : My I-140 and I-485 were submitted concurrently. Received date August 16, 2007. I got a better offer from another company. Should I join the new company? Please advise.

Attorney Murthy : If one is prepared to start the entire GC from scratch with a new employer, then it is fine. Otherwise, if there is an RFE on the I-140, it is highly unlikely that the current employer will respond. If the I-140 petition is denied, then the I-485 will be denied and the EAD and other benefits will no longer remain valid. Ultimately, it is a cost / headache / time-lost versus benefit-of-salary type of analysis that you must discuss with your family before making a hasty decision and regretting years of waiting and thousands of dollars in legal fees and government costs, etc.

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Chat User : Dear Murthiji, Happy New Year to you. The audit letters that have been issued to my employer request a signed PERM labor certification form (ETA Form 9089). Does it indicate any problem with my Perm approval?

Attorney Murthy : Generally, it means that the case was selected for audit. At one time, about 50 percent of cases were being audited, but now the percentage is reducing once again. If the employer / attorney has maintained all the papers properly, it should be fine.

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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 a person on H1B decides to renter on AP, can s/he still extend his/her H1B after entry?

Attorney Murthy : Yes, under the May 2000 Legacy INS Memo, such a person is allowed to file the H1B EOS soon after entry on AP.

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Chat User : Hello, Murthyji. First of all, thank you for all your service. We filed H1B on May 2007 and its still pending at CSC. In the meantime, our I-140 is approved. Is there anyway to get a 3-yr extension period? Thank you.

Attorney Murthy : Generally, that is not possible since the law requires one to be eligible for the benefit sought at the time of filing the immigration petition or application. Since you did not have the I-140 approval in May 2007, the USCIS cannot approve the 3-year H1B petition extension. Sometimes, if an attorney is aggressive and requests 3 years hoping for the I-140 approval any day, there could be a slight chance one might get the 3 years, but there is also the risk that the USCIS could deny the H1B petition. Often they will approve the H1B for one year in such cases, if the attorney requests more than is allowed under law.

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Chat User : Can a person with a pending application for I-485 (as dependent through spouse's employer-based application) apply for I-140 and later for I-485, assuming that the labor certification is approved? Is it required to withdraw the current, pending I-485 upon applying for one's own I-485?

Attorney Murthy : It is not wise to file a new I-485. If the new LC and I-140 are approved, then one could "interfile" the new I-140 approval with the pending I-485 for the spouse. The second case could also be consular processed, rather than done as an adjustment of status. The USCIS has discussed the interfiling issue and we have covered this in our MurthyBulletin articles.

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Chat User : I am in middle of an H1B transfer. I have OPT valid till June 2008. Can I use the remaining OPT if my transfer does not go through?

Attorney Murthy : A person can use the OPT if the H1B is not approved in most cases. However, this question is not clear. If the status has changed to H1B on October 1, 2007, then the OPT/F-1 status has been terminated.

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Attorney Murthy : Happy New Year once again to you, your family, and all your loved ones! We at the Murthy Law Firm look forward to continuing to help you, your family, and friends with all of your immigration matters. We wish you ALL a wonderful 2008!

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

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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.

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