Chat : January 08, 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 : Dear MurthyChat participants, Happy New Year! 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 : Hello, Murthyji. Thank you for your great service. If my current employer does not have any issue, how do I use an LC from my current employer for the new employer?

Attorney Murthy : It is not possible to use the LC from a current employer for a new employer unless the I-140 was approved and the I-485 pending for over 180 days. In most other cases, one is required to start the LC process from scratch with a new employer. The exception is being able to carry over the earlier priority date after the I-140 petition approval. Discuss these options with your immigration lawyer, or contact our law firm at <law@murthy.com> if you don't have an immigration lawyer to help you understand these legal matters.

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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 am presently here on an L-1 visa. An employer here is willing to apply for my L-1 to H-1 conversion. Just to be on the safe side, can I apply for a fresh H-1 with another employer? Can this be done?

Attorney Murthy : The question is not clear. The employer that files for a change from L-1 to H1B or a fresh H1B by another employer are both deemed to be fresh H1Bs unless the person was already in H1B status within the last 6 years.

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Chat User : My labor and I-140 are approved. Is it advisable, at this stage, to change the law firm for filing I-485?

Attorney Murthy : It is certainly possible to switch lawyers at any of the three major stages during GC processing. However, you may need your company to agree to this change. Accordingly, if you wish to change the law firm for some reason, then it is doable. You would need to submit a copy of the LC package and the I-140 package filed by the employer. This ensures a smoother I-485 processing by the new lawyers, should your employer agree to release that information to you. However, the LC and I-140 generally are considered the property of the sponsoring employer.

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Chat User : My current visa status in the U.S. is H-4. I will be applying for an H-1 this year. Can my husband change his job during the period I will be waiting for my visa status to be changed?

Attorney Murthy : There is no connection between a person filing a change of status from H-4 to H1B and his or her H1B spouse filing an H1B with a different employer. Each person, presumably, has valid legal status that exists for awhile, and that allows him/her to remain legally in the U.S. during the processing of either the change of status or the extension of status, as the case may be, in this example.

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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 : My employer has filed for my GC. However, I want to go overseas for a year. Can my GC processing continue while I'm overseas for such a long time?

Attorney Murthy : The general rule is that a person's GC can continue while s/he is abroad for a year or two or even longer, since the GC is based on a future job offer. Of course, the employer will have to agree to this arrangement.

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Chat User : Are government / public sector jobs exempt from the H1B cap?

Attorney Murthy : As explained in various MurthyBulletin articles available on MurthyDotCom, the law requires that the job be with or at an institution of higher education or a related non-profit or government research organization. This matter is a topic again in this Friday's MurthyBulletin, as a response to an FAQ. Many people are looking for other H1B cap- exempt employers.

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Chat Master : For anyone in need of advice on a specific matter, you may wish to visit <http://www.murthy.com/consult.html> following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Attorney Murthy or one of our other experienced attorneys.

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Chat User : I am an international graduate student from India with an impending licensure for physical therapy in the U.S. very soon. Does a physical therapist come under the H1B cap of 65,000 visas per year or the 20,000 visas per year for students with higher education from a university in the U.S.? (Or is this profession exempted from the visa quota?)

Attorney Murthy : H1Bs are subject to H1B quota issues. Nurses and PTs are exempt from labor certification as Schedule A occupations, but that exemption does not benefit them regarding the H1B quota problem. Depending on the level of education of the PT, one would likely fall within the regular quota and would not be able to enjoy the U.S. advanced-degree quota exemption, unless s/he has an M.S. from a U.S. university. Some PTs may find employment through cap-exempt employers such as university-affiliated hospitals.

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Chat User : Thank you for this service. Is applying for a PD transfer in EB2 with an approved EB3 I-140 (labor substitute) different than a normal PD transfer? Also, can both cases be with the same company for similar job titles and job description?

Attorney Murthy : Your question is not clear. In order to transfer an earlier PD from another LC case to a later-filed LC with the same employer, the earlier PD from the earlier filing can be transferred only after the I-140 petition is approved on the earlier case.

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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 : In case of H-4 to H-1 transfer, can a candidate be in the U.S. without generating pay stubs until his employer gives a start date?

Attorney Murthy : The general rule under the law passed in 1998 called ACWIA or the American Competitiveness and Workforce Improvement Act of 1998 is that one must start working for the H1B employer within 60 days of the H1B approval date, at the latest, if s/he is in the U.S. or must start working within 30 days of the H1B approval if s/he is entering the U.S. from abroad after the H1B approval.

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Chat User : Can my future employer apply for my H1B while I am outside the U.S.? Currently, I am on H1B with my present employer and will join my new job in a month or two after I return.

Attorney Murthy : Generally, an employer may file for an H1B petition when the employee is abroad. This will result in the individual's H1B petition being approved but not the extension of status. This means that s/he will need to show the H1B visa stamped with an earlier employer and the latest H1B approval notice with the current or future employer to obtain an I-94 card valid until the latest H1B approval date. Or the individual will be required to enter on the earlier H1B approval and then will again need to depart the U.S. or file an H1B amendment to work for the new employer. Otherwise, one is not allowed to work for the new employer unless s/he obtains a valid I-94 card to work for that employer by either traveling abroad again and reentering in H1B status or filing an H1B amendment for work with that employer.

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

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Chat User : Can one apply for a second H-1 for a part-time job while being on the first full-time H-1? Will there be any restrictions on minimum number of working hours for a part-time job?

Attorney Murthy : It is possible to file more than one H1B - one for a full-time job, another for a part-time (or for more than one PT) job, etc. The general rule is that the job must entail fewer than 35 hours per week to be described as PT employment, but there is no minimum, just the maximum. PT H-1s can also permit a range of hours, as is typical of PT jobs.

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Chat User : I am in F-1 OPT status. My employer requires me to travel abroad on business. Can I travel and return to the U.S. before expiration of my OPT status?

Attorney Murthy : Generally, as long as a person on F-1 OPT status has a valid F-1 visa stamped in the passport that has not yet expired and the I-20 has been endorsed within the last 6 months by the DSO, one is allowed to travel abroad and reenter in F-1 status.

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Chat Master : Murthy Immigration Services, Pvt. Ltd., in Chennai, India provides comprehensive and convenient service to our clients and prospects in South Asia seeking help with U.S. immigration services. Learn more at <http://www.murthyindia.com>.

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Chat User : What happens to those who reached the H1B cap recently based on the previous law? (i.e. H-4, L-2 or H-1) Can they file for a fresh extension based on the recent 'decoupling' ruling?

Attorney Murthy : Since the Memo does not address this issue and other subtle or varying issues, our policy has always been to fight hard for our clients, exploring all the legal avenues available, as long as the clients understand that there are risks and no guarantees of approval. The Memo does provide that a person is allowed to file an H1B even if s/he is not in H1B status at present. This seems to imply that one could try filing H1B extensions in such cases.

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Chat User : What is the process of I-485 adjudication by the USCIS service center? Will the USCIS pre-adjudicate an I-485 application immediately upon receipt, or will they wait until all the security checka and name checks are cleared to start processing the application? Thanks.

Attorney Murthy : The USCIS is supposed to start processing the case when it is time, but they cannot issue any final approvals or decisions until the I-485 security checks have been completed, which include the FP and name checks.

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Chat User : Hi, Murthyji. Happy New Year! What is the latest time I can start to work with my prospective H1B employer if the employment start date is October 1, 2007? I'm presently in the U.S. on an H-4 visa.

Attorney Murthy : Thank you for your kind New Year wishes. Same to you all from all of us! A person with a future start date of October 1, 2007 is only allowed to start working for that H1B employer on or after October 1, 2007, and no earlier. Any earlier employment would be considered unauthorized employment.

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

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Chat User : Can an I-140 and I-485 be filed together while transferring an earlier PD from an EB3 to an EB2 application?

Attorney Murthy : If the EB2 PD is current and the person is entitled to obtain the earlier PD from the EB3 to the recently-filed EB2 case, then it is possible to file the I-140 with the I-485. The cover letter should clearly explain this to avoid any confusion.

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Chat User : Ms. Murthy, thank you for hosting this chat! I applied for naturalization more than a year back. My interview was completed 8 months ago. I have been waiting for the background check since then. What are my options besides simply waiting?

Attorney Murthy : The general rule is that most background checks take their own sweet time and vary from person to person. However, followup on the part of your lawyer with the AILA representative or contacting the U.S. senator/s or congressperson/s in your state, or even filing a writ of Mandamus by threatening litigation against the U.S., have proven successful approaches, depending on the situation.

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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 : Hello, Murthy. Is it advisable to transfer the H-1 during the 7th year, being that the petition is valid less than a year from now?

Attorney Murthy : It is generally not advisable to leave the current employer and file a one-year H1B with a new employer unless the goal is to depart the U.S. after that one year or be stuck abroad for longer than that while the GC case is pending. The option of leaving the current employer only makes sense when at least 3 years of H1B time remain, like after the I-140 petition approval or if the person is prepared to depart the U.S. for awhile or has no other option available due to a layoff or job termination. With PERM and premium processing, it may be possible to reach the point where a further H-1 extension could be filed after a year, but the approach is risky.

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Chat User : Hi, Murthiji. I had converted from L-1 to H-1. I am renewing my passport here in the U.S. I do not have stamping in my passport. Can I send my wife to India for H-4 stamping?

Attorney Murthy : Generally, the consulates are supposed to issue the H-4 visa stamp for the dependent family members even if the principal does not have a valid H1B visa stamped in the PP, since the law allows one to switch statuses in the U.S. legally. Only sometimes when the consular officers are inexperienced do we find a problem with this.

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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 : My wife is on H-1. I am on H-1, as well. My LC cleared, and I will be filing the I-140 soon. When should I include my spouse’s name? In the I-140 stage or in the I-485 stage? Which one is safer for both of us?

Attorney Murthy : The name and other preliminary details of all family members is mentioned on the I-140 petition, but each person has to file her/his own I-485 at that stage when the priority dates become current for that EB category for the family and the principal.

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Chat User : I applied for a GC under NIW. If I change jobs (similar) with a new H1B, do I need to inform the USCIS regarding my change of status?

Attorney Murthy : Generally, since the NIW is based on an exemption of the job offer requirement, there is no legal obligation to notify the USCIS of each employer change for the NIW petition, since the legal requirement is simply that the person's work continue to prospectively benefit the U.S. as a whole in the national interest after a job change.

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

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Attorney Murthy : We look forward to continuing to help you, your family and friends with all of your immigration law needs at the Murthy Law Firm. Happy New Year for 2007!

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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