Chat : January 22, 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, 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 : Is experience a must to apply for an H-1 when one has a bachelor’s degree? Does the experience one had while studying count?

Attorney Murthy : It is not necessary to possess any work experience for an H1B petition or visa approval. Generally, if a person worked 20 hours per week while studying for 2 years, then it is counted as one year of full-time experience.

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Chat User : Is there any way to speed up the administrative processing (pink sheet for visitor visa) that was issued to my father (it has been more than 4 months)?

Attorney Murthy : Well, it depends on what the issue is. Is it based on potential fraud, a security matter, or merely some evidence calls into question the required legal strong ties and nonimmigrant intent to return to the home country? It is possible to regularly follow up with the consulate and also with the U.S. Department of State through the general enquiry line available if there is no lawyer involved, since there is a separate eMail for only lawyers to communicate with DOS officers.

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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 H1B visa stamping until July and will be applying for an extension in February. Can I travel to India while waiting for the H1B extension approval?

Attorney Murthy : It generally is not advisable to travel abroad while an EOS is pending to avoid possible confusion in one's applicable date of legal validity in the U.S. One should either wait to return from foreign travel and then file the EOS, or possibly consider premium processing to avoid the potential problem of somehow making the earlier expiry date the valid date under the last action rule. Although, it is possible that there may not be a problem, there is gray area on this issue, so it is best avoided as suggested here.

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Chat User : An employee has an approved PERM and pending RIR with the same company for the same position with slightly different job requirements. Is this ok?

Attorney Murthy : Yes, it is possible to have both a PERM approval and a pre-PERM (RIR or regular LC case) pending, as in this example. The U.S. Department of Labor removed its FAQ not allowing for more than one case in the instance of a PERM and a pre-PERM case, but the DOL does not allow 2 pre-PERM cases or 2 PERM cases to be pending. This scenario is allowed, however.

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Chat User : Is it better to file one I-140 with AOS and another with CP from the same employer for a similar job?

Attorney Murthy : It is possible to file one CP and one AOS case, though sometimes we have seen the USCIS ask an individual to select one option only. The person should respond, stating that, for each different I-140 petition, s/he is selecting a different option.

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Chat Master : At the Murthy Law Firm, our slogan is, "We know your immigration matters!" We believe this expresses our confidence in our legal knowledge, as well as our understanding of what is important to YOU!

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Chat User : What is on-the-job training? Is progressive experience considered for the green card or not? Please explain in detail.

Attorney Murthy : First of all, it is not possible to explain anything in detail in about 1 or 2 minutes in a live Chat session when there are over 100 people asking questions, as I am sure you can understand. On-the-job training, generally, means training or work experience gained while working with the sponsoring employer. The Department of Labor and the USCIS tend not to allow or credit one for any experience gained with the sponsoring employer, unless the job previously worked and the sponsored job are quite different in order to count that work experience to meet the minimum requirements for the position. Please discuss this concept with your attorney, and if you don't have one, please feel free to schedule a standard consultation with a knowledgeable attorney at the Murthy Law Firm by eMailing <law@murthy.com>.

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Chat User : Will a person with a valid H1B visa stamp have any trouble at the port of entry if s/he travels outside the U.S. and returns within the visa validity date, assuming that a renewal was applied for on his/her behalf by the same employer and is approved before the travel date?

Attorney Murthy : It is possible to reenter the U.S., in this example, but the risk for the person is that, if the CBP inspector only gives the I-94 card with the validity date until the earlier H1B visa stamped date and not until the latest H1B petition approval, it may necessitate the person's traveling abroad and reenter the U.S. again, or filing another H1B extension and spending money to ensure that her/his legal status is valid based on the "last action rule." There is some debate on this matter that has caused confusion for people since the USCIS position on this issue is not completely clear.

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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 Atty Murthy or one of our other experienced attorneys.

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Chat User : Thanks for the excellent service. What kind of visas do kids (under 17 years) get if their parents apply for I-485, based on I-140 under EB1 category?

Attorney Murthy : The children are able to obtain the H-4 status or visa if they apply at the consulate abroad based on the principal's H1B status. All nonimmigrant statuses have a "dependant" category for spouses and/or minor children. So, the children could potentially get L-2, O-3 etc, depending upon the status of the parents. If the kids are in the U.S., they may file their own I-485s to obtain GCs. They need to file their own I-485s in order to obtain the green cards with their parents. They are also allowed to file and obtain the EADs and AP to be able to work during the summer season and holidays, if permission is given by the school and depending upon the age of each child. Alternatively, if the children are abroad, they may have to do a consular processing for an immigrant visa, after the primary parent obtains the GC.

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Chat User : My father-in-law is a central government employee. His visitor’s visa has been in administrative processing for 4 months. We have a medical necessity, as my wife is sick. Is there any way that we can cancel the processing and reapply? Do you have any other suggestions? Thanks, in advance.

Attorney Murthy : This appears to be the same issue pointed out above - if it is based on obtaining a security clearance based on the nature of his work, then it will likely not make any difference. It may be possible for the mother-in-law, who may not have a similar restriction, to be able to come in for emotional support of the daughter, your wife, rather than wait for both of them to obtain the B-2 visa. This is just one way to approach the matter. I am sure that you would have discussed other possible options with your lawyer to figure out what can be done and contacted the U.S. Department of State and the consular officer asking for help based on humanitarian considerations, as well.

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

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Chat User : Hello, Murthy Ji. I am on an H1B visa. Can I recapture the H1B visa time that I spent vacationing outside the USA?

Attorney Murthy : It is certainly possible to recapture any time abroad, whether it is days or weeks, based on the latest USCIS position on this matter. So go ahead and recapture that time when filing the H1B extension.

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Chat User : What is the consequence of skills not getting reflected on an H1B petition? My H1B petition does not reflect my project management skills. Will there be any problem with the LCA and USCIS when my future employer files for an H1B transfer?

Attorney Murthy : Generally, there should not be a problem, unless the USCIS suspects fraud by the employer or the employee. It is safest to be consistent, but often the employer or the attorney may decide not to mention certain skills or work experience either purposefully or inadvertently. That by itself, however, should not result in any complications for the candidate, especially if that work experience can be verified by the Anti-Fraud unit, should there be any investigation in the future.

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Chat Master : Murthy Immigration Services, Pvt. Ltd., in Chennai, India has been established to provide 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 : Is it true that, if you let USCIS know about a change of employer using AC21, your case will be delayed?

Attorney Murthy : Generally, it is not automatic that the USCIS will delay the processing of the case, since it takes them several months to tie that information to the correct file. It is possible that, if they obtain that information, they may decide to ask questions, but that is much safer than possibly getting an approval without notification, since that could result in bigger problems  about potential fraud or misrepresentation later, since the employee is supposed to notify the USCIS. An employee is expected to notify the USCIS when s/he has changed employers using AC21 portability. We think that, for most cases, there are more benefits than risks in informing USCIS about the job change.

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Chat User : I have my father's name written as my last name followed by my first name in my passport. Will this pose any problem when I apply for citizenship? Please advise. Thanks, in advance.

Attorney Murthy : Generally, if the names are written as surname or last name and then the first name showing your first name, it should not pose a problem. Also, it depends on how all the other documents show the name (the SSN, driver’s license and other official documents). Discuss this with your company HR or with your lawyer. If you don't have a lawyer, you are welcome to consult with our law firm by sending an eMail to <law@murthy.com> or calling us to discuss this matter in a consultation. If there is confusion in your documents regarding your proper name, it is possible to do a name change as part of the naturalization and clear up everything.

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Chat User : If a person leaves the U.S. after completing 5 years on L1B, is s/he eligible to apply for H-1 and reenter the U.S. on H-1 before the completion of one year outside the U.S.?

Attorney Murthy : The regulations count the time on H1B and L-1 together for computing the maximum time allowed. If the person on L1B files for a change of status to H1B before reaching the maximum 5 years in L1B status, then the additional one year is allowed, so that s/he may take advantage of a total of 6 years in H1B status. The case could also be processed from abroad for one year in H1B status, without spending a year abroad. This person would be subject to the H1B cap. Alternatively, s/he could remain abroad for a minimum of one year and would then be eligible for a full 6 years in H1B status.

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

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Chat User : In the recent MurthyBulletin, it was mentioned that the H1B extension beyond 6 years is possible without maintaining H1B status. So after the end of the 6-year H1B period, can I go out of the country while my PERM / I-140 is pending and get a 3-year extension from outside the U.S., once the I-140 is approved?

Attorney Murthy : Although the USCIS memo clarifies some of these issues, it is not clear how exactly the USCIS will allow the approval of certain 3-year H1B extensions. It is possible that one who has even a few days time left on the initial 6 years of H1B could file for that time and then request the 3-year extension along with that balance of time that is left. One must analyze the options and risks before proceeding with any such filing and have backup plans in case the first option does not work for some reason. However, the memo does appear to mean that an individual can process for the additional H-1 time beyond the six-year limitation, even from abroad.

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Chat User : Hi, Murthiji. I had my I-140 approved, and now I have been promoted to a senior position with one person reporting to me. Is it necessary to re-file for my labor? My roles and responsibilities pretty much remain the same.

Attorney Murthy : Generally, a minor change in job duties should not necessitate a new LC filing, but it depends on various factors including the job duties, title, salary, and how the new position is viewed within the organization, etc. It is safest to discuss the risks and options with your lawyer, and then proceed after considering the options.

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Chat User : I have a labor and I-140 approved. I have an I-485 application in process and am not able to apply for I-485 for my wife now. When will the USCIS accept my spouse’s I-485 application?

Attorney Murthy : The USCIS can only accept the I-485 for the spouse and any other dependent family members when the priority date or visa date for the principal becomes current once again. Until then, the principal will need to maintain separate, valid, legal status, like the H1B or L-1, so that the spouse can maintain / extend the H-4 or L-2 status, as the case may be.

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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 Law Office of Sheela Murthy and MurthyDotCom.

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Chat User : I have my H-1 under the nonprofit research organization category. If I change jobs now, will my new company have to apply for my H-1 under the 2007 quota? Will this lead to my being able to start the new job only in October 2007? Thanks.

Attorney Murthy : If one is switching from a position that is not cap-exempt to a cap-exempt position, then the earliest that the new cap-subject employer can obtain an approval is from October 1, 2007 onwards, which means that the new case must be filed to reach the U.S. on or after April 1, 2007. The strange thing is that, under the interpretation of the AC21 law, there appears to be a legal basis for one who was previously holding H1B status to be able to start working legally with the new employer simply upon filing the new H1B petition from April 1, 2007 onwards. Even though the USCIS officials have heard our analysis on AC21, they have never objected to this reading / interpretation of the AC21 law, so it makes a difference if one was in H1B status before in determining her/his ability to work legally during the pendency of the H1B petition in such a scenario.

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Chat User : Assuming the I-485 has been pending for 180 + days and the sponsoring company goes out of business, how much gap, if any, is permitted between losing the old job and finding a similar job under AC21 portability provisions? Thanks.

Attorney Murthy : There is no time required since a person with a pending I-485 is considered to be in "period of authorized stay." As long as one obtains employment that is the "same or similar," as mentioned in the underlying LC and I-140 petition, his/her I-485 should be approved if the I-140 petition was approved or approvable at the time of filing, based on various USCIS memos to this effect. The danger is that, if the USCIS issues an RFE asking for proof of current employment, it will be necessary to have an appropriate response. RFEs generally permit 12 weeks for a response, so there may be enough time to locate appropriate employment.

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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 an I-140 approved in EB3. If my company reprocesses my case through PERM, keeping all job requirements the same except for changing the minimum requirement to a master’s degree and assuming the case is approved as EB2, is it possible to keep my priority date from the EB3 filing?

Attorney Murthy : It is possible to transfer an earlier PD from an earlier approval after the I-140 petition approval to a new case that requires a different set of minimum requirements for the position, presumably based on the employer's bona fide needs and not simply to help the foreign national employee.

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

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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