Chat : January 29, 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 : 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 : Thank you, Murthiji, for a great service. Can an employer continue the green card process even if the employee leaves before filing the I-485 in a regular case and not in a future employment situation?

Attorney Murthy : The employer is allowed to continue the GC processing for any employee since all GC applications are based on a future job offer, even though the employee may have previously worked for the employer or worked with the employer and then left at some time, etc. Ultimately, the intent of both parties must be for the foreign national to work with the sponsoring employer at the time of obtaining the GC.

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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 : What are the chances of getting an H1B with only an associate’s degree (with 6 years of work experience in addition to the degree)?

Attorney Murthy : The H1B requires one to, at a minimum, have completed either the bachelor's degree or possess the relevant work experience to equate to the degree. For H1Bs, every three years of work experience equates to one year of college level education. But, even here, many consulates tend to be strict and deny the H1B visa stamp if a person has only an AA degree and the relevant work experience. So that is something to be aware of, even if the USCIS approves the H1B petition based on the formula of three year experience for the one year college degree.

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Chat User : What are the chances of getting an H1B through an employer who is starting with a new company (already owns two others)?

Attorney Murthy : Generally, anytime there is a start-up company, the USCIS looks at issues more closely, since there is a risk of the H1B denial based on financial inability of the employer or prospective employment with no assurance of work, etc. If the employer is well known, with sufficient assets, then those assets should be shown to the USCIS to request an H1B approval based on the resume and background of the founder/s.

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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 : Is it advisable to travel to India and return to the U.S. while holding a valid, unexpired H1B visa in the passport and having the H-1 transfer approved online but not the original approval notice?

Attorney Murthy : It is not advisable to travel with simply the online confirmation of the H1B approval notice, since the CBP inspector at the airport has the legal right to require production of the original H1B approval notice. It is important that one obtain a valid I-94 card showing the latest expiration date with the current employer to avoid problems with status down the road. It is possible to travel with a valid visa and a pending H-1 under the portability provisions. Therefore, if one has the receipt notice, but not the approval notice, s/he could request admission on that basis.

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Chat User : Can a person have one I-140 approved for EB3 and file another I-140 in EB2 and use the new I-140 for the GC? Does s/he have to revoke the old I-140?

Attorney Murthy : It is not necessary to revoke the earlier I-140 petition approved in EB3. In fact, it is safer not to request revocation to ensure that the earlier PD can be transferred from the earlier I-140 approval to the later-approved EB2 case. Also, the employer should simply request that the new I-140 petition be interfiled with the pending I-485 application if it was already filed, in this example.

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Chat User : Can my prospective employer file for my H-1 while my H-4 extension is pending?

Attorney Murthy : It is possible to file a COS for an H1B while an H-4 EOS is pending, but if the earlier H-4 status has expired at the time of filing the H1B for that person, the USCIS may decide not to approve the COS with the I-94 card attached at the bottom based on the "bridging" memo covered in our article that can be found on MurthyDotCom.

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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 a person with a bachelor’s degree and 10 years of experience use an already-approved LC (from the same employer) filed in the EB3 category stating a master’s degree with three years of experience?

Attorney Murthy : First of all, an LC that states an M.S. and three years of work experience is not an EB3 LC but an EB2 case. Second, it could create problems to argue that the B.S. and 10 years prior work experience with the same employer equates to an M.S. and three years unless the LC states that the employer will accept a certain number of years of experience to equate to the M.S. degree on the face of the labor certification. It can be risky.

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Chat User : Hello. Thank you so much for taking your time off and accepting my message. I am on an H1B visa but have been on bench for one and one half months without pay. My H-1 is still valid. Is sitting on bench without pay going to pose any future legal problems status wise? Thank you.

Attorney Murthy : The USCIS position generally has been that a person in H1B status cannot be benched without pay, and that will result in the H1B employee being considered not to be maintaining valid H1B legal status. Even though it is the employer's fault, it can create problems for the employee down the road. It depends on if the employee continues to work for that employer and that employer confirms the ongoing employment status at the time of filing the I-485 for that employee, among other factors.

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

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Chat User : Good evening, Madam Murthy. I am stuck in the FBI name check. Is there anything I can do about it? I started my GC process in 2000. I don't seem to go anywhere with this.

Attorney Murthy : There is the Ombudsman office, the Department of State and the TSA to check with. Your attorney, if s/he is an AILA member, can follow up through the AILA Liaison. There is also the option to contact the Senator or Representative in your state for their office to follow up with the USCIS or the FBI. Finally, we have found that filing a Writ of Mandamus in federal district court will often yield a prompt result in many such cases. It is unfortunate that the threat of litigation and expenses forces the government to act in a hurry, in most such cases.

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Chat User : Hi. My last name and first name are swapped on my I-797 approval notice. How long will it take to process this case? If I go to stamping with the wrong name, is it going to affect my successful stamping, or do I need to wait until I get my name corrected?

Attorney Murthy : It is safest to get the name corrected. If the error occurred since your employer or attorney typed the information incorrectly on the forms, then an H1B amendment will need to be filed. On the other hand, if it was the USCIS error, then they should correct it, and you can request expedited processing with a fee waiver, though filing it with the filing fee will often help to process the case faster, unless the earlier filing was a premium processing case.

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Chat User : Dear Murthyji, I was on H1B until last Friday and got fired. My wife is on L1B. Can I change to L-2 from here, or do I have to go to India to convert to L-2? Can I change to B-2? What are my options to stay in status? Please help.

Attorney Murthy : Generally, it is possible to file for a change of status from H1B to L-2, for example, by filing the COS application at the earliest opportunity. Usually, the USCIS tends to excuse a delay of about a week or so, but if it is much longer, they are not likely going to approve the change of status with the I-94 card attached to the bottom of the approval notice. L-2s can request employment authorization, also. It is more risky to request a change of status to B-2 since that requires showing strong ties to the home country.

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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 : Hello. My wife is on L-2 and working on EAD. Can her employer file for a green card?

Attorney Murthy : It is certainly possible for an employer to file for a GC for a person working legally in any status in the U.S., including the L-2 or any other dependent status.

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Chat User : Can I continue with my GC with my current priority date even if I change my employer after getting my I-140 approved?

Attorney Murthy : A person cannot continue the GC processing with a change of employers even though, in some circumstances, the person is allowed to retain the earlier PD if the earlier I-140 petition is approved and not revoked by the earlier employer. The new employer has to start the LC/PERM process from scratch, and until the earlier I-140 petition has not been revoked, that person is allowed to retain the earlier PD.

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Chat User : Hello, Attorney Murthy! I am currently on an F-1 visa, and my OPT ends in May 2007. My employer has offered to sponsor me. Considering the inevitable gap in employment in case of H1 B visa sponsorship, is applying for an H-3 trainee visa a viable option?

Attorney Murthy : It is generally not advisable to switch to the H-3 trainee status since that has some limitations like establishing that the person will return to the home country upon completion of the H-3 trainee program, and that the person cannot switch from H-3 to H1B after that, etc. It is often safer to either travel abroad or even switch to the B-2 to travel rather than jeopardizing one's status for the long term by seeking short term gratification.

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

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Chat User : Hi, Murthy. My wife was born outside of India, but she has the birth certificate issued from the Indian Embassy there, which mentions the hospital name in that country. Can this be used for concurrent filing for I-140 and I-485?

Attorney Murthy : Using a consular form of a birth certificate is helpful, but that along with affidavits and/or other evidence, like a high school leaving certificate, will be more helpful if a person is trying to obtain cross chargeability for being counted as a national of another country.

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Chat User : My I-140 was rejected in EB2 category as programmer analyst in 2002. I am now applying in EB3 as a systems admin. Will they refer back to my application and cross check my experience?

Attorney Murthy : Generally, the rule is that any federal government agency has the right, and one must assume that all information can be verified. Also, since immigration documents are filed under penalty of perjury, any inconsistency in the documents could result in serious problems since it is a federal crime to misrepresent information to the government.

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Chat User : I am on an L1A visa. A couple of months ago, my wife got arrested for shoplifting at a retail store. We had to go through a court hearing and paid a $1,000 fine for being guilty. Now we are applying for a green card (joint filing and I am the primary). Will there be any impact?

Attorney Murthy : Of course, there is some impact in most cases dealing with any form of crime, especially if the crime is considered more serious like a $1,000 fine. It depends on state law and what the maximum possible punishment could have been for that offense. In any event, the spouse has to mention that there was a charge and arrest made and the result, and then argue how and why the one time petty offense exception may apply in some such cases. But that is not automatic since it depends on the seriousness of the crime. It is necessary to find out from a criminal attorney what the maximum possible jail time was for the particular charge. Before filing the I-485, consult with an immigration attorney to determine the impact on the I-485 status. We do have some information on MurthyDotCom about the potential impact of shoplifting on immigration status. This can be a very serious matter.

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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 : Hi, Lawyer Murthy. Thanks for this chat. I am currently on an H1B. My employer has filed for the labor and I-140, and they have been approved. The I-485 has not been filed yet due to retrogression. I intend to go back to school on F-1. If I file for a COS from H1B to F-1, will my current GC petition affect this COS request?

Attorney Murthy : The USCIS is likely not to approve a COS from a dual intent visa, like the H1B, to a pure nonimmigrant status, like the F-1, after a person has obtained both the LC and the I-140 petition approved on behalf of that person.

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Chat User : Hi. My wife is presently on an H-4 visa, and we are planning to apply for her H-1 visa in April. We are also planning to visit India in April / May for 3 weeks. Will this cause any problems for my wife while returning to the USA on an H-4 visa? If, in the meantime, her H-1 visa gets approved, can she get her H-1 visa stamping done and return to the USA?

Attorney Murthy : One should start the paperwork and keep everything ready to file in February / March, at the latest, to file before April 1, 2007. The spouse may enter on H-4 status if the H1B approval is effective from October 1, 2007, in this example. But when a person travels abroad after filing a change of status, that COS application is deemed abandoned upon departing the U.S. This should be discussed in a consultation to try to coordinate the filing and the travel.

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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