Chat : February 04, 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 : 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 the MurthyChat.

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Chat User : Hi. I am working for comp A (my H1B sponsor) and I am interested in also working for comp B (no salary, only commission). Can I work for comp B on the side as a home business?

Attorney Murthy : Each H1B job requires the employer to pay the U.S. Department of Labor prevailing wage. So compensation in the form of only a commission will not be eligible for the H1B classification. This option usually is available with the EAD. Additionally, each H1B job must have an approved H1B petition, meeting all H1B requirements, including the wage offered.

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Chat User : Does category selection (EB2 or EB3) for green card processing depends upon the kind of ad posted for the position? Is it possible to change the category from EB3 to EB2 at a later stage after I-140 approval?

Attorney Murthy : The general rule is that the category is determined when filing the LC/ PERM and the precursor to filing the PERM case is when the print advertisements run for the position. It is not possible to change the category after the I-140 approval. One can maintain the earlier EB3 PD after the I-140 approval and then start a new LC/PERM case and, after that is approved, file a new EB2 PERM case and request maintaining the earlier PD. EB2/EB3 is determined by the job requirements set out in the labor certification by the employer and the DOL.

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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 on H-1 and working for a company. I wish to start an IT consulting placement firm along with another H-1 friend. Is it legally okay to start and run or do we need a citizen or a GC holder as a partner?

Attorney Murthy : One cannot simply work for any other company, not even one s/he begins, while in H1B status. To work while in H1B status, one must have another concurrent H1B approval - even to work for one's own company. Even having a GC holder or USC partner does not allow the individual in H1B status to work for that company without an H1B approval to work for that other employer.

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Chat User : If one extends the H-1 beyond 6th year (based on approved labor and I-140 stage in GC), can it be transferred to another company?

Attorney Murthy : One is allowed to file a new H1B with a different employer based on the LC and/or I-140 approval with a different employer. The H1B can be extended with company B, based on the green card filing by company A, as long as it meets either the 365-day rule for one-year H1B extensions (based on the LC or I-140 filing at least one year earlier) or for 3 years (after the I-140 is approved), as long as the priority dates are not current.

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Chat User : Dear Sheelaji, after entering on AP, do I have to apply for a new I-94 or a COS to maintain my H-4 status? I am working on EAD. Thank you.

Attorney Murthy : If one is working on the EAD, the safer approach is for her/him to use the AP to travel and reenter the U.S. There is nothing to file for the H-4 extension of status while one is on EAD, based on Legacy INS and USCIS memos. If s/he wishes to revert to H-4 status, then it is possible to file an H-4 extension when the spouse files the H1B extension.

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Chat User : Murthyji, is it mandatory to invoke AC21 to switch employers? I am afraid to invoke AC21, as my new employer does not want to take any responsibility of my further GC process. Thanks in advance!!!

Attorney Murthy : The safest approach is to file an AC21 package to follow USCIS guidance and to ensure that the GC is not in jeopardy for fraud or misrepresentation. The new employer is not required to take any responsibility under AC21 portability since it is a benefit that accrues to the employee. The employer provides a simple letter confirming the job duties to evidence that it is the "same or similar." Just today, I saw a USCIS/INS revocation of a GC based on an individual's failure to work for the GC-sponsoring employer after the GC approval.

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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 : While I'm in the AOS stage, how will changing my last name due to marriage effect my green card processing?

Attorney Murthy : One may have some issues to clarify and security checks could be delayed when s/he changes names. However, the marriage name change is usually less of a problem than in most other cases, if one carries a copy of the marriage certificate at all times, especially at airports or when applying for any legal process, etc.

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Chat User : What happens if my green card sponsor transfers me to a different city, to one of our other offices for work? Is my green card case still good?

Attorney Murthy : It is a problem if the permanent job is in the new city for which the prevailing wage and other factors have not been complied with to the DOL's satisfaction. On the other hand, if the LC is approved, the I-140 is approved, and the I-485 is pending for over 180 days one could use AC21 portability and then the job change location will not be detrimental.

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Chat User : Can I travel on AP without having EAD and H-1 visa stamping? After return, should a new H-1 extension be filed again?

Attorney Murthy : One is allowed to travel on the AP and reenter the U.S. as a parolee. It is not essential to file the H1B extension unless one wishes to maintain backup H1B status. There is benefit in having a backup option. Of course, in order to work it is necessary to have permission to work; either in the form of the valid H1B or the EAD.

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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 : I am not working for the GC (I-140) sponsoring employer. Will there be any issue at PoE if I use AP to enter U.S. from my trip to India? It will be 185 days from the date of receipt of I-485.

Attorney Murthy : Entering on the AP is usually not risky since the GC is based on a future job offer. The big risk is when one does not work for the GC-sponsoring employer at all. That could be viewed as fraud / misrepresentation unless one works for the GC-sponsoring employer for at least one or two years, in such cases.

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

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Chat User : Hello Murthiji, thanks for your excellent service. While working on H1B for a primary H1B-sponsoring employer, is it legal to conduct IT trainings outside the organization for a group of trainees / individuals and earn income as training fee?

Attorney Murthy : As explained earlier tonight, a person in H1B status cannot work for any other employer unless s/he obtains another H1B petition approval to work for another employer. The only exception is if the person has an unrestricted EAD that allows her/him to perform other work in addition to that required under the GC documents.

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Chat User : I have recently used my EAD to join a company here. If my I-485 application is rejected, will I be out of status right away? Is there a way for me to get back into H1B status if that happens?

Attorney Murthy : If an individual in such a situation still has time unused under the original 6 years of H1B, then presumably s/he could file for the balance of time remaining in the 6 years. Otherwise, if the person has used all of the 6 years, then upon denial of the I-485, s/he cannot obtain the 1-year or 3-year H1B extension, since the GC case is no longer progressing. This will require that one stop working and depart the U.S., since s/he is not eligible for another pure nonimmigrant status either. The person may have an option if there is a basis for a Motion to Reopen the I-485.

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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 : I am a physical therapist with Indian citizenship but born in Kuwait. When I apply for my GC, will I be able to have a priority date based on the country where I was born?

Attorney Murthy : Generally, it is a possible option for a person to file based on nationality or country of birth and also help the spouse who may be able to use cross-chargeability. There are exceptions that may apply in some cases and, depending on the facts, some research may have to be done.

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Chat User : My wife and I are both in H1B status. We both filed the I-485s this last summer, I am the primary. Can my wife change her H-1 employer? Does it impact our green card cases?  

Attorney Murthy : Generally, there is no adverse impact if the spouse of the GC applicant changes H1B employers based on a new H1B or on the EAD.

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Chat User : I was in H1B status for 3yrs and then H-4 status for 4 yrs. Left the country and came back to U.S. again after 1 and 1/2 years. Now, can I file H1B for the remaining period and start working immediately, or do I need to wait for the new quota?

Attorney Murthy : Under USCIS memos, one is able to file an H1B for the remaining period as long as the earlier H1B was filed within the last 6 fiscal years. The downside of this option is that one will only have a max of 3 additional years on the H1B in this example, unless s/he can qualify for further H1B extensions by filing an LC and/or getting an I-140 approved while the PDs are retrogressed.

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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 : Thank you, Attorney Murthy, for the valuable service. My Question: Can an I-485 applicant return, after overseas travel, with the AP that was approved before his departure from U.S., but was physically received by the lawyer after departure (and a friend sends the AP documents by courier service overseas).

Attorney Murthy : Based on the outline of facts as presented, it seems the person could use the AP to reenter the U.S., since it was filed and approved before s/he departed the U.S. The CBP will not usually know or care about when the AP was received by the attorney.

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

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Chat User : What is the period for which one can stay in USA after applying for extension of B-1 visa status, I-539, if the application is received and pending?

Attorney Murthy : Technically, the rule is until a decision is made by the USCIS - until the date requested for the extension, the person is allowed to remain legally in the U.S. (That is, if an extension of 6 months is requested, one cannot remain beyond that 6-months, even if the case is still pending.) The problem is that, if the decision is not favorable, then one's earlier visa stamp in the PP becomes void by operation of law (Section 222(g) of INA). This means that s/he can no longer enter the U.S., even if s/he has a 10-year B-1/B2 visa stamp, for example, since that visa stamp is no longer valid.

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Chat User : Can we submit experience letter for I-140 RFE, for which I worked in India but the experience is not mentioned in my labor certification.

Attorney Murthy : It is possible to do that with a simple explanation as to why the earlier experience was not mentioned on the LC forms. Generally, any relevant, valid work experience can be helpful in getting the I-140 approval.

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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 : Can I avail of the H1B remainder option after being outside the U.S. for over a year and after my previous employer notified the USCIS of the job termination? Would I be exempt from the H1B quota?

Attorney Murthy : It is possible to file for the balance of time in H1B status and then one in this situation is exempt from the H1B quota. On the other hand, if the person wishes to have the full 6 years, s/he must file under the new quota.

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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'm in H-4 status and currently have EAD with pending 140/485. If I start working on my EAD would my status change? If my EAD is invalidated, would I need to reenter the country to claim my H-4 status back?

Attorney Murthy : H1B and H-4 (along with L1A and L1B) are dual intent, while others are not so clear. The status does not just change on its own. If the EAD is used, then the H-4 status is not being maintained.

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Chat User : If I don't renew my EAD and if I lose my job on H-1B status, how many days do I have to find another job?

Attorney Murthy : As long as the I-485 is pending, one is allowed to legally remain in the U.S. in AOS pending status. There is no grace period, generally, after the I-485 denial. There could be a problem if the USCIS sends an RFE asking for a current employment letter. So, it is best to have an EAD as a backup, or at least, to request one as soon as any indications exist that layoffs may be coming.

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

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Attorney Murthy : We hope you have benefited from today's MurthyChat. We at the Murthy Law Firm look forward to helping you, your family, and your friends with all of your immigration matters.

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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 scheduling conflict. 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.

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