Chat : February
12, 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. I am joining you from India this evening. Thank
you for your interest in our MurthyChat.
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Chat User : Is premium processing available for labor substituted
I-140 filing, currently?
Attorney Murthy : The USCIS position has been that, for most LC Sub
cases, they cannot premium process. The rule is that, if the case is filed
without the original LC, premium processing is not available. If the company
has the original LC (because they never filed the I-140 for the beneficiary
named in the LC), then premium processing is available. .
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Chat User : Hi, Murthyji. Can a person on H-4 visa work on a
voluntary basis for a nonprofit or commercial organization?
Attorney Murthy : A person on H-4 may be able to work for a pure
nonprofit, like the American Red Cross or the United Way, etc, but not
generally for commercial organizations. That may depend on state law,
however.
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Chat User : My 6-year L1B/H1B term maxed out and I moved out of U.S.
last September. When can a new H1B filed at the earliest? Is it subject to
quota?
Attorney Murthy : One can file the new H1B 6 months before the start
date. Since, in this case, you will be entitled to get a full 6 more years
in H1B status, then it should be filed by April 1, 2007, to start work on
Oct 1, 2007, since it is an H1B cap-subject case.
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Chat User : I am currently on H-4 visa, which is valid up to Jan
2008. I wish to process my H1B and am planning to file it this April 2007.
In the meantime, I wish to travel to India starting mid April and returning
mid May. Do you think there is any problem in doing so?
Attorney Murthy : A person who travels abroad while a change of
status has been filed will be deemed to have abandoned that COS application.
If the travel must occur before a final decision, then the only option is to
pay for and file for Premium Processing. The other option is to travel
abroad after the H1B petition is approved, then one is allowed to enter on
the H-4 and the H1B becomes automatically effective from Oct 1, 2007, based
on the H1B approval notice. Discuss the nuances and other issues with your
immigration lawyer or counsel.
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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 : Hi, Ms. Murthy. Does USCIS allow filing of two different
petitions for the same person at a time? That is EB-3 (I-485 pending) and
family-based (spouse of a citizen)?
Attorney Murthy : Generally, there is no prohibition in filing an FB
and an EB case at the same time. The exception may be if there is a specific
prohibition in doing so, like a person who just enters in the F-1 student
status attempting to file for the GC soon after entering, since there are
certain presumptions of fraud in such cases.
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Chat User : My LC is approved in PERM and 140 is under process. Is it
suggested to change a job location with the same employer? If yes, is it
before or after the I-140 is approved?
Attorney Murthy : Since the concept of the GC is based on a future
job offer for a particular position at a particular location, as listed on
the PERM application and I-140 petition, changing work locations at this
time is not barred. However, one must join the GC-sponsoring employer at the
time of the GC at that work location, unless one could argue AC21
portability, as allowed under law.
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Chat User : Good evening, Murthyji. When trying to port a priority
date from an earlier-approved I-140, is it true that, if the earlier revokes
the I-140, the date cannot be ported?
Attorney Murthy : Generally, the PD from a previously-approved I-140
petition can be ported unless the I-140 petition has been revoked. The USCIS
generally has been assigning the earlier PD in most cases unless there is
fraud, though we have been seeing more recent cases in which they are saying
that the I-140 petition was revoked before the new I-140 was approved with
the earlier date. The safest route is to obtain the new I-140 petition
approval and then if the earlier I-140 is revoked it is likely not to affect
the new I-140 petition and the earlier PD.
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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 : Can a person who has never held H1B before apply for an
H1B during this cap (Apr 2007), even though s/he is in L1B status and has
been for the past 4 1/2 yrs?
Attorney Murthy : Yes, that is legally allowed for a person to file
the H1B subject to the cap and file it by April 1, 2007 with a start date of
Oct 1, 2007, for the balance of the 1 1/2 years. This will require that one
also start the PERM or GC immediately and file it within 2 or 3 months to
avoid having to depart the U.S. at the end of the 6 years. Discuss this with
your immigration law attorney or contact our law firm to understand this
option and any potential risks.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : How does one keep the legal status when OPT expires and
while waiting for H1B petition to start? Does it have to be a student
status? I do not plan to leave to my home country.
Attorney Murthy : It depends on the situation, but a person can file
for the F-1 EOS or a B-1/B-2, but cannot just remain illegally or out of
status based on the USCIS's current position. Discuss the options with your
attorney or feel free to consult with an attorney at the Murthy Law Firm by
sending an eMail to law@murthy.com
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Chat User : If my H1B transfer is denied, am I out of status? Is my
earlier H1B still valid?
Attorney Murthy : If the H1B transfer is denied, then if the earlier
employer has not canceled or revoked the earlier H1B petition, it is
presumably still valid for work. There may be some obligations for the
employer and so many employers tend to revoke the earlier H1B petition when
the employee leaves their employment. Under the current position of the
USCIS, one is allowed to go and work for the earlier H1B employer if that
H1B petition has not been revoked or canceled.
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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 wife was on H-4, changed her status to F-1, and is
currently on OPT. If she does not get any employer before her OPT expires,
does she need to reapply for H-4?
Attorney Murthy : Yes, a person needs to apply to change the status
back from F-1 OPT to H-4 by showing that her spouse is still in valid H1B
status and that she has been maintaining lawful status in the U.S.
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Chat Master : Check out the MurthyForum - a 'message / discussion'
board helping immigrants connect over the Internet. Registered members of
the Forum can post and respond to messages, some of which are also responded
to by our ATTORNEYS. Access MurthyForum from our main page or go directly to
http://www.murthy.com/mforum.html.
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Chat User : Hi, I am on L-1 visa working for company A, I have
company B applying for my H1B visa. My query is, when my H-1 is in process
in April, if I go to India should I get stamping for H1B?
Attorney Murthy : A person cannot travel abroad while the COS is
pending since that will be considered an abandonment of the COS application
from L-1 to H1B. If the person travels abroad after the H1B petition is
approved, then that seems to be less of a risk, since the person does not
need the new H1B visa stamp in the PP unless the person is entering the U.S.
after Sep 20, 2007, or 10 days before the start date of the H1B petition.
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Chat User : I am under 8th-year H-1 extension and labor
approved under EB3, so can I convert to EB2 when I apply for I-140? I
possessed BE degree only, and 9 years experience.
Attorney Murthy : A person cannot file an EB3 approved LC to process
an EB2 I-140 petition. After this case has been approved in EB3 at the I-140
stage, then a new case could potentially be filed if the employer has a new
position for that person in the EB2 classification.
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Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : Would it be riskier to go to Canada now to get my H-3
stamped (previously on OPT) or to wait for H1B and then get it stamped?
Attorney Murthy : The H-3 status does not enjoy dual intent, so there
is always a higher risk with a pure nonimmigrant visa than with the H1B or
L-1 or for their dependents.
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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 : Hi, Murthyji. Can a person on H-4 visa take part-time
certificate course?
Attorney Murthy : Yes, a person on H-4 is allowed to pursue either
full-time or part-time courses, but cannot obtain any tuition reimbursements
or other forms of compensation, etc.
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Chat User : I will be completing 5 years of L1B in Sep 07. A new
employer is ready to file for my H1B and GC. Please suggest whether I should
go for H1B or stay 1 year outside U.S. so that my H1B clock gets reset.
Attorney Murthy : That is not a legal question but a question of your
lifestyle and personal wishes or desires, family situation, etc. There are
pros and cons in every situation, so you need to understand that before
making a discussion. Speak with your immigration attorney, or consult with
our law firm if you wish.
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Chat User : I have 2 H1Bs open (from current and new employer). Is
there any problem in continuing with the old employer when they have applied
for L-1 with a COS?
Attorney Murthy : It may be legally allowed, but there is a concern
about breach of contract by promising so many employers of one's intention
to work for them full time and making them spend so much time and money on
each H1B or L-1 case, etc. Potentially, an employer could sue a prospective
employee for fraud or misrepresentation, but most employers do not pursue
that option.
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Chat User : Hi. Can I go out of U.S. when I am on valid L-1 visa and
H1B petition is in process?
Attorney Murthy : As I have stated many times, the H1B COS is deemed
abandoned upon departing the U.S. unless one waits until it is approved.
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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 : Hi, Murthyji. Does the H1B visa requires any work
experience? Is it possible to do H1B for a person with Computer Engineering
Degree from India with no work experience?
Attorney Murthy : Yes, the law allows the H1B petition for a person
with no prior work experience and only the 4-year relevant and specific
degree.
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Chat User : Thanks for the great service. I will be completing 5
years of L1B in Jul 07. One employer is ready to file for my H1B. Since I am
eligible for only 1 year of H1B, what is your suggestion on GC processing,
so that I can be eligible for 7th-year H1B extension?
Attorney Murthy : You need to file the new PERM prior to starting the
new H1B job and hope and pray that the PERM and I-140 are approved within
the timeframe to file for the 3-year H1B petition extension, or consider
departing the U.S. for a few months to recapture that time abroad and then
file for the 1-year H1B extensions based on the LC / PERM filed over 365
days earlier. Discuss these options, and possibly others, with your attorney
or feel free to consult our law firm.
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Chat User : My I-140 got disapproved indicating that my bachelor's in
mechanical is not related to the job in which I am working in the IT field.
My H-1 is already expiring in April 2007. Any advice, please?
Attorney Murthy : Either find a job as a Mech Engg or try to show
that the work experience in IT equates to a BE in Comp Science, for example.
You must speak to the attorney who helped you so that s/he can evaluate your
background and help you with options or point out the limitations, etc.
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Chat Master : This ends tonight's session of the MurthyChat.
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Attorney Murthy : Next Monday, we will not have the MurthyChat,
as I will be traveling from India at that time. We hope to have all of you
in our MurthyChat with us in 2 weeks at the same time and place!
Thank you for your interest the MurthyChat!
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Chat Master : Thank you all for logging in! The schedule will be
posted at http://www.murthy.com/chat.html
----------------
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
Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.