Chat : February 25, 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 : We welcome your questions and look forward to helping you with your immigration matters.

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Chat User : Appreciate this service & your insight!! My employment-based AOS is pending for 2.5 years (Primary+2 derivative). Would it be possible to change derivate applicants from AOS to CP while primary EB3 applicant continues on AOS?

Attorney Murthy : Generally, the only way to change the AOS case for the derivative if the principal wishes to continue to use the EAD and I-485 is only at the time of or after the approval of the I-485 application that the derivatives can file the I-824 to convert their cases from AOS to CP to pick up the immigrant visa from abroad.

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Chat User : Can I switch jobs while my wife's H-4 is still pending? Her I-94 is expired, but we applied and got receipt from USCIS before the current I-94 expiration date. Thanks.

Attorney Murthy : There should not be a problem, in general, for the principal to change employers in H1B status while the spouse's H-4 EOS is pending. The potential problems could be if the principal's H1B with the new employer its denied and the USCIS then denies the spouse's / dependent's H-4 status, or if there is an RFE asking for the principal's current status and then one can only submit the USCIS receipt notice, which could delay the spouse's being able to obtain the H-4 status, in such cases.

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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 8th year H1B. I have applied for I-140 and I-485. I have an approved EAD and AP, but I am maintaining my H1B status. If I decide to change jobs, can I transfer my existing H1B to a new employer?

Attorney Murthy : One is allowed to file an H1B petition with any employer, based on the LC pending for over 1 year or the I-140 filed approval. This means that the person can obtain the 1- year or 3-year H1B approval with any other employer, not just the GC-sponsoring employer. So, yes, the H1B could be maintained through the new employer, which is the approach that we generally recommend.

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Chat User : I will be completing 6 years in L1B status in Aug 2009. I will be applying for H-1 on April 1, 2008. If my H-1 application is accepted, can I start my labor processing right after my H1B approval, before I join my employer in Oct 2008? Also, with revised fees, how much are total average fees for green card processing (labor, I-140, I-480)?

Attorney Murthy : One is allowed to start processing the LC/PERM even before filing or the approval of the H1B petition. There are no USCIS/DOL fees so far for the PERM process, but the USCIS filing fees are available from the USCIS through MurthyDotCom at http://www.murthy.com/insforms.html, which will have the exact fees for each person and each form type that you wish to file for yourself and any family members.

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Chat User : Can I encounter any problems while transferring my H1B visa from an IT to a non-IT industry with different job profile?

Attorney Murthy : It is possible for one to have problems not because of the question you have posed, but because the law requires that an H1B is allowed for those in a specialty occupation and one's education needs to match exactly with the job for which the H1B petition has been approved. So, for example, if one has a BS in electronics and now wishes to work as a Marketing Manager, the H1B could be denied based on the education not matching the H1B specialty occupation. However, if one has several degrees or a varied background, s/he could get H1Bs approved for various types of professional positions.

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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 : Is it legally permitted to file two H1Bs through two different companies for the same person? And what if both of them get selected in lottery?

Attorney Murthy : It is legally permissible from an immigration law point of view to file multiple H1B petitions. The USCIS is supposed to check and not count the same person twice under the lottery system and the H1B quota but the potential concern is that, if they count the same person twice then two of the limited quota numbers will have been used up by the same person instead of another person having an opportunity. It is tempting and understandable for one to attempt filing an H1B with more than one employer, but there is also the concern of a breach of contract by promising to work for two employers on a full time, permanent basis.

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Chat User : Can H-4 visa be transferred to another employer, while it is already expired and extension petition is still pending?

Attorney Murthy : It can be transferred to another employer, but there are some potential issues that I have raised with another person in today's MurthyChat. Please note, however, that H-4s are not company specific, so it may not be necessary to file another extension request.

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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 : Dear Murthiji. if I start working with a new employer on EAD (AC21 and no H1B transfer), and for some reason if my green card and/or EAD and/or AC21 is/are cancelled, can I transfer my H1B (days left from current H1B) to new employer? Thank You.

Attorney Murthy : H-1s are not "transferred" from employer to employer. In order to file for an H-1 in this situation through a new employer, it would be necessary to be eligible for additional H1B time. If the days left on the old H-1 are part of the initial six years, then it would be possible to file for a new H1B in such situations, but there is a good chance now that the USCIS will only approve the person's H1B petition for consular notification. This means that one will need to depart the U.S. to pick up the H1B visa stamp at a U.S. consular post abroad, since the individual is no longer maintaining valid H1B status in order for the USCIS to simply extend the H1B status here with the I-94 card attached. However, if the person is in a 7th-, 8th-, etc year extension situation, s/he would not be eligible for additional H1B time if the green card case upon which the 7th-, 8th+-year extension was based has been denied, and no motion / appeal of that case has been filed.

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Chat User : H-1 transfer denied. EAD application is in process. What is my status?

Attorney Murthy : The status of one with an I-485 pending is as an "adjustment pending" status. This allows one to remain legally in the U.S., but s/he cannot start working until the EAD is approved and issued.

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Chat User : While working on EAD, if I join a college for a master's degree part time, how would it affect my work status and green card process?

Attorney Murthy : Generally, one in H1B status is allowed to pursue a college / university degree as long as the education is incidental to the H1B status, as in this case, and not full time. The GC process can also continue while one is employed and attending school part time, but the level of education required for the GC filing cannot be based on the future degree to be obtained. It must be based on the education and experience prior to joining the current GC-sponsoring employer or prior to filing the PERM, if the GC filing is based on a future job offer. Additionally, the green card case is based upon a future job offer. If the education is in an unrelated field, and one wishes ultimately to work in that field rather than the GC job or one that qualifies under the AC21 provisions, it may be necessary to re-file the green card case.

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Chat User : I have used AC21 and changed my GC-sponsoring employment. Are there any issues at POE if I use Advance Parole to enter USA?

Attorney Murthy : The CBP inspector at the POE should not have a problem with allowing one to reenter the U.S. based on the AP. The only concern would be if the I-485 has been denied when the individual traveled abroad and the CBP inspector finds that denial during secondary inspection.

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Chat User : Will the hike in salary as a result of changing employers after 180 days of pending I-485 approval affect GC approval?

Attorney Murthy : The general rule is that wage changes alone should not be the determining factor. The real question that the USCIS has raised in such cases is whether the new job is considered the "same or similar" job category, since that is the criterion on which the AC21 portability could be denied under the law. Many people using AC21 do experience significant wage increases, as they move to better positions, as is often their motivation for using AC21.

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

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Chat User : Hi, Sheelaji. I have heard from some lawyers that USCIS is introducing a new pattern for stopping multiple filings from the same person through different companies. Is that true?

Attorney Murthy : There is no law or regulation or even a policy guidance memo to this effect. It is possible that they may introduce some such rule, since it is confusing for them to keep track of whether one individual is counted twice with so many people having names that are the same or similar and, sometimes, the exact same birth date, as well, causing a lot of confusion. The USCIS is concerned about correctly ensuring the full usage of the 65,000 and 20,000 H1B numbers, as required of them under law.

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Chat User : Can I switch jobs while my H1B petition has been applied for renewal?

Attorney Murthy : It is possible for one to switch employers after filing the H1B renewal, but under the Polodny memo the new H1B cannot be approved until one is able to show that the pending / interim H1B filing has also been approved. Therefore, this can be risky.

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Chat User : Is it legal for an H1B employer to ask me to sign an employment contract that expects me to pay a certain amount towards lost revenue in case of early exit?

Attorney Murthy : An employer can only expect reimbursement for out-of-pocket losses or expenses that are considered reasonable expenses as part of the H1B filing. Generally, lost profits could be considered a "penalty" and not simply liquidated damages and, depending on laws in the particular state, such a penalty or higher amount may not be enforceable under state law.

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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 in L-1 status. If I apply for H-1 and get through it, will the status of my wife change immediately?

Attorney Murthy : There is no "automatic" change for anyone who is already in the U.S. Each person must file his/her own change or extension of status with the USCIS, if s/he is within the U.S., to maintain valid legal status. You may want to set up a consultation to help with coordinating the status issues for your wife. In order to maintain L-2 status, the L-1 spouse must keep his/her L-1 status.

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Chat User : Good Evening! My parents are visiting with us in the States on a visitor visa. We were planning on applying for an extension of stay for them. However, I went through some of your previous chat transcripts and noticed that you had indicated that, even if the extensions are approved, it may not be a good thing for any of their future immigration filings. Could you please shed a little more light on this? Also, if this is my misunderstanding, how far in advance of the expiration of their current I-94 should we file their extension applications? Thanks.

Attorney Murthy : It is true that any person living for more than six months in the U.S. on a B-2 tourist visa generally is viewed by the USCIS as reasonably not having strong family and financial ties to the home country. Accordingly, if s/he remains for longer than six months and then departs the U.S. and tries for a new B-2 visa after a year or two, the consular officer will most likely deny the B-2 visa stamp, since the individual stayed in the U.S. for so long on a prior visit. That is what I mean. There is also a substantial risk that the visas will be revoked automatically by law if the extension is not approved. For most people who are simply visiting the U.S., a stay of six months is more than adequate.

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Chat User : My wife and I both are in H1B status. Recently we received our EADs. Can my wife go to EAD and then, if there are any issues with GC, can she return to H1B status?

Attorney Murthy : A person is allowed to work on the EAD and then attempt to return to H1B status, if the earlier H1B dates have not yet expired or, if the dates have expired, then file for consular notification of the new H1B petition in case of a problem with the I-485 or the EAD. However, in order to obtain another H-1 approval, there would needs to be H-1 time remaining in the initial six years, or eligibility for the 7th+ year extension, as explained above.

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

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Chat User : If I have applied for an H1B extension (My current H1B has expired.), can I enter United States on Advance Parole without getting my H1B stamped in my passport, but at the same time maintain my H1B status?

Attorney Murthy : It is possible for one to reenter the U.S. on the AP and then, when the person's H1B extension is approved after s/he has entered the U.S., reverting to H1B status presumably under the last action rule. The reason I add the word "presumably" is because there is no statute or regulation on this issue and the Legacy INS memos of March 2000 and May 2000, along with later USCIS guidance, are not crystal clear but seem to indicate this result overall.

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Chat User : What are the eligibility criteria to apply thru H1B remainder Quota?

Attorney Murthy : It is not clear what you mean by the remainder quota, but if one is a citizen or national of Chile or Singapore, then s/he has until the end of the USCIS fiscal year (Sep 30^th) to file and use the approximately 6000 H1B numbers available under law for citizens of those countries to file the H1B1 petition with an immediate start date. The eligibility criteria under the law are similar to H1Bs for nationals of other countries.

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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 : When I work in H1B status for an employer, can I also work a part time job using EAD? -Thanks.

Attorney Murthy : If one uses the EAD for any employer, then s/he is deemed to be using the EAD, but the law potentially permits one to file an H1B extension as long as s/he continues to work for the H1B-sponsoring employer. Then, if at some point the individual stops using the EAD for the second employer, s/he can continue to renew the H1B with the first or file another H1B with a new employer.

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Chat User : Can I start working for my new H-1 employer at a later date though the H1B petition that has been approved from Oct 1? What is one's status if s/he is in the USA already?

Attorney Murthy : The USCIS position is that the employer has a max of 60 days to start paying the person from the date of employment eligibility under ACWIA law. Failure to do so and then not requesting revocation of the H1B petition could result in the Department of Labor's requiring the employer to pay back wages. The H1B worker himself is supposed to be working and getting paid in order to prove that s/he is in status. If the employer cancels the H1B, the individual is still allowed to use the H1B quota number to file a new H1B with any other employer within the next 6 fiscal years without the need to be counted against the quota again.

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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 : Dear Murthiji, I got my EAD, 180 days passed. Assuming I start working for a new employer on H1B transfer the same day it is applied, and for some reason H1B transfer is denied after a few days, what is my status and what are my options?

Attorney Murthy : As mentioned above, one who has filed the I-485 is considered an adjustment applicant and can maintain that status and work on the EAD if the H1B petition is denied. To discuss the various options available to an individual, s/he must consult with an attorney, since I am not familiar with all the nuances of your background, prior status, education, and nature of employment, etc.

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Chat User : Hi, Do I need to be in the country during the time of I-140 approval?

Attorney Murthy : It is not necessary for one to be in the U.S. on the date of the I-140 approval, since an employer can file the I-140 for an employee based on future employment while the employee lives and works abroad.

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

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Attorney Murthy : We hope we have helped you in today's MurthyChat. We at the Murthy Law Firm look forward to continuing to help you, your family, and your friends with all of your immigration matters.

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Chat Master : Thank you all for logging in! This was a special session, since Attorney Murthy will be traveling at the usual time for the chat on March 3, 2008. The chat is generally held on the 1st and 3rd Monday of each month. 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 © 2008, MURTHY LAW FIRM. All Rights Reserved