Chat : February
26, 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. Thank you for your interest in our MurthyChat.
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Chat User : I am in my 7th year of H1B right now. My I-140 is
approved, and my priority date is not current. If I change employers, will I
get a 3-year extension on the H1B transfer or less?
Attorney Murthy : One is allowed to obtain the full 3 years of
H1B extension with any other employer if the person has an I-140 petition
approved either with that or another employer. So it is possible to file and
obtain the 3-year H1B extension as long as that I-140 petition is not
revoked or canceled before the 3-year H1B extension is approved.
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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 : If an H-1 visa stamping gets rejected or is put on hold,
is it possible to apply for L-2 visa stamping? Is there any "cool off"
period between the two? Will H-1 refusal / hold status have any repercussion
on L-2 stamping?
Attorney Murthy : Generally, a visa refusal under one category does
not prevent a person from applying in another category, unless there is an
issue of fraud that was the reason for the earlier visa
denial. Sometimes, there could be a problem based on improper intent if one
requires clear nonimmigrant intent and the other one does not. In this case,
the H1B and the L-2 both enjoy dual intent, so there should not be any major
issues.
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Chat User : Does AC21 apply to EB1 EA self-petitioners with an I-140
approved? What is the process for changing jobs before the I-485 is
approved?
Attorney Murthy : The AC21 portability provisions apply to all EB
categories. The law was always more generous to self-petitioned cases, like
EA or NIW, since they are both exempt from the job offer requirement. The
only condition in both EA and NIW cases is that the new job continues to
prospectively benefit the U.S. in the same field of work. So, these
categories have job flexibility separate from the AC21 portability
provisions.
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Chat User : My labor is approved, and I’m waiting for the I-140 to be
approved. If I change my job after I-140 approval, do I have to start a new
GC procedure from scratch with new employer?
Attorney Murthy : A person has to start the entire GC from scratch
with a new employer, except, possibly, taking the earlier priority date after
the I-140 approval, as long as the earlier employer does not cancel or
revoke the earlier I-140 petition for use by another employee.
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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 : Are there any restrictions for a person on EAD to start
and work for his own company?
Attorney Murthy : There is no real restriction for a person to work
for his/her own company on the EAD except that, if the person is using AC21
portability, the new job with one's own company must be the same or similar to
the job duties listed on the earlier LC and I-140 so that the I-485 approval
can be obtained down the road. The key issue is that one needs to continue to have a proper basis for green card approval.
If a dependent or spouse on the EAD starts the company and works
for it, then s/he is not tied in to the AC21 restrictions, unlike the
principal GC applicant.
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Chat User : Hi. My wife is a green card holder, and she has filed an
I-130 for me. It’s not yet approved. Can I travel outside the U.S. and
return while my case is pending? Are there any repercussions if I travel
during this time? Thanks for your reply.
Attorney Murthy : The general rule is that a person obtains no
immigration legal status merely by virtue of the filing of the I-130 by a GC-holder spouse. So, unless
one has an H1B or other legal status in the
U.S., s/he cannot reenter the U.S. simply by having an I-130 petition
filed on her/his behalf. It would be best if one could enter in H or
L status, since there is a conflict between the I-130 and most other
statuses.
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Chat User : I am on an H1B visa working in the U.S. Can I work
simultaneously for a Canadian company on PR status in the U.S.?
Attorney Murthy : It is not clear what you are asking. A person
in H1B status cannot work for any other employer in the U.S. until that
person has legal status with another H1B approval to work for another
employer or other legal status, like an EAD based on a pending I-485, to
live and work legally in the U.S.
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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 : USCIS is waiting for the DOL to send a copy of my
substitute LC. My I-140 has been pending a long time (nearly
20 months). Is there a way to expedite this process / step? Can we send a
request to the DOL through a congressman or senator? Thanks.
Attorney Murthy : The DOL has been delaying many such cases. It is
certainly possible to request political intervention. There is no guarantee
it will work, but at this time, it is difficult to imagine that it can do
any further harm, since it is well past their normal processing time. It is
quite common for the DOL to take about a year or two, or sometimes longer,
to send a duplicate LC approval or obtain the original approved LC back from
the employer.
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Chat User : I am on an H1B visa which expires in June 2007. I got
married in December 2006. My husband is a green card holder who applied for
citizenship recently. If he does not get his citizenship before June 2007,
what will be my status?
Attorney Murthy : One who does not
extend legal status falls out of status and starts to accrue the 3-year or 10-year bar on entering the U.S. If there is a delay, it is often
not detrimental after the spouse finally becomes a U.S. citizen, but there
is a risk if the USCIS starts removal proceedings against the spouse before
the other spouse becomes a U.S. citizen. It is unlikely to pose a problem,
but there is always a risk in any such cases. Since citizenship is not
guaranteed, it is best to make plans to extend the H-1.
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Chat User : Murthy Ji, does revocation of an LC substitution mean
revocation of the previous applied I-140 (still pending) petitions?
Attorney Murthy : Yes, if the employer has revoked the previous LC or
I-140, that means that the earlier LC substitution has been revoked by the
employer for use by another employee, which can cause major complications for
the person to obtain the GC, in many such cases.
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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 : Green card filed in 1986 by my real brother. Interview
came in 1997, but I did not accept. Now I want to reopen the old file. Will
the priority date be current?
Attorney Murthy : Generally, it is not possible to reopen an earlier
file if the consulate / DOS offered the person one year and then granted a
second year timeframe to take up the opportunity. At the end of the 2 years,
the case is considered closed. However, in such cases, a new I-130 could be
filed by the same person and, in all likelihood, the earlier priority date
can be assigned.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : Recently, my address changed. Can I renew my EAD on my
new address without making a change-of-address request?
Attorney Murthy : A person can and should file the new EAD with the
new address, but s/he should also file the online application showing
the new address, and file the AR11 with the new address.
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Chat User : What is an H1B amended notice from INS when one sends the
approval notice for correction?
Attorney Murthy : An H1B amended notice means that the USCIS
acknowledges their error and sends the new approval notice mentioning that
it is an amended approval notice.
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Chat User : Has Congress come to any decision on retrogression? If
no, how long before a conclusion is reached? If yes, what will the impact be
on EB3 category?
Attorney Murthy : Generally, the rule is that, until a new law is
passed, the earlier law remains in effect. There is nothing concrete on
retrogression so far. We don't know if Congress will pass any law, and even
if they do, it may not help every person to obtain what they wish from the
USCIS.
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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 : Will it be too late if I apply for H1B in the 2nd week of
May if currently I am on a B-2 visa and have filed for an extension in March
2007?
Attorney Murthy : There is a great risk if the USCIS does not receive
the new H1B petition on April 2, 2007. A person is allowed to file for a COS
from H-4 to F-1, or any other status, as long as s/he has filed for an
extension while still maintaining current, legal status.
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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 Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : I currently have an H-1 from a nonprofit company. If I
change my job and get a new H-1 from the cap, do I have to wait until
October to start?
Attorney Murthy : One is allowed to start working for the new
H1B employer upon filing the new cap-subject H1B petition, but must stop
working when s/he obtains the H1B approval with a future start date of
October 1st, in this example. The cap-subject case cannot have a
start date prior to October 1st.
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Chat User : How is a pending H-1 petition affected if one
enters the U.S. on an H-4 visa while the H-1 petition is still being
reviewed?
Attorney Murthy : Generally, if a person departs the U.S. while a
change of status is pending, then s/he is deemed to have abandoned the
COS request by departing the U.S. If the person departs after the H1B
petition is approved with a future start date, then it does not pose a
problem for that H1B to start effective from October 1, 2007, in this type
of example. If the person was not in the U.S. before the H-4 entry, the H-1
will continue, but will be requested for consular processing. Thus, the
status will not change on October 1st, even if the H-1 petition is approved.
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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, is it advisable to process the H-1 transfer based on
the H-1 petition if it is in process of cancellation? How long does it take
for the H-1 cancellation for the company, and is it possible to know if your
petition is valid or not? Thanks in advance.
Attorney Murthy : It is possible to file a new H1B while the earlier
one is being canceled or revoked. In fact, the safer route is to file the
new H1B under premium processing, since many revocations can take about 3 to
4 months to be processed through the system.
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Chat User : Good evening. I'm presently in the U.S. on an H-4 visa,
and my prospective employer will be petitioning my H1B soon. Must I also
separately file a change of status (I-539) with CIS? Please clarify.
Attorney Murthy : The Form I-129 acts as both a request for the H1B
status and for a change of status, in such cases. Only dependent family
members need to file the I-539 to change their legal status, in such cases.
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Chat User : Hi. I have one quick question. My employer says that his
company return for last year was not good. Will that affect my H1B extension
which I will be filing? Also, is labor substitution allowed as one company
is asking me to join them? Your help will be appreciated very much.
Attorney Murthy : Generally, a weak tax return should not adversely
affect the H1B petition approval itself, although it does ask for employees
and revenue information, so it could be an issue. However, that same weak
return can be devastating for the GC case. LC sub is available today, but
may no longer be allowed once the DOL issues the final regulation on this
subject, which could occur at any time.
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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, Murthy Ji. I am planning to convert from H-4 to H-1
this year. If I go for visa stamping in India, and in case it gets rejected,
can I still come back to the U.S. on H-4, or what steps do you suggest so
that I can come back to the U.S.?
Attorney Murthy : It is generally possible to return on H-4 or H1B,
in this example, in case the visa stamping is rejected in India.
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Chat User : My fiancée is planning to come to the U.S. for one year
training on an H-3 visa. How hard will it be for her to transfer to H1B or
H-4 (I am on H1B) status after one year of stay on H-3?
Attorney Murthy : A person in H-3 status will not be able to file a COS to
H1B, as the statute specifically prohibits that. She should be very careful
about issues of misrepresentation. It is best to set up a consultation with
a qualified immigration attorney on this matter. She may have to spend at
least 6 months abroad after the H-3 before being eligible to return in H or
L status.
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Chat Master : This ends tonight's session of the MurthyChat.
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Attorney Murthy : I am happy that we could help you today with your
questions. 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>.
----------------
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.