Chat : March 05, 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 :
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 : Is it possible to start a company with an EAD? I am EB3
India with a PD of August 7, 2006 (previously Schedule A). Can I hire
someone on an H1B?
Attorney Murthy : It is possible to start a company / business while
on EAD. The risk that folks sometimes see is that, if the EAD is canceled or
the job is lost, etc, then any time and/or money investment may be lost
without having permanent resident status. Other than that, a person on an
EAD is similar to a GC holder and can hire, fire, or do other business as
long as the principal person, whose GC was processed, plans to continue
working in a position that is same or similar to that for which the GC was
processed. That is, either the business needs to be strictly a secondary,
side business, OR if the person opening the business is the primary
beneficiary in the green card case, the new business needs to be able to
offer a position that qualifies under AC21 in order to get the green card
case 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 : Hi, Murthy jee. I am at the end of my 7th-year, H-1
extension. My EB3 I-140 is approved, and I filed for a 3-year, H-1 extension
while the I-485 dates are not current. Can I change jobs at this stage and
start a new green card process with the new employer?
Attorney Murthy : A person is allowed to file and obtain the 3-year,
H1B with any employer, including a totally new employer. Then, while that
H1B is valid, the person could start a new LC/ GC process. While the PD may
be available after the I-140 petition approval, there is a possibility of its
being revoked, so that the person may end up losing the PD, in some cases.
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Chat User : Can I file 2 H1Bs with the same starting day (quota based
for 2008 L-1 to H-1) and choose whichever I want on October 1st?
Attorney Murthy : It is possible to file more than one H1B with
different employers. The possible risk is that the USCIS may end up counting
the same person twice for visa numbers. It is better to file with one safe
employer. Then, before October 1, 2007, the person is allowed to file to
change employers based on already having been assigned an H1B
number under the FY2008 quota. It is also necessary to consider any risk of
a potential lawsuit for breach of contract or creating ill will by promising
two employers that one intends to work with both of them, when no such intention
exists.
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Chat User : Without revoking my labor, can my employer substitute it
for someone? My I-140 is approved. I am on EAD. Am I eligible for AC21?
Attorney Murthy : The general rule is that an employer can only
revoke the I-140 petition and then use the LC to substitute another
potential, full-time, permanent employee under that approved LC. If the
I-140 petition has been approved with the I-485 pending for over 180 days,
then AC21 is potentially available, if the person is able to find the same or
similar job.
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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 : If I have applied for an H1B transfer and I want to take
a break from working, can I resign from the first company and stay without
working for a couple of months and then join the second company after two
months? Is my stay during those two months considered legal?
Attorney Murthy : It is possible to quit an employer. Then, while the
new H1B petition is pending and before it is approved, one could potentially
stay in the U.S. without opting to work. Before AC21, if one lost the
earlier job, s/he could not work until the new H1B petition was
approved. Even after the H1B petition approval, it was deemed that the
person had 30 days, if entering from abroad, or 60 days, if in the U.S., to
start working, but those rules seem less clear in the post AC21 world
without any guiding regulations. Most likely, the staying on is allowed
without working. To be 100 percent safe, one should consider departing the
U.S. and reentering after the H1B petition is approved to work with that new
H1B employer. Alternatively, if married, it might be possible to change to
H-4 or some other dependant status in order to take a break, and then return
to H-1 later.
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Chat User : Can a company file for an H-1 transfer for a person
having a valid H-1 visa, but who is currently not working / residing in the
U.S. for the past 6 to 7 months (he used to work in the U.S. 6 to 7 months
back)? Will this person need visa re-stamping in his passport, even if his
previous company's visa is valid?
Attorney Murthy : The general rule is that the person is allowed to
file for a new H1B petition to work for the new employer and use the
earlier, unexpired H1B visa stamp with an earlier employer to reenter the
U.S. The person must obtain an I-94 card at the border / port of entry, valid until the latest H1B petition approval
date, and not the earlier expiration date of the H1B visa stamped in the
passport.
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Chat User : I am on my OPT and am going to apply for my H-1 through
my current employer. Can I transfer it once it's approved before its
starting date? Are there any risks involved?
Attorney Murthy : Generally, the rule is that one is allowed to
transfer or file a new H1B petition with another employer or employers even
before the start date, as long as one can establish to the USCIS that s/he has maintained lawful, nonimmigrant status in the U.S. The risks may
have more to do with an employer suing for reimbursement of the legal fees /
other expenses spent along with substantial other damages for breach of
contract, rather than a risk to the person processing more than one H1B
petition.
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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 : Can one leave her/his company after the I-140 is approved
and still continue green card processing with the original company, with the
H1B transferred to another company? Will s/he have to go back during I-485
filing?
Attorney Murthy : The safe rule is to return to the GC
sponsoring employer when the priority dates become current and rejoin that
employer to show one's good-faith intention to work on a full-time,
permanent basis for that employer. Nowadays, unlike before, the USCIS seems
to be processing many GC cases much faster at the I-485 stage if the
priority dates are current. One could wait for a few months, but
whether there is an RFE or not, the safe rule is to work for a certain
period of time before and even after obtaining the I-485 approval / GC stamp
/ getting the actual I-551 card in the mail.
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Chat User : Hi, Attorney Murthy, and thanks. I did fingerprinting more than 3
years ago, and the case is still pending security check. Would I be called
for another fingerprint? Would that happen after the security checks are
cleared? Would that still need to be sent to the FBI? Would that mean more
delay?
Attorney Murthy : Yes, a person is supposed to be called in again
after 15 months for another FP. The FBI is apparently completing their
check quickly, in many cases, but the USCIS takes a much longer time to
process it and sometimes blames the FBI, according to a recent lawsuit in
which
the judge blamed the USCIS for lengthy delays in the security checks. Of
course, sometimes the delays are the fault of the FBI. Now, the USCIS
position seems to be that merely filing a writ of mandamus does not
guarantee a rush of the case. However, that does not mean that the option is
no longer available. It just means that the mere filing of the mandamus
will not necessarily prompt the USCIS to complete the fingerprint processing
on an expedited basis.
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Chat Master : For the latest news in U.S. immigration and what it all
means to you, subscribe to MurthyBulletin - our FREE, weekly
eNewsletter delivered to your Inbox! Visit <http://www.murthy.com/signup.html>
to find out how.
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Chat User : How will an approved, EB3 LC be affected if the same
employer re-files the case under EB2 PERM to avoid retrogression?
Attorney Murthy : If the earlier position is no longer the future job
that the person intends to accept, based on her/his being qualified now
for a job with a higher level of responsibilities, it will not be any
problem and, in fact, makes sense. The employer and employee can both
benefit in such a case, but it is safer not to use any experience gained
with the GC-sponsoring employer unless the new job duties are at least 50
percent
different from the job for which the GC is being filed.
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Chat User : Is it possible to file an H1B in April for an undergrad
student who will be graduating later this year in June? The degree is B.E.
Computers, and the start date will be October.
Attorney Murthy : The general rule, under law, is that a person must
be fully qualified for that classification on the date of filing a petition
or application. The problem in this case is that, if one waits, s/he could
lose that valuable H1B number, so it is a Catch 22. It is possible that the
USCIS may consider the case, if the person is able to submit a letter from
the school confirming completion of all coursework except for the actual
degree, but there is still a risk that one could be denied and then have to
lose an entire year and a half in the process.
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Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
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Chat User : Dear Ms. Murthy, I currently have an L-2 and an EAD. I am
planning to go for H-1 in October. Once the H-1 is stamped, will the L-2 and
EAD automatically become void?
Attorney Murthy : Actually, by law, the L-2 and EAD do not become
void automatically simply upon a person filing for an H1B with a start date
of October 1st. In fact, there are old Legacy INS memos that
provide that a person is allowed to have two nonimmigrant visa (NIV) statuses
with the goal that s/he will elect one NIV status when reentering from
foreign travel. However, an individual can only hold one status at a time. Therefore,
if the person enters on H1B, then s/he can only work for the H1B
company. They would need to change status (or travel and reenter) to L-2 to
take up that status and the EAD again.
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Chat User : My I-140 is being filed with a substitute labor. My
education is 10+2+3 from an Indian school system. Does this need to be
supported with some education evaluation? When does the DOL's substitution
end? Any tentative timeline?
Attorney Murthy : The answer to this question depends upon what the
labor certification requires. If it requires a degree that is equivalent to
a bachelor's degree (and specifies equivalent, rather than requiring a
bachelor's degree), then submitting an evaluation may be sufficient. If the
labor certification requires a bachelor's degree, then one cannot rely
on a 3-year college education to equate to a 4-year U.S. bachelor's degree,
particularly with the Nebraska Service Center (NSC) taking the position that
no amount of experience or even a combination of other certificate or course
work or even a master's degree will suffice, since it will not be a single-source degree to meet the test for a
bachelor's degree in the U.S.
Sometimes, even the term “or equivalent" is not, in and of itself, sufficient
with only a 3-year degree. Sometimes, it is much safer to file a proper, new
LC under PERM. Otherwise, one could risk losing a lot of time and money and
then having to start a new case, anyway, when the LC / I-140 are denied after
many months.
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Chat User : Thank you, Sheelaji, for this great service. I have a
question. What date is considered when applying for U.S. citizenship when
married to a U.S. citizen? Five years from the date of marriage or five
years from date I got my green card?
Attorney Murthy : The rule for filing for U.S. citizenship based on a
person who obtained the GC through the U.S. citizen spouse is 3 years from
the date the person obtained the conditional GC status, or rather 3 months
before the 3-year time from that date. If the person got the GC through the
employer, then, if s/he is married to the U.S. citizen (USC) for at least 3
years, and the USC has been a USC for at least 3 years, s/he is
allowed to file for U.S. citizenship within that 3-month window before the
end of the 3 years. It can be confusing, at times, since immigration law can
be complex, and the interpretations and rules seem to keep changing.
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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 on H1B since October 2006 and haven't started
working yet. I want to convert my status to H-4 again. What is the procedure
if I want to change to H-1 again in the future?
Attorney Murthy : The general rule is that it is not possible for a
person who has failed to maintain legal status in the U.S. to file for a
change of status with the USCIS. The safer procedure may be to travel abroad
and apply for the H-4 visa stamp from abroad and reenter the U.S. in the H-4
status, in such cases. It would be better if they have the H-4 stamp, so
that they don't need to re-apply. The one-year delay could pose a problem for
one in obtaining the GC within the U.S. or obtaining an I-485 approval
for failure to maintain status beyond the maximum time of 180 days, barring
some other exception available under law. It could also pose a problem in a
visa application.
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Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
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Chat User : What are the formalities for bringing a baby to the U.S.
if the baby is born in India to (a) 2 Permanent Resident Parents (b)
2 U.S. Citizen Parents?
Attorney Murthy : Here are the general rules in such cases: In the
first case where both parents are GC holders, the child enters the U.S.
immediately as a permanent resident if the child is below the age of 2 years
at the time of first entering the U.S. and it is the mother’s first return
trip. But the parents will need to go into secondary inspection at the
airport or other port of entry to ensure that the child's green card is
mailed to the home address. If both parents are U.S. citizens, in many
situations, the child automatically will be a USC. In that case, the parents
can register the birth and obtain a U.S. passport from the U.S. consulate in
that country so that the child can enter the United States as a U.S. citizen.
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Chat User : Is it possible to get B-1/B-2 from OPT without going to
my home country?
Attorney Murthy : It is possible for the USCIS to approve one's
status from F-1 OPT to B-1/B-2 status if the USCIS obtains convincing evidence from
the person that s/he continues to have strong family
and financial ties to the home country. The risk for the individual, in such a
case, is that, after s/he has lived in the U.S. for 2 or 3 years,
by not even going home for a few months of holiday at the completion of the
study, the person is trying to stay on in the U.S. So if one establishes the
strong ties, then one could potentially obtain the COS to B-1/B-2 within
the U.S. itself.
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Chat Master : Your participation has made this the Internet's most
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MurthyDotCom.
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Chat User : If a person has filed his/her I-485 before marriage, can
the spouse file for the EAD and AP while waiting for the priority date
to become current?
Attorney Murthy : The spouse cannot file for the EAD or AP until the
spouse is allowed to file the I-485, which is only possible when the PDs
become current.
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Chat User : Hi. If I-140 is rejected for a particular labor, can that
labor be valid for another person?
Attorney Murthy : It is certainly possible that an LC not valid for
one person would certainly work for another person who has the relevant
qualifications as listed on that LC. However, if the I-140 is denied for the
company's lack of ability to pay the offered wage, then the new person will
encounter the same problems if that same, earlier PD LC is re-filed.
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Chat User : Hi! I'm a physician with an approved NIW completing 5
years in a designated HPSA. I have an EAD. Can I work anywhere (as a
physician) after the completion of 5 years while waiting for AOS? (I am from
a retrogressed country.)
Attorney Murthy : The general rule, under law, is that such a
physician who has completed the 5-year term is allowed to work in any other
area or any other employer. The USCIS usually issues a Request for Evidence,
requesting proof of the 5 years of work. Before leaving the HPSA position,
it is best to make sure that there is good documentation of 5 full years of
work.
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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 : Hello. I'm planning to apply for H-1 for my wife from
India. Can you please tell me if she can come here on H-4 in May and change
to H-1 in October?
Attorney Murthy : Yes, under the doctrine of dual intent, there are
no fraud or other concerns for a person entering in H-4 status to file a COS
to H1B within a few months after entering the U.S. However, your timing is
not good. Since the H-1 cases can be filed as of April 1, the cap could be
met if she waits until May. It would be better to come in earlier - end of
March - and file the H1B case OR file the H1B for consular processing for all
H1B cap-subject cases.
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Chat Master : This ends tonight's session of the MurthyChat.
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Attorney Murthy : Thank you for your participation in our
MurthyChat. We look forward to continuing to help you, your family and
friends with all of your immigration law needs.
----------------
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.