Chat : March 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 : 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 related issues. Thank you for your interest in our MurthyChat.

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Chat User : I have applied for LC substitution (filed I-140 and I-485 concurrently). Can I upgrade my case for I-140 premium processing? What are the chances of success?

Attorney Murthy : Generally, the USCIS policy has been that they will not premium process an I-140 in an LC substitution case unless the original LC is sent in along with the I-140 petition. So if one can fit into that category, then premium processing is an option. The success of the I-140 petition will depend on the employer's financial standing and the employee's having met all the requirements under the original LC at the time of filing that LC.

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Chat User : Is it too late to submit papers for H1B later than April 6th? How fast did the cap fill last year?

Attorney Murthy : Well, last year, the H1B cap was only met on May 26, 2006; but this year, we expect the cap to be met within a day or two, based on greater pent up demand for almost a year. Waiting until April 6, 2007 to file may be too late, unless Congress increases the cap, or unless the case qualifies for the advanced-degree cap's additional 20,000 exemptions.

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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. My I-140 with company A was rejected in EB3, and company A filed a Motion to Reopen. In the meanwhile, can I apply again for I-140 in premium processing through employer B with their existing substitute labor in EB3?

Attorney Murthy : Yes, it is possible for a person to file two separate I-140 petitions with two different employers for separate jobs, as long as one can qualify under both categories. The dilemma of promising two employers that one will work for both of them upon obtaining the GC may pose an ethical issue.

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Chat User : Priority date was transferred to another employer after I-140 was approved. Can I rejoin the old employer and continue the green card process by filing I-485 with the original priority date?

Attorney Murthy : Yes, one would retain the original PD with the first employer, and that I-140 with the underlying labor certification (LC) will remain valid as long as that LC has not been used for another person by the employer.

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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 : Can a person on an H1B visa apply for an extension of the H1B and H-4 visa for the spouse if the spouse is not present in the USA and does not plan on entering the USA until the extension process is complete?

Attorney Murthy : The general rule of law is that a person can only file for an extension of status if s/he is in the U.S. If one is abroad, then the spouse could show the H1B approval of her principal spouse and request an I-94 card at the border / port of entry to match the principal H1B holder's expiration date, as long as the H-4 spouse's H-4 visa stamp in the passport has not yet expired. Otherwise, the spouse who is abroad will need to obtain a new H-4 visa stamp prior to entry to the U.S.

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Chat User : Hi. Once the I-140 is approved for a particular labor, is it possible to apply for I-140 again on the same labor for a different candidate?

Attorney Murthy : It is possible for the employer to request a withdrawal and revocation of that underlying I-140 with the LC for another, future employee. However, that second employee faces a risk if the original person has obtained the I-485 approval under that I-140 petition, so one must be cautious before taking advantage of this situation.

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Chat User : I am applying for H-4 to H-1 this year. I have a master’s degree and 4 years of work experience from India. There is a gap between my graduation and master’s and also a gap in employment between my first job and the second job out of three total jobs. Will there be any issues for filing H-1? Thanks.

Attorney Murthy : A gap in one's educational or work history should not be an issue for the H-1 filing, as long as the individual is able to show that s/he has the required educational and/or experience required for the H-1 category and the particular H-1 job the employer has offered. It appears that the gaps in employment and education occurred in India and would not involve any failure to maintain status in the U.S.

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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 : Dear Ms. Murthy, what is the difference between adjudication and pre-adjudication of an employment based I-485 case? Does this mean that all checks except the security check are pending for processing a pre-adjudicated case?

Attorney Murthy : Generally, the term pre-adjudication of a case means that the mailroom will verify that the form/s have been correctly signed and dated, the correct checks are included, etc. For adjudication, the substance of the petition or application is reviewed more closely before the USCIS can issue a decision on the case.

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Chat User : Once one completes more than 365 days after obtaining EAD, and then the employer terminates the individual, can s/he switch to another company?

Attorney Murthy : The rule on AC21 portability is that one's I-140 petition should have been approved and the I-485 pending at least 180 days. Then the person can join a new employer based on the new job being the "same or similar." In that case, one can continue the GC processing through the new employer based on the job offer letter confirming the job duties, etc.

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Chat User : Hello Murthyji. Thank you for this great service. I am on H1B, and my wife is on H-4. Our labor has been approved, and I-140 has been filed and pending. My wife is pregnant and planning to travel to India to deliver the baby there. Would we be able to bring the baby back if the I-140 is approved and I-485 is pending?

Attorney Murthy : A child born abroad will need to obtain his/her own H-4 visa stamp in his/her passport to enter the U.S. The earlier rule of endorsing the child onto the mother's passport is no longer permitted post September 11th. Now each person (including an infant) is required to have his/her own passport. Of course, this assumes that the parents are still H-1 / H-4 and have not obtained the I-485 approval. If a parent's I-485 is approved before the child's birth, then the situation changes.

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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 : Hi, Attorney Murthy. It appears a change of status from H-1 to F-1 is taking 3 months. My school starts early. Can I start school once the change of status is filed? Thanks.

Attorney Murthy : A person who is in H1B status is allowed to start attending school simply upon the filing of the change of status to F-1, as long as s/he does not intend to take advantage of a teaching assistantship or other form of compensation on F-1 status. If there is compensation, then the F-1 COS must actually be approved in order for the person to be paid or receive a tuition reimbursement.

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

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Chat User : My employer is relocating me to Canada for a year or so next month. During my stay in Canada, I will have no U.S. address as my family is moving with me. I am about to file for I-140 and I-485 stages. Which home address should I give to the USCIS through these forms? The existing USA address, which will not be valid after 4 weeks, or a future Canadian address?

Attorney Murthy : A person has to be in the U.S. to file the I-485, and cannot depart the U.S. after filing the I-485, unless s/he has obtained an H1B status and H-4 status for the dependent family members. If the person has valid H1B status, then s/he can travel abroad and reenter in H1B or H-4 status while the I-485 is being processed, but s/he is not supposed to be living abroad. For one who is abroad, generally, s/he should select consular processing, which could actually work out much better as it can be faster in many cases. You should speak with your immigration lawyer to discuss these options.

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Chat User : How long does it take to get EAD on an L-2 visa? Can the applicant work legally before actually getting the EAD card during at the time the application is pending with the USCIS?

Attorney Murthy : It takes about 2 to 4 months for most EADs. A person is NOT allowed to work legally until s/he actually has the EAD in hand. Even having the USCIS letter confirming that the EAD is approved and being mailed is not sufficient, legally. It puts a risk on both the employer and the employee.

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Chat User : I got laid off from the company where I had done my AC21 portability. I have been with this company for a year. My GC process is in the last stage of adjudication. Do I have to go back to my original (future) sponsor / petitioner by doing AC21 portability again? What will happen to my case?

Attorney Murthy : It is not necessary to return to the original employer, since AC21 law does not limit it to only one employer. One potentially could move from one employer to another, as long as the individual can meet the requirements, under AC21 portability, in terms of the new employment being the same or similar job occupational classification and the I-140 petition having been approved.

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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 : Is it possible to change status from H-4 to F-1 and later back from F-1 to H-4? Does it involve a mandatory trip to the home country?

Attorney Murthy : One can switch from one nonimmigrant visa (NIV) category to another, like H1B or H-4 to F-1, and back, as long as s/he is maintaining valid, legal status in the U.S. Otherwise, s/he has to go abroad, pick up a new visa stamp, and reenter the U.S. in the new status; but there is a risk in both cases of a denial of the COS or the visa issuance.

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Chat User : Hi. I came to the U.S. on November 20th 2005 and started working from July 2006. I am still working, but I have changed my employer. Now I want to go to India. Do I have to get my visa stamped?

Attorney Murthy : If one's H1B visa stamp has not yet expired, s/he only needs to show the earlier H1B stamp issued for a prior employer with the latest H1B petition approval from the USCIS for the new employer and obtain an I-94 card at the border to match the latest H1B approval notice date with the current employer.

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Chat User : Hello, Ms. Murthy. How long does it generally take for the H1B to be approved by normal procedure? Can I go to India and come back before the approval comes? Currently, I am on an H-4 visa. Thanks.

Attorney Murthy : If one departs the U.S. while a change of status (COS) is pending with the USCIS, then s/he is deemed to have abandoned the COS. It will then require the person to file and obtain an H1B visa stamp from the consulate abroad after the H1B petition has been approved, but the person will only be able to enter the U.S. in H1B status on or after September 20, 2007, when the start date is October 1, 2007.

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

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Chat User : If both husband and wife have their I-140 approvals, and they file I-485 (jointly), can they use one person's priority date and the other person's category to their advantage?

Attorney Murthy : It is not simple, but there is a possibility that one could file based on the earlier PD and then request the USCIS to switch and interfile the new I-140 in the higher category with the pending I-485s. We have seen that and done it successfully, but it can be confusing for the USCIS.

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

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Attorney Murthy : 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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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