Chat : April 02, 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. Thank you for your interest in our MurthyChat.

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Chat User : Dear Attorney Murthy, can you please tell me where I can check for the H-1 cap? How many visas are done?

Attorney Murthy : The USCIS will have to release that information. Until they are able to count how many cases are filed starting from today, April 2, 2007, and share that information with us, we cannot share that information with you. Soon after the government releases that data, we will inform our readers on MurthyDotCom.

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Chat User : Can one include the experience with the current employer when filing for the green card labor under EB2 PERM from the same employer?

Attorney Murthy : Generally, one cannot use the experience gained with the GC-sponsoring employer unless the job duties of the future job for which the GC is filed is at least 50 percent different from the current job of the person with that employer. To avoid a potential problem or audit by the Department of Labor, it is safest not to include the work experience gained with the current GC-sponsoring employer, if at all possible.

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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 : My I-140 is pending. If I change my job after the I-140 is approved, does my new employer have to file for my GC all over again, and will I be carrying my priority date from the old labor? What happens to my old labor?

Attorney Murthy : The general rule of law is that, after the I-140 petition approval, one could potentially retain the earlier PD and carry it over to a new employer by starting the entire GC process from the beginning, as long as the earlier LC and I-140 petition are not revoked for use by the employer for another employee. The earlier LC can be used for another employee if the employer wishes, and that could jeopardize using the earlier PD.

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Chat User : Hi. My I-140 was rejected for my company. My company reopened the case in a Motion to Reopen. I did not get any reply for the last 8 weeks. How much time will it take to decide the MTR? In the meanwhile, can I stay here legally?

Attorney Murthy : One is not allowed to remain legally in the U.S. based on the I-140 or an MTR. S/he is required to have a valid, nonimmigrant status (like the H1B that has not expired) in order to work and live legally in the U.S. An MTR decision can take anywhere from several months up to 2 or 3 years. The safer option is to file a new PERM case as a backup, in most instances. A person is allowed to file for the one-year H1B extensions based on the pending appeal / MTR, but the filing of the MTR provides no legal basis in and of itself, unless the person has an H1B or other legal status in the U.S.

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Chat User : Ms. Murthy, I am a U.S. citizen. I would like to file for my unmarried brother (over 21years). If I file now and he were to marry after 2 to 3 years, do I have to refile for him? Thanks.

Attorney Murthy : No. In fact, that is the only family-based category that does not change if the brother or sister is single or married. The process takes about 10 to 15 years to process, so your sibling is allowed to get married and have children, and everyone can enter the U.S. under the GC process, as long as the children are under the age of 21 years before immigration, and the Child Status Protection Act provides them a longer time, as well, in most cases.

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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 : Hi, Ms. Murthy. I am in H1B status since April 2002. I got an extension until 2008. I have filed for a green card. Is it ok for me to travel to India now?

Attorney Murthy : The general rule is that there is no problem for a person on an H1B or L-1, or their dependents, to travel abroad and apply for the visa at the consulates since the H and L enjoy dual intent. This means that, even if the person has expressed an intent to immigrate permanently to the U.S., the USCIS cannot deny the dual intent petition and the consulate cannot deny the dual intent visa, even though the H1B (or the H-4 or L-1 or L-2) is considered a nonimmigrant status.

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Chat User : For an H1B visa interview, should one take the latest resume or the resume that was submitted with the H1B petition?

Attorney Murthy : Presumably, the two resumes are very similar since the H1B petition was filed a few months earlier. It will depend on the facts and circumstances and the nature of the work experience in a particular case. Mostly, it is safest to carry the documents as they were originally submitted to the USCIS, so that there is consistency in the paperwork. You should speak with the attorney who filed the paperwork to ensure that you are following his/her specific instructions if you are not sure on this issue.

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Chat User : If I work in the IT department of a non-profit organization, will I be still eligible for their exemption for H1B visas?

Attorney Murthy : The general rule is not the nature of the work but the nature of the employer that can provide an H1B cap exemption. Not all non-profits are eligible for the H1B cap exemption, but those as outlined by the law and explained in USCIS memos that address this issue.

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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 : Even if the case is not denied, under what circumstances can an I-140 (EB2) be filed under premium processing and be sent to the Administrative Appeals Office (AAO) for review under the pretext Appeal / Motion / Certification?

Attorney Murthy : An EB2 case can be sent to the AAO for review if there is a novel question of law or legal issue for which there is no specific answer for certification as to that novel legal point. It is usually a good sign since that means that there is no specific law on that matter, and the USCIS is not willing to make a decision, but wants to send it to the AAO for legal certification on that unique issue, based on the facts presented and lack of a legal ruling on that matter.

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Chat User : Hello, Attorney Murthy. I will be finishing my 3rd year on H1B. To be safe, what is the latest year of H1B I should apply for my GC?

Attorney Murthy : We usually advise that the safe time to start the GC is when one has at least 2 years remaining on the full 6 years of H1B. This means that you could have another year to start the GC filing, but it is safer to start earlier rather than later, in case one loses a job or there are some unexpected problems in a case, etc.

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Chat User : Hello. When do you estimate the Master's quota (20,000) for H1B will be exhausted? Thanks.

Attorney Murthy : No one can be sure, but we hope that it may last until at least another couple of months. Obviously, the earlier one files for the advanced-degree cap subject H1B, the safer one is, but this is likely the first year that the H1B cap could be reached at the very beginning or soon after the quota is released for filing today, on April 2, 2007. This likely will mean that the advanced-degree quota will also be reached earlier than in prior years.

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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 : In your opinion, what are the realistic chances for the STRIVE Act to pass? I appreciate that the whole process is not simple. I'm just asking for your opinion based on your experience.

Attorney Murthy : At present, we have a Democratic majority by a narrow margin in the Senate that is afraid to take a strong pro-immigration stand with a narrow minority of the Republicans who are against any immigration reform, and another pro-business lobby that wants to help employment-based immigration. It is anyone's guess, but most people are concerned that the STRIVE Act will likely not pass at all, since it would have to pass within the next few months. If it does not, then next year is very unlikely as it is the presidential election year. Few are willing to deal with such a hot issue, like immigration, since they think it would doom their political careers. The ways for us to help the pro-immigration legislators is to express our views in calls and eMails and to have employers call and eMail them, as well, so that they see that there is a swelling of support for this issue. So, contact your senators and representatives! It is also possible for U.S. citizens and permanent residents to contribute to the campaigns of pro-immigration legislators and Political Action Committees, within allowable limits.

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

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Chat User : Dear Attorney Murthy, I am currently on L1B, and I am transferring to H1B. When will my L1B visa not be valid anymore? Is it at the point that my H1B visa period begins or when I get my H1B stamped in my passport?

Attorney Murthy : Under the USCIS last action rule, one's status changes from L1B to H1B, in this example, when the H1B petition starts on October 1, 2007, presumably and assuming that the person has an I-94 card attached to the H1B approval notice. If the USCIS does not approve the change of status, meaning that the USCIS does not attach the I-94 card to the bottom of the H1B approval notice, then the person will only be able to switch to H1B status and start working after the stamping of the person's passport and after s/he enters the U.S. in H1B status.

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Chat User : Dear Ms. Murthy, thanks for your service. Can an employer file only the I-485 for an employee and both EAD and I-485 for the spouse? Would there be any issues with this?

Attorney Murthy : There is no legal prohibition in the employer or the employee filing only the I-485 for the principal and the I-485 with the EAD for dependent family members, including the spouse.

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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 : Hi. Will a promotion from a software engineer position to an engineering manager / project manager position result in re-filing the green card process if the original labor certification was for a software engineer position?

Attorney Murthy : The general rule is that a new LC will need to be filed if there is a substantial difference in the job duties; not merely the title of the job. So, for example, if the person did almost the same job duties as a software engineer and as a project manager, with a little more supervisory powers in the latter job, there may not be a need to re-file and start a new PERM process. On the other hand, if there is a substantial difference in the job duties with supervision over professionals that did not exist earlier, that may be deemed to be a new job, requiring an entirely new PERM / GC process filing.

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Chat User : Is the PD backlog problem for EB3 cases (5 years, I heard) going to be solved anytime soon?

Attorney Murthy : Unless the law changes providing more immigrant visa numbers, not only will the issue not get solved soon, in fact, Mr. Charles Oppenheim, the person in charge of the Immigrant Visa Control and Reporting Division at the U.S. Department of State, mentioned at a dinner meeting on Feb 28, 2007, that the EB3 numbers for Indians could retrogress even further over the summer and beyond!! That is the reason that everyone is hoping for some new laws, and why it is important to lobby your legislators to request that they support an increase in employment-based numbers based on U.S. employers needing the services of skilled professionals or skilled workers.

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Chat User : Hi, Ms. Murthy. Will the retrogressed dates make any significant progress forward this year?

Attorney Murthy : As just explained above, Mr. Oppenheim has explained that the EB3 numbers for Indian nationals may retrogress further in the summer or beyond, while the EB2 may move forward slowly, primarily due to the fact that the EB2 gets the unused numbers from the EB1 category.

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

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Chat User : If a person has a B-1/B-2 visa and has applied for an H-1, if his H-1 is refused by the consulate, will his B-1/B-2 multiple entry still be valid? Is there any chance that the consulate can cancel that visa? Thank you so much.

Attorney Murthy : Generally, the consulate does not cancel another visa stamp, like the B-1/B-2, when one applies for an H1B, unless the consulate is concerned with potential fraud or a security threat from the individual, or there is a concern that s/he may misuse one visa status and perform work as an H1B when claiming to enter on the B-1 temporary business visa. It is possible that the B-1/B-2 visa could be cancelled by operation of law if the person overstays her/his allowed status, for even a day. This can happen if an extension or change of status is denied.

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Chat User : Dear Murthy, is it possible to transfer an H1B without pay stubs? I have bank statements proving that I'm being paid but no recent pay stubs.

Attorney Murthy : If one can submit the bank statements showing the regular deposits, then it should be sufficient. It may help to get an employer letter confirming employment, as well, if possible.

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Chat User : I read that the USCIS will not expedite the I-485 processing because of WOM for security check delays. What does it mean? Does it mean that the USCIS will fight the WOM case in the court or they will simply reject / do not pay attention to the WOM? Can I still hire a lawyer to file the WOM?

Attorney Murthy : We have written an article in the MurthyBulletin on the fact that the USCIS will not expedite the I-485 processing simply when a person files a writ of mandamus. One is always allowed to hire an attorney to fight for her/his legal rights, as long as we still have a democracy and the U.S. Constitution is paramount! Thank God for those freedoms!

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Chat User : Attorney Murthy, I filed I-140 EB2 / NIW about 1 month ago (currently pending). It is a self petition. If I take a different position with a different job title in the same company, how will that affect my application? The two jobs have different education level requirements. One job needs an advanced degree, and the other needs a bachelor’s degree.

Attorney Murthy : Well, if the second job requires a different level of education and one is not required to have a master’s degree or be a person of exceptional abilities, then it is not an EB2 position, but an EB3 position. The NIW can be continued if one expects to work in that field that will continue to benefit the U.S. as a whole in the national interest.

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Chat User : Hi. I am about to start my fellowship in oncology on an H-1 visa. What are my options for a green card as I will be done with my 6 years of H-1? Thanks.

Attorney Murthy : Well, if an employer is willing to sponsor you based on your qualifications prior to the oncology fellowship, then that is an option. Another possible option may be for the medical doctor to verify eligibility for the O-1 status based on outstanding credentials so that the time on H1B is not all used. Or, for some people, an option may be to start the GC process toward the end, and then depart the U.S. and reenter in the H1B for 6 years after the one-year tenure abroad, and then start a new GC process after reentry to the U.S. You should discuss these and other possible options, depending on what works best for you and your family, if you have a family.

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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, Ms. Murthy. I am on H-1 with company A and sent papers for H-4 stamping for my spouse and kid. I am planning to get my H-1 transfer to company B in the next month. Will it create any problems for my family on H-4 after I transfer and move to some other state?

Attorney Murthy : It should not matter as long as the spouse and child have the latest H1B petition when they enter the U.S. if the latest H1B is approved by the time they enter. This will help them to obtain the I-94 card valid for longer than simply the timeframes mentioned on the H-4 visa stamp.

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

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Attorney Murthy : We appreciate the opportunity to help you through our MurthyChat. We look forward to continuing to help you, your family, and your friends with all of your immigration law matters.

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Chat Master : Thank you all for logging in! 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 © 2007, MURTHY LAW FIRM. All Rights Reserved