Chat : April 16, 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 today with your immigration matters. Thank you for your interest in our MurthyChat.

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Chat User : I have applied for H1B premium processing for FY2008, and the petition number was mailed on April 3rd. After the lottery was done, there was no update from the USCIS. What should I assume in this case?

Attorney Murthy : It is too early to assume anything since the USCIS stated that they need 15 business days from April 12, 2007 in premium processing cases. Today is only the second day after the lottery by USCIS. Just wait and see. You should get some response within the next week or two.

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Chat User : Hello, Murthy. I have one quick question. If the H1B visa (Master quota) is not exhausted by April 3rd, will the premium processed H1B applications be decided by 15 days if applied for on April 2nd?

Attorney Murthy : The Murthy Law Firm has already received a few Advanced-Degree quota H1B petition approvals that were filed on April 2nd and 3rd, 2007, so yes, for those quota cases filed on the first two business days in April 2007. The 15 days started from April 2nd or 3rd, 2007.

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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 : Hello, Murthyji. I just got my H-1 petition approved in the U.S. premium Master's. It’s the first time H-1 was applied for after OPT. When is the latest I can go for stamping in India? The start date is October 1st.

Attorney Murthy : As a general rule, one is not required to go and get the H1B visa stamped in the passport at all if the USCIS has approved the change of status application by attaching the tear-off I-94 card at the bottom of the H1B approval notice. The latest time to get the H1B visa stamped presumably would be September 30, 2010, before the end of the H1B validity timeframe under this H1B petition. On the other hand, if the case was not approved as a change of status, then it will be necessary to leave the U.S. on or before the completion of the 60-day grace period following the OPT, apply for the visa stamp at the consulate, and then reenter the U.S. in H1B status.

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Chat User : Thank you, for your great service. My I-140 is approved through substitute labor. If I change companies, are there any procedural restrictions from USCIS, assuming that the current I-140 is not cancelled? Also, what is the procedure to get the old PD?

Attorney Murthy : Generally, a person who has obtained the I-140 petition approval under an LC sub case gets the earlier PD of the original LC filing date, with the I-140 petition approval notice. The employer is allowed to use that same LC for another employee if the substituted employee quits the employer. On the other hand, if the employee had filed the I-485 and it has been pending for over 180 days, then AC21 portability may apply in such cases, if the new job is considered to be in the "same or similar" job category. You should understand the legal implications by discussing these matters with an attorney. You may need to consult with an attorney other than the one who filed the original LC case, due to conflict-of-interest issues, since that attorney most likely will also represent the employer / sponsor.

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Chat User : I have a valid H-4 visa until January 2009, and I’m working now on an H1B petition. Can I travel to India on an H-4 visa? Do I need to get the H1B stamped and then travel to India?

Attorney Murthy : The general rule of law is that a person is able to depart the U.S. without any visa stamp in the passport. The visa stamp is only required for reentry into the U.S. So in this case, travel on H-4 is allowed since no one cares what stamp is in the PP when departing the U.S. If you wish to work for the H1B employer after reentering the U.S. from abroad, then obtaining the H1B visa stamp in the PP is required. Otherwise, if one chooses to reenter on the H-4 visa and status, s/he is not allowed to work, since the person reverts back to H-4 status after reentering the U.S.

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Chat User : My employer filed for my H1B. I am yet to get my MS degree from my university, and I am due for 3 credits. Can my employer convert my H1B filing into the advanced degree quota from the regular cap quota now?

Attorney Murthy : If one has not completed the full coursework towards the MS/MA degree at the time of filing the H1B petition, then the USCIS could deny the petition, since a person must be qualified on the date of filing for an immigration benefit. The problem in trying to convert a previously-filed case is that there is no way to do that in this year since both the caps will have been met within a short timeframe. If your case is accepted under the regular cap, then you are lucky. Otherwise, you will lose an entire year. Hopefully, you can get the 1-year F-1 OPT after the completion of the MS degree to allow you to work legally until the new quota opens next year.

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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 : Murthji, if I-140 is cleared and one leaves the USA and comes back after a few years, can the PD still be retained with the new H1B and new GC filing?

Attorney Murthy : It is possible that the I-140 PD can be retained if the earlier employer does not revoke or cancel that earlier I-140 petition to use the underlying LC for another employee. If that is unlikely, then the earlier I-140 petition PD can be used in the future with a new employer, even years later under existing USCIS laws and regulations.

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Chat User : Is there any priority processing that can be done for an EAD renewal (also has an H-4 visa) to get the renewal done in time? If not, what is the work status of this person with his/her employer (have to resign / go on paid leave / unpaid leave)?

Attorney Murthy : The USCIS may allow expedited processing in a case if one can show extreme hardship that will be suffered by the employer if there is a delay. One must also show that the delay in filing was not caused by the individual or the employer, etc. It is not easy to demonstrate this in many cases, but it is possible in some cases. There is not, at this time, premium processing like that available for a $1,000 fee in certain types of cases.

If one's EAD has expired, s/he is not allowed to keep working, but will, at least, have to take an unpaid leave of absence (if the employer will agree to it) or be terminated from the employment (even if later rehired). That is why one must try to file the EAD renewal five months before the EAD expires to avoid this problem.

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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 : Thanks for helping all of us, Murthy. To file for H-1 in the advanced-degree quota, is it necessary to have the master’s degree in hand, or is it just fine to have completed the degree requirements and just get a completion letter from the university?

Attorney Murthy : Usually, completing the degree requirements and getting a letter to that effect is considered sufficient to file the H1B petition, under existing USCIS policy, though that is not written in the law or regulations. Since that is informal USCIS policy guidance, it should work, but you must realize that the USCIS can change its position at anytime.

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

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Chat User : Hello, Attorney Murthy. Can my wife pursue her further studies with an H-4 visa, or will she have to transfer her visa status to student visa?

Attorney Murthy : It is possible for a person to study while in H-4 status, but if s/he wants or needs any tuition waivers or scholarships or financial aid, then the individual must obtain the change of status to F-1 in order to obtain any financial reimbursement or compensation.

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Chat User : What will be the legal status of an H-4 person who did not get selected in the USCIS H1B lottery?

Attorney Murthy : If one does not get selected under the H1B lottery system, then the person will continue to remain in H-4 status, as long as that has not expired. The individual must file H-4 extensions with the principal in H1B status when the H-4 status expires, or change to some other status to remain legally in the U.S.

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Chat User : My I-140 was filed in March 2006, and it is still pending. No RFE. My attorney sent in a status request in January 2007, and they asked us to wait for 6 more months. Is there anything I can do to expedite the approval?

Attorney Murthy : In most I-140 cases, one is allowed to pay the extra $1,000 and request a case be converted to premium processing, unless the delay is caused by security clearance delays or FBI name checks.

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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 : Dear Attorney Murthy, based on your experience, can you please give us a logical guess about the status of the H1B advanced degree quota as of now?

Attorney Murthy : It is most likely that the advanced degree quota was met either towards later in the first week of April or most likely by this week or, at the latest, before end of April. This is quite a horrendous situation for most people, and Congress needs to act quickly before more U.S. employers decide to take their jobs elsewhere outside the U.S. to staff their projects.

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Chat User : Madam, the May 2007 visa dates did not move for the EB2/EB3 categories. My LC priority date is 2002. Is there any chance the EB3 dates will move by the end of this year, or is there any anticipation in future dates? Please provide us your valuable information and insight about EB dates. Thanks.

Attorney Murthy : The U.S. Department of State person in charge of immigrant visa numbers has stated that EB3 for Indian nationals may retrogress further later this year, while EB2 may move slowly. I am to speak with Mr. Charles Oppenheim later this week in Washington, D.C. at an AILA panel. He is the head of the Immigrant Visa Unit in charge of movement of visa numbers, and he has promised to shed some light on this difficult issue for us later this week. He will release more numbers in the summer of 2007 if the Department of Labor is processing old cases at the BPCs slowly.

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Chat User : I have filed my H-1 as a Human Resource Analyst. Will I get my H1B, and would it be considered as a specialty occupation? I have a master’s degree and 4.5 years experience from India.

Attorney Murthy : It is possible to get an H1B for an HR Analyst, if one has the required 4-year BA/BS degree or its equivalent in HR or a directly related field to be eligible for the H1B specialty occupation category.

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Chat User : Can you shed some light on what would happen if the bill to increase the H1B quota passes?

Attorney Murthy : If you recollect about a year or two ago when Congress passed the law to add the new 20,000 quota for advanced-degree candidates, the USCIS took a few months to release how the new additional numbers would be allocated. Some such measure is likely to happen if Congress adds more numbers or, better still, if they eliminate the H1B quota that makes no sense in this supply-and-demand, capitalist economy.

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

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Chat User : My H-1 application shows that it is received and pending. I did get the receipt from INS. Does this mean that they are processing my H-1?

Attorney Murthy : Unless you were in the U.S. advanced-degree quota, merely getting the USCIS receipt for regular cap cases before April 12th does not mean anything, since the USCIS had the random lottery only on April 12th. This means that one has to wait to see if s/he was selected or not under that new lottery system, since the USCIS has explained that merely obtaining an earlier receipt notice for PPP cases does not assure or give one any preference to the limited H1B quota numbers.

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Chat User : My EB3 approved PERM labor has a PD of November 2005. I have a prospect for EB2 labor substitution with a PD of November 2004. I would like your comments, please, on whether this is wise and saves me time?

Attorney Murthy : Assuming one is qualified under the LC sub case with the earlier PD, then one could file the LC sub case in EB2 and obtain the earlier PD, which is usually helpful for nationals of India who may have to wait longer in the EB3 category, based on the current demand and wait times with the expected usage.

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Chat User : Attorney Murthy, what is the premium processing policy for the advanced-degree quota? Does it start April 2nd?

Attorney Murthy : Yes, as mentioned above, the PPP applies for advanced-degree holders from April 2, 2007, and our law firm and others have already obtained a few such H1B approvals for candidates within the first week of April itself.

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Chat User : Hi, Murthiji. Can you please tell me what will happen with the pending LC substitution cases in case the final ruling is declared?

Attorney Murthy : Well, it depends on what the DOL decides, but since the pending LC sub cases are with the USCIS, hopefully, the DOL will not have any authority or jurisdiction over pending cases with the USCIS. However, if one's I-140 petition has not been filed, the DOL may decide to nullify the previously-approved LC, if it is older than a certain date or under some circumstances. There may be due process and property right challenges allowed, under U.S. constitutional law, if a person or the employer believes that s/he is deprived of a right or property without due process under law.

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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 today. We at the Murthy Law Firm 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>.

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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