Chat : April 23, 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 related issues.

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Chat Master : Please post your Questions now. Remember to make them as BRIEF and GENERAL as possible.

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Chat User : Madam, my not-for-profit job has been terminated. I applied under the new H-1 cap this year under premium processing. Is it legal to stay before the new H-1 job starts? Thank you.

Attorney Murthy : A person is not allowed to live in the U.S. unless the USCIS has approved the COS to H1B with the I-94 card attached. If there is a gap in legal status, then one must depart the U.S. and reenter on or after September 20, 2007, if the new H1B has a start date of October 1, 2007.

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Chat User : Namaste, Murthyji. Will the priority date in the EB2 category move this year? If yes, when will it start moving, and how many months do you anticipate it will move?

Attorney Murthy : The general rule is that there is no certainty or predictability with respect to movement of priority dates. Mr. Charles Oppenheim, with whom I shared a panel on Friday, April 20, 2007 at the AILA Conference in Washington DC, said that, based on input from an attorney at our law firm and his own investigation and research, he would likely move the EB2 (and even EB3 dates for China and India) during this summer so that we would not lose out on 11,000 immigrant visa numbers again this year.

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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 : With an approved advance parole (valid to 9 months), can a person stay outside of the USA continuously for 4 to 5 months? Could it pose problems at reentry? Is there any additional documentation recommended at the time of reentry?

Attorney Murthy : Until one becomes a GC holder, there is no problem in living abroad while one has a valid AP to reenter the U.S. The only potential issue could be if such a person is called for fingerprinting during the that s/he is abroad. As long as the individual requests a FP interview notice after a certain date, s/he should be able to get the requested date.

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Chat User : Hi. I am on H-4 now. I applied for my H-1 for the FY2008. I completed my master’s in August 2005. Will my application now be considered in the advanced-degree quota?

Attorney Murthy : As long as the H1B was filed before the USCIS reaches the cap, it should be possible to get the H1B under the FY2008 advanced-degree cap quota. Today, April 23, 2007, the USCIS issued an update that it has received about 18,000 H1B advanced-degree cap quota cases. So, if the H1B was filed last week, then it will likely work out. Otherwise, each day's delay could be fatal.

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Chat User : Can I go to India while I’m on OPT and have a job offer? I have applied for H-1 and I’m waiting for a reply. My OPT ends on June 4, 2008.

Attorney Murthy : There should be no problem in traveling abroad after the H1B petition has been approved with a start date on or after October 1, 2007. If one leaves the U.S. while her/his change of status has been filed, then the COS application is deemed abandoned and the USCIS is only allowed to approve the H1B petition if the person is qualified for the H1B status and the employer is found eligible as an H1B employer.

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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 : I was on H1B for 6 months, and then I changed to H-4 five months back. My question is, if I again want to change my status to H1B, will I be subject to the H1B cap?

Attorney Murthy : One who has been counted against the H1B cap within the last 6 years should be able to file a new H1B cap-subject case without being counted against the cap.

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Chat User : Thanks for taking my question. Attorney Murthy, can one file a 2nd I-485 after using AC21 and base the 2nd I-485 on his previously approved I-140?

Attorney Murthy : A person generally should not file a second I-485. If there is a new I-140, one may want to interfile the latest I-140 petition with the existing I-485 application so that the USCIS can use the latest I-140 petition approval in approving the I-485 AOS application. However, the person may want to preserve AC21 portability in the pending I-485 case. Therefore, s/he may want to consular process, based upon a second I-140. There are many variations, so this should be discussed with an immigration attorney.

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Chat User : Namaste, Murthy Ji. My H-4 petition was extended, but I do not have the original. Can I travel to Canada and reenter the U.S. with an attorney-certified copy? I have an H-4 stamping in my passport.

Attorney Murthy : It is safer to use the original approval notice, but if one has the H-4 visa stamp in the passport and a copy of the H-4 I-94 card, the USCIS or the CBP could double check the validity of the H-4 I-94 card in the database and decide to allow the individual back into the U.S. There could be a delay and a potential risk, in such cases.

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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 : Dear Murthyji, I heard that it will take 5 years to clear the EB3 backlog. Is it true to any extent?

Attorney Murthy : Mr. Oppenheim, the Chief of the Immigrant Visa Processing Control Unit at the U.S. Department of State Visa Office, had mentioned little or no movement in EB3 cases from India on February 28th at the AILA Washington, D.C. meeting. Now, on Friday, April 20, 2007 (this past Friday at a panel where I was speaking in Washington, D.C.), he agreed that the EB2 and EB3 numbers may move forward at least during the summer so that immigrant visa numbers would not remain unused like last year. Then the numbers may again retrogress during the fall and go back further, so this would be a window of opportunity to file cases for those whose numbers become current.

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Chat User : I have an EAD with an I-485 pending over 365 days. I was terminated by the employer. Will the gap in employment affect my I-485 processing if I were to get an RFE in the future? Is there a timeframe before I must find a new job?

Attorney Murthy : The GC is based on a future job offer. If a person is eligible for AC21 GC portability, then it is best to find "same or similar" employment at the earliest, so that, when there is an RFE or an interview, one can show eligibility for the I-485 approval by showing that s/he has the required job offer of permanent employment. A gap in employment is usually not a problem in this situation, but it will be if an RFE is issued asking about employment when there is none or if an interview is scheduled.

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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 : I have been in the country on a green card for six years. I just applied for citizenship and my fingerprint appointment is next week. Should my husband apply for the green card or wait until I get citizenship?

Attorney Murthy : Your question is not clear. If one wishes to pursue a GC case independent of the spouse, for example, through an employer, then it is often wise to pursue that option to have another backup plan for the GC process. On the other hand, if the goal is to save time and money, it is possible that the GC filing through the U.S. citizen spouse may save time and money in those cases where the marriage will last. If you are asking if the I-130 should be filed now or wait until the citizenship is approved, it can be filed without waiting, in most cases. Citizenship is never guaranteed, and the I-130 can be "upgraded" if the citizenship is approved.

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

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Chat User : My I-140 got approved in EB3, and my wife's I-140 was approved in EB2. Can she take my priority date to file for I-485? We work for different employers. How feasible is this?

Attorney Murthy : The general rule is that the PD from one spouse cannot simply transfer to another spouse, though cross chargeability is available between spouses based on country of birth. One can attempt to file the second I-140 in EB2 with the pending I-485s, but the USCIS does not have to grant the earlier PD automatically. Though we have seen that it may work out, it is safest to assume that the earlier priority date can only be used by the spouse who already has an earlier I-140 petition approved and now there is a new I-140 petition based on a new PERM filing.

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Chat User : I filed my H-1 under the advanced-degree cap with premium processing on April 2nd and received a receipt on the 3rd. I haven't heard anything from USCIS until now. Is this normal? Should I be worried?

Attorney Murthy : Since this was an advanced-degree premium processing case, there should have been a review within 15 business days of filing. If that time has expired with no communication after the receipt notice, it is possible for the employer or their representative to communicate directly with the Premium Processing Unit to follow up on the case status. 

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Chat User : Hi. I’m on OPT until November 2007 and my H1B is approved. Can I go out of the U.S. in May / June and come back and continue my work? Can this travel abandon my approved H1B?

Attorney Murthy : A person whose H1B petition with the change of status (COS) has already been approved is allowed under the Efren Hernandez Memo (covered in our MurthyBulletin article and available on MurthyDotCom), to travel abroad and reenter in the F-1 OPT status (as long as the F-1 visa stamp is valid and unexpired in the passport), and then start the H1B employment on or after October 1, 2007, as long as the I-94 card showing that the COS was granted is attached to the H1B approval notice.

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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 : If I leave the USA after my 7th year of H1B is over in October 2007, can someone file my new H1B next year in April 2008 with a starting date of November 2008?

Attorney Murthy : The answer is not clear since the USCIS has stated that a person must be eligible for the immigration benefit on the date of filing for the benefit, which makes no sense in the H1B cap context where the H1B will start with a future date of October 1, 2008. So it will depend on the USCIS clarifying their position. At present, there is a potential risk in such cases.

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

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Chat User : How many months do I need to be an employee of an Indian IT company in order to be eligible for an L-1 transfer to its U.S. branch?

Attorney Murthy : A person must have been working for at least one year for the company abroad to be able to enter the U.S. in the L-1 status - as an executive or manager for the L1A or a specialized-knowledge worker for the L1B status, for at least one year abroad out of the three years prior to filing, and enter the U.S. to work in a similar capacity.

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Chat User : What are the chances of reopening a case that has been closed after the advertisement in NON RIR?

Attorney Murthy : It depends on the reason for the DOL to close the case. If it was truly a DOL error and it can be shown, then it may work. Otherwise, the DOL will likely not budge on the issue.

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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 : If an H1B is approved through premium processing and the I-797 papers are never received by the attorney from the USCIS, what options do I have other than filing the I-824?

Attorney Murthy : Besides the I-824 option, one can file an H1B amendment under premium processing, for example, to obtain an expedited H1B approval notice within 15 days, since the I-824 could take several months to get a duplicate original from the USCIS.

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Chat User : If the rule to eliminate labor substitution (which says that the I-140 that has to be filed within in 45 days of the date labor was approved) is approved by OMB during this month, will I be able to file the I-140 on an approved PERM labor that was filed on my behalf in October 2006 by my company?

Attorney Murthy : We do not know what the language in the final rule will be, so that will determine what you can or cannot do only after we are able to review the rule, digest it, and see how it will work. We understand that the DOL and the USCIS are having some disagreement on the labor substitution process. This may delay the final issuance of the rule, but no one can be sure when it will be released. Because of the uncertainty, if there is an approved labor that is more than 45 days old, it would be best to move forward in most cases, rather than waiting until it may be too late.

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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, Murthyji. I would like to know how easy it will be for a spouse on H-4 to get the extension from India if s/he is not in the USA during the extension process.

Attorney Murthy : The USCIS cannot approve the EOS for a person who is not in the U.S. The individual has to apply for the H-4 visa stamp at the consulate after the principal H1B holder obtains the original H1B approval notice from the USCIS.

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Chat User : In the case of a COS from H-4 to F-1, is there any way to petition the USCIS to update the SEVIS database, showing the new status if there has been a long delay? Thanks.

Attorney Murthy : One could contact the school, and there is a telephone number and eMail for the ICE that monitors and enforces the SEVIS program. They will agree to update their records if it can be shown that an error or delay has occurred.

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Chat User : Hello. I have 2 questions. First, I'm on an H-4 visa. Can I volunteer in a university in their accounts department? I'm not getting any compensation. Second, after I finish my volunteer work, if they have any openings (paid positions), at that time, can I apply there? I have an accounting degree.

Attorney Murthy : If a job is purely voluntary and it is a non-profit agency, it may be allowed while in H-4 status. The problem is that the university can file the COS to H1B for such a person if the employer is cap exempt, and most universities are cap-exempt employers.

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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 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>.

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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