Chat : April 30, 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.

----------------

Attorney Murthy : Dear MurthyChat participants, 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.

----------------

Chat User : Hi, Murthy. Thank you for your great support. I came on L1B through company A, and later, the same company converted this L-1 to H-1 and was extended, also. Can I go for stamping to Mexico?

Attorney Murthy : The general rule is that one can always try to get an H1B visa stamp in a neighboring country, but the risk is much greater if the person does not have U.S. based education, since the consulates in Mexico or Canada cannot verify foreign education from countries like India. Then, if the H1B visa stamp is denied, most likely the individual will have to travel directly from Mexico to the home country without the opportunity to return to the U.S. first, unless the CBP inspector decides to parole the person in, which is not very common.

----------------

Chat User : If using a pre-approved labor, is it mandatory to get the consent or signature from the original person to whom it belonged?

Attorney Murthy : The law does not require the original person to consent to anything since the LC belongs to the employer, traditionally. The main issue is that the new person must have the same or higher qualification as the original LC required on the date of filing that LC, which means from the original priority date.

----------------

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.

----------------

Chat User : Madam, I applied for H-1 under the MS quota with premium processing and did not receive my receipt number yet. Is it unique or usual? Should I reapply? Thank you.

Attorney Murthy : It is not clear how many days or weeks ago you applied under the MS quota. If it is not clear that you had filed under the MS quota or if the USCIS returned it thinking that it was under the regular quota, then one could resubmit it if it can be shown that there were quota numbers under the MS quota on the date of the first filing and that the correct boxes were properly checked off.

----------------

Chat User : My 8th year of H1B expires in 10 months. I have an I-140 approved, and I cannot file the I-485 because of my priority date. Can I change jobs and can my new company file for an H1B transfer / extension?

Attorney Murthy : After one obtains an I-140 petition approval, s/he is able to file a new 3-year H1B petition with that same employer or any other employer. Then, if the person decides to work for another employer, the new employer will need to start a new PERM case for that person if s/he has no intention of returning to work full time for the original GC-sponsoring employer. That is how it is supposed to work, under law.

----------------

Chat User : For a person outside the U.S., if the H1B is approved and an L1B for a different employer is also approved later, is it possible to enter the U.S. on L1B and then switch to the H1B employer?

Attorney Murthy : It is possible to enter on the L1B and then again travel abroad and pick up the H1B visa stamp and reenter in H1B status to work for the H1B employer. It is not as easy as before the change in forms to simply file an H1B amendment now, since the options are more restricted. It would be possible to re-file the H-1 entirely and ask for a change of status, but many employers would be reluctant to file all over again.

----------------

Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

----------------

Chat User : My I-140 is in pending status. I noticed that, in my application, the I-94 number is incorrect. What can I do to correct this? Will this cause a delay or disapproval of my I-140?

Attorney Murthy : The error of the I-94 number may cause a delay, but the USCIS can check the numbers in their database by plugging in other information on the person with the DOB and other evidence, if they want to double check information. So, although it is not as helpful as having the correct data, it is not fatal, in most cases.

----------------

Chat User : Attorney Murthy, is it safe to travel to India while the H-1 petition (advanced degree) is pending and come back to start work in OPT the first week of June? Thanks.

Attorney Murthy : If one has a valid, unexpired F-1 visa stamp and the EAD card approval with evidence of the nature of the work to be performed, showing that it is related to the F-1 study, then it should be possible to travel abroad and reenter in F-1 status. Then, when the H1B starts from October 1, 2007, one can start work on the H1B, if the H1B has obtained change of status approval. However, one should not travel with the H-1 petition pending if there is a request to change status. Traveling while there is a request to change status abandons the request for the change. It is far better to get the H-1 approved and then travel. There is always a risk when one departs the U.S. that there could be delays at the airport or a problem if some investigation is triggered, etc, in a very small minority of cases. That is not a problem for an overwhelming majority of cases, however.

----------------

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>.

----------------

Chat User : Hello, Sheela Ji. My wife has an H1B approval. She is now in India planning to come back to the U.S. on an H-4 visa. Does she need to apply for a new H1B petition in case she wishes to work, or can we use the previously-approved H1B? Thank you.

Attorney Murthy : If one departs the U.S. after filing for a change of status (COS) from H-4 to H1B, s/he then is deemed to have abandoned the COS application by departing the U.S. So the H1B petition remains valid, but not the ability of the person to work under that petition until s/he possibly departs the U.S. and applies for the H1B visa stamp from abroad and then seeks to reenter the U.S. in H1B status at the port of entry. One can use the earlier H1B petition but needs an approval of the COS with the I-94 card attached, or the new I-94 card from the airport after returning from foreign travel, as explained above.

----------------

Chat User : My H1B is approved for this year. Currently, I am pregnant and my due date and start date is in October. Is there any risk of losing employment if I ask my employer to start work after three weeks? Are there any other legal implications?

Attorney Murthy : There is a risk of losing the job if the potential employee cannot start work when she is scheduled to do so. There are some protections for maternity leave under the Family Medical Leave Act (FMLA), but that does not cover brand new employees. It also does not apply to smaller employers. You should find out if there are any state laws on employment or other federal laws that apply in such cases. You should consult with an employment lawyer about this matter. After finding out if you have any protections, it would be best, in this situation, to notify the employer in advance and obtain approval and confirmation of the time off, if possible. Familiarize yourself with the other rules that apply to employment with this particular employer. 

----------------

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.

----------------

Chat User : Dear Ms. Murthy, kindly provide whether there are any major advantages / limitations for the green card process if one goes through a nonprofit organization versus a private firm with a Ph.D. degree (mostly in EB2 category). Thank you.

Attorney Murthy : Generally, it makes no difference as long as one is qualified, the employer can afford the required Department of Labor prevailing wage, and there is a bona fide job opportunity, etc.

----------------

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

----------------

Chat User : I heard the labor certification substitution elimination final rule was approved by OMB. Is it effective from today, or does it take time?

Attorney Murthy : As mentioned in the MurthyDotCom index page of today, although the OMB has reviewed the final rule, the Department of Labor must accept the changes and then publish it in the Federal Register. We don't know whether it will be effective immediately or after 30, 60, or 90 days, since the DOL is being secretive about it and what it contains. So no one really knows for sure what they will or won't accept.

----------------

Chat User : Hi, Madamji. Can a person in visitor status be substituted for an approved labor application?

Attorney Murthy : If the priority date is current and the law still allows for LC substitutions, then one can file the I-140 with the I-485 while still having B-2 status. Otherwise, simply filing the I-140 petition gives a person no legal basis to live and work in the U.S. It is safer for one to return to the home country and enter on the immigrant visa after the I-140 petition is approved, but the person must discuss the legal options and understand the risks involved with each option before making a decision on such an important matter.

----------------

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>.

----------------

Chat User : Hello, Murthiji. Considering the advanced degree H1B cap will also be met, I wanted to find out if it is possible to process EB2 while on OPT?

Attorney Murthy : It is possible to file the EB2 while one is on F-1 or J-1 OPT, but with the caveat that if a person wishes to extend the F-1 or J-1 after the OPT to pursue further education that will likely no longer be an option after s/he has expressed an immigrant intent by filing for the LC and I-140 petition. If one plans to switch to H1B for the following year, then that is more plausible.

----------------

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

----------------

Chat User : Hello, Madam. I have an H-1 approval without an I-94 filed last year. I am in the U.S. on H-4. Do I need to go outside the U.S. to get my H-1 visa stamped, or can I do an H1B amendment for a COS and new I-94?

Attorney Murthy : The safer approach is to simply go abroad, obtain an H1B visa stamp, and reenter the U.S. in H1B status at the POE. Although the concept of an H1B amendment is possible in the U.S., it seems like each time the USCIS changes their forms, they tweak certain things in a manner to make them more difficult.

----------------

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.

----------------

Chat User : Hello, Murthyji. Thank you for a great service that you render to the prospective immigrants of this country. Can we get from the USCIS or the U.S. government the actual number of EB LCs approved category-wise and country-wise and waiting to file the I-485s? With the LC substitution still available, do you think there is still a possibility of approved LCs being exchanged and EB dates retrogressing to 1999 and backwards?

Attorney Murthy : The Department of Labor does not release that information on RIR or older cases (though they do share some information on PERM processing). We could certainly pose that question in our next AILA Liaison meeting with the DOL by putting that issue as an agenda item, and the DOL may either choose to respond or not, but I believe that one loses nothing by asking and trying to get more information to help our clients and others in the immigrant community to make an informed decision. It is a good idea and worth pursuing!

----------------

Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

----------------

Chat User : Hello, Madam. Is it okay to be unemployed during a pending I-485 and provide a job offer when the I-485 is adjudicated or an RFE is received? Does the gap in work status matter?

Attorney Murthy : Generally, there is no problem if one is not working while the I-485 is pending, as long as the person can establish that s/he intends to work for the GC-sponsoring employer in a full-time and permanent position at the time of the I-485 approval, or can establish eligibility under AC21 portability to work in the same or similar job.

----------------

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

----------------

Attorney Murthy : Next Monday, we will not have the MurthyChat as I will be receiving recognition as being among the Top 100 Women in the State of Maryland for leadership and community-based work. We hope to have all of you in our MurthyChat with us in 2 weeks at the same time and place! Thank you for your interest in using the services of the Murthy Law Firm and for using the MurthyChat!

----------------

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