Chat : May 01, 2006

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 : Dear MurthyChat participants, we look forward to another useful MurthyChat session with you.

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Chat User : Hi. I am on an H-4 visa. I am planning to go to Canada for F-1 stamping. If my F-1 stamping is denied, will I be allowed to enter the USA on H-4?

Attorney Murthy : If the consulate does not cancel the unexpired and valid H-4 visa stamp, then a person should be allowed to reenter the U.S. on that earlier visa stamp. If the consulate decides to cancel the H-4 visa stamp, then the person will need to travel abroad and apply for a new H-4 visa stamp or the F-1 visa stamp in the individual's home country or country of  citizenship.

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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 : If I'm working with company A on appeal after the H1B denial, can I apply for an H1B extension with company B based on the appeal notice and pay stubs from company A?

Attorney Murthy : As a general rule, one is not considered to be in a period of lawful, nonimmigrant status when one's I-94 card has expired and simply has filed an appeal with the USCIS or the AAO. If the person's appeal is approved, then s/he gets back into legal status after the fact. Otherwise, one is considered to be accruing unlawful presence from the date of the original denial date so, that the 3-year or 10-year bar starts to trigger from the original denial date. Accordingly, one is not allowed to file a new case and obtain the H1B extension with a new employer-based simply on the receipt notice of an appeal.

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Chat User : Is it difficult to change status from H-1 to F-1 once the green card process has started? At what stage of the GC process (starting from PWD) does such a COS (H-1 to F-1) become a problem? Thank you!

Attorney Murthy : As soon as one has filed the labor certification with the U.S. Department of Labor, s/he has expressed an intent to immigrate into the U.S. Accordingly, if one has expressed an intent to immigrate to the U.S., but at the same time claims not to have any immigrant intent, but only wishes to file a pure nonimmigrant status or visa (like the F-1), the two intentions conflict. The DS156 Visa Application Form specifically asks whether one is the beneficiary of an immigrant petition, which means the I-140 petition or the I-130 petition, so that that would make it difficult for the consular officer to approve that person's nonimmigrant visa after such a filing. The safest route is not to file the LC or PERM at all to avoid this problem.

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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. I am currently trying for an H-1 extension for the next 3 years and H-1 transfer to another company. Could you please tell me if it is legal to do so, or would I face some issues as both the processes are simultaneous? Please advise. Thanks.

Attorney Murthy : It is possible for two separate employers to file an H1B petition each for a person. There possibly could be some confusion, but it is not an uncommon situation. If a change is made to the new employer, then it is a good idea to request the other employer to cancel or revoke the H1B petition.

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Chat User : Attorney Murthy, can I travel to Canada for tourism on H-1 while I am changing companies? I have gotten the receipt but have not gotten the H-1 approval yet.

Attorney Murthy : If a person has the visa to enter Canada as a tourist and a valid, unexpired H1B visa stamp in the passport, s/he is able to travel abroad and present the proof of the receipt for the extension at the border, if the intent is to work for the new employer after entry. If the intent is to work for the old employer and then change to the new, the person can travel with the old employer's I-94 and use the contiguous territory rule (no valid visa is needed for travel of less than 30 days). However, this can get confusing, depending upon when the new H-1 petition is approved. The best thing is to consider filing a request for premium processing and then traveling on the correct, latest H1B approval notice with the latest I-94 card attached to it, and then working for the new employer after returning to the U.S.

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Chat User : If a person is promoted from an engineer to a senior engineer position with the same employer, doing the same kind of job with similar responsibilities and the only difference being the number of years of experience and salary, does the employer need to amend the current H1B application or request an extension with no change whenever it is due for a 3-year extension?

Attorney Murthy : When the person files the next 3-year extension, one could certainly explain the new salary and job duties at that time. In most cases, however, there is no need to file an H1B amendment for normal progression in one's position during each year of employment.

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Chat User : Can an F-1 visa holder take an unpaid internship without CPT? Is unpaid work without CPT a violation of F-1 status?

Attorney Murthy : A student on F-1 status is not allowed to work for any employer without valid authorization from the USCIS, as most work without prior authorization is considered a violation of the F-1 student's status. Some exceptions may apply for pure volunteer work for a true, nonprofit corporation, where there is no expectation of any compensation or remuneration of any kind.

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

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Chat User : Ms. Murthy, what is your best guesstimate for the 2006 fiscal year 20,000 quota? I know that 380 applications were accepted on April 3rd. Last year, they were exhausted in January. I know it’s difficult to judge, but from your experience, your best guesstimate will be appreciated a lot as it gives 4 of us an idea when to start OPTE.

Attorney Murthy : Since everyone is guessing, the safest rule is to guess that the latest it may last is until January, again, but with the number of international students entering the U.S. increasing each year since September 11, 2001, it is possible that the quota could be exhausted by December. So, to be on the safe side, it is best to apply for the F-1 OPT at the earliest possible opportunity as allowed by law and then to file the H1B petition at the earliest with a start date of November 1, 2006 or December 1, 2006, to avoid the risk of running out of the H1B for another 10 months, until October 1, 2007!

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Chat User : Can one apply for a second I-140 from the same company even if the first I-140 is approved?

Attorney Murthy : A person could try and apply for another I-140 petition with the same employer based on a different underlying LC, as it is possible to have two LCs from one company in certain instances. However, there is always some risk that the USCIS could find this confusing. There are likely to be more instances of this, as many LCs in the backlog center are years old, and people have received promotions and filed new LCs.

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Chat User : My I-140 is pending, and I am in the 6th year on my H1B. Once the I-140 is approved, I need to file for the 3-year extension. I am having problems with my current lawyer. Can I switch my lawyer now, and can the new lawyer reply if there is an RFE on my I-140 case?

Attorney Murthy : It is possible to use a new lawyer if there is an RFE on the I-140 petition, as the USCIS will likely review the new G-28 of the new attorney with the RFE response. In spite of including a new G-28 for the new attorney, the USCIS will sometimes send the decision to the original attorney on record. Therefore, it is necessary to inform the original attorney of the new mailing address and other details, etc. Then, for the H1B filing, one could simply use the new attorney. Of course, since the I-140 and the H1B are the company's filings, they must agree to the change of attorneys.

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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 : Should I get AC21 portability for a future job-sponsoring company? If yes, will the USCIS force me to work for the sponsoring company once the GC is approved?

Attorney Murthy : After a person is eligible to take advantage of the AC21 portability provisions, the USCIS must be notified of the employment and occupation that the individual wishes to continue in order to obtain the GC approval. There are USCIS memos that recognize that a person may never have worked for the GC-sponsoring employer, but the parties, both the employer and the employee, must have intended from the beginning for the employee to work for the employer both at the start of the process and at each stage of the GC filing, to avoid the possibility of fraud allegations. Ultimately, if there is a change of intention to work for the GC-sponsoring employer, then sending in the information on the new employer to show that it is the "same or similar" job will help down the road, if there is any investigation at the time of filing for citizenship. The USCIS cannot force anyone to work in any job; however, they can decide to deny a green card case if there is not proof that the job offer and intent to accept the job offer are genuine.

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

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Chat User : I have an LC approved from company A, and I applied for I-140 and got laid off. I applied again for LC and I-140 and got approved from company B. Can I get the earlier priority dates? Please answer.

Attorney Murthy : If the earlier I-140 petition was approved, and if that earlier I-140 petition has not been revoked or canceled due to fraud / misrepresentation, then one can certainly request the earlier priority date to be assigned to the new I-140 petition. If that earlier date is current, then the person should be able to file the I-485 by showing the original PD and request a transfer of that earlier PD to the later filed I-140 petition and submit the AOS with the EAD and AP for approval.

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Chat User : Hi. I wanted to know if I can carry out an H-1 extension for 3 years and an H-1 transfer to a new employer at the same time.

Attorney Murthy : I have answered this specific question above. One is allowed to file for more than one H1B with different employers, but there could be potential confusion. To avoid this problem, it is safest for the employer to revoke the H1B petition if the employee does not join the H1B-sponsoring employer at some point.

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Chat User : Can I change employers after my I-140 approval and keep the PD of the earlier labor? Please elaborate.

Attorney Murthy : A person cannot simply change an employer after the I-140 petition approval and hope to continue with the same LC and I-140 to file the I-485, in most cases. One would likely need to file a new LC and new I-140, and then request that the earlier PD be transferred to the new I-140 filing, and then file the I-485 if the USCIS issues the I-140 petition approval with the earlier PD when that date becomes current.

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Chat User : Thanks, Murthyji, for your wonderful informative website. My labor certification was filed through PERM 10 months back, and we replied to a query from DOL in October 2005.The current status is still "in process." Could you please let us know if the PERM process takes such a long time? Is there any website from which we can find out backlog information about PERM applications?

Attorney Murthy : There is not supposed to be any backlog processing of PERM applications. About 99% of PERM cases are supposed to be decided within 4 or 5 months, though a few stray cases could just be subject to audits or may have slipped through the cracks. The Department of Labor does not have a system where one can call and find out what happened to a specific case unless the DOL decided to consider that response back in October 2005 as an appeal and sent it to BALCA, and that process could take several months or even years to get resolved. Sometimes, it may be worth considering a new PERM filing, especially if the advertisements have not yet expired.

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

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Attorney Murthy : We are pleased that we were able to help so many of you today. Have a good day / evening, wherever you are!

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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 © 2006, MURTHY LAW FIRM. All Rights Reserved