Chat : Month 00, 2008

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: It is wonderful to have so many of you with us again Welcome to our MurthyChat today! We invite you to submit your questions so that we can provide some general guidance to you on your immigration related issues.

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Chat User : My H1B is expiring in October 2008. I-140 is pending. Should I extend my H1B for 1 more year till October 2009? Will this help in case of my I-140 rejection?

Attorney Murthy : Although not mentioned, it seems that you must have an I-485 pending, otherwise the extension of the H-1 would be mandatory. Of course it is safer to have a backup option, like the H1B status, in case of the I-140 denial and the I-485 and EAD no longer being valid at that point. Please note that the term "rejection" is used when the mailroom does not accept a package, but the term "denial" is used when the USCIS makes a decision to deny an immigration benefit.

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Chat User : I am currently on H-4 and my visa is valid up to Aug 2010. My H-1 processing is going so, can I travel to my home country and come back before 1st Oct? If so, do I need to have my visa stamped? Will I have any problem with new I-94?

Attorney Murthy : If one departs the U.S. while a change-of-status petition / application is pending, the change of status is deemed abandoned by law. This means that one should depart only after the H1B petition is approved, with the I-94 card attached, and then travel abroad and enter well before Sep 20, 2008, in this example. Or, if entering after Sep 20, 2008, one would need to obtain an H1B visa stamp in the home country and reenter the U.S. in H1B status, with the intention of working for the H1B employer from Oct 1 onwards.

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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 : Does an employer have to have another employee with exactly the same qualifications to revoke an approved I-140, or can the employer just revoke it at will?

Attorney Murthy : The general rule of law is that the I-140 petition belongs to the employer and can be revoked at any time at will. With LC Substitution elimination, since July 16, 2007, there is no longer any benefit for the employer to revoke the I-140 petition, other than possibly to show that it no longer has any financial obligation towards that employee regarding the ability to pay the offered wages in other I-140 cases. But some employers will revoke the previously-approved I-140 petitions to make a point or for internal policy reasons. So there is a risk for the employee in such cases, unless AC21 portability applies - and even then the employee needs to show eligibility under AC21 I-485 portability to obtain the I-485 approval.

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Chat User : Do we need to include the fee for Biometrics while applying for renewal of EAD/AP? I already gave my biometrics last year.

Attorney Murthy : The USCIS / DHS filing fees for the EAD and AP must be paid, not the biometrics fee separately, as this has already been paid with the I-485.

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Chat User : If my employment-based green card (EB3) is denied, can I apply for employment-based green card (EB2) prior to 180 days out of status? Will section 245(k) protect me?

Attorney Murthy : This question makes no sense since. By simply starting a new EB2 or EB3 case for the PERM/LC within the 180 days, one does not obtain any legal status in the U.S. if the nonimmigrant / H1B status has already expired. If the total time that one was out of nonimmigrant status or worked without authorization is 180 days or less, then the person is eligible to file the I-485 and obtain the approval under 245(k) for employment-based cases. Otherwise, it will not work. The nuances of 245(k) are best discussed with a qualified immigration attorney.

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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 : I filed an H-1 case and have a receipt notice. Have I been counted against the cap? Can I file an H-1 with a different employer now?

Attorney Murthy : That is not possible since the USCIS issues receipt notices to extra people under the presumption that some cases will be denied as the employer or employee or both do not qualify for the H1B petition approval. Only upon the approval of the H1B petition and status is the limited H1B quota number allotted to that person. So one must wait for the approval notice and then file a new H1B with a different employer, if desired.

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Chat User : My spouse got I-140 approved and applied for CP. Then he went back to the home country and is working there. Will it affect his GC approval later? Can I (I-485 pending) change to CP w his if his visa no gets current first?

Attorney Murthy : It seems that the I-485 filed by you is based on your own I-140 approval, separate from your husband's. In order for your husband to get his GC approved, he must demonstrate that there is an ongoing job offer from the sponsoring employer. If he is working abroad for a different employer, this may present a problem at the consular interview, even though green cards are based upon future job offers. In either case, one could add another family member if when the PD becomes current the USCIS requests information on all accompanying family members on the DS-230 Parts 1 and 2, so that the spouse and children can all obtain the immigrant visas at the same time.

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Chat User : Can H-4/H-1 candidates go to any Indian consulate for their FIRST H1B stamping? Working on H1B from October 1, 2007?

Attorney Murthy : One must go to the U.S. consulate, which has jurisdiction over where the person lives or has a permanent address abroad. Otherwise, the other consulates could request that one go to that consulate, unless there is an emergency requiring earlier travel and the consulate having jurisdiction is backlogged with processing cases.

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Chat User : I got my H1B revoked on April 24, 2008. Can I continue on my F-1 status as I have OPT till May21 2008?

Attorney Murthy : The answer to this question is not clear since, if the H1B was effective earlier than April 24, 2008, the person's change-of-status already occurred on that date, so s/he cannot continue to remain in F-1 status after that date. You need to consult with your lawyer or contact us at law@murthy.com for a consultation to ensure that you are not already out of status, creating potential problems in your SEVIS record, since the Immigration and Customs Enforcement (ICE) can start removal proceedings.

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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 filed my H1B under the general category, but still not received any news. Could you please tell me how long it my be before I can expect the reply from USCIS?

Attorney Murthy : The lottery has been conducted, and we have received some replies and even approvals for H1B cases that used premium processing. We are continuing to receive receipt notices for cap-subject H1B cases. We have not yet received any returned cases for those not selected in the lottery. Last year, the cases that were not selected started to arrive around mid May. The USCIS has not set a specific deadline for completion of cases / issuance of receipt notices. We will update MurthyDotCom with any official information on this topic.

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

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Chat User : Hi, Murthyji. I will be graduating this May 2008. I have been on F-1 until now. I filed I-485 as a derivative of my spouse's EB visa in July 2007. What will be my status as of now?

Attorney Murthy : After a person files the I-485, s/he has the status of AOS/I-485 pending. This allows one to obtain an EAD and AP to be able to travel abroad and reenter the U.S.

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Chat User : When H1B extension is pending, if the candidate travels outside USA before H-1 extension is approved, which I-94 prevails - the one s/he received at the POE? or the one s/he got with H-1 extension approval?

Attorney Murthy : The general rule is that the latest action of the USCIS will prevail under the last action rule. But, if the person travels abroad while the Change-of-Status (COS) is filed, then by law the COS application is deemed abandoned by having departed the U.S. before a decision from the USCIS. This is not the case for Extensions of Status.

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Chat User : I did my master's degree here in the U.S, but did not utilize my OPT period. I went on H1B as soon as I graduated (May 2005), because my H1B visa approval came before my OPT card arrived. My first 3 years of H1B will end this July. Can I utilize my OPT now?

Attorney Murthy : No. Under prior law one must file for the OPT either before graduation, so the window of opportunity to use the OPT has gone. If, however, one completes another master's degree and then files for the OPT on the ground that the earlier one has possibly not been used, then ICE may grant it, but it is not clear in this situation that it would be allowed, as it seems that OPT was granted for 1 year, even if not used.

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Chat User : When one's employment-based I-485 is pending and in EAD status and the spouse starts a company, can main beneficiary join the company? Will there be any issue?

Attorney Murthy : A person can join any employer or business, including that owned by the spouse, but the potential problems could be regarding ability to pay and the similarity of the job for AC21 I-485 portability purposes, among other factors. Working part time, in addition to the regular job would not be an issue.

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Chat User : I have applied for H1B with cos this year and got the receipt. Does this mean that it is approved? How can I "Withdraw / Revoke" it?

Attorney Murthy : As mentioned above, the case is not approved, but it is a sign that one's case has been accepted for processing under the random lottery selection for the limited H1B numbers. Many cases will not be approved for various reasons, including one's not being qualified for the job or the employer not being qualified or the job not being considered a "specialty" occupation, etc. The H1B employer is allowed to revoke or withdraw a case prior to its decision - or even after - but usually the H1B petition belongs to the employer and not the employee, since the latter is considered the "beneficiary" of the petition / application.

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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 : My wife has an H-1, but has not worked for the past 7-8 months because she was on maternity leave. Is she in status?

Attorney Murthy : Well, by law and according to many company policies, maternity leave in the U.S. generally is for 6 weeks or up to 12 weeks, not for 7 or 8 months. It is possible that the person is already considered out of status under law unless one had a serious medical condition that prevented her return to work, and this medical condition can be documented by hospital records, etc. Discuss the options with your immigration attorney or consult our law firm, since this matter should have been resolved well before now, barring a medical emergency.

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

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Chat User : Dear Murthy, appreciate your service. I have been reinstated to H1B status from EAD. I have unused AP still valid until August of this year. Can I use it if I need to travel overseas, or do I need to apply for new AP?

Attorney Murthy : One is allowed to use the AP that has not yet expired and that was issued while s/he was in the U.S. for the purpose of traveling abroad and reentering the U.S.

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Chat User : I filed my I-140 and I-485 last summer. Can I work on EAD for a new employer?

Attorney Murthy : It generally is possible for one to start working for any other employer on the EAD, but if the I-140 gets an RFE and the earlier employer refuses to respond or answer it, then the I-140 could very well be denied, and the I-485 that is resting solely on the I-140 will also be denied along with the EAD and AP. If one is traveling abroad at that time, then s/he will not be allowed to reenter the U.S. after the I-485 has been denied, unless one has an H1B or H-4 petition approval with the visa stamped in the passport to be able to travel abroad and reenter the U.S. in that nonimmigrant status.

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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 : Hi Sheila Ji: Thanks for the service. Greatly appreciate it. Many of us who filed last fall have not received finger printing notice. Should we wait or call the service center. My application was transferred to Texas in Oct 2007. I have not EAD and EAP though. ,,, Regards Shekhar

Attorney Murthy : Shekhar: It is common for the USCIS not to issue the FP notices at uniform times in I-485 cases. While many people who filed in the summer 2007 have been fingerprinted, others have not. Someone who filed in the fall may be delayed due to all the summer cases. It is not usually a major concern, since many people will need to wait many years for the PD to become current, and fingerprinting will occur at some point in the process, sometimes multiple times since FPs expire.  
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Chat User : If I have EAD from Company A and H1-B with Company B. Then, can I work part-time for company A and full-time for company B (similar jobs), without hurting H1-B or green card? Also, do I have to use AP or I-94?

Attorney Murthy : Vasu: A person with an EAD is allowed to work for the GC sponsoring employer or any other employer as allowed under law. A person on an H1B is only allowed to work for that H1B employer generally. Since H1B and L1s enjoy dual intent under law, a person with an H1B and I-485 can have dual status and still extend the H1B if the person intends to continue working for the H1B employer. It is safer to use the H1B visa stamp and approval notice if reentering from abroad but even if one enters on the AP one is allowed to extend the H1B when it is time to renew it. The use of the EAD and claim to H1 status is a legal issue that is arguable.

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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 : What would be the common reasons for an RFE on I-140? Mine is a substitute labor.

Attorney Murthy : The common reasons are often the employer's ability to pay from the date of the original LC filing or the individual's not meeting the qualifications set forth under the original LC, etc. Sometimes it could be the EB classification problem, where one is not qualified for the position on the date of the earlier LC filing date. These are the most common reasons, but there are many other reasons for an RFE or an I-140 denial.

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

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Attorney Murthy : We at the Murthy Law Firm look forward to continuing to help you, your family and friends with all of your immigration law needs. We appreciate the opportunity to help you in our MurthyChat. Thank you for referring so many of your family and friends to us. We are delighted and honored to have your trust. We know your immigration matters! (SM)

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Chat Master : Thank you all for logging in! The MurthyChat is now held on the 1st and 3rd Mondays each month, unless Attorney Murthy has a conflict. 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.

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