Chat : May 08, 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.

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

Attorney Murthy : Dear MurthyChat participants, it is wonderful that so many of you are with us again at this MurthyChat session.

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

Chat User : I recently got my green card. What should I do to the H1B I-94 in my passport?

Attorney Murthy : There is nothing for you to do with the H1B I-94 in the PP. You could take it out and just keep it for your records. When one reenters the U.S. as a permanent resident, after the next trip abroad, the CBP inspector at the airport will look either at the I-551 card or the stamp in the PP to allow the individual to enter as a GC holder.

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

Chat User : When an H1B (3-year) extension is filed 6 months in advance based on an I-140 approval, does one get a 3-year extension or 3.5-year extension? Thanks for your help.

Attorney Murthy : The maximum one is given in H1B status is 3 years at a time. Accordingly, one will only get the 3-year H1B extension with a start date 6 months later. In effect, therefore, the earlier H1B approval that is valid for another 6 months continues to remain valid until it expires, and then the new 3-year H1B extension should be approved for the entire 3-year timeframe allowed for a person with an I-140 petition approval.

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

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 : Good evening. I'm on L-2 with an EAD that expires this month. I applied for a renewal. I have a job offer asking me to join next week. Will I be denied the job?

Attorney Murthy : A person should generally file for the EAD renewal about 4 months before it expires. One is not allowed to work legally after the EAD expires. Whether or not one in this situation would be denied the job depends on how and what s/he is able to negotiate with the employer. That is not a legal question. The legal issue is that a person is not allowed to work legally until the USCIS issues the new EAD and, generally, that process takes about 3 months on average, though one could receive it earlier. If it takes longer than 3 months, one is able to go to the local USCIS District Office to request an interim EAD, valid for 240 days.

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

Chat User : I am currently on an L-1 visa. Is it possible for me to join another company in the U.S. without processing my H-1?

Attorney Murthy : A person may only work for one employer on the L-1 or H1B, etc. So each time a person changes employers, s/he is required to file a new H1B for that employer. The L-1 or H1B is not like an EAD that allows one to work with any employer. Also, the L-1 requires a person to have worked with the foreign company, branch, or subsidiary for at least 1 year before being eligible to obtain the L1A or L1B in the U.S. Therefore, it is unlikely that a person would be eligible for an L-1 through more than one company.

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

Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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

Chat User : I don't have an I-140 approval document with me, but I have the receipt number. My I-485 is pending for approval for the last year. Is it safe to do AC21?

Attorney Murthy : Generally, the rule is that the I-140 petition must have been approved for one to take advantage of the AC21 portability. Merely having a receipt number for filing the I-140 petition is not sufficient. If it has been approved, then one could always go to the USCIS website and print out the approval of that petition, and write the name of the employer and employee and attach it to the USCIS receipt notice, if available, to show that the I-140 petition has been approved. Of course, the new job must be the "same or similar" to take advantage of the I-485 portability provisions.

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

Chat User : Hi, Ms. Murthy. Is it a problem to go for an H1B visa stamping (a 2nd stamping after an extension) if one has filed for the green card? Also, will it affect a spouse’s standing for an H-4 visa?

Attorney Murthy : The rule is that either the H1B or H-4, as well as the L-1 and L-2 visa stamp is not a problem, even if a person has filed for the GC since H-1s and H-4s, L-1s and L-2s enjoy "dual intent.” This means that the fact that the GC was filed does not prevent that person from getting the H or L visa. This is quite different for those on F-1 or J-1, or B-1/B-2 who apply for the GC, as they cannot get those visas after filing for the GC since they are considered pure nonimmigrant visas.

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

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 : Does premium processing of H-1 have more risk of being rejected since it's done very quickly as compared to regular processing?

Attorney Murthy : There is not supposed to be any difference legally between the case that is premium processed and a regular processing other than the fact that it is required to be adjudicated faster. However, it is generally true that premium cases are assigned to supervisors who may know more law than many USCIS examiners. This sometimes results in the case being reviewed more closely and sometimes getting a denial in gray areas. Unless a person needs the approval to start working right away, if a person has to wait until October 1, 2006 to start working on H1B status, then there is no need to process it under the premium processing method. If one was previously in H1B status, s/he is allowed to work while the new H1B is pending under AC21 H1B portability provisions. However, our office files many cases using premium processing without incident. It is a valuable tool for many.

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

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 : Hi. I applied for an H1B extension with company B, and I got the receipt notice date as the 10^th. Can I start working with company B from the 3rd of the same month?

Attorney Murthy : As a general rule, the law states that a person is allowed to start working with the new H1B employer upon filing the new H1B petition to work for that new employer. If the H1B petition was not filed until the 10th of April, for example, one is not allowed to work legally from the 3rd of April, as the filing per the USCIS records only occurred on the 10^th, in this example. The receipt notice is evidence of the filing of the new H1B petition, so, hopefully, in the worst scenario, there is no unlawful presence or work without authorization for more than a week. Generally, the risk level is not high in such cases, but the correct rule is to wait for the H1B package to be received at the USCIS, and then, ideally, even wait for the receipt notice to start working legally.

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

Chat User : I am working here on an L-1 visa. Can I process my GC now?

Attorney Murthy : Well, it depends on how the L-1 was obtained. If it was obtained based on a blanket L-1, filed and approved under the prior law that allowed the person to enter and work based only on working for 6 months for the L-1-sponsoring employer, then that person is not able to file for the GC in the multinational executive transferee category since one is required to work for a minimum of 1 year abroad for the GC-sponsoring employer to process the EB1 GC. If the person is eligible to file based on meeting the one-year test and all other criteria, then s/he should be able to file the GC at any time, presuming the U.S. company has been in business for at least a year, as required for the EB1 MET category. There is no minimum waiting period after entry into the U.S. to file for the GC process.

If the L-1 is an L1B and the company will file the PERM labor certification, then there is no waiting time issue.

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

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

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

Chat User : Can we apply for a change of employer for an H-1 abroad? How long is the wait?

Attorney Murthy : It is permissible to file a new H1B petition for a new employer when one is abroad, but the USCIS cannot approve it with the I-94 card attached if the person is not filing while in the U.S. This means that such a person will need to enter the U.S. by showing the new H1B approval to work for the new employer with the H1B visa stamp that has not yet expired, even if with a prior employer, to allow that person to enter the U.S. and obtain the new I-94 card at the port of entry valid until the latest H1B approval notice to work for the latest employer.

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

Chat User : If a student gets an H-1 sponsored before completion of the master’s degree (coursework completed, working on thesis), does s/he have to leave the country to get a stamping before working?

Attorney Murthy : Generally, a person is allowed to file for a change of status from F-1 to H1B from within the U.S. if there is no gap in status from the expiration of the F-1 to the start of the new H1B. If there is a gap in time, then one is not supposed to get the I-94 card attached to the bottom of the H1B approval notice. In that case, one is required to apply for the H1B visa stamp from the consulate abroad, then enter the U.S. on that visa stamp and showing the H1B approval notice and obtain a new I-94 card at the port of entry to be able to work legally for the H1B 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 : If a person transfers from an H1B to a J-1 visa, will he get 6 more years of H1B after expiration of the J-1 visa? Thank you, madam.

Attorney Murthy : The only way a person is able to get a full 6 years of H1B is by departing the U.S. and living abroad for the full one year or longer. Otherwise, one is only subject to recoup any time left on the initial 6 years if s/he simply changes status in the U.S.

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

Chat User : When filing for I-140 under the EB2 category, is it possible to use an earlier priority date from an approved LC under EB3?

Attorney Murthy : An approved LC is not sufficient to transfer the earlier PD. One is required to have filed and obtained the I-140 petition approved with the earlier case and that I-140 petition should not have been revoked for fraud in order for the person to be able to safely argue that the earlier PD should be used for the later-filed case.

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

Chat Master : For the latest news in U.S. immigration and what it all means to you, subscribe to MurthyBulletin - our FREE, weekly eNewsletter delivered to your Inbox! Visit <http://www.murthy.com/signup.html> to find out how.

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

Chat User : If my company goes under, do I have a grace period to apply for an H1B transfer? What happens if the current company goes under while my H1B transfer to a new company is in process? Thanks.

Attorney Murthy : Generally, the law does not provide for any grace period for a person to live legally in the U.S. while looking for a new job. On the other hand, if one has already filed the new H1B with the new employer, s/he is considered to be in a period of authorized stay to live and work legally upon the filing of the second or new H1B petition. The AC21 law's H1B portability provision allows a person to work simply upon filing the H1B transfer.

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

Chat User : If a person is being sponsored on H1B exempt visa through a non profit organization. What will be the process for me to get transferred to a normal H1b so as to get employed by any profitable venture if the candidate has never been counted against H1b quota.

Attorney Murthy : The process is the same as applying for any new H1B job by filing it now while the H1B numbers are still available but with a start date of October 1, 2006 since that is when the new H1B cap subject folks can start working. The employer has to check off the correct box on the form I-129W to indicate that move from the cap exempt to the cap subject employer.

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

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

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

Attorney Murthy : We are pleased that we were able to help so many of you today. Have a good day / evening, wherever you are! Thank you for your active involvement in our MurthyChat.

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

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