Chat : May 15, 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, it is wonderful that so many of you are with us again today. We look forward to another useful and enlightening MurthyChat session with you.

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Chat User : Hi, Attorney Murthy. Thank you in advance for this great service. In order to use AC21, what should one do when s/he is about to change a job? Should the INS be informed? If so, what should we send to them?

Attorney Murthy : The USCIS / Legacy INS Memos refer to an "expectation" that the person using AC21 portability will notify the government of the change of employer and demonstrate that the new position is the "same or similar," as required for the approval of the I-485. Accordingly, this can be done in any manner that will establish and meet the statutory standards. At our law firm, we prepare a complete package and memo of law outlining the sections of why the USCIS must approve the case so that one can use that even if the USCIS approves the case and the AC21 package crosses in the mail, etc. Of course, the package must include the letter or document from the new employer outlining how the job is the same or similar to the earlier LC/I-140 job for the GC.

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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 : What is the evidence one needs to submit when filing an H1B 3-year extension based on an approved I-140? Thank you for your help.

Attorney Murthy : Since the law only appears to require the evidence that the person's I-140 petition has been approved and that the priority dates are not current, a copy of each of these items as exhibits in a cover letter that points to the section of the law as to why the person is entitled to obtain the 3-year H1B extension instead of the standard one-year approval, must be included. Actually, the law states that this is a "one time" H1B extension, but since there is no guarantee that the PDs will become current in 3 years, it should be possible to obtain additional extensions based on the USCIS interpretation of AC21 law.

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Chat User : My I-140 has been cleared and I’m waiting to file the I-485. I’ve completed 6 years in the USA. In the meanwhile, I got my H-1 extended for 3 years. What is the possibility of changing to another employer?

Attorney Murthy : Generally, the GC is filed as a future job offer. If one has obtained or can file and obtain another 3-year extension with a different employer, then that person will presumably have the time to start another new PERM case within the 3 years so that s/he can get further extensions, if needed. One could also obtain the I-140 approval with the new employer and possibly also be able to transfer the PD from the earlier I-140 petition to the new case. So this is certainly possible, but the entire process must again be filed with the new employer with the possible benefit of being able to transfer the earlier PD to the new employer.

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Chat Master : At the Murthy Law Firm, our slogan is, "We know your immigration matters!" This expresses our confidence in our legal knowledge, as well as our understanding of what is important to YOU!

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Chat User : If an employing company files for bankruptcy protection under chapter 11, does it endanger the green card sponsorship of its employee?

Attorney Murthy : That could pose a problem for the sponsored employee, as the employer will likely not be able to file and obtain the I-140 petition approval by showing the financial ability to pay the employee the prevailing wage salary, unless the employer had been paying the full prevailing wage salary for the employee during the processing of the green card. If the employer is able to meet the ability to pay test for the I-140 approval, then it may actually work out, but if the company folds before the person files the I-485, s/he will be out of luck and should have some sort of backup plan possibly with a different employer for such a case.

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Chat User : I am on an L-1 visa now. Can I start some business of my own? Should I have a GC to start a business here?

Attorney Murthy : As a general rule, a person on a nonimmigrant status is not able to start and work for the business. Although one is allowed to invest money in a business in the U.S. as a passive investor, one cannot work legally as an active person running the business without obtaining valid authorization from the Department of Labor and the USCIS. This, in reality, often becomes a hurdle for most business owners until they are either GC holders or at least obtain the EAD after filing the I-485 adjustment application.

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Chat User : My EB3 RIR labor is pending at DBEC. Is it possible to file a separate EB2 labor under PERM with my current employer or any other employer and retain my PD safely? I'm in my 6th year of H-1 extension now.

Attorney Murthy : There is a better chance that the Department of Labor will not cancel the earlier case if one files a new LC or PERM with a new employer since the two cases are considered different. On the other hand, if one files a second case with the same employer, while this is possible currently for one case to be in the backlog center and the other being processed under PERM, it is possible in the future that the employer will be required by Department of Labor to select which case it wishes to process for that employee. One is able to retain the PD only after the I-140 petition approval, but not before.

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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 understand that I can have 2 LCs filed at the same time (one for EB3 and another for EB2). Can I keep extending my H1B based on my EB3 LC filing (filed more than 1 year ago) and simultaneously file EB2 under PERM (less than 1 year in H1B period)?

Attorney Murthy : Yes, it is certainly possible to file a second case with the same or a different employer as the law does not prohibit a person from extending the H1B with one LC filed over a year prior and then filing a new case with the same or a new employer.

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

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Chat User : I'm on an H-4 visa for the past 3 years. I had H1B status for a year before that. If I want to apply for H1B status again, will the H1B application be considered new? Meaning, will it be considered under the H1B cap for 2007?

Attorney Murthy : The law states that a person who has been counted against the H1B cap within the last 6 years, should not be counted against the cap or quota again. So it makes sense to file showing the reason for exemption under the H1B cap and also being allowed to start working legally under H1B portability simply upon filing the H1B petition to work for the new employer and not having to wait until it is approved.

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Chat User : Can a GC holder (child) study in India without having a reentry permit?

Attorney Murthy : Generally, for a minor child, the intention of the parents is imputed to the child until the child reaches majority. So, if the parents are settled in the U.S., the child is more likely to be able to retain his/her GC than if the parents have relocated abroad with the child. In that case, the least that the parties can do is to file the reentry permit. The reentry permit is a necessary document for reentry if the child has been abroad for a year or more. Merely filing and even obtaining the reentry permit does not result in the person being allowed back into the U.S. as a permanent resident, as this is a discretional matter for the CBP inspector, depending upon ties to the U.S. and the reasons for going abroad.

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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 following the issue on immigration in the news. However, the focus is only on illegal immigration. Does the current immigration bill in Congress have any relief provisions to expedite the green card process?

Attorney Murthy : Some of the proposed bills that were pro-immigration, like the Kennedy McCain Bill, had some useful provisions to help EB immigrants by, for example, not counting family members in the annual quotas allowed into the U.S. This would speed up GC processing since the major delays are in the movement of priority dates, at present. Although the news media is focusing on the illegal workers portion, which is more controversial, the other provisions to help legal workers from other countries is not considered so newsworthy! You can go to the legislation page on MurthyDotCom for summaries of some of the bills that had been introduced.

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Chat User : I am on the 5th year of my H1B. I wanted to change jobs and want to find out if the H1B cap applies to me. I am currently employed as a fellow by a teaching hospital and am likely to be employed by a not-for-profit organization. Am I exempt?

Attorney Murthy : Well that depends on whether the new employer is a research institution or affiliated with a university. The USCIS plans to clamp down on the definition of those who are exempt via university affiliation, as until now these categories have been broadly defined and used by various employers to argue H1B exemption. In an article recently published in the MurthyBulletin, this issue is being raised in the near future by the USCIS. The attorney who files your case will need to research whether the H1B cap applies, depending on the nature of the organization as required by the statute to be exempt, and then make an argument if it is a gray area.

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

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Chat User : Recently, during reentry, the immigration officer stamped my I-94 until my passport's validity. The H-4 visa is stamped as stated on the I-797. Now, since the passport is renewed from the consulate, is it legal to stay in the U.S. until visa validity?

Attorney Murthy : There may be some risk in staying based on one's last I-94 card showing a date that has expired or that will expire soon. One may be required to file an extension of status to avoid being considered "out of status," in such a scenario. Or the person could attempt to contact the airport CBP office to request whether it is able to provide a new, updated I-94 card to match the latest approval notice so that the individual obtains valid stay until that expiration date. S/he could also file for an extension prior to the expiration of the I-94 to make sure that the stay is legal.

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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 apply for I-140 in EB1 or EB2 myself, can I change organizations before approval?

Attorney Murthy : One is legally allowed to change employers at any time in a free-market society, as long as the USCIS approves the work authorization with the new employer. If your question is asking if the GC can continue, that will depend on whether the new position is considered to similarly benefit the U.S. in the national interest or result in the U.S. enjoying the prospective benefit of that person, even after changing jobs or employers, to establish that the approval should be binding on the USCIS. One can make the argument if an RFE is issued by the USCIS at the I-485 stage.

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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, Ms. Murthy. I am an F-1 student on CPT. I am applying for H1B premium processing. The start date of the H-1 is October. Can I go for the visa in July?

Attorney Murthy : Generally, the rule is that a person is only allowed to apply for the visa 10 days before the start of the status. A few years ago, however, the U.S. Department of State permitted the consulates to allow people to apply for the visa stamp earlier, if there would be a backlog created for the October 1st starting date. So it depends on the backlogs of the particular consulate, but the general rule is that one cannot obtain the visa stamp several months before the start of the status since one is not allowed to enter the U.S. until 10 days before the start of the H1B approval date.

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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! Thank you for your active involvement in our MurthyChat. Next week, I will be traveling and in India again, so we will have the MurthyChat from there if all goes well!

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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