Chat : May 22, 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 to have so many of you with us today. I am in India again and participating in this Chat on Tuesday early morning (Indian time) just to help guide you with your many questions. We look forward to helping you understand the nature of the issues and offer you some suggestions through this MurthyChat session.

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Chat User : Can a person in a 7th-year extension and waiting for an LC transfer his H1B to a new employer who is willing to file the GC for him? In that case, will he be losing his priority date?

Attorney Murthy : A person cannot use an earlier PD with a prior employer until both the LC and the I-140 are approved. Then, also, the earlier employer should not revoke the earlier I-140 petition for the person to be sure to enjoy that earlier PD with a new filing of the entire LC/I-140 with an employer.

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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 : My 8th-year H1B extension was approved for 3 years, and I don’t have a visa stamped. If I use advance parole, do I need to extend the H1B visa again immediately to work with the H1B after coming from India?

Attorney Murthy : This issue is not entirely clear as the person is allowed to file an H1B extension soon after entering, but the safe route is for one entering on the AP to use the EAD to work for the H1B employer after having been paroled in. Then s/he can file an H1B extension or amendment to reinstate the H1B status and continue working for the H1B employer.

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Chat User : Is it safe to go to India for a revalidation of an H1B visa after getting the H1B extended for three years based on an I-140 approval?

Attorney Murthy : The chance of getting the H1B visa stamp from abroad during the 3-year H1B extension, based on the I-140 approval, is the same as with any H1B approval within the U.S. So it depends on one's credentials, the employer's bona fides, and that there is no security concern surrounding the H1B visa applicant.

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Chat User : Is it legal to get the L-2 stamped and enter the U.S. while my husband is having an approved H1B but still working with the old company on an L-1 visa?

Attorney Murthy : There is no statute or regulation on this issue specifically, though there are various USCIS / Legacy INS opinion letters stating that the last action rule may apply or that a person is allowed to continue working for an earlier employer even after a later approval. The safer route is to request the H1B employer to revoke or cancel the H1B approval with the USCIS so that there is no allegation that the principal is no longer in L-1 status.

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Chat User : Can a pre-approved labor be substituted for an H-4 visa holder who is likely to covert to H-1? After the I-140 is approved, can I retain the priority date of a substituted labor if I change the employer?

Attorney Murthy : Generally, a person on an H-4 is allowed to be substituted using another pre-approved LC. The person is able to obtain the earlier PD as long as the employer does not cancel or revoke the approved I-140 to use the same approved LC for another employee. Then there is a risk that the earlier PD may not transfer to a new LC/I-140 filing with another employer.

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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, Murthy. Do you have any update on the labor substitution elimination bill?

Attorney Murthy : The U.S. Department of Labor received many comments in response to their regulation to eliminate LC substitutions. They are reviewing these and will need to issue a final regulation either reiterating their original position or modifying it based on the comments received. We will see what happens.

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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.

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Chat User : Hi. Can you please tell me if a visa stamping in Canada gets rejected, can I come back to the USA on my existing, valid I-94?

Attorney Murthy : Generally, the CBP Inspector is not supposed to allow a person to reenter the U.S. if the visa stamp was denied in Canada. Sometimes, at the discretion of the inspector, a person may be allowed to enter for 30 days to pack her/his bags, but that is purely subjective and one cannot rely on it; so there is a risk. The only time one is able to reenter is if the earlier H1B visa stamp has not yet expired and has not been canceled by the consular officer. Then the person can use that unexpired visa stamp in the same status to travel abroad and reenter. Even then, such a person could travel to India on that unexpired visa stamp and reenter the U.S., so going to Canada would seem to be a waste of time and money in such a scenario.

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Chat User : I have an approved LC (March 2006 / EB2 / India) through PERM and I applied for I-140. I recently got a 45-day notice for the regular LC filed in March 2005. What do you advise?

Attorney Murthy : There are pros and cons in proceeding with either option, but the safest, now that the PERM case has been approved, is to continue with the existing LC case and then, after that is approved, file another I-140 petition, if feasible and if the person's job duties, etc still are valid. Then attempt to transfer the March 2005 date after the second I-140 approval to file the I-485 when the EB2 dates for Indian nationals become current for March 2005. This will involve spending more money and time for the employer to process both cases, but, ideally, that will help the person to get the best of both worlds.

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Chat User : A person changed her status from H-4 to H-1. Let’s say she stayed in H-4 for 4 years and has less than one year left in H1B status. Can she get a 7th-year extension by switching to a new company that is willing to file her GC?

Attorney Murthy : A person is able to file for the 7th-year H1B extension only if s/he had filed the LC or I-140 at least 365 days earlier with any employer. If not, the individual is not able to do so. Also, if one is able to get a one-year extension of the H1B, s/he must promptly file a new LC/PERM case to be able to extend the H1B again the following year, as the new LC/PERM must be pending at least another 365 days for the person to obtain another H1B extension if the earlier employer cancels or revokes the earlier LC case.

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

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Chat User : Good evening, Ms. Murthy. I have seen your articles on issues that may arise while acquiring citizenship, especially when a person leaves the employer who sponsored his/her green card within less than a year. Is the same problem expected to arise while acquiring citizenship when the employee leaves after 6 months of filing I-485 but before getting his GC?

Attorney Murthy : That is a good question, and, so far, there has not been any specific guidance from the USCIS on this matter. If one properly used AC21 to take advantage of the I-485 portability provisions, then it should be less of a problem than in a case where one did not file the AC21 or notify the USCIS or, otherwise, was not eligible to take advantage of AC21, etc.

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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 : Hi. Please tell us how to use the AC21 rule if a person is eligible for it and joining a permanent job with the same skill set.

Attorney Murthy : One needs to notify the USCIS of the new job and show that it is the "same or similar" with the new employer's letter. I presume that when you say perm job you mean a permanent job offer and not a PERM LC type of scenario. Provide the USCIS with the law and their guidance memo language to show eligibility under law to take advantage of AC21 portability provisions.

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Chat User : If one’s H1B visa is approved by the USCIS, is there a possibility of rejection when one goes to get a visa stamped at a U.S. consulate?

Attorney Murthy : Of course, one can get a visa stamp denial, though it is not common. There is a possible risk of the H1B visa denial at the consulate if there is a concern over one's qualifications, the employer's ability to offer the job, or if the person has a security-related issue. Most often, though, H1B visas are granted, especially if the individual was previously given the H1B visa stamp, unless there is an allegation of fraud that is revealed.

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Chat User : If a person has an H-1 stamped and gets another H-1 approval, is it advisable to get the new H-1 stamped, or can it be taken care of at the port of entry?

Attorney Murthy : Most often, people get the H1B visa stamp, especially if one was previously granted the H1B visa stamp at the consulate. There is always a risk, based on the person's lack of qualification or the employer's bona fides, or if there are security concerns or fraud issues.

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

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Chat User : If a passport number is incorrectly entered when applying for an interview online, what can be done when going for the interview? Thanks.

Attorney Murthy : As soon as one starts the interview, s/he can and should notify the consular officer that the PP number was incorrectly typed on the form as a typo. This should not pose a problem, unless there is concern over possible fraud or misrepresentation that one attempted to obtain an earlier visa appointment date, etc.

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Chat User : Will my GC case (for future job, only I-485 pending) be affected if I have received unemployment benefits in the past? EAD validity for this was verified by EDD/USCIS.

Attorney Murthy : Generally, a person who receives unemployment benefits should not be affected, as that is not considered a government-paid subsidy. It is paid out of employer funds for their employees who lose their jobs, etc.

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Chat User : I am in H1B 8th-year extension, awaiting my LC. Will I lose my status if I change my employer now? Currently, I have 6 months of H1B left, and my new employer is willing to file for a new GC.

Attorney Murthy : If the earlier employer does not cancel the earlier LC to use for another employee, then it is possible to file the 8th and future H1B extensions based on the earlier LC. Otherwise, if the earlier employer cancels it and the new LC has not been filed and pending for at least 365 days, the person cannot obtain any future H1B extensions, but will need to remain abroad for one year to get a new 6-year H1B again and is subject to the H1B cap again.

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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, Murthy. If someone is trying an F-1 visa while the immigration process is pending, will it be a problem for the immigration process if the F-1 is denied?

Attorney Murthy : It is common for a person's F-1 status to be denied if s/he has expressed an intent to immigrate to the U.S., as the F-1 is a pure nonimmigrant visa. The Senate Bill is planning to make it dual intent down the road IF that bill ever becomes law. However, the denial of the F-1 should not affect one's GC processing as the two are considered separate processes unless the denial of the F-1 is based on fraud so that it may affect the other case.

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Chat User : Can a person in H1B status do business and draw profit or salary from it? Can H1B status be transferred to a company that is newly established, and what papers are required for transfer? Does the previous employer come to know about it?

Attorney Murthy : One who is on in H1B status is not allowed to work in the U.S. for any other employer without permission from the USCIS and Department of Labor. It is slightly more difficult to obtain H1B approval for a newly established employer, as there is a lot more paperwork required, but there is no legal obligation to notify an earlier employer if one files a new H1B with a new employer.

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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 : I am applying for a change of status from H-4 to H-1 to start work in October 2006. Is it possible to go to Canada in October 2006 to get the H-1 visa stamped?

Attorney Murthy : It is always possible to go anywhere one chooses, but there is no guarantee that the visa will be stamped. The risk is greater if the person did not study in the U.S. If the visa stamping is denied, one is not able to reenter the U.S., unless his/her H-4 visa stamp is still valid and the person intends to remain in H-4 or plans to travel to the home country and apply for the H1B visa stamp there, after the visa denial in a neighboring country.

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

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Attorney Murthy : Thank you for participating in today's MurthyChat. We are pleased that we were able to help so many of you. Next week, we will not have the MurthyChat in observance of the Memorial Day holiday. So, see you in two weeks, same time, same place. 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