Chat : June 05, 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 MurthyChat session with you that we hope you will find enlightening!

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Chat User : Hello. If the I-485 is approved while one is outside of the U.S., can one reenter in valid H-1 status or valid AP? If one has both (H-1 and AP), which document should be used in this case?

Attorney Murthy : After the I-485 approval, the AP is safer to enter with as there is a Legacy INS Memo to that effect that a person may be paroled into the U.S. on the AP. Then s/he can go for the final FP and either the PP stamping or wait for the actual I-551 card to be mailed to the home address as evidence of lawful permanent resident status.

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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 : Hi. My OPT expires on May 1, 2007. If I file for my H-1 (masters quota) on April 1, 2007 using premium processing, assuming that it will get approved by May 1, 2007, can I start working right away, or do I have to wait until October 1, 2007?

Attorney Murthy : Well, that depends on whether or not there are any H1B numbers available for cap-subject U.S. advanced degree quota candidates by April 1st for the same fiscal year. If there are sufficient numbers, then there is no problem. But it is more likely that there may not be sufficient numbers for so long. If, as is expected, all the advanced degree numbers for FY2007 are used in the near future, then the start date for a case filed in April 2007 would be October 1, 2007. This will mean a status gap for one with OPT expiring in May 2007, and, therefore, no change of status in the U.S.

A safer alternative is to file an advanced degree case for FY2007 immediately, requesting a start date six months in advance. This will mean losing some months of OPT, but will avoid the larger problem of not having cap numbers available when the OPT expires. You must review the movement of case filings under the U.S. advanced degree quota carefully to see when the numbers will expire, since you don't want to be stuck for 5 months with no job, no salary, and no legal status!

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Chat User : Dear Ms. Murthy, I was on an H1B visa for two years. Then I transferred to an F-1 visa for two years to pursue my master’s degree. Now, I am again on an H1B visa from this October. How many years will I get on the H1B visa?

Attorney Murthy : If one has used 2 years of the total of 6 years granted in H status, then the balance of the 4 years remains. Of course, if the person filed the LC or PERM or I-140 petition at least one year earlier, then s/he will be able to obtain annual H1B extensions of one year each, or if the I-140 has been approved the person is able to obtain up to 3 years of H1B extension each time, even after the completion of the full 6 years on H1B or H-4 status.

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Chat User : When does the 20,000 H1B under the advanced degree quota renew every fiscal year? When can one start filing and start working under this special quota?

Attorney Murthy : The 20,000 H1B advanced degree quota also starts at the beginning of each USCIS fiscal year. Fiscal years begin October 1st and end on September 30th. The rules for filing are the same as the regular H1B quota in the sense that a person can file up to 6 months in advance for a future start date. For example, if one prepared and filed the H1B petition under the U.S. advanced degree quota on July 1, 2006, then the start date could be as late as January 1, 2007, to work in H1B status.

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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 : Applying for I-140 with substitution LC, EB2, B.S. plus 5 years of experience. I have a master’s degree and 4 years and 6 months at the time of application of the LC. Can I still use this?

Attorney Murthy : Unless the LC clearly allows either a B.S. and 5 years of work experience or an M.S. and 3 years of work experience, that LC likely will not help in filing under EB2 if one technically would not qualify for that particular job.

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

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Chat User : My wife is on an H-4 visa and we got EAD recently. If my wife wants to work in the U.S., based on the EAD received, will this affect my H1B status to EAD?

Attorney Murthy : Generally, the spouse working on the EAD should not affect the principal's ability to file an H1B extension of status with the H1B employer as each person is legally entitled to separate legal status after filing the I-485 papers. The safer route is to presume that when anyone works on the EAD, then the principal should also work on the EAD to be consistent. There appears to be some discrepancy with this entire matter, as there are no clear regulations or guidance from the government.

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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. In case of an H1B transfer, can I join my new employer even before receiving the receipt notice?

Attorney Murthy : The actual AC21 law only requires that, in order for the new H1B to work for the new employer must be "filed" in order to start taking advantage of AC21 H1B portability. To be on the safe side, most individuals and employers prefer to obtain the USCIS receipt notice as that is clear evidence of the filing of the new H1B petition. It depends on the level of risk that one is happy to take in life.

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Chat User : Is premium processing a better choice this year since, if the application gets rejected after three months, we will not have any H1B left to refile?

Attorney Murthy : Yes, that could be one way to look at it. But this year, even if one had filed under the PPP, there is a chance that it would have been too late to file another new H1B that would need to be counted against the cap.

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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 : Is there any way we can contact the DOL for the 45-day letter follow up, since there has been no news from them since the application was sent to BPC? Please suggest the best solution.

Attorney Murthy : The problem is that the case data entries have not yet been completed by the BPCs. This means that there is no point in contacting them to find out when the 45-day letter will be issued. Also, there is no timeframe to process the case even after the 45-day letter has been issued. It is worth trying to obtain the evidence of the LC filing for H1B extension purposes and also to find out if the person's case has actually been filed and not misplaced by the DOL.

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Chat User : I have been waiting for my I-140 approval under EB3 for six months now. After my I-140 is approved, can I file a new case with the same employer for the same or a new job under EB2? What are the risks involved?

Attorney Murthy : Technically, a person could file for a new PERM job that requires a higher level of education or work experience, if truly there is a new position within the company, as the earlier job is no longer valid since one gains more and more experience each year. After the LC and I-140 approval, the risks are less, though the GC-sponsoring employer may want to use the earlier EB3 LC to recruit another employee after you have filed your EB2 case. It is best to wait until you obtain the GC rather than use that LC for another person in the middle of the process.

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Chat User : Hi, Ms. Murthy. Greetings! Given the scenario that a person's current employer and prospective employer (i.e. the company who is interested in hiring her/him after the H1B visa is approved) both apply for H1B simultaneously / concurrently), is it possible for one to apply for two H1B statuses concurrently through two different employers?

Attorney Murthy : If one wishes to work concurrently, with 2 employers at the same time (usually in two separate part-time positions) then filing as concurrent H1B petitions would make sense. Otherwise, if the goal is to work full time with one employer, the H1B filing should not indicate concurrent filing.

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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 : Dear Ms. Murthy, I am on F-2 and intend to change my visa to F-1 for the term Fall 2006. Is going to Mexico a good option?

Attorney Murthy : Generally, there is no telling if the consulates in the neighboring countries will issue the F-1 visa to a student. The burden of proof is always on the visa applicant, particularly in F-1 types of cases to show strong ties to the home country, both financial and family ties. The problem is that filing the F-1 visa request in a country other than one's home country could indicate weak ties to the home country. Additionally, if the F-1 is not granted in Mexico, the contiguous territory rule does not apply, and, unless the F-2 visa is still valid, it will be necessary to go from Mexico to the home country without going to the U.S. first.

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Chat User : When is the Hagel-Martinez compromise Bill expected to become a law?

Attorney Murthy : It depends on how much pressure can be brought to bear on members of Congress. Some relief is required, but most people are on the fence. So have your employers contact your senators and representatives to ensure that they vote in favor of comprehensive immigration reform.

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Chat User : Ms. Murthy, is it possible to obtain an H1B as photojournalist working for a media / newspaper, magazine, or another publication, or does the job have to be for writing and photojournalism in order to be able to obtain an H1B?

Attorney Murthy : It could be either as long as the job is considered complex, requiring at least the B.A. or B.S., and be considered a specialty occupation.

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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 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.

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