Chat : June 11, 2007

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 today. We welcome your questions today, as always!

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Chat User : Dear Ms. Murthy, my I-140 was filed along with my husband’s. I am on H-4. Is it possible to change from H-4 to F-1 now? Is there any way to stay in the U.S. if I want to separate from him? Thank you.

Attorney Murthy : Actually, the I-140 petition is always filed by the principal applicant alone, and the spouse's name may be mentioned, but it is not considered the spouse's filing. Depending on an individual's specific background and education, s/he could consider F-1, J-1 or other options but will need to show strong family and financial ties to the home country. The fact of separation from the green card seeking spouse may help with respect to the immigrant intent issue.

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Chat User : Hello, Murhtyji. Can the H-1 be transferred to a new employer even if the previous employer has filed for cancellation of the H-1?

Attorney Murthy : Generally, it takes the USCIS about 3 or 4 months to confirm the revocation of an H1B, but they can and often do consider the date of the request in the equation. If one is not maintaining status by working for the H1B employer, the H1B petition can be filed with a request for consular notification, so that the H1B employee can travel abroad and reenter either on the unexpired H1B visa stamp with the new H1B petition approval notice or apply for a new H1B visa stamp at the consulate to reenter the U.S. in valid H1B 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 : My current status is I-485, and I use advance parole for trips abroad. I am pregnant right now, and I would like to know if it is possible to bring the child back to the USA with me if I give birth in India?

Attorney Murthy : Congrats! The child can enter if the principal maintains H1B status so that the child is entitled to apply for the H-4 visa stamp in the PP and enter on H-4 status. If not, and if the child is born abroad before the green card is approved, then there will need to be a follow-to-join case for the child through the consulate, using the same EB category and priority date. If the child is born abroad after the mother becomes a GC holder, then the child can enter on the mother's first return trip to the U.S., as long as that occurs within 2 years of the birth. The child will then be a permanent resident. Otherwise, the child cannot simply enter based on the parents having an advance parole approval. Of course, if the child is born in the U.S., s/he will obtain U.S. citizenship and can then have a chance at becoming the President of the United States!

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Chat User : Our church was planning to sponsor a pastor for our church from India through an R-1 visa. Do we have to file it in the U.S., or can the candidate take the sponsorship letter directly to the consulate in India?

Attorney Murthy : The rule was that R-1 religious workers were allowed to apply directly at the consulate without obtaining an approval from the USCIS. However, due to rampant fraud and misuse of the R-1 category, the USCIS has introduced a rule requiring R-1s to file with the USCIS in advance. The rule is not final as of today, since it is in the comment period. We have written on this topic in our MurthyBulletin, which can be found on MurthyDotCom by doing a search under R-1and fraud, or try similar variations.

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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’m including my wife, who is on F-1, when I’m filing the I-485 in EB2 category, since my PD is current. Would filing an I-134 be sufficient for the affidavit of support? Please advise.

Attorney Murthy : Generally, only the I-134 is required in most employment-based (EB) cases, unlike most family-based cases that require the I-864. In EB cases, the I-864 is required when the owner filing is related to the beneficiary or the employee, or a family member owns 5% or more of the sponsoring entity.

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Chat User : Dear Ms. Murthy, is the labor substitution process going to end on July 16, 2007, or is it likely to be postponed?

Attorney Murthy : The Department of Labor issued final regulations on May 17, 2007 confirming that LC substitutions will finally be eliminated for good on July 16, 2007. It is not likely that the LC elimination will be postponed unless there is some major government error in accepting the cases properly, etc, which is remote, at best.

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Chat User : Hi. My H1B expired in June 2007, and my current employer has applied for my H1B extension. Can I change employers during the extension period, or do I have to wait until I get the H1B approved?

Attorney Murthy : There is a risk if one relies on the "bridging" from one H1B extension to another. It is safer if the earlier H1B petition date has not yet expired. The risk, even if the earlier H1B has not expired, is that, if the intervening H1B petition is denied, the later one will also be denied the extension of status, even if the H1B petition itself is approved.

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Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at <http://www.murthy.com/chatlogs/chattran.html>.

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Chat User : If one did not apply for an H-4 extension in time, can s/he apply for the same within the 180-day period? If not, how can one correct his/her status?

Attorney Murthy : The safest way is often to depart the U.S. if the mistake is caught within 180 days, depending on various factors with the H-4 and the H1B spouse. Nunc pro tunc (backdated) requests do not have any assurance of being successful, as they are highly discretionary processes and, in the meanwhile, the person continues to accrue unlawful presence and remain out of status in the U.S. This will trigger the 3-year or 10-year bar on reentering and will also prevent the individual from obtaining the I-485 approval from within the U.S. You should consult with a qualified, experienced attorney to understand the risks and options. The ICE or USCIS is legally permitted to commence removal (deportation) proceedings against one who has stayed out of status in the U.S.

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Chat User : I am on OPT. I have an approved H1B, which is effective from October 1st. How do I handle the H1B visa issue if I want to change employers before October 1st?

Attorney Murthy : As long as one is maintaining valid, nonimmigrant status, then s/he can file a new H1B with a new H1B employer and submit proof of the prior H1B approval with the earlier H1B-approved employer. On an ethical level, it may pose a problem, and the employer may have a right to seek reimbursement for the costs and expenses incurred in processing the H1B for which the first employer did not get any benefit. From a legal point of view, it is permissible to file the new H1B if the person is maintaining valid status at the time of filing the second H1B petition.

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Chat User : Will a change in marital status affect visa stamping in the home country?

Attorney Murthy : Depending on the type of visa for which one applies, it will certainly make a difference. For example, it will mean less in an H1B context than with a B-1/B-2, J-1, or F-1 visa. So the visa applied for will make a world of difference in whether the consular official grants or denies the visa stamp, especially if the spouse is left behind in the home country, since that will show stronger ties to the home country in many cases for the B-1 or F-1, etc.

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Chat Master : We make a concerted effort to respond to only one question per person. Questions are selected when they are brief and relevant to many people.

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Chat User : My OPT expires in May 2008. I don't have an H1B in hand. What do you suggest? Can I enroll in school and continue working on CPT (curricular practical training)?

Attorney Murthy : Even if a person has obtained the H1B approval, the USCIS will not issue the extension or change of status after the 60 days of grace period on F-1 OPT. One should attempt to maintain valid, legal status in the U.S. by enrolling in school and requesting the DSO to consider CPT, if possible. Or one can file for B-2 tourist status for the 4 months, or consider departing the U.S. and reentering on or after September 20, 2008, if no other options work out in time.

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

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Chat User : Good evening. I always see other people recommending "talk to your congressman" when EAD is not approved after more than 90 days (as USCIS promised). What does this mean, and how do we go about it?

Attorney Murthy : If you don't know who the U.S. senators in your state are or who the representative is for your district, go to the House <www.house.gov> or Senate <www.senate.gov> website. Call or eMail the office of one who was elected to represent your state / district in the U.S. Congress (similar to Parliament in the Indian context). That official's immigration aide will often help with an eMail or letter, if s/he is convinced about the delays and wishes to help you.

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Chat User : Hello, Attorney Murthy. I have an approved EB3 LC, but I did not apply for I-140. I want to restart my GC process in EB2 and later use the PD of my previous LC when filing for EB2 I-140. Is it possible and advisable?

Attorney Murthy : It is only possible to use the earlier LC priority date after the I-140 petition on that earlier case is approved. Then, with the second filing, the LC/PERM is filed, but at the second I-140 petition stage the person requests the transfer of the PD from the earlier-approved I-140 petition.

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Chat User : I have been on H-1 for the last 9 years. I have an I-140 approved. Recently, I got laid off. My current H-1 expires in August. Can I join a different company based on my old I-140?

Attorney Murthy : A person is allowed to use the previously-approved I-140 petition with an earlier employer to file a new 3-year H1B petition with a new H1B employer if the priority dates continue to remain retrogressed. Otherwise, one can only obtain a one-year H1B extension when the priority dates are current for his/her EB category.

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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 : Can we file for multiple labors at different times from one employer or at different employers? Will there be any risk? In the same way, can we file multiple I-140s? Will there be any problem? Will the USCIS question the multiple I-140s or multiple labors because we mentioned that we filed another I-140?

Attorney Murthy : Usually, it is not a problem to file more than one LC or more than one I-140 petition. One must intend to work on a full-time, permanent basis with the GC-sponsoring employer. If they are different employers, then there is a potential issue of fraud if the filings were very close to each other, since that may show bad faith or lack of good faith on the part of the sponsored employee. Those are the factors to consider when one files multiple LCs or I-140 petitions. If filed through the same employer, they must represent distinct, different job opportunities.

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Chat User : Hello, Ms. Murthy. I'm on H-4 and have a green card-based EAD. Come October 1st, I have my H1B approved. If I use my EAD prior to October 1st, will it invalidate my H1B?

Attorney Murthy : Under the Legacy INS Memos of March and May 2000, under dual intent doctrine, the H1B remains valid even when one uses the EAD. One is allowed to file H1B extensions if s/he works only with the H1B-sponsoring employer. That is the advantage of the H1B and L-1 and their dependents, since dual intent is recognized under the law.

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Chat User : I'm currently on my F-1, which expires by July 31, 2007, after which there will be a gap of 2 months before my H1B starts. My question is, will there be a legal problem if I try to get a new I-20 now to maintain my status while my H1B is in the process? If there are any problems, can you explain?

Attorney Murthy : Under law, there is a 60-day grace period after the completion of the 1-year F-1 OPT that allows the person to live legally in the U.S. until September 30, 2007. Then, hopefully, the individual will obtain the H1B approval from October 1, 2007. So, while some other cases may need an interim status if the gap is more than 60 days, in this example, it may not be necessary, assuming that the expiration date given doesn't already take the grace period into account.

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Chat User : Dear Attorney Murthy, what is your best guess for July's EB3 numbers? Any chance of the cutoff date becoming current for EB3 / employment? Thanks.

Attorney Murthy : It is not likely to become current, but it is expected to move forward by a few weeks / months for July and August. By October, it may go back further than before.

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

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Chat User : I am on H1B (8th year) and have my I-140 approved. My H-1 expires in December 2007. Can I transfer my H1B for 3 years for a different employer?

Attorney Murthy : It is possible to file a 3-year H1B with a different employer only as long as the priority dates are not current for that person. Otherwise, only a one-year H1B extension is permissible.

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Chat User : My COS petition from H-1 to F-1 has been approved but without an I-94 card attached to the approval. Can I just cancel the petition and continue on H-1 since it will be difficult to get an F-1 stamp at the consulate?

Attorney Murthy : Generally, the USCIS does not approve the change of status (COS) when a person is not able to show that s/he has been maintaining valid, legal status in the U.S. If the USCIS decision already mentions that, then one starts to accrue unlawful presence towards the 3-year or 10-year bar from the date of the USCIS decision denying the COS. So it is likely not allowed for one to just remain in the U.S. It is wise to consult with an immigration law attorney to review the paperwork and get help with this important decision. A wrong decision made in a hurry could result in consequences that can be severe and drastic for one who does not realize the impact of just ignoring the USCIS's decision. When filing for a COS to F-1, it does not make sense to have an approval without a COS. There is nothing for the USCIS to approve, other than the COS, in that type of case. It is not like a COS to H-1, when the H-1 petition could be approved, but not the request for COS or EOS. You should have this reviewed by an experienced, knowledgeable attorney.

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Chat User : Dear Ms. Murthy, we are applying for I-485. Can I change my maiden name now, or can I do that after getting my green card?

Attorney Murthy : It does not matter. The law does not care if one does that or not or when one does it. Usually, one changes it right at the time of the marriage, but anytime later is permissible. It will require the person to complete the forms stating "other names used," and the security checks will need to be done in both names.

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Chat User : Can the employer substitute an I-140 for someone else after July 15th?

Attorney Murthy : As long as the I-140 petition requesting the LC sub reaches the USCIS before July 16, 2007, it is fine. After that date, the cases can be rejected by the USCIS.

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Chat User : I have an I-140 approved. My priority date (EB3) is current now. My H-1 is expiring in November. Can I still get a 3-year extension for my H-1 visa?

Attorney Murthy : The general rule of law is that, if the PD is current, the person is only allowed to obtain a one-year H1B extension. So one could wait until October 2007, when the PDs are likely to retrogress, and then apply for the 3-year H1B extension, if that option is available, since it is not wise to wait until the very last minute.

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Chat User : Can we take a break from working between two jobs? If I have applied for an H1B transfer, can I quit the first job and stay home for 1 month and then start my second job? Is it legal to stay without a job for a month while waiting for an H1B transfer? I don’t want to work immediately at the second job.

Attorney Murthy : It is possible not to work from the date of filing as long as one can show evidence that the EOS was filed with a new employer to be considered in legal status while the H1B is pending. Under ACWIA and the law, one has a maximum of 30 days, if entering the U.S. from abroad, or 60 days if s/he is in the U.S., to start working for the H1B-sponsoring employer after its approval.

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Chat User : Good evening, Murthy Ji! Thanks for your service. I am on OPT, and I got the H1B approval for the year 2008. I am going to get stamping in Canada this July. Can my husband go for H-4 stamping in India in August? Please advise.

Attorney Murthy : It is allowed for the spouses to go to different locations for the H1B and H-4 visa stamps, respectively. There is no legal prohibition or problem, as long as one can establish eligibility for the particular visa classification for which s/he applied.

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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 have been on H-1 for the last 8 years. I have my I-140 approved. If I am laid off, can I change employers? My H-1 expires in September 2007.

Attorney Murthy : It is possible to file a new H1B with a new employer based on the I-140 approval with a different employer, in most cases. Whether it is a 3-year or 1-year H1B will depend on the priority dates being retrogressed or current. That is one of the few advantages of retrogression - the ability to obtain a 3-year H1B extension.

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Chat User : If 6 months have passed since the approval of an I-140 (for a substitute labor), can an employer still revoke the I-140? If so, what are the consequences?

Attorney Murthy : An employer is legally allowed to revoke the I-140 petition at any time, including before or after it is approved since the I-140 and the LC traditionally belong, by law, to the sponsoring employer.

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

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Attorney Murthy : We appreciate the opportunity to help you in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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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