Chat : June 12, 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 : We look forward to another fun and useful MurthyChat session with you, our MurthyChat participants. It is wonderful that so many of you are with us again today. Thank you for your interest in participating and sharing your time with us.

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Chat User : I have a bachelor’s degree in business. My OPT expires in October of this year. Is it still possible to get an H-1 visa now, or what's the deal? If not, what are the options? Should I go back to school?

Attorney Murthy : It is not possible to obtain an H1B as the FY2007 cap was already met on Friday, May 26, 2006. A person who does not have at least a U.S. master's degree will have to wait until April 1, 2007 to file a new cap-subject H1B under the regular H1B quota and can only start work on October 1, 2007 under the FY2008 quota, so going back to school is one option.

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Chat User : I'm in the 7th year of my H1B visa. Do I have to get a multiple entry stamping in my home country (India)? Can I do it in Canada or Mexico?

Attorney Murthy : One is allowed to either apply for the visa stamp in one's home country or Canada / Mexico. The risk is for a person who does not have an education from a U.S. institution, is that the consulates in Canada and Mexico tend not to be able to evaluate foreign educations, such as degrees from India. Another risk is, if the H1B visa stamping is denied in Canada or Mexico, one will likely need to travel from Canada or Mexico to the home country, directly and, generally, not be allowed to enter the U.S.

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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 : I have completed the first 2 and 1/2 years on H1B and have an approved I-140 under EB3 from an existing company. This month, my existing company is reapplying for me in EB2. What are the risks of joining a new company that is ready to process my GC within 6 months of employment? Both employers are fortune 500 companies.

Attorney Murthy : The potential risk of joining a new employer is if the earlier employer cancels the I-140 petition and wishes to reuse the underlying LC for another employee, the original employee could end up losing the use of the earlier PD with a subsequent filing with a different employer. The PDs are important for nationals of India and China as otherwise the time to obtain the GC becomes longer if one obtains a more recent PD.

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Chat User : Good evening, Ms. Murthy. I am presently on an H-1 extension, and it is valid until the end of next year. If I were to submit a change of status for my wife from F-1 (OPT) to H-4, do I have to do it through my employer, or can I send relevant docs to CIS by myself?

Attorney Murthy : One is not required to use an employer's attorney or an outside attorney for any immigration-related filing. The benefit to hiring a good professional for help with the filing is when a person does not realize something is missing or there is a subtle occurrence, and that causes the USCIS to return the package and the filing fees, etc. There could be a new form, or new filing fees, etc, as some of the information on the forms or the instructions may be outdated. If you or your spouse is willing to invest the time to read up on the laws and rules carefully, to ensure that the documents are filed properly, there is no mandate or problem in filing on your own. Always double check to ensure that everything is done properly, however. If you want to use an attorney, you could choose your own attorney, since the request to change status to H-4 is signed by the individual seeking the change, not the 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. I did my master’s here in the U.S. and went back to India, got married, and came to the U.S. again on H-4. Can I apply for H1B in the advanced degree H1B cap?

Attorney Murthy : Yes, it would appear that you would be eligible, since the law only requires the completion of a U.S. master's degree or higher level of education for one to be eligible to file under this 20,000 quota.

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Chat User : One has completed 6 years of H1B and leaves the USA by September of this year. Can he apply for a fresh H1B in April of next year and reenter the USA by October of next year?

Attorney Murthy : Although it would make perfect sense to be able to do that, it is not clear that one can do that under the existing USCIS interpretation of AC21, as there is some guidance to the effect that one must be eligible for the benefit sought at the time of filing for the benefit. On the other hand, if one is eligible and can only enter the U.S. on H1B from a future start date, which is more than a year away, it makes sense for the person to file by April before the following year's H1B quota is met, so that s/he is stranded abroad for 2 years now instead of just one year. Requesting a letter opinion from the USCIS on this issue may be timely, at this point. We will consider requesting it and posting that information, though it could take several weeks or months to hear from the USCIS.

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Chat User : Can I retain my EB3 priority date applying under EB2 for a new position in the same company?

Attorney Murthy : A person is allowed to use and retain the earlier PD filing of an LC or PERM only after the I-140 petition is approved in that case. Then another filing for a different position with the same employer could be used to file an EB2 case and transfer the earlier PD from the EB3 filing to the new EB2 case at the I-140 stage.

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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 : My OPT expired in May, and I am starting a new F-1 in August. Is my status legal after 60 days grace period and before starting my F-1?

Attorney Murthy : The maximum grace period for F-1s after completion of the F-1 OPT is only 60 days. After that, one has no legal status and is considered to no longer be maintaining valid legal status in the U.S. Even if the USCIS approves a petition for the person, the person is required then to travel abroad, apply for the visa stamp, and then reenter the U.S. in the new status. If the USCIS approves the COS with the I-94 card attached, then it may mean s/he was deemed to be in some sort of legal status in the interim. When moving from OPT back to F-1 status, it is a good idea to speak with the DSO and a qualified immigration attorney. The regulations state that an F-1 student is not permitted to remain in the U.S. between schools or programs unless s/he will begin classes within 5 months of transferring or within 5 months of program completion. For F-1 students with OPT, they must be able to resume classes within the earlier of 5 months of transferring from the OPT school or the date the OPT ends.

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Chat User : I heard that the new law is that, if one has been working for 3 years continuously with a master's degree, one can apply for a GC on his/her own. Is this true?

Attorney Murthy : First of all, there is NO new law, yet. There are only bills which have not completed the entire legislative process. Second, I have not heard of this 3-year, self-petitioning rule anywhere. I am not sure what is causing this rumor and confusing some people. The only times a person can self-petition is if it an Extraordinary Ability petition or a National Interest Waiver petition. The details and requirements for these two petitions are available on  MurthyDotCom.

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

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Chat User : I completed my master’s in the U.S. in December 2004. After that, I was on H-1 for 6 months. Now I am on H-4. Am I eligible for an H-1 under the U.S. master's quota?

Attorney Murthy : If a person was previously counted against the H1B quota in 2004 or 2005, then there is no need to apply against the fresh quota. The law allows such a person, who has been on H1B within the last 6 years and who has been counted against the quota, to not be counted against the quota for a second time.

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Chat User : Hi, Ms. Murthy! I am on an F-1 visa and have completed my coursework. My thesis is pending, and I wish to apply for an H-1 in the advanced degree quota. What are the chances of my H-1 petition being approved?

Attorney Murthy : It is not clear from your question if the thesis is a component of the master's degree or the Ph.D. If it is simply for the MA/MS, then one cannot file under the 20,000 quota for U.S. master's degree holders. On the other hand, if it is based on the Ph.D., then there is no problem in filing ASAP under the 20,000 quota.

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Chat User : My nephew passed away this morning. I need to visit my family in India. Also, I need my H1B stamped for multiple entry. Will my case be considered for emergency appointment at any U.S. Consulate in India?

Attorney Murthy : It depends on the policy of each particular consulate as the criteria may vary in different countries and at different consulates. Usually, in death situations or similar emergencies, the consular officers tend to be sympathetic and humanitarian, though at times, they may request proof, like the death certificate, as there is fraud and misuse in some countries. The relationship between the nephew and uncle that shows the strong bonds or ties that required the travel may be requested, as not every relative is expected to attend the funeral services, in such cases.

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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 : What are the chances that an H1B application applied for on May 29^th will be accepted by the USCIS? The reason being, we are getting conflicting information based on earlier years when the USCIS might still accept such cases if it finds that there are too many rejections. In fact, I did not get the application form with the returned check back, yet.

Attorney Murthy : At this time, based on the USCIS position, the chances of that May 29th case going through would seem to be 0%. It normally takes about a month or two to get the H1B package filed at the USCIS returned, and even the issuance of the H1B receipt notice showing that the checks have been cashed is not sufficient evidence that the case is safe. In fact, last year, we saw that the USCIS issued many more receipt notices, and then they realized that they could not review those cases, so they were returned about 2 months later. The checks came in even after that, several months later, from the U.S. Treasury Department or Debt Management.

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Chat User : Can a person with a valid, unexpired I-94 and expired visa stamp visit states outside the continental U.S., like Hawaii and Alaska, without any additional paperwork?

Attorney Murthy : Generally, a person with a valid I-94 card that has not yet expired and the passport is allowed to travel to other states, even if not contiguous to the mainland.

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

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Chat User : Hi. I filed my I-140 last month. When can I apply for I-485? When will I get my EAD?

Attorney Murthy : The filing date of the I-140 petition has nothing to do with when one can file for the I-485 or the AOS if the case is based upon a labor certification. A person's nationality and priority date, or the date when the LC or PERM was filed, will determine eligibility for I-485 filing, as will the category of the filing (EB2 or EB3, etc). The I-140 filing date is only important if the case did not require a labor certification (NIW, EB1, or Schedule A), and started with the I-140 filing. The PD must be available for that person in a particular EB category for her/his country of origin.

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Chat User : I have an I-797 valid until April 10, 2006, but, in the PP, the consulate in Chennai stamped it as October 4, 2006, and at the POE, the I-94 was also stamped with same date. Am I authorized to work? Am I eligible for an H1B extension?

Attorney Murthy : That is risky as the visa was clearly stamped in error and the government’s position is that the error of the government cannot result in one's getting a benefit that s/he is not legally entitled to. Hopefully, in this case, the person had filed for an extension prior to the H1B expiration on April 10, 2006. If not, s/he is already out of status and cannot obtain an extension of status or EOS from the USCIS from within the U.S. S/He should file for the H1B and then travel abroad and apply for the visa stamp at the consulate in the home country, then reenter the U.S. at the earliest to avoid continuing to accrue either unlawful presence or time out of status.

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Chat User : Currently, I'm on L-1 and planning to transfer it to H-1 since I have a previously approved and unused H-1. I would like to know how many days I can continue in L-1 status after the H-1start date?

Attorney Murthy : After the H1B petition is approved, the person's status changes from L-1 to H1B, as of the effective start date of the H-1. This assumes that the H1B is approved as a change of status. If so, after the start date the person is no longer in L-1 status and cannot work for the L-1 employer. Alternatively, if the H1B is approved as a consular processing, the individual can keep working for the L-1 employer until the L-1 expiration, or until s/he gets an H1B visa at the consulate and enters the U.S. on H1B status.

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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.

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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