Chat : June 18, 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 : We welcome your questions and look forward to helping you with your immigration matters again today. Thank you for your interest in our MurthyChat.

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Chat User : Can we apply for I-485 through two different companies at the same time before getting the receipt notice for the first application?

Attorney Murthy : Generally, it is safer not to file two separate I-485s since it can confuse the USCIS and they may assign two separate alien or A numbers to the same person. This could end up later delaying one's I-485 approval or creating a security delay, in many cases, with multiple I-485s. Generally, we recommend one case to be filed as an AOS and the other for CP, if possible.

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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, Ms. Murthy. My I-140 has been approved, and my I-485 is still pending for background check. Can you tell me what that really means? Also, my I-765 is pending, and I have used my vacation. What option do I have now? Thank you.

Attorney Murthy : Well, there are different kinds of background checks. There are security checks, fingerprints checks, security advisory opinions, etc. Usually, a name check means that there may be another person with a similar name or some other identifying issue that potentially could delay the case. One is not allowed to work legally until the EAD card has been issued, but s/he is allowed to stay legally in the U.S. without working so as not to have a problem with the I-485 approval down the road.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : Hello, Murthiji. Can we apply for I-485, even though the I-140 is pending?

Attorney Murthy : The general rule is that a person is allowed to file the I-485 based on a pending I-140 petition, while the priority dates are current, as is the case for the month of July, according to the recent U.S. Department of State Visa Bulletin.

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Chat User : Thanks for this excellent service. I plan to file for I-140 and I-485 concurrently in July. Which service center should we send the application to, Nebraska, Texas, or Vermont? My company is located in New Jersey. I work at the client site in Dallas.

Attorney Murthy : Actually, under bi-specialization, the options are either NSC or TSC for I-140 petitions and I-485s filed with I-140 petitions. Generally, the service centers can assign or allocate cases from one service center to the other if one service center has a higher volume of cases based on geographic location. The MurthyDotCom website and the USCIS website also outline the jurisdiction for filing since the earlier procedures were modified when bi-specialization came into play.

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Chat User : Dear Ms. Murthy, I am on H-1 and am going to apply for my EAD. Will I lose my H-1 status if my wife (H-4) uses her EAD to work?

Attorney Murthy :: The USCIS / Legacy INS memos from March 2000 and May 2000 provide that a person is allowed to file H1B and H-4 extensions, even if s/he has used the EAD or the AP to reenter the U.S. The only requirement is that one must continue working with the H1B employer in order to file the H1B and H-4 extensions. Actually, the May 2000 Memo overturned the March 2000 Memo on this specific issue over 7 years ago.

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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 am planning to file for I-485 on July 1st. My kids have gone to India and are returning on September 1st. Is it possible for me to file now and add my kids to the I-485 form after they return? What other options do we have?

Attorney Murthy : If the priority dates remain current for September, then there is no problem. One will know by mid July if the dates are going to remain current for August and by mid August for September. If the dates retrogress for August, then it is worth bringing the children back immediately. Otherwise, they will be left in limbo, possibly for years to come, as we have seen happen in some cases. This will also restrict the jobs that one can take and require H1B filings for the principal, so that the family can and must maintain their H-4 status while in the U.S. At the end, if the priority dates retrogress in August, then it is not worth the risk of their being stuck abroad or not getting their green card for years, even though there are short-term disadvantages now, like the cost of losing money for airline tickets or upsetting the children's holiday schedule.

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Chat User : I have EB3 (PD February 2004) and EB2 (PD May 2006) I-140 approvals. Please suggest which one is the best to use to file for my I-485.

Attorney Murthy : I have no clue which option may be better, as it is difficult to predict the movement of priority dates. It is not clear why the second I-140 filing in EB2 did not use or carry over the earlier PD from February 2004 for the EB2 filing. Then you could have enjoyed the best of both worlds! It is worth it to consider that, as well, while filing one I-485 with one of them, possibly by requesting retention of the priority date from the earlier case.

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Chat User : Hi, Ms. Murthy. My current employer is refusing to file my I-485. What are my options? Can I file I-485 on my own?

Attorney Murthy : Generally, it is certainly possible to file one's own I-485 since the LC and I-140 stages are considered to belong to the employer, but the I-485 is where the individual shows to the USCIS that s/he has a clean record in terms of criminal and health matters, or has exceptions from certain grounds of inadmissibility that will allow him/her to be admitted as a permanent resident. Certainly, go ahead and file the I-485, but the employer letter is required for one to show a valid and open job offer at the time of filing the I-485. Both parties must have the intention to work together upon obtaining the "green card." Additionally, if you are going against the wishes of your employer, there could be repercussions from the employer for taking this step.

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Chat Master : This is a moderated chat. If you want to know how the Chat works or have other Chat questions, you can visit <http://www.murthy.com/aboutchat.html> for MurthyChat FAQs.

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Chat User : Hi, Murthy. I got a substitute labor and filed my I-140 on May 4th. Can I change from regular processing to premium processing?

Attorney Murthy : The USCIS issued information after the Department released its final regulation eliminating LC substitutions on May 17, 2007, no longer allowing for premium processing. If you had filed it initially, it may have worked, but now it is not an option until the USCIS allows accepting PP cases for LC substitution I-140 petitions.

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Chat User : I applied for I-485 two weeks back. Do I need to wait until I receive advanced parole to travel abroad? I am planning to enter on H-1 status, not on AP.

Attorney Murthy : One only needs the AP to be approved before departing if the person intends to enter on the AP. If one will only use the H1B, then it is possible to depart and reenter on the H1B visa stamped in the PP and the H1B petition approval. It would be necessary to have the H1B petition approval both for departure and reentry, to be safe.

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Chat User : If an I-140 is approved already and the person is still working in the U.S., is it possible to switch to consular processing?

Attorney Murthy : It is possible to switch to CP by requesting the USCIS by filing the form I-824. This process could take many months to get approved, and the earlier consular processing AC140 option seems not to be available for a few years now, possibly due to security related concerns.

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Chat User : My I-140 is pending. Can I file for I-485? Can I change to premium processing? Will the I-485 applications be accepted after July 30th, also?

Attorney Murthy : As explained earlier, the I-140 may be pending when the I-485 is filed. If the I-485 is filed after July 30, 2007, and the priority dates are no longer current, the USCIS must reject the package outright and cannot issue a receipt notice in such cases. Generally, premium processing is allowed if the original LC was sent in with the I-140 filing and it is not based on an LC sub case.

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

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Chat User : Is it legal to work on CPT (F-1) with I-485 pending? What are the legal options until the EAD is approved? Can one work unpaid to retain the job?

Attorney Murthy : There is no dual status allowed while one is on F-1 and files the I-485 AOS application. This is unlike the H1B and L-1 and their dependents that enjoy the benefit of the dual intent doctrine. There are potential risks in working even unpaid since presumably, there is some form of compensation possible in such cases.

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Chat User : Dear Ms. Murthy, I have an approved labor. If my I-140 is denied, can I use the same labor to apply from a different company under the same parent company that filed my earlier RIR?

Attorney Murthy : It is possible to use the same LC to file with another company only if the new sponsoring company is considered a successor in interest to the original LC employer in terms of taking on the liabilities and assets of the original GC sponsoring employer. Otherwise, it may pose problems.

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Chat User : Hello, I filed for I-485 last year, but my I-140 has not been approved yet. Why is it taking so long? Thanks.

Attorney Murthy : Sometimes, the USCIS takes longer to make a decision on an I-140 if there are potential problems with the case, the employer is not satisfied with the evidence provided or there is an investigation against the employer, or sometimes the USCIS may have misplaced the file! It is possible to request an upgrade to premium processing on the I-140 if you wish to take your chances, but then that could go either way. So weigh the options before rushing in, and discuss them by consulting your immigration attorney.

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Chat User : My wife has an H-4 to F-1 change of status pending. How do I go about filling for my wife's I-485 in July?

Attorney Murthy : A person on H-4 status is allowed to enjoy dual intent, but not a person on F-1 status. Basically, upon filing the I-485, the person loses the F-1 status altogether. So before a decision is made on the F-1, the person is considered to be on H-4 status, especially if the I-94 card for the H-4 status has not yet expired. If the H-4 status has expired, then one must show the filing of the COS to F-1 to show maintenance of lawful, nonimmigrant status in order for the I-485 filing to be approved down the road.

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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 : Is it possible to apply for I-485 along with an LC substitution as a future employee?

Attorney Murthy : It is possible to file the I-140 in an LC sub case with the I-485 and the EAD and AP, altogether, or one can file for the EAD and AP later on, as well, even if the priority dates retrogress. That has been the general policy of the USCIS.

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Chat User : I have an LC and I-140 from my previous employer. I’m currently working with a different employer. Is it possible to file for I-485 on my own if the previous employer refuses to file?

Attorney Murthy : The USCIS requires the person and the employer to both intend for the person to work both at the time of the I-485 filing and later on after the GC approval, under the law. If the employer refuses, there is a level of risk involved since one may need the letter from the employer confirming the employment offer on a full time and permanent basis for that employee at the time of the I-485 filing. There must be a valid job offer in order to file the I-485.

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

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Chat User : In the I-485 form, what is the nonimmigrant visa number? I’m very confused. Please advise.

Attorney Murthy : Generally, the nonimmigrant visa number means the number mentioned on the visa stamped in the person's passport, like the H1B or H-4 visa stamped number that the consulate issued when the person applied for the visa stamping.

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Chat User : If one is filing for I-485 and has an approved I-140 and the spouse is on an F-1 visa instead of H-4, would there be any problem because of the visa being F-1 and not H-4?

Attorney Murthy : Generally, it is not a problem as long as dependent family members are maintaining their valid, legal status in the U.S. If they are not doing that, then it is a big problem. There is no dual intent recognized for F-1, so upon filing the I-485, the person cannot enjoy any incidental benefits of the F-1 status since they are lost immediately, unlike with the H1B or H-4 or the L-1 or L-2 status holders.

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Chat User : We applied for I-485 2 weeks back. I am on an H-4 visa and want to stay in India for 5 months after FP. Will there be any problem processing the GC?

Attorney Murthy : There should not be a problem for a person to stay abroad, in such a case. If the I-485 gets approved when the person is abroad, then the person may need to be paroled into the U.S. or could attempt to enter on H-4 status to get the PP stamped, but really, parole is the correct way. That is why filing for the AP is wise in such cases also, especially since the person is not planning on traveling abroad immediately but only after submitting the FPs.

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Chat User : Can an H1B be transferred before it begins on October 1st? Can an H1B be transferred if the new job is from a different field but uses my academic background?

Attorney Murthy : It is possible to transfer an H1B even before its start date as long as one can establish that one continues to maintain valid, legal status in the U.S. The H1B job must require the attainment of a Bachelor's Degree or higher in order for the position to be eligible for an H1B approval, among other factors.

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Chat User : For people born in India, Is there any benefit of using premium processing for I-140?

Attorney Murthy : The only potential benefit is in the ability to be able to take advantage of AC21 portability after the I-485 has been pending for over 180 days, and also if the priority dates retrogress, then the person can obtain a 3 year, H1B extension approval instead of a 1 year approval.

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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 : Can a spouse be added at a later stage even after the I-485 is filed? Also, once I-485 is filed, does a person whose H-1 is expiring need to file an extension?

Attorney Murthy : If the spouse is not filing the I-485 concurrently, then the person must maintain H1B status and extensions, possibly for years, or until the PDs become current again down the road. That may take several years for some people. It is worth filing together for the entire family since we have seen cases where it has created severe financial and other burdens for the entire family by some people who were abroad not filing together or certainly while the PDs remained current. However, if a person is not yet married, filing together isn't an option. In that case, it is just necessary to get married before the green card case is approved and, preferably, while maintaining H-1/L-1 status.

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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 : In a labor substitution case, when I file for I-140, is it mandatory that my graduation year match with original labor? Will they compare the job description of the original labor with my resume?

Attorney Murthy : The USCIS reviews the LC to ensure that the person was fully qualified under the LC as of the date of the original filing date. It is not relevant when the original person graduated, but the filing date of the LC and the minimum qualifications are relevant.

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

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Attorney Murthy : 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.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved