Chat : June 19, 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 : Hello, MurthyChat participants. It is wonderful that so many of you are with us again today. We look forward to another fantastic MurthyChat session with you.

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Chat User : I am on 7th-year extension of my H-1. I’m planning to go back to India and come back after a year. My question to you, madam, is does the H-1 quota apply to my case, too? Thanks.

Attorney Murthy : Yes, a person who has completed 6 years in the U.S. in H1B status and then lives abroad for one year is, unfortunately, again subject to the annual quota. On the other hand, if the same person obtained a 1-year or 3-year extension of the H1B in the U.S. based on the LC filed more than a year prior or the I-140 petition approval, respectively, then that person is not subject to the annual H1B cap problem. It can be confusing sometimes, but the rules are clear on this matter. When one lives abroad for one year after completion of 6 years of H1B, the H1B cap will again apply.

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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, Murthy. Good evening. I am with company A. Company B is willing to file my GC as a future employee under PERM. At the most, when can I apply for my H-1 with Company B?

Attorney Murthy : There is no need to file an H1B petition to work for employer B unless you want to work with them right away, as the GC is meant for a future job offer. The only problem when one does not work for the GC-sponsoring employer is that that employer must show a stronger financial ability to meet the prevailing wage for the employee by showing profits on their tax returns for each year starting from the year that the GC was started or the LC was filed. Additionally, the USCIS generally wants to see that the individual is working for the sponsor for a reasonable time before they will approve the green card. They must be convinced that the beneficiary really will work for the sponsor in order to approve the green card.

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Chat User : Hi. My wife applied for an H1B visa in April 2006 and is in processing for the current year when she was in India. We got married recently, and she came to the U.S. with me on H-4. Can she start working once her H1B is approved?

Attorney Murthy : One cannot start working on the consular H1B petition approval if s/he does not have a valid H1B I-94 giving legal status to work in the U.S. This means that your wife will either need to travel abroad and apply for the H1B visa stamp at the consulate, and then enter in H1B status to work for the H1B employer, or possibly file for an H1B amendment as soon as the H1B petition is approved, requesting a change of status from H-4 to H1B by showing valid H-4 status, and filing it under premium processing, if necessary, to be able to start working on October 1, 2006.

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Chat User : Hello, Murthy. If an I-140 is approved under EB3 in May 2006, what are the chances of changing to EB2 and still preserving the December 2005 priority date? I have a Master’s and 2.5 years of experience.

Attorney Murthy : Well, as previously explained in various articles in the MurthyBulletin and on MurthyDotCom, the EB2 versus EB3 debate is not merely dependent on the person's qualifications, but it also depends on the employer's minimum requirements for the position and the industry norm for that position. So if the particular job truly would require a person with an M.S. and minimum 2 years of work experience, then the EB2 filing may be appropriate. Otherwise, the EB3 may in fact be the only avenue for that position. Keep in mind that the employer must sign the documents under penalty of perjury, so an employer cannot and should not agree to inflate the minimum qualifications for a position based on the request of the employee. The priority date can be transferred from an approved I-140 to a later filed I-140, regardless of EB category.

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Chat User : I am sensing I may get laid off. The company has applied for I-140 and I-485 and it’s been about 3.5 months. If my employment is terminated, what are my options?

Attorney Murthy : Well, it depends on if the employer will agree to continue the case or expects to use the underlying LC for another future employee. It also depends on if the I-140 is approved or if there is an RFE on the I-140 petition, and if the employer agrees to respond to it or not after you have been laid off. The safest route is to start a new PERM case with a new employer, and hopefully, you are maintaining your H1B status also, so that the new employer can file a new H1B petition that will allow the person to start working upon filing the new H1B petition. Then start the backup PERM filing. If the I-140 is approved and the I-485 has been pending for over 180 days, one may be able to argue AC21 if one is able to find "same or similar" employment with another employer. Therefore, the AC21 requirements should be taken into consideration if there is any room for negotiation if the job ends.

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Chat Master : Responses during the chat 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 : According to the current visa bulletin, immigrant visa number use is approaching the annual limits for the FY2006, and cut off date advances could stop. What are the chances that might happen for the August allocation?

Attorney Murthy : There is a good chance that might happen as we are approaching the end of the fiscal year that is over in September. As you know, the USCIS fiscal year starts on October 1st and is over on September 30th. So, by August, most of the annual quota of numbers may have not much forward movement and sometimes may slide back by several months, as we saw with some of the family based categories.

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Chat User : I am currently in 8th year extension, and my labor is pending. What happens if my work location is moved from one state to another? Does it affect the labor process? Can I apply for a new application in PERM from a new state?

Attorney Murthy : Well, that depends on how the LC was filed. Whether it was filed only to work in one location or whether it encompassed the concept that it would include "various unanticipated client sites" in terms of the work location under that LC. If the same employer files a new PERM for the same employee and there was an earlier LC/RIR filed, it appears that actually that may be allowed as the Department of Labor only wanted to allow one filing but withdrew the FAQ to that effect when AILA asked for their legal authority not to allow a second filing in PERM by the employer for the same employee. So, multiple filings may actually be permitted, though there has been some gray area on this issue.

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Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to <http://www.murthy.com/mforum.html>.

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Chat User : We currently have a green card and own a house. I am planning to take a job with a company in Bermuda on a temporary work permit. We will be based in Bermuda but plan to visit the U.S. frequently (once or twice in a month for couple of days). How can I ensure we do not lose green card status?

Attorney Murthy : Generally, travel to the U.S. every month and living abroad for a one year timeframe should not jeopardize the GC status, though by living and working abroad, it could create complications and risk losing GC status. After the one year, it is safer to live and work in the U.S., and then after one becomes a U.S. citizen, then one can choose to live or work any place in the world, under existing law, and not jeopardize losing U.S. citizenship. A reentry permit could be obtained, as a precautionary matter, in case frequent travel is not possible for some reason.

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Chat User : What will the priority date on an LC substitution case be in a case where the beneficiary has a pending LC from the same company?

Attorney Murthy : Generally, the USCIS will issue the original PD filed for the original employee on the I-140 petition for the later or substituted employee. The fact that there is another LC pending with the same employer has nothing to do with changing the PD with that employee as far as the USCIS is concerned.

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

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Chat User : If a person is in the U.S. on L1B or L1A through company X, can s/he initiate a green card through company Y?

Attorney Murthy : It is always possible for another employer to file for the GC for a person as a future employee. The only factor, in such cases, is to ensure that the future employer has the financial ability to pay the required prevailing wage. This, generally, is accomplished by showing filed taxes that exceed that future employee's salary and benefits from the date of the filing of the PERM / LC / GC process. There must be a genuine job offer underlying the case, and the individual must intend to accept that job offer upon green card approval.

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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 : I have an approved I-140. Will I be able to transfer the priority date if I start the whole process in a new company?

Attorney Murthy : Usually, that is allowed after the I-140 approval as long as the earlier I-140 petition has not been revoked for fraud or misrepresentation. The USCIS usually transfers the earlier PD from an earlier I-140 approval to a later filed I-140 petition for the same employee.

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Chat User : I am on H-4, and my H-1 transfer is pending with the INS. But I have to travel to India. How can I do this without my H-1 getting abandoned?

Attorney Murthy : The change of status application is deemed abandoned by law when a person travels abroad after filing a change of status application. Although the H1B petition filing is not deemed abandoned, the COS is deemed abandoned. The only way to prevent this is not to travel abroad. The alternative is to allow the COS to be abandoned, then file an H1B amendment again soon after entry into the U.S., or travel abroad again, and apply for the H1B visa stamp at a U.S. consular post abroad to reenter the U.S. on H1B status to be able to work legally soon after entry or after the start date of the new H1B petition. One other possibility is to use premium processing to obtain the approval prior to travel. Strategies should be discussed with an attorney.

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

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Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to <http://www.murthy.com/mforum.html>.

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Chat User : I'm graduating in August 2006 but am sure that all my final grades will be out by the end of June. Will my transcripts be good enough to apply for my H1B for FY2007, or do I need anymore documents?

Attorney Murthy : Although it is safer to actually have the diploma to qualify, if one is concerned about the advanced degree cap numbers moving rapidly, as one should be, then filing with the available documents is better than waiting until it is too late. The USCIS requires evidence that the person has completed the advanced degree and can obtain the diploma in order to be able to file under the 20,000 advanced degree H1B quota.

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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 : Hello, Murthy. Is it possible to transfer from F-1 to a visitor visa status without leaving the U.S.? How difficult is it to transfer to an H-1 after this?

Attorney Murthy : It is possible to switch from F-1 to B-2, but the person must show strong family and financial ties to the home country, and that is often difficult to establish if the student has been living for a few years in the U.S. If the USCIS grants the B-2 COS, then filing and obtaining the COS to H1B should be less of a problem as H1B enjoys dual intent meaning that the person is deemed to be able to maintain both the immigrant and nonimmigrant intentions while 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