Chat : June 26, 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 sharing another useful and enlightening MurthyChat session with you.

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Chat User : I have been offered employment as a kindergarten teacher at a private school in New York that is a designated nonprofit organization. Can I file an H1B petition under the "uncapped" or "restricted" category?

Attorney Murthy : There has been some debate on this matter. Some lawyers have mentioned that their cases were denied under the cap-exempt category, while others have enjoyed success with this type of filing. Recently, our law firm filed 2 such cases successfully for teachers in primary or secondary schools. If one does not have much to lose by attempting the argument, then it is worth making instead of waiting for over a year. The argument is not just that the employer is a nonprofit, but that it is affiliated with a university. This is possible for primary / secondary schools that participate in student teacher programs and other programs that are cooperative with universities. This is a necessary element in order to make this argument.

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Chat User : Hi, Ms. Murthy! My wife's residency training is affected because of the H visa 6-year cap. Are there any developments on the decoupling of the H-4 and H-1 time?

Attorney Murthy : At this time, the USCIS has not issued an update on this point, though one is likely in the future. It could take a few months or a few years, however, as everything moves much slower with the government, generally.

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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 : What evidence does one need to submit (H1B) to show a specialty occupation exists for the beneficiary who will work at a client site? Thanks for your kind help.

Attorney Murthy : Generally, the law showing that the work is in a specialty occupation has nothing to do with working at a client site. That issue deals with the complexity of the job duties and to ensure that the job duties in fact require the minimum of a bachelor's degree or equivalent in that particular specialty occupation to qualify for H1B status.

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Chat User : I filed my I-485 in 2004, and now the PD is not current .Can I file for consular processing for my son who is in India or does the PD date have to be current?

Attorney Murthy : CP is only available for dependents after the PD becomes current and the principal actually obtains the GC in the U.S. Only then may family members abroad obtain the GC through CP. The alternative is for the entire family to file for CP from abroad, but that will require the filing of the H1B for the principal and H-4s for family members in such situations.

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Chat User : If a candidate gets a job offer, can the company sponsor the H-1 before s/he gets his/her OPT card and start working for the company?

Attorney Murthy : An employer is certainly able to file the H1B petition for the employee for a start date of October 1, 2006, if the potential employee has a U.S. master's degree or higher level of education by filing before the person obtains the F-1 OPT. That person would be losing the opportunity to use some of the F-1 OPT time, but it must be a calculated risk of how much time on OPT one is willing to lose in order to file an H1B with a future start date. One option could be to file the H1B now, with a start date after 6 months, so that one can at least use 6 months of the OPT between now and December 2006 or January 2007, and then the H1B would become effective after the 6 months.

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

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Chat User : How can one prove lawful presence in the U.S., if an INS officer made a mistake? What legal or other action can be taken in that case?

Attorney Murthy : If one can show that there was USCIS / INS error, then s/he should be able to submit evidence of that error when filing a new petition or application requesting an extension of status or a change of status in such cases. A person wanting an immigration benefit has the burden to prove that s/he is entitled to that immigration benefit.

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Chat User : My I-140 was approved before 1 year. Can my current employer revoke it if I join another company?

Attorney Murthy : The employer certainly has the right to revoke an individual's I-140 petition to use the LC for another employee, but the employee whose I-140 petition is approved is allowed to file for the 3-year H1B extension, in such a case. Then, after the person's 3-year H1B petition is approved, s/he will have to start a new PERM with the new employer and request the USCIS to transfer the original priority date to the newly-filed case at the time of the I-140 filing.

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Chat Master : For anyone in need of advice on a specific matter, you may wish to visit <http://www.murthy.com/consult.html> following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Atty Murthy or one of our other experienced attorneys.

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Chat User : Hi, Ma’am. When I transferred my H-1 with my new employer, I forgot to file for my wife's H-4 extension, but we have valid I-94s (for me and my wife). We have an appointment in Matamoras, Mexico on July 6th for stamping. Will there be any issues if we go? Thanks a lot for your help.

Attorney Murthy : The general rule is that if the dependents’ H-4s are still valid, and those dates have not yet expired, then the H-4 dependents are considered in legal status until that date mentioned on the I-94 card. Now, when applying for the H-4 visa stamp, the H-4 visa should match the expiration date of the principal's H1B and the new I-94 cards, if given at the port of entry, should match the latest H1B approval notice date and not the earlier I-94 card date, or, more likely, that no new I-94 cards will be issued on the Canada or Mexico border unless the trip exceeds 30 days. So, when the person returns from travel outside the contiguous  U.S. states / territories, s/he should be able to obtain the H-4 status extension at the port of entry into 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 : Currently, I am working with EAD (based on I-485 pending for future job). In order to have a backup plan, I am planning to apply for an H1B visa for advanced degree. Can I get my H1B approval notice in the U.S., or do I have to go to my home country to apply for an H1B?

Attorney Murthy : Generally, if one is not maintaining valid nonimmigrant status, the USCIS cannot approve the new H1B as an extension / change of status, but can only approve it for consular notification, requiring the person to apply for the H1B visa stamp at the consulate abroad and reenter the U.S. on H1B status.

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Chat User : Hi, Ms. Murthy. I have an RFE on I-485 asking how come I am staying in California while my GC is filed from Iowa (I-140). My GC is done by a company other than my H-1 holder from Iowa as future employment. What do I do now?

Attorney Murthy : The rule in such cases is that generally, for a future job, one has to establish good-faith intention by joining that future employer before the I-485 can be approved. I always advise people that the future has finally arrived, and it is time to show that one means business by joining the future employer, unless s/he can show AC21 change of employers under I-485 portability provisions. In either case, the person is required to establish that s/he intended to work for the GC-sponsoring employer in Iowa or any other location referenced in the labor certification for the entire time, right from the LC filing to the I-140 and I-485 filings.

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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 am planning to use AC21 portability for a future job sponsoring company. If I inform the USCIS of my new job change (similar), and if I am laid off from this job before my I-485 is approved (or if the new employer cannot provide an RFE to pay the prevailing wage), can I revert to my original future job sponsor?

Attorney Murthy : In this type of situation, one would be required to file another AC21, back from the second employer to the original employer. If there is a doubt about the new employer's ability to pay the salary or otherwise meet its legal obligations, however, it would appear then to be safer, without knowing all the details, to stay with the original GC-sponsoring employer to avoid the risk of a I-485 denial for some reason. It is unclear why AC21 would be used for a future-sponsoring company. Usually, AC21 is used when one changes employers to an AC21 portable position.

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Chat User : Lets say I get my H1B approved now (advanced degree quota) with a start date of October 1^st. Can I get my H-1 transferred after or before October 1st? If not, how long do I have to wait to make a shift?

Attorney Murthy : As long as a person can show that s/he is maintaining lawful nonimmigrant status at the time of filing for the new H1B petition, that individual should be able to file the new H1B either now or after October 1st. The only criteria is eligibility for H1B status by meeting the legal requirements for H1B status and showing legal or lawful status in the U.S.

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Chat User : Hi, Ms. Murthy. I'm working on OPT now (expires April 2007), and am planning to apply for H-1 in the advanced degree category for FY2007. Can I travel to India while my H-1 is in process?

Attorney Murthy : The disadvantage of traveling when one files for a change of status is that the USCIS takes the position that the person's change of status application is deemed abandoned upon foreign travel. The alternative is to request a future start date of, for example, January 2007 by filing now and then reentering the U.S. before that January date so that, under the Efren Hernandez letter about which we have written on MurthyDotCom, the person is legally able to start working from that date. However, one is not allowed to travel while the H1B petition for COS is pending. S/He may travel after the USCIS approves the H1B COS with a future start date, with the I-94 card attached to the bottom of the approval notice, so that the person's status automatically changes to H1B, effective from that future start date.

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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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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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