Chat : July 03, 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 spending another enlightening MurthyChat session with you!

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Chat User : If a COS from H-1 to F-1 is pending approval but I am within 30 days of the I-20 start date, can I stop working and move to campus?

Attorney Murthy : One is allowed to stop working, generally, when changing from one nonimmigrant status to another in a case like this. Of course, if the F-1 COS is denied, then the person has to revert to the H1B job if the H1B employer has not revoked or canceled the H1B petition.

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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 : If someone notices that, in the I-485 filing, some documents were not submitted by oversight, is it advisable to send these documents to the service center referencing the notice number, or is it better to wait for the RFE and then respond to it later.

Attorney Murthy : It is usually better to wait for the RFE since, sometimes, the USCIS may be willing to approve the case without the documents, depending upon their nature. Also, by sending it separately, it will take several months, at least, to get matched with the file. So it is best to wait for the RFE in most such cases.

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Chat User : Traveling when the I-140 is denied. Would the U.S. consulate refuse to stamp an H1B / H-4 visa on a passport because the I-140 was denied and is under appeal?

Attorney Murthy : Generally, the rule is that a person is allowed to travel abroad and reenter on the H1B approval notice with a valid H1B visa stamped in the PP. The consulate should not be concerned with the I-140 petition denial, unless it reveals fraud on the part of the H1B employer or employee, since H1B enjoys the dual intent privilege, and the intention to settle down permanently in the U.S. has no bearing on obtaining the H1B visa or petition approval from the consulate or the USCIS, respectively.

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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 am a permanent resident / green card holder. Is there any negative impact on citizenship if I avail unemployment?

Attorney Murthy : As a general rule, the use of unemployment benefits, which are paid by the employer for the benefit of its employees, should not adversely impact one's ability to file and obtain U.S. citizenship, since the "good moral character" is not at issue in availing of the unemployment benefits. We have successfully processed such cases for U.S. citizenship through our law firm. Feel free to eMail us at <law@murthy.com> if you would like us to help with this type of matter.

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Chat User : Does applying for Canadian PR in any way conflict with the GC process in the U.S.? I am on H1B.

Attorney Murthy : Although there is nothing specifically mentioned in the law that prevents or prohibits a person from filing for PR in each country like Canada and the U.S., we sometimes advise people not to waste their time and money filing for Canadian residency unless the person is close to the end of the H1B six years and there are no options left in the U.S. Most times, we find that people would prefer to live in the U.S., and sometimes, at the border, the POE CBP Inspector could ask the person some tough questions. Also, the person loses the Canadian PR if the person does not live and work in Canada for 3 years, and in the U.S. it is after 1 year. Of course, some people do use Canadian PR as a good backup plan in case there is a problem with the U.S. GC case. There is nothing wrong with pursuing both and then deciding between the two when it becomes necessary.

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Chat User : I was born in India and acquired Singapore citizenship. Will I come under the Singapore quota or Indian quota for GC priority dates?

Attorney Murthy : Under the chargeability provisions, one is charged for PD purposes for GC filing to the country in which s/he is born in unless both were born in another country or the spouse was born in another country. Then we need to dig in a little deeper. In such an example, assuming your parents were born in India and you were born in India, the citizenship of Singapore will not help as far as U.S. GC filing is concerned.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific questions are not as likely to get answers as shorter, general ones.

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Chat User : Does Code 3 biometric for I-485 (EB related) indicate that this person is subject to a prolonged name check?

Attorney Murthy : Actually, it may be the opposite. We have found other cases with Code 3 actually complete the process fairly quickly. I am not sure that the USCIS or the FBI has released a chart on the meanings of the codes . It would be helpful to understand these codes to know how lengthy the process may be.

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Chat User : How is the prevailing wage determined for the H1B LCA?

Attorney Murthy : The U.S. Department of Labor has the OES wage rate posted for different jobs depending on the nature of the job duties, the skills required, etc. If the DOL wage is unrealistically high, then the employer is allowed to use a private wage survey either from the published sources or undertake a private wage survey for H1B LCA purposes, but the safe harbor rule is the DOL determined wage in case of an audit.

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

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Chat User : Dear Ms. Murthy, can a person fill an accountant's or auditor's job on H-1 considering they are non-computer jobs? I am currently on H-4 and studying CPA and would like to work for either of these jobs.

Attorney Murthy : H1Bs are available for any person who works in a specialty occupation that requires, at the minimum, a bachelor's degree or higher level of education. For example, any of the following will qualify for an H1B petition approval from the USCIS: an English teacher, an art teacher, an economist, an accountant, where the job with that particular employer requires a minimum of a bachelor's degree, and that should be the norm in the industry, too.

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Chat User : Thanks for the great service, Murthyji. If the I-485 is denied due to abandonment (not appearing for FP) after I-140 approval, can the I-485 be re-filed using the original priority date (same job and same employer)?

Attorney Murthy : Yes, of course, one can reapply the I-485, or if the person was abroad or if the FP notice went to the wrong address or if the person went for the FP but the USCIS incorrectly denied it, then one must fight with the USCIS to reopen the case and approve the I-485 as we have seen many such cases and successfully obtained the I-485 approvals where the USCIS denied them in error. There may be some procedural issues regarding re-filing if the person has not maintained a valid nonimmigrant status.

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Chat User : If labor was filed from 2 states in 2004, and if a new labor under PERM is filed or an existing is converted, is there a risk of the DOL canceling the old labor/s filed except processing the one under PERM?

Attorney Murthy : Actually, if you recollect, the DOL changed its policy and withdrew the FAQ that mentioned that a person is only allowed to have one LC pending. AILA and many lawyers threatened a lawsuit and, promptly, the DOL withdrew the FAQ suggesting that a person is allowed to have at least one case pending with the BPC and one filing allowed under PERM.

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

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Chat User : I misplaced my H1B approval along with the I-94 card (bottom portion). However, I have a photocopy of the original. I am now changing my employer from X to Y. Am I required to keep the original H1B approval issued for employment in X company?

Attorney Murthy : One does not need the original H1B approval notice to file a new H1B with the USCIS, and, after the new H1B petition with the EOS is approved, the person should use the new I-94 card in the PP and submit that at the time of departing the U.S. So the earlier original is not required, but a copy is very helpful, especially at the time of I-485 filing, since the USCIS asks for proof of all earlier I-94 cards to see if the person was authorized to live and work in the U.S.

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Chat User : Can my wife, who is in H-4 visa, be eligible for assistantships and/or scholarships once my I-140/I-485 is approved?

Attorney Murthy : One who is in H-4 status is not allowed to work. Thus, s/he cannot hold positions as a TA or RA and obtain the related tuition waivers. They also are ineligible for many scholarship programs, particularly those involving government or university funding. It is important to note that, once the primary spouse's I-140/I-485 is approved, the H-4 spouse is no longer an H-4. It is, therefore, important to make sure that the H-4 files the I-485 if she has not already done so. Once the I-485 is filed, the H-4 spouse could obtain the EAD and would, thus, have permission to work and obtain the assistantships and scholarships.

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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 : My PERM application has been pending for 120 days (in absence of any audit). When should I start worrying and consider other options?

Attorney Murthy : If the advertisements from the PERM filing have not yet expired, then re-filing a new PERM application may be an option. Over 120 days is not common, though we have seen some such cases, and finally they could get approved, too. However, in order to re-file, it is necessary to withdraw the first PERM case. Otherwise, there will be two identical cases in the system and the DOL will likely deny the later-filed case.

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Chat User : Thanks in advance. My 6th-year H1B expires on August 29, 2006.My company had applied for an extension while I was out of the country and I got an approval after my return to the USA. Is my I-94 with the approval notice valid or not?

Attorney Murthy : The USCIS memo from around January 2001 allows one to travel abroad while the H1B EOS application is filed. It is surprising that the employer filed it when you were abroad, as that means that they provided incorrect information under oath to the USCIS as they mentioned that you are in the U.S., in H1B status, valid until a certain date. To be on the safe side, either the beneficiary must fly abroad and reenter with a new I-94 card at the port of entry, or at least s/he should file an H1B amendment to clear up the mess.

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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 : Murthyji, if I-485 is denied due to abandonment after I-140 approval, can the I-485 be re-filed using the original priority date (same job and same employer)?

Attorney Murthy : Yes, I have answered this exact same question above. One may re-file the I-485 and maintain the earlier PD, if s/he is otherwise eligible in terms of nonimmigrant status to file the I-485.
 
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Chat User : How does the USCIS determine whether to count the case as subject or cap exempt?

Attorney Murthy : It depends on how s/he completes the form I-129W with the H1B petition filing. Many definitions are quite loose, and there have been some recent USCIS memos that confirm a broad interpretation of working "at" a non-profit institution, even if the employer is a for-profit organization, etc.

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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. Have a wonderful July 4th holiday tomorrow to celebrate U.S. independence!

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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