Chat : July 10, 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 : Dear Sheelaji, do you have any prediction as to when this retrogression will end?

Attorney Murthy : Unless the law changes and Congress allows more immigrants into the U.S. each year, retrogression will not end but will keep increasing each year. At one time, the waiting time for certain EB and family-based cases exceeded 10 to 20 years, so things will go from bad to worse unless there is some legislative intervention.

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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 : Can company A apply for a 3-year H1B extension based on company B's approved I-140?

Attorney Murthy : Yes, that is certainly possible, since the entire GC process is based on a future job offer. The USCIS has confirmed that this option is available for those who need to extend an H1B petition beyond 6 years based on the I-140 petition approval with another employer.

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Chat User : Hi. I am on an H1B visa, and my passport and visa were damaged. I plan to go to India at the end of the year. The visa is a little bit scratched, but it looks damaged. I already applied for my duplicate passport, but what about the visa? How can I get my visa stamp? Is this a really serious problem?

Attorney Murthy : One could apply for the visa stamp again at the consulate based on damage to the PP and the visa stamp by showing them a copy of the clean visa stamp prior to the damage. If the visa stamp is legible or clearly readable, then that may be sufficient, or one could contact the consulate to request a duplicate stamp in the PP caused by the damage. With technology, one can always verify the authenticity of the PP number and the person's name, so it may not be a serious problem, but it is better to be safe than to be sorry.

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Chat User : Can an employer or attorney submit an eMail or written inquiry to the DOL regarding PERM cases "in process" for more than 4 months (in absence of audit)? Is there usually a response to such an inquiry?

Attorney Murthy : The DOL does not have any system to check on the status of a case at the present time. Their entire system is quite user unfriendly. Even with the thousands of cases closed incorrectly by the Department of Labor, both employers and employees have been given the run around, and several companies and individuals were considering suing the DOL for ignoring their written requests to continue with cases that had been pending for several years at the Backlog Centers. There is little or no communication possible since the PERM process is supposed to be technology driven and not people driven, like the earlier process.

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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 have offers from 2 different companies. If I start my H-1 transfer through the first company and then decide to join the second company, and they also start an H1B transfer for me, is it valid / legal to have such simultaneous H1B transfer petitions from 2 different employers to INS?

Attorney Murthy : It is possible to have two employers file for 2 separate H1B petitions, technically. However, that would imply that, as the H1B employee, you are promising two employers that you intend to work for each of them on a permanent, full-time basis. Legally, the employers may be able to sue for breach of contract or an implied promise even without any written contract. Except in exceptional circumstances, it is best to have one employer file an H1B petition at one time to avoid complications.

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Chat Master : Whether you are an individual or a company representative, you may request our fees for handling your case by eMailing a brief outline of your situation to law@murthy.com. More information is available at <http://www.murthy.com/repre.html>.

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Chat User : My H1B expired last year. I filed for an extension in time, and there was an RFE. 240 days have already passed beyond the I-94 date. Can I continue to work until the decision of my extension is made as the delay is due to INS processing?

Attorney Murthy : The law is not 100% clear on this matter. Prior to AC21, the law allowed a person to work for a maximum of 240 days if it was an extension of an H1B with the same employer. This part of the law is still in place. When the AC21 law was passed in October 2000, it was supposed to broaden the existing law by allowing an H1B employee to work for an indefinite time until the USCIS makes a decision simply upon the filing of the H1B petition. However, the wording of AC21 mentions new employment, only. So, since AC21 contains this somewhat strange, and perhaps unintended, restriction, it could be interpreted as being meant only for new employers and those extending with existing employers are left with the unchanged earlier regulation permitting only 240 days. Of course, it could be argued that AC21 was intended to generally expand portability. Due to this problem, it would be wise to request premium processing to avoid the risk of somehow potentially being considered out of status. One could argue, though, that AC21 broadened and increased the timeframes that one is allowed to stay and work.

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

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Chat User : Attorney Murthy, I hold a GC, and I will marry someone who has an H1B. I plan on receiving citizenship in 5 years and then applying for an I-130 for my wife. Can I still apply for an I-130 for my wife even after we have been married for 4 years?

Attorney Murthy : It is possible to apply for the I-130 at any time, whether 4 months or 4 years or 14 years later, as long as the marital relationship continues and one can submit all the required evidence to show the qualifying relationship and its bona fides.

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Chat User : Hi. Is there any official way that one can expedite his/her OPT application process?

Attorney Murthy : There is no official way to expedite the OPT process, though one can keep calling the 800 telephone number or asking the DSO to check on the application.

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Chat User : Hi. My visa is valid until 2008, and my I-94 expires in November 2006. What should I do in this situation?

Attorney Murthy : The governing document is always the I-94 card, not the visa stamped in the PP. One is required to file an H1B extension with the USCIS, or travel abroad and show the latest H1B petition approval with the visa stamped in the PP, to obtain a new I-94 card at the airport, unless the prior H1B approval notice had the I-94 card attached to the bottom.

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Chat User : I'm on an H1B transfer and have switched my employer. Will there be a problem while reentering the U.S. after vacation?

Attorney Murthy : As long as a person has a valid, approved H1B petition with the new employer, and the earlier H1B visa stamp with the prior employer has not yet expired in the PP, then the person should be able to obtain a new I-94 card at the border or port of entry into the U.S. to match the latest H1B approval notice date.

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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 there any news on the labor substitution, and will this affect I-140s already approved and waiting for I-485 filing?

Attorney Murthy : The general rule is that a previously-approved I-140 petition should not be adversely affected with any future changes in the law, in most cases. The regulation came from the DOL, so there is a limit as to how far they can go. It is unlikely that their reach could extend far enough to impact I-140s that are already approved by the USCIS. Retroactive laws raise constitutional issues and are rather uncommon. So far, the Department of Labor has not issued any final regulations on the revocation of the LC substitution process, so one is able to continue using it as long as that option is available.

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Chat User : Dear Murthy, I am a permanent resident marrying a nonimmigrant. If I apply for her as an alien relative and, while processing, I become a U.S. citizen, do I need to apply once again, or is it better to wait until I am a citizen?

Attorney Murthy : It is possible to file the I-130 for a spouse on H1B or L-1 status since they enjoy the benefit of the dual intent doctrine. After becoming a U.S. citizen, one can upgrade the case and immediately file the I-485 with the EAD and AP in such a case. It may be best to determine a strategy with an immigration attorney.

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

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Chat User : I am on a 3-year extension after 6 years of H1B. If my previous employer revokes the I-140, will the H1B still be valid?

Attorney Murthy : The USCIS position so far has been that the H1B petition continues to remain valid as it is not a conditional H1B as long as the employee continues to work for the H1B employer. The person technically could start a new PERM process, and a year after that filing, or after the I-140 petition approval, again could apply for another H1B petition extension based on the new filing.

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Chat User : I'm on an H1B transfer visa. I switched employers but still retain the visa applied for by my previous employer on my behalf. I will be going to India for a vacation during November. Will there be a problem when reentering the U.S., as my current employer will be different from the one who filed the visa?

Attorney Murthy : Generally, the rule is that the earlier visa stamp continues to remain valid as long as the person shows the latest, correct H1B approval notice with the current employer and requests that the I-94 card issued by the inspector at the port of entry is valid until the latest or current employer's H1B petition validity date. If that is not granted, the person should request to speak with the supervisor, who, hopefully, is familiar with this long-standing rule.

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Chat User : I have my H1B visa sponsored through a university, and it was processed under the cap-exempt category. I am expecting an offer from a for-profit company. Is there any way possible way to get my H1B visa transferred to a new company now that the H1B quota for this year is already over?

Attorney Murthy : It is possible, under a strict reading of the AC21 law, to start working for the new employer upon filing the new H1B petition, but the person has to stop working for that employer upon approval of the H1B petition without the I-94 card attached to it, since that will have a future start date. In this case, with the cap having been reached, one really cannot file a new H1B case until April 1, 2007, with a future start date of October 1, 2007, unless s/he has a U.S. master’s degree or higher, and can file the H1B case before that cap is reached under the FY2007 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 : Dear Madam, I am currently in H1B status, valid until March 2008. My I-140 is approved, and the I-485 is pending. If I leave the USA and enter on advance parole, can I continue working on H1B status until it expires?

Attorney Murthy : There is some gray area on this matter. The safer route, if one wishes to revert to H1B status, is to enter by applying for the H1B visa stamp at the consulate or at least filing an H1B extension or an H1B amendment, if possible, after entering on the AP. The USCIS position has been that, after a person enters on the AP, s/he is a parolee, although, under a Legacy INS memo, s/he is entitled to some of the H1B privileges in terms of employment and extension of H1B status.

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Chat User : Ms. Murthy, does the USCIS or DOS publish data about immigrant visas issued in any year? How do we make sure that distribution of visa numbers is fair and transparent between employment and family categories and, at the same time, equally distributed to each country?

Attorney Murthy : The Department of State releases the Visa Bulletin each month to deal with the usage of visa numbers and based on projected utilization. They are accountable for the proper allocation and use of visa numbers. Part of the problem a few years ago occurred when Congress allowed the recapture of thousands of unused visa numbers due to the slowness of the processing by the USCIS. That is what helped all the numbers to become current for a few years. Now we are back to the status quo of waiting interminably for visa numbers, again. There is no one place I am aware of, where the information is released exactly as you outline, though.

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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 today. Have a good day / evening, wherever you are!

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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