Chat : July 17, 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 : It is wonderful that so many of you are with us again today. We look forward to another useful MurthyChat session with you.

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Chat User : I’m completing my 6th year today, and I have an H-1 extension in hand until July 17th, 2007. I am joining a new employer. If the old employer revokes the GC labor application, will the 7th year be invalidated, which was approved based on the old GC filing?

Attorney Murthy : The general rule that the USCIS has used so far is that the 7th-year H1B extension remains valid until its expiration date, but future H1B extensions may become a problem for the 8th-year extension onwards unless the new PERM or LC was filed at least one year earlier, or the PERM and I-140 petition have been approved within the year, allowing for the 1- or 3-year H1B extension, as the case may be. So some planning is required at this stage to ensure that the new PERM, with the new employer, is filed at the earliest opportunity, and possibly departing the U.S. for a few months to recapture time abroad, and then filing another 1- or 3-year H1B extension at the end of the new PERM filed over a year ago.

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Chat User : My PERM has been in process for 8 months. I have 60 days before I complete my 6th year in H1B. Do I have any other options besides leaving if there’s no approval in the next 2 months?

Attorney Murthy : The other option is possibly to depart the U.S. now for one month, file to recapture that one month, then again depart another month, and file for the entire one year H1B extension, rather than having to live abroad for one full year. That way, instead of departing the U.S. for a year, one may be able to live abroad for only 2 or 3 months, and then recapture that time abroad and keep filing for H1B extensions. Such strategies should have been considered from the beginning, or at least in the last 2 to 4 months after the PERM case has been pending for over 4 months, so that more time and planning could have been put into this process. Additionally, if there is any time that has been spent abroad while on H-1 status, this could be recaptured to extend the H-1 stay?

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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 : I read in previous chat transcripts that, under an interpretation of AC21, a cap-exempt H1B employee can begin work at a cap-subject company upon filing the cap-subject H1B application. Is there a reference that I can cite to the company lawyer's where the USCIS has agreed to this interpretation?

Attorney Murthy : Yes, one can review some articles written after the AC21 law was passed in the AILA materials, like the January 2001 conference handbook, and also listen to AILA tape transcripts and transcribe them when referencing the case to the USCIS. We have used this strategy when there are no regulations specifically on point. Actually, in this case, it is quite simple. A literal reading of the AC21 law clearly states that, if a person was EVER PREVIOUSLY ON H1B STATUS OR VISA (capitals for emphasis), then the person can start working simply upon filing the new case. The problem in this type of case, though, as I have stated before, is that one will be required to stop working upon a decision from the USCIS with a start date of October 1, 2006, for example, so that one who had filed the case in April 2006 can keep working as long as the H1B petition remains pending with the USCIS but must stop working when the H1B petition is approved with a future start date. Efren Hernandez and Robert Divine of the USCIS seem to have all agreed with this interpretation.

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Chat User : I am on an H-4 visa, approved in June 2006. How long should I wait before applying for an H1B transfer? Thank you.

Attorney Murthy : The question is not clear. If one was never previously in H1B status, and never had an H1B visa stamp, such a person would be unable file a new H1B cap-subject case, since the coming fiscal year's H1B quota has been exhausted. The earliest one could file a new H1B cap-subject case would be April 1, 2007, with a start date of October 1, 2007 or later. If the person has held H-1 status before, and, thus, is not subject to the cap, the H-1 case could be filed at any time during the six years allowed for H-1/H-4 status.

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Chat User : I am planning to travel to India next month. I have an H-1 stamp in my PP with my previous employer. Can I travel to India on my current employer’s H1B receipt, or do I need to wait until I get an approval notice? What kind of risk is involved if I travel on the receipt notice?

Attorney Murthy : There is a January 2001 Legacy INS memo that allows one to travel abroad on the earlier employer's visa stamp with the new H1B employer's receipt notice. The CBP Inspector at the border is supposed to stamp the H1B petition approval until the date of the new H1B petition, if it is approved or the earlier visa stamp date if the new H1B petition is not approved. The risk is if the new H1B petition is denied or if the new petition is approved but the earlier I-94 validity is only granted until the earlier visa stamped date requiring another H1B extension to be filed soon after entry. That is a reason travel is best avoided while any extension is pending - to minimize such problems. Converting the pending case to premium processing may resolve this issue.

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Chat User : Good evening. My employer had sent for premium processing for my H-1 extension case where an RFE was submitted last month. Until now, he hasn't received any receipt. How can I expedite this?

Attorney Murthy : The USCIS is supposed to issue the receipt notice and make a decision on a PP case within 15 days or refund the $1000 premium fee. By having the employer or attorney call or eMail the USCIS on the premium line, one can verify the reason for a delay in the decision of the case. They will expedite it except when there is a security-related delay, which is rare for H1B cases within the U.S.

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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 : Ms. Murthy, I am a second year medical resident. After residency, I would like to open a clinic in a medically underserved area in 2008. What can I do between now and then? My H-1 will expire in 2008.

Attorney Murthy : It depends on the person's background, education and other factors. It is not possible to recommend what one should do about something without knowing what one would like to do and for what purpose. For example, wanting to file the GC will require sponsoring from an existing and financially stable employer for the LC/I-140 process, which is not as easy with a new clinic set up in an underserved area.

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Chat User : Is it true that I can continue to work even beyond the I-94 expiry date by merely applying for an H1B extension? Regards.

Attorney Murthy : Yes, the law allows one to work for up to 240 days upon filing an H1B extension with the same employer under legacy INS regulations governing work authorization. It is permissible to work for a longer time, if needed, when filing an H1B with a new employer, under AC21.

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Chat User : I’m currently working on OPT, which expires on September 28, 2006. My H1B is pending approval. Will it be ok to travel before the H-1 is approved? Will I be able to return to the U.S. without the H-1 stamped in the passport (since it is difficult to obtain appointments within a month)? Will I be able to return on my OPT (with H-1 approved papers in hand)?

Attorney Murthy : If one returns before October 1, 2006, then s/he should be able to reenter on the F-1 OPT with the endorsed I-20 and the F-1 visa stamped in the PP. If one enters right before October 1, 2006, the CBP Inspector may wonder why the person could not apply for the H1B visa stamp in the home country. It may be wise to keep evidence of the date for the next visa appointment when traveling to show that an attempt was made to apply for the H1B visa stamp, but none were available for several months. Sometimes an expedite H1B visa appointment is granted to return to work in the U.S. These recommendations all presume H-1 approval prior to departure.

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

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Chat User : My green card was filed under EB3 category. The priority date is March of 2003. Can the same or different employer file for another green card under EB2 category and use the PD of my older application?

Attorney Murthy : The PD from an earlier LC filing can only be used after the I-140 petition has been approved under that earlier LC, and also, preferably, the earlier employer has not revoked or canceled the earlier I-140 petition or the underlying LC petition.

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Chat User : Hello. What happens if I get fired after the I-140 is approved and after the I-485 is filed but not approved and it is less than 180 days after the I-485 is filed?

Attorney Murthy : There is a risk, especially if the employer notifies the USCIS to cancel the underlying I-140 petition. Otherwise, if the I-485 remains pending for over 180 days, then one can argue AC21 portability at the end of the 180-day period, as we have successfully done in several cases resulting in the person obtaining the GC approval under the reading of the law referred to as AC21.

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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 : After the labor certification is approved, is it possible to amend or correct a small typo in ETA Part B, like the employment year of previous work experience (e.g. from 01/2001-05/2001 to 01/2000-05/2000)? Can this amendment be made while filing the I-140?

Attorney Murthy : That is not possible, as the prior experience is often considered integral to the application. The agencies are completely different for the LC part of the process and the I-140 part of the process. For the LC, the federal agency is the U.S. Department of Labor. For the I-140 petition process, it is the USCIS, which is part of the Department of Homeland Security. If the dates are not relevant to the approval of the case, in the sense, if the person had the required work experience even without that timeframe, then the I-140 petition may get approved. Otherwise, there is a risk of a denial at this stage.

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

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Chat User : If I apply for a GC on EB1/EB2 and then change my employer and research topic, will that affect the process?

Attorney Murthy : Well, that depends on how the EB1/EB2 case was filed. If that case was filed showing only the earlier topic and research rather than a broader area of practice, then that may be a problem. On the other hand, if the area was mentioned as a generic field, then any related areas may well be covered. In this, it is assumed that the case is one of the self-sponsored, special category I-140s.

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Chat User : I am on H-1, and my spouse applied for a GC. If we don't get approval before a year prior to the end of my six years, what should I do?

Attorney Murthy : A person does not need to obtain the approval one year earlier. One is only required to show that the LC/PERM was filed at least a year earlier in order to file for an H1B/H-4 extension. Then, if the I-140 petition is also approved, a person may file for the 3-year H1B extension. However, if the GC was filed for one's spouse, it is only possible to extend in H-4 status, not in H-1. If the goal is to extend in H1B, then it may be necessary to have one's employer file a GC case at least one year before the full 6 years getting used up on H1B 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 : Thanks in advance. I have my I-140 approved in EB3 category from company A. If I switch to company B and file under EB2 category from a different state, can I still maintain the earlier PD when I apply for my I-485?

Attorney Murthy : As a general rule, a person is allowed to use the earlier PD based on the if the employer has not revoked the earlier I-140 petition to use the LC for another employee. So, hopefully, the USCIS will give the earlier PD when one files the second I-140 petition with the new employer by showing the earlier I-140 approval notice date and citing the appropriate regulation.

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Chat User : Ms. Murthy, can there be any chance of denial of the I-130 and I-485 if I get married to a U.S. citizen on OPT status?

Attorney Murthy : The USCIS should not deny the I-130 or the I-485 based simply on one's being in F-1 OPT status, since s/he was in legal status. As long as the marriage is considered bona fide there should not be a problem getting the GC approval. The burden is on the parties to show the bona fides or good-faith validity of the marriage.

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Chat User : Hello, Attorney Murthy. Thanks for your excellent service. My I-485 application was recently transferred to the local office. Is this good news or bad news? Thanks.

Attorney Murthy : In most cases, that is usually good news, though that may also mean the local office will now need to schedule you for a personal interview. This is often granted either based on a profile or a criminal record or, sometimes, pure random sampling for quality control purposes. So the good news is that the case is moving forward, but the bad news is that one has to wait for the interview to be scheduled and see what issues, if any, have popped up. It would be best to review the case with an attorney to try to see what may have prompted the interview, so that preparations can be made to address those issues in the best manner at the interview.

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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