Chat : July 18, 2005

Pursuant to our commitment to quality and attention to detail, Attorney Murthy reviews the MurthyChat logfile before it is posted on the website. This helps to clarify information and avoid confusion in both the questions and answers, given the nature and dynamics of the live chat. 

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.

----------------

Attorney Murthy : Dear MurthyChat participants. It is wonderful that so many of you are with us again today. We look forward to another useful MurthyChat session with you.

----------------

Chat User : Hi. My spouse is a GC holder. When I apply for I-485 (employment based), can I charge the quota of my spouse's country of birth (cross chargeability)? Thanks.

Attorney Murthy : There is some conflict between the U.S. Department of State (DOS) and the USCIS on cross-chargeability issues. For the USCIS, it is narrower, so a person filing the I-485 may be subject to the more narrow interpretation, compared to the broader interpretation found under the Foreign Affairs Manual, or the FAM, that the DOS and the consulates follow. Since cross chargeability is a DOS issue, it should be argued that the spouse's country of birth should be used even for the principal person.

----------------

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.

----------------

Chat User : Ms. Murthy Ji, if the status of H-4 is required to change to F-1, how does it affect the current DOL process (BPC)? Thanks in advance.

Attorney Murthy : If the person who is changing the status from H-4 to F-1 is the person who had started the DOL process that is now at the BPC, then it is a problem since it would violate the pure nonimmigrant intent of the F-1 to have started the GC process. On the other hand, if the spouse of the H1B holder had started the LC process, then an argument would be possible that no LC or I-140 had been filed for the person seeking the F-1 status when completing Form I-539. It is important to distinguish between the two spouses since U.S. law generally allows each person to be considered completely separate and independent, but will allow the person to obtain benefits incident to the marriage when the principal obtains it.

----------------

Chat User : If an employer withdraws the labor certification in the 7th year and files it again under PERM in the same year, what is needed to ensure that 8^th year continuity is maintained?

Attorney Murthy : If the DOL assigns the original PD to the new PERM case, then there is no problem in being eligible to file the 8^th year H1B extension. Otherwise, the parties need to plan the date of the new PERM filing in such a manner so that the one-year requirement has been met before time to file for the H1B 8^th-year extension.

----------------

Chat User : Dear Murthy ji, I have a valid EAD and H1B, and my 6 years are completed. Will I qualify for a three-year extension on my H1B? Thanks.

Attorney Murthy : The three year H1B extension is possible after the completion of the six years on H1B status only if the I-140 has been approved, as in your case, and the priority dates have retrogressed in your EB category. Inform your H1B attorney to file for the three-year H1B extension based on the appropriate section of the AC21 law. Otherwise, the USCIS will only grant the time requested on the petition.

----------------

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.

----------------

Chat User : Thanks for the great service, Murthiji. Can an employer substitute the labor of a person who left the company after 180 days, whose I-140 has been approved and I-485 is pending, to another person?

Attorney Murthy : The employer is allowed to do that, but there is a risk for the new employee using the earlier-approved LC since the USCIS is only allowing one person to use the LC so that, if the original person obtains the I-485 approval, then the new person / employee will get nothing and would have wasted valuable time and money for no purpose. It is always safer to use a new LC that has never been used to avoid such a negative consequence. Before AC21, the employee would get nothing if s/he left before obtaining the green card. Now, both parties can try, but it is sort of like a race with the person reaching the finish line first winning and the other person getting nothing!

----------------

Chat User : I got my H-1 visa transferred nine months ago and didn't get stamped yet. Now I have to travel to India due to some emergency. My old visa is still valid until mid 2006. Can I travel to India with my old visa stamp, or do I have to have my new visa stamped?

Attorney Murthy : As mentioned before in various MurthyChat responses and articles we have written for the MurthyBulletin on this subject (all available by searching MurthyDotCom), the earlier H1B visa stamp with an earlier employer is still valid to travel and reenter the U.S., but the person must show the new H1B approval notice with the new employer in order to obtain the I-94 card valid until the new approval date. Otherwise, it creates more complications and expense in filing another H1B extension much earlier than planned. Insist that the POE Inspector give the latest H1B approval notice date on the I-94 card expiration to avoid additional problems.

----------------

Chat User : Dear Attorney Murthy, what should I do if I believe my oath letter is missing in the mail? What are the consequences for missing the oath ceremony because the oath letter never arrived?

Attorney Murthy : One who suspects that a letter mentioning the swearing in-ceremony date for citizenship may be lost in the mail must call USCIS customer service telephone number  to enquire as to whether such a letter has been mailed. Also, there is no harm in booking an InfoPass appointment and going to the local USCIS office to ensure the date of the oath ceremony. You have heard of the saying, "you snooze, you lose," so be diligent to protect your rights and interests promptly!

----------------

Chat User : How soon does AC21 need to be filed once we join a new job? I am on the payroll of the new company after the day I resigned to my previous job, but AC21 is not yet filed.

Attorney Murthy : It is safest and best to file the AC21 change of employer papers in about a month after joining the new job. The time of filing also depends on how quickly one expects the USCIS to make a decision on the I-485 case, since it is best not to wait until the case gets approved, since that causes possible additional problems down the road for such a person in case there is an investigation or if there is a citizenship filing, etc.

----------------

Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at <http://www.murthy.com/chatlogs/chattran.html>.

----------------

Chat User : Hi. Is it possible to use a priority date filed with the current employer if you switch jobs? If yes, what do you need from the current employer?

Attorney Murthy : A person is not allowed to transfer a pending LC with one employer to another employer. One must start a new LC process from ground zero and will obtain a new PD. The only time that a PD can be transferred is after the I-140 petition has been approved with an earlier employer. Then the PD is transferred, but a new LC will still need to be filed with the new employer, unless the person has reached the I-140 approval and the I-485 has been pending in excess of 180 days, to take advantage of AC21 portability.

----------------

Chat User : What should one do if he hasn't received a receipt number after three weeks of filing his H1B application for premium processing? Thanks in advance.

Attorney Murthy : That does seem strange. Are you sure that you or the employer filed the H1B at the correct PPP address and did not file it or mail it to the general service center address? It is a good idea to eMail or call the PPP unit for the particular USCIS service center to find out what happened with that package instead of finding out that it was never mailed or was sent to an incorrect address, and then having to file another set and having to pay all the fees again.

----------------

Chat User : I am working with company A. Company B filed my H1B transfer, and it is approved. Now I do not want to join company B. Can I continue with company A?

Attorney Murthy : Generally, the last action rule applies. To avoid the problem, it is safest to inform company B that you will not be able to join them so that they can notify the USCIS to revoke or cancel the H1B approval notice on your behalf. It is true that the earlier H1B approval notice is still valid unless the earlier employer cancels or revokes it, but it is wise to close the loop to avoid any potential problem for both the employer and the employee.

----------------

Chat User : Murthiji, is it safe for a student on F-1 (OPT) to leave the country and reenter on OPT while his/her H1B visa is already approved with a future start date?

Attorney Murthy : That is possible and doable, but the F-1 visa stamp in the PP must not have expired so that the person is able to reenter based on the visa stamped in the PP showing F-1 and the OPT shows that it is still valid. Then the future H1B start date will come into effect on that future date. We have written a specific article on this topic, available on MurthyDotCom, that was based on a letter from Mr. Hernandez to an AILA attorney dealing with a similar fact pattern.

----------------

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

----------------

Attorney Murthy : No, the I-140 only needs to be approved for the person to obtain a three-year H1B visa extension after the end of the six years on H1B when the PDs have retrogressed. Otherwise, there is no problem in obtaining a one-year extension of the 7^th-year H1B if the LC had been filed over a year prior. If the lawyer is not aware of the law or the process, then please feel free to contact us at law@murthy.com to help in filing the H1B 7^th-year extension. We have filed many hundreds, if not thousands, of cases based merely on the LC having been filed over 365 days earlier.

----------------

Chat User : If I apply for a second H-1 and get rejected, will the first one that has been approved still be valid? Thanks.

Attorney Murthy : The original H1B remains valid unless that earlier employer cancels or revokes it or notifies the USCIS to cancel or revoke it.

----------------

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>.

----------------

Chat User : What is the normal time period the AAO takes to process an I-140 appeal? When it comes back from AAO, how long does USCIS take to make the final decision? Thank you.

Attorney Murthy : Generally, the USCIS only takes three or four months for a Motion to Reopen or Reconsider, but the AAO takes about two years if the USCIS refuses to reconsider or reopen its earlier decision, and decides to forward it to the AAO for a decision. During the entire time that the case is pending with the AAO, the person is considered out of status and continues to accrue unlawful presence to trigger the three-year or ten-year bars against reentry to the U.S. unless the case is finally retroactively approved from the original date. Hopefully, some other backup legal status, like the H1B, has been extended or maintained, and also a new PERM case may need to be filed in case the I-140 ends up being rejected once again.

----------------

Chat User : Hello, Attorney Murthy. Will a change of citizenship affect the H1B processing?

Attorney Murthy : No, a change of citizenship from one country to another should not affect the H1B processing, other than an obligation to notify the USCIS, so that when the final H1B approval is issued, it will have the correct country of citizenship on the I-94 card instead of the earlier, wrong country.

----------------

Chat User : Hello, Murthyji. If you were to make a guess, in October 2005, what do you think the retrogressed EB3 might open back with?

Attorney Murthy : Generally, the U.S. Department of State will release the October figures in mid September 2005. Then the effective date is October 1, 2005, if the PDs for Indian nationals will become current at that time. The expectation is that the PDs will become current for most nationals in EB3 except for India and China, possibly (since even the Philippines mostly had nurses who will now be covered under the new 50,000 quota for nurses). So don't expect an Indian national to enjoy the same PD cutoff as the rest of the world by October 1, 2005.

----------------

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

----------------

Chat User : With all the backlogs and retrogression for the green card process, what can new F-1 students hope for? Will the green card process become harder in coming years?

Attorney Murthy : Actually, the GC process itself is less difficult on some levels since PERM is faster, though, since it is a new process, it has a lot of new issues, and the I-140 and I-485 is supposed to move faster with the USCIS goals starting from October 1, 2006, that all petitions or applications should be adjudicated within 180 days. So the process may not get harder, but for Indians, it may get much slower due to the quotas and backlogs for China and India, in particular.

----------------

Chat User : Will the current unavailability of EB3 visa numbers have an affect on our EAD/AP for my spouse and me? We had applied for I-140/I-485 EAD before June 30^th of 2005.

Attorney Murthy : As mentioned in various MurthyBulletin articles and on MurthyDotCom, a person who had filed the I-485 when the PDs were current will be able to keep extending the EAD and AP each year while the I-485 is pending, as long as s/he files the extensions well in advance.

----------------

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 Law Office of Sheela Murthy and MurthyDotCom.

----------------

Chat User : My wife got her H-4 visa. She will come next month. Can I file for an H-1 for her (before the quota gets over) now, while she is in India?

Attorney Murthy : It is possible to file an H1B petition for a person who is abroad, but the risk with that is that, after the H1B approval, the person will need to travel abroad again to get an I-94 card to be able to work legally in the U.S. or file an H1B amendment within the U.S. again and spend more money. If possible, she should enter the U.S. at the earliest on H-4 status, and then file the H1B papers to avoid having to wait another year to be able to work if the H1B quota gets used up within the next month or two.

----------------

Chat User : My employer filed timely for my H1B extension. It passed the expiry date. Finally, the employer withdrew the case. Does it make me out of status from the date of H1B expiry or the date of case withdrawal?

Attorney Murthy : Generally, a withdrawn case is considered as if it was never filed in the first place. So the out-of-status for the unlawful presence starts from the date of the earlier H1B approval expiration date and not from the withdrawal date, in this sort of an example. Obviously, if a person is already out of status, the USCIS cannot approve any extension or change of status, so that if there is a new filing, the safest approach is to travel abroad and wait abroad for the decision on the new case, then apply for the visa at the consulate abroad to stop the unlawful clock. Then the person can lawfully enter on the new status. Also, the fact of having been out of status will need to be revealed to the consular officer when filing for the visa stamp to avoid any fraud implication. As long as the timeframe of being out of status was fewer than 180 days and the person, hopefully, can explain the reason for falling out of status, it will not prevent one's obtaining a new visa stamp at the consulate abroad.

----------------

Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

----------------

Chat User : Is a student allowed to work after entering the U.S.?

Attorney Murthy : A student is not allowed to work based on having entered the U.S. or obtaining the SSN. A student is required to obtain the appropriate work permission during the school years by showing need or additional time during the holidays to be able to work legally. One should not jeopardize her or his legal status by working without speaking with the International Student Advisor and ensuring the ability to work legally.

----------------

Chat Master : This ends tonight's session of the MurthyChat.

----------------

Attorney Murthy : Thank you for participating in today's MurthyChat. We are pleased that we were able to help you today. Have a good day / evening wherever you are!

----------------

Chat Master : Thank you all for logging in! The schedule will be posted at <http://www.murthy.com/chat.html>.

© 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved