Chat : July 30, 2007

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 : We welcome your questions and look forward to helping you with your immigration matters in our popular MurthyChat!

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Chat User : If one is on an H-4 filed for both an H1B COS and EAD, which one is better to keep, and which one is better to use for work? Thanks for your good work.

Attorney Murthy : H-4 / H-1 / EAD - It is a wise idea to maintain backup nonimmigrant status, like the H1B, even if one has the EAD. The EAD allows the person to work with other employers or in a different position. The H1B protects one in case the I-485 is denied for some legal or technical reason.

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Chat User : I understand that the current I-485 filings until August 2007 have nothing to do with PDs, since the service centers follow a FIFO rule. It is disappointing to know about this. Am I correct? Please advise. Thanks for your service.

Attorney Murthy : No, it has nothing to do with FIFO. While cases are reviewed in the order that they are filed to some extent (with about a 3 to 5 month variation between them), the I-485 approval is based solely on one's priority date and employment-based category. Truly speaking, we should all be celebrating that! With the fiasco that occurred, almost every person in all the employment-based categories can file the I-485 and enjoy tremendous benefits like EAD and AP for family members and AC21 portability for the principal. So, please keep that in perspective. Those who started their cases first will still end up approved first, since the priority date must be current in order for an I-485 to be approved.

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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 : Dear Murthy, is it possible to go back to H-4 from F-1 after filing I-485 (receipt not yet received) to avoid being out of status, if the I-485 is denied for any reason? Thank you.

Attorney Murthy : It is possible to file the change of status from F-1 to H-4 immediately, so that one has a backup nonimmigrant status, in case the I-485 is denied for any reason. It must be filed ASAP, technically and legally speaking, since one is no longer considered in F-1 status after filing the I-485, as the F-1 does not enjoy dual intent.

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Chat User : Hello, Attorney Murthy. With the volume of applicants, what is the expected wait time for issuance of I-485 EADs? If it's past 90 days from the date of receipt, do dependent I-485 / EAD applicants qualify for interim EADs?

Attorney Murthy : The USCIS has removed the system of interim EADs for security-related reasons, but their own regulations still authorize these. The USCIS believes that they will be able to process the EADs in about 90 days, and they have not changed their position, but we don't know if they have any idea how many to expect and whether their staff can handle that volume.

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Chat User : Hello. I filed for I-485 last year and have been working for my employer for 8 months. Is it safe to change employers when the I-140 is still pending? Thanks.

Attorney Murthy : No, it is not safe at all since the law requires that the I-140 either be approved, or at least approvable. There is no clear-cut definition of what is considered "approvable" when filed, so that, if the I-140 is denied, or if there is an RFE and the employer doesn't respond, the person has no benefit of the AC21 portability. It is risky, and premium processing is no longer an option until it is resumed at some later time.

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Chat User : If one has applied for two H1B visas and also got them approved, how much later can he decide which one to take? Can it be decided after getting stamped?

Attorney Murthy : Well, by law, one must join the employer within 60 days of the H1B approval notice start date, or within 30 days if the person is entering from abroad. At the time of applying for the H1B visa stamp, and at the time of entering the U.S.,  the consular officer or the CBP inspector is presented with legal representations of one's intent to work for the H1B-sponsoring employer based on showing the particular approval notice. So you need to decide and stick with the decision to avoid potential fraud allegations down the road, among other considerations.

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Chat Master : We have many folks logged in - your question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : For I-485, do you think it is better to send the docs first and then the physical reports if we have all the docs ready for filing?

Attorney Murthy : If one can obtain the medical reports within the next few days, say before August 10, 2007, it may not be a bad idea to file the medicals with the I-485 to avoid an RFE. It is also possible that some people purposefully may leave out the medicals, etc, to try delaying the I-485 approval, even if the priority dates become current, in an attempt to file for a spouse later, if one is single at the time of filing the I-485 papers. So, depending upon the reason, one could either file with or without, since it really depends on the person's goals or what s/he hopes to accomplish by leaving out the medical reports or other documents.

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Chat User : Is it advisable to apply for I-485 by both a husband and wife, as each other's derivative, if both are eligible to apply? Does this come under duplicate / multiple filing? Thanks for your service.

Attorney Murthy : Yes, this comes under the duplicate / multiple filings that the USCIS recommends avoiding. We have been advising people against this practice. Another option could be to file spouse's I-485, and for the other spouse to file the I-140 for consular notification, so that both options are available to the family. That way, you use both I-140s without delaying or jeopardizing the fact that there are two I-140 approvals. Another option is to file the I-485 for each spouse separately. You must discuss what you really want, and consult with your immigration attorney to figure out the appropriate options that make sense since according to each person's needs or requirements, even if the law allows more than one option in such cases.

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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 : MurthyJi, I have just filed my I-485. I am getting married the last week of August. Is there any way that I can add my wife's name to the I-485 after my wedding? Is there an amendment that we can do to the I-485 application? If so, can I get the medical examination of my wife in India?

Attorney Murthy : Spouses are not "added" to one's I-485. Spouses need to file their own I-485s, but are given the primary spouse's EB category and priority date. The law does not allow the spouse to be able to file the I-485 until the priority dates of the principal become current again. Depending on the EB category and the PD, this could be a few months or several years later. This will require the principal to maintain H1B status throughout so that the spouse can remain legally in H-4 status in the U.S. It is risky to switch to EAD, since that will jeopardize the spouse's status unless s/he can file for an H1B or other legal status on his/her own.

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Chat User : I-485 was filed with a pending I-140. What should we do after the I-140 is approved? Do we need to notify the USCIS in a letter? Thank you.

Attorney Murthy : No, the USCIS will be able to verify that on their own, since they will have the I-140 receipt notice with the file number, etc. They will know it is approved as they are the agency issuing the approval.

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Chat User : My last year's W-2 salary is less than the labor certificate salary. My I-140 was just filed and is pending. Can this create problems with my I-140?

Attorney Murthy : Yes, this could create a potential problem, especially if the employer's tax returns show little or no profit on top of the lower salary. That could result in a denial of the I-140. It is safest to understand the risk of the I-140 approval before making a decision to file or to leave the GC-sponsoring employer and risk the entire GC process. The employer must be able to show that they are able to pay the offered wage. So, at the least, they will need to show that they can pay the difference between the wage they are paying and the prevailing (offered) wage.

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

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Chat User : Thanks for your services. I have one quick question. If an I-485 is rejected, can one still stay in the U.S. as a dependent on H-4 if the spouse was not part of the I-485 application?

Attorney Murthy : If a person has a valid, unexpired, nonimmigrant status like the H-4, then s/he is allowed to stay in the U.S. after the I-485 denial, as long as the principal spouse is still in H1B status that has not expired and the H-4 dependent is also in valid H-4 status and has not worked without authorization, etc.

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Chat User : Hello, Murthyji. My friend’s H-1 extension was denied, and his company is appealing the denial. Can he work while the appeal is in process? Thank you.

Attorney Murthy : No. One is not considered in valid, legal status after the denial based on the appeal. The appeal only helps a person in limited circumstances. Filing the I-140 appeal will allow one to obtain the H1B extension in one-year increments, but until the appeal results in an approval, the person continues to accrue the 3-year or 10-year bar on reentry into the U.S., and is considered unlawfully present by law, starting from the date of the H1B extension denial.

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Chat User : Ms. Murthy, can you help us with the problem of the excessive delays at the Atlanta PERM Processing Center? Most of my colleagues at the Chicago PERM Center are now able to file the I-140 and I-485 at this time, but we are left out in the cold. Can you or AILA help us with this issue by requesting the Atlanta PERM Center to start processing our cases promptly?

Attorney Murthy : We are aware of the situation. It is a real problem, especially with this incredible window of opportunity that has opened up, and your question is valid and needs to be brought to the attention of the Atlanta PERM Center. I will raise it with AILA and approach the Department of Labor, as well, to point this out. We have been in contact about pending cases, etc. Apparently, they had been processing many H2B cases and have required deadlines for processing those cases. We can bring it to their attention, but there is no guarantee that it will be resolved within the next few days to truly help everyone file the I-140 petition and the I-485 within the next week or two. Thank you for pointing this out. We will try to get this resolved or addressed by the DOL.

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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 : Is it advisable to file for EAD/AP without receiving the receipt notice for an I-485 filed in early July or wait? Thanks for your help.

Attorney Murthy : The USCIS has stated that they will accept the EAD and AP filing based on the FedEx or other courier receipt notice of delivery. If a person did not use a courier service, then it could be more problematic. There is no guarantee when the I-485 receipt notices will be issued. If one is not in a hurry to file the EAD and AP, then s/he could certainly wait to file them later on, but the filing fees will increase substantially from $180 and $170, respectively, to almost double that amount for each EAD and AP per person after August 17, 2007. One could also try to include a copy of the cashed filing fee check sent in with the I-485 (front and back) for the I-485, since that has the receipt number on the back. This might help the USCIS match the EAD/AP filings to the pending I-485 case.

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Chat User : As many of us plan to start part-time businesses using EAD, if we are on H-1 and use an EAD for a part-time business, does it mean we abandon H1B status? Thank you for your service.

Attorney Murthy : Actually, the H1B allows for dual intent. So even if one uses the EAD to start a PT business, if one closes the business or files an H1B extension with the current employer, that is an option to resume H-1 status. The rules are not crystal clear on some of these issues, but the doctrine of dual intent allows a person to be in both the I-485 and H1B statuses and allows him/her to file H1B extensions, even if the EAD has been used for work, etc.

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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 : My I-140 was filed under EB1 and is still to be processed. My I-485 was filed also, and I got my EAD. What should I do if the I-140 is denied? Thanks.

Attorney Murthy : If a person's I-140 is denied, the I-485 and EAD also will be denied, based on that as deemed terminated. That is the reason we recommend that people also maintain the backup H1B or other nonimmigrant status, especially in cases like this, where there is a high level of discretion in processing or approving the I-140 petition for EA, OPR, or NIW type of cases.

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

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Chat User : I am applying for I-485 for my family, and my wife is on H1B. Can she travel to India on AP and work on H-1? Does she need to get H1B stamping, or can she use AP for travel and H-1 for work?

Attorney Murthy : The general rule is that, after a person uses the AP, the safer approach is to work on the EAD, but the law allows such a person to also file for H1B extensions, as long as s/he is working with the H1B employer. As mentioned above, the law is not crystal clear on what must happen, and we find that it has been quite broad in this respect, since there are no clear-cut limitations. It would be safer / clearer to have the EAD.

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Chat User : Hello, Madam. To obtain an EAD, is it mandatory to have an approved I-140?

Attorney Murthy : No, it is not required for the I-140 to be approved, but if the I-140 is denied, the I-485 will be denied, also, and then the EAD previously issued becomes void and terminated by law, and so can no longer be used.

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Chat User : Hi. I am starting my fellowship in oncology next year on an H1B visa. Can I file for a GC under EB1 right after my first year of fellowship? Can I file it without relying on my employer?

Attorney Murthy : Well, it really depends on your qualifications for eligibility under the Extraordinary Ability category. Many oncologists will not qualify for the EA category simply by virtue of doing a fellowship. You must consult with a qualified attorney who can verify if you stand a chance or not, since there is no point in wasting time, energy, effort, and money, only to obtain a denial after several months of waiting. However, if you have a strong background in research, national or international awards, etc, with many documented accomplishments, an EA case might be an option.

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Chat User : My F-1 has expired. Am I still in legal status now, since I have already filed a COS to H-4 but have not gotten the receipt yet? Is there a conflict between a COS and I-485 application filed at almost the same time? Thank you so much for your help.

Attorney Murthy : Well, it depends. One is not considered in F-1 status upon filing the AOS, but is allowed to be in H-4 status even after filing the AOS. There is not a conflict between trying to change to H-4 and filing the AOS.

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

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Attorney Murthy : Next Monday, we will not have the MurthyChat. We hope to have all of you in our MurthyChat with us in 2 weeks at the same time and place! Thank you for your interest in using the services of the Murthy Law Firm and for using the MurthyChat!

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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 © 2007, MURTHY LAW FIRM. All Rights Reserved