Chat : August 07, 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 to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration related issues. Thank you for your interest in our MurthyChat.

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Chat User : I am currently in H-4 visa status. I have received the I-20 to pursue my master’s degree. I would like to change from H-4 to F-1. In the case of an F-1 denial, is my H-4 still valid?

Attorney Murthy : Yes, a person's prior status will remain valid if the newly requested status is not approved, unless the earlier status has expired in the meanwhile. So it is sometimes worth filing an H-4 extension, in this example, if the H-4 is to expire in the near future, and then file the F-1 COS. Keep in mind that, for the F-1,one has to establish strong family and financial ties to the home country, though this is not a requirement for the H-4 status. Also keep in mind that H-4s can attend school, although there can be financial advantages in obtaining F-1 status.

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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 : Is there any source of help to speed up the process of PERM cases pending for more than 4 months? Does the AILA Liaison inquiry to the DOL get any response from the DOL, and does it help speed up the process?

Attorney Murthy : The problem with PERM, as many of you may be aware, is that it is electronically based, with very little human intervention. This fact has helped it to become much more efficient, but, in some cases that just sit for months, there does not seem to be a way to contact the Department of Labor. If the advertisements are still valid, then the employer / person may want to consider enquiring on the original case but filing a backup or new PERM case, should something go wrong.

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Chat User : I want to pursue a part-time MBA starting September 2006. I am working on H1B in Boston. My 6-year tenure will be completed in May 2008. Can I transfer my visa to a student visa after May 2008?

Attorney Murthy : It is possible to pursue education while on H1B as long as it is incidental to the H1B work. After the completion of the 6 years on H1B, one may file to change to F-1. However, strong ties to the home country are needed in order to obtain approval. Thus, it can be difficult after living / working in the U.S. for 6 years. One is required to work for at least 9 months on F-1 to be able to obtain the F-1 OPT at the end of the F-1 program of study.

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Chat User : Is there a way to cancel (revoke) the H1B application (application itself not the approved H-1) as I already have an H-1 through another company? If so, what is the procedure?

Attorney Murthy : Each H1B petition is employer specific. So, by canceling a particular H1B petition with a particular employer, it does not void any other H1B petition approval with a different employer. There is no specific form, but the employer must write a letter to the USCIS requesting the revocation of a particular file number (like the LIN or WAC or EAC number). Usually the USCIS takes 4 or 5 months to send a written confirmation of the withdrawal request by confirming that the particular H1B petition has been canceled or revoked.

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Chat User : My green card was approved in October 2002. I became a citizen in October 2007. My engagement was in December 2006 in India. What is the fastest way to bring her here? How long does it take?

Attorney Murthy : First, congrats on the forthcoming engagement. The fiancé/e could either come in independently, generally in H1B or L-1 status, as those have dual intent. Otherwise, the permanent resident spouse can file for the foreign national spouse, but it will take many years (about 5-7) to immigrate as the spouse of a permanent resident. The situation changes when the permanent resident spouse becomes a U.S. citizen. For this, remember that the citizenship can be filed 3 months before the end of the 5 years. A spouse of a U.S. citizen can be brought to the U.S. as a K-1 fiancé/e, or as a K-3 spouse, or as an immediate relative. When considering the F-1 student option, one must keep in mind that it is necessary to have strong ties to the home country and that the visa form asks about relatives in the U.S., including fiancé/es. This form needs to be answered honestly and truthfully to avoid bars for fraud or misrepresentation by omitting relevant information.

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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 a pending I-140, and my H1B expires in April 2007. When is it appropriate to apply for the H1B extension?

Attorney Murthy : One may apply for the H1B up to 6 months in advance, but also could wait until one week before it expires to file for the H1B extension. If the I-140 is expected to be approved within the next month or two, then it may make sense to wait to obtain the 3-year H1B extension, but keep a deadline date like December 2006 or January 2007 for the I-140 decision. Then, if nothing happens, one could file for the 1-year H1B extension. There is no harm in filing and asking for the 3 years on the LCA and on the petition itself, just in case the I-140 petition is approved at the same time the H1B extension case is filed or comes in after filing the case. However, the general rule is that one is only eligible for an immigration benefit if s/he qualified on the date of filing the H1B petition.

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Chat User : Hi, Ma’am. When is premium processing for I-140s going to be started?

Attorney Murthy : The USCIS has not provided a date, but they have confirmed that it is likely to start in the near future, as they are getting things ready for premium processing of I-140 petitions.

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Chat User : My H1B starts from October 1st. How many pay stubs do I need from my current employer to transfer my H1B to different employer?

Attorney Murthy : It is a good idea to have at least 2 pay stubs to switch to another employer, but it is also possible that a person who has been counted against the H1B quota by obtaining an approval may be able to change to another H1B employer by showing that s/he is currently maintaining valid, legal status in the U.S. and filing another H1B petition to start on October 1, 2006 for a different employer. There seems to be some confusion as to whether the USCIS will approve the new H1B petition, based on the fact that the person has another H1B petition approval. The safer approach may be to wait and file after starting work with the new H1B employer and obtaining at least 2 recent pay stubs.

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Chat User : I have heard some rumors that more H1B visas might open up for the M.S. / Ph.D. category, or specifically just for Ph.D.s. What are the realistic chances of this happening, and when would we learn about it?

Attorney Murthy : There are some bills pending that would possibly add more H1Bs and possibly eliminate certain categories from the H1B count altogether. But none of these proposals have become law and, until they become law, there is no guarantee that any of them will actually pass. So, as the saying goes, "don't count your chickens before they are hatched." This is wise to follow, as there have been many proposals over the years, and it is not likely that anything drastic will happen, as Congress seems afraid to touch it, especially in an election year.

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

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Chat User : Hello. I have an approved EB3 labor and I-140 w/company A with a PD of April 2004. Now, if I move to company B, can I use the EB3 old priority date, and can I port the PD from EB3 to EB2 in the new company? Thanks for your time.

Attorney Murthy : Yes, one is allowed to use an earlier PD with a different employer and port that earlier date to a new employer even when changing employment-based categories, like EB3 to EB2 or EB1, etc. This could require that the earlier employer not revoke the earlier LC and I-140 for use by another employee, to be on the safe side.

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Chat User : Dear Murthi Ji, do you think there will be any issues with a PERM approval if the education is selected as “none” and experience is 24 months for a computer software engineer application portion?

Attorney Murthy : That is certainly an option for a person who does not have the 4 year single source degree, since the NSC is likely to deny a case where the employer requires a bachelor's or equivalent, but the NSC considers a 3-year degree with a B.S. from a country like India to not be the equivalent of a U.S. bachelor's degree. The years of experience one has are irrelevant for the GC, though it helps with obtaining the H1B petition approval. So, it is possible to file with no degree requirement, but it often could relegate the case to an EB3 case.

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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 : Company A is a BEP company. Company B says that, since company A is a BEP company, they will not file for cancellation since it will spoil their reputation. Is this true?

Attorney Murthy : There are high standards for companies that are enrolled in the Business Executive Program (BEP) in India. There has not been any specific announcement, of which I am aware, regarding any non-cancellation policy. However, companies that terminate H1B employees are required, by USCIS regulation, to cancel or revoke the petition. Therefore, most reputable companies will take that step if they terminate an H1B employee or do not initiate employment for an H1B employee. No action on the visa in the passport is required. Since it is necessary to establish that there is a genuine job offer underlying the H1B or L-1 petition, many reputable companies will not file these petitions speculatively, though some may do so for strategic reasons. Since cancellation is an employer responsibility, it is not clear what difference this issue would make to the individual.

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Chat User : With PERM pending for 6 months, how can re-filing the same application with the same specifics help and not trigger the same logical analysis that is already the reason for the delay?

Attorney Murthy : It is possible to file a very similar case, but modify those aspects that one believes may have caused the delay. So, when the option is to file another "same" application, one simply could be referring to the same employer, same employee, same job title, and same job duties, but making some minor modifications that, hopefully, could help to move things faster in the new PERM filing or, even better, help to obtain a prompt approval!

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Chat User : If I change a job 2-3 months before my H1B expires, will I simultaneously be able to apply for a new one (from the new employer and does not fall under cap) as well as for extension for another 3 years? Thanks.

Attorney Murthy : If a person is eligible for a three-year H1B extension, based upon having an I-140 approved and being subject to retrogression, then it is possible to obtain that H1B extension via a new employer. That is, it is possible to obtain an H1B extension through employer B based on a qualified green card filing made by employer A. This can be done at the end of the six years. Of course, if one does not intend to work for the GC-sponsoring employer, or if the green card case has not reached the I-485 stage where it can continue under AC21 sponsorship by a new employer (in a same / similar job classification), then it will be necessary to start the green card process all over again through the new employer.

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

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Chat User : Good evening, Madam. For PERM, how important is it to have experience letters from previous employers? I just have a letter from my Indian company in a very generic format. They won't give a detailed one with work experience, job description and technology platforms I worked in. What can I do?

Attorney Murthy : There is a chance that the generic work experience letters could work depending on how the advertisements are placed and what prior experience is required per the ETA 9089 or the ETA 750 A and B forms. As long as the dates of employment are provided, then a person may be able to obtain the LC approval with affidavits, if required, in some cases.

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Chat User : I am a J-1 holder resident physician. I will finish my training in July 2008. When should I start processing the national interest waiver? What is the first step? What is my best option? NIW or IGA, etc? Thanks.

Attorney Murthy : The NIW does not waive the J-1 two-year home return requirement. The NIW is a green card case that waives the labor certification requirement. If an IGA is being considered, it is necessary to look at the requirements for the particular state / other sponsor. They have different application requirements, including advertising requirements and filing deadlines. It is necessary to look into the particular area of interest to determine the timing, but often people start around a year in advance.

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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 : I am getting a salary that is the same as the minimum wage salary required by state. Will that create an issue (rejection) during the visa stamping? I have 2 master’s degrees - one from the U.S. and the other from India.

Attorney Murthy : As long as the employer pays at or above the required prevailing wage for a particular job or occupation there is no right for the consular officer to deny the H1B visa stamp based on the fact that the person is not earning a lot more in salary. It is true that, if one has a lot of education and prior work experience, it would be presumed that s/he could negotiate a higher salary, but there is no legal requirement for the employer to pay the higher salary in such a case. I am assuming that the rate of pay is the prevailing wage or greater than the prevailing wage, based on DOL or other qualifying surveys, not the federal minimum wage, which is the lowest that any employer can pay under law for any employee performing any work.

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Chat User : I am on an L1A visa that was recently extended until 2008. I also got an approval for an H1B from a different employer. Is it a must that I work on H1B from October 1^st? What happens if my H1B stamp gets rejected when I go for a stamping?

Attorney Murthy : If the USCIS approved the H1B petition with a change of status by attaching the I-94 card to the bottom of the approval notice, then the status changes as of October 1st. It is necessary to work for the H-1 employer or to otherwise address this issue. If travel is intended, the entry as an L-1 after October 1st would change the status back to L-1. If the H1B visa stamp is denied, then the earlier L-1 visa stamp and petition may remain valid and it is wise to advise the consular officer not to cancel or void out the earlier L-1 visa stamp.

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Chat User : I am currently on OPT / F-1. I am planning on applying for a university H1B as a post doc. However, this is temporary and I would like to work in the industry as soon as possible. What is the earliest that I can start working, assuming I apply for an H1B in April 2007 for the 2008 quota?

Attorney Murthy : The earliest one can work under a cap-subject H1B is from October 1, 2007, by filing the case on or after April 1, 2007. A person is able to file now under the cap exempt category, and then, arguably, could start working upon the filing of the new case based on the literal language under AC21 allowing one to start working if s/he EVER held a prior H1B status or visa.

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Chat User : I have 2 H1B approvals. I’m working for one of them. I need to travel to India, and I’m looking to switch to the second employer after coming back. Can I use the already approved H1B, or do I need to apply again? What are my options?

Attorney Murthy : If the intention is to work for the second employer immediately after entry, then it is necessary to present the petition approval from the second employer at the port of entry. It is possible to use the H1B visa of the current employer until its expiration. However, if it is expiring soon, it may be best to apply for a new visa through the second employer while abroad. In no event should anyone enter the U.S. claiming that s/he will work for employer A when the intent is really to work for employer B.

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Chat User : Attorney Murthy, I'm planning to get an H1B for residency. My husband, who has been on H1B for 6.5 years now, plans to quit his job and follow me. Will he be eligible to change status from H1B to H-4 (as my dependent), or does he first need to reset his H status by being outside U.S. for a year? No hope in our green card papers.

Attorney Murthy : Under the existing USCIS interpretations, the spouse who has used up the entire 6 years on H1B cannot obtain H-4 status unless the principal had filed the LC or I-140 at least one year earlier. Under an expected change in USCIS policy, the USCIS has expressed that they plan to decouple the time on H1B and H-4 status to avoid an unjust result, but this intention of policy has not yet become finalized as of today. Hopefully, it will change in the near future.

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

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Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We appreciate the opportunity to help you. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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