Chat : August
14, 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.
----------------
Attorney Murthy :
We
wish our
MurthyChat
participants of Indian origin and all of our Indian national participants a
happy Independence Day for August 15th! We welcome your questions
and look forward to helping you with your immigration related issues in
today's MurthyChat.
----------------
Chat Master :
Please post your Questions now. Remember to make them as BRIEF and GENERAL
as possible.
----------------
Chat User :
What
does received date mean? Mine shows as June 1st. Does it mean my
application was received in time? (i.e. before H1B cap was reached.) When
can I expect my H1B approval?
Attorney Murthy :
The
USCIS receipt date means the date it is received at the USCIS. If that date
is after the H1B cap had been reached, then that is a problem, as the case
will be rejected or denied by the USCIS for regular cap cases, as the cap
was met on Friday, May 26, 2006. The advanced degree cap was reached on July
26, 2006, so there cannot be an H1B approval unless you are under the U.S.
master's or higher education quota or are cap exempt.
----------------
Chat User :
Are
J-2 holders allowed to get a job with the same and/or higher salary than
what the primary J-1 receives? This is assuming that the J-1 can support his
family with his own job. Thank you.
Attorney Murthy :
Yes,
other than the condition that you mention, namely that the J-1 can support
him or herself with his/her own job, then the J-2 dependent is allowed
to earn any amount, including higher on the J-2 EAD.
----------------
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 :
How
risky will it be to travel and obtain an H1B visa stamp after I-140 approval
and before filing the I-485?
Attorney Murthy :
There is no added risk to travel after the I-140 approval for H1Bs and L-1s
and their dependents since there is the dual intent concept. Under the Dual
Intent Doctrine, a person in H or L status can express both the immigrant
and nonimmigrant intent, and there is no problem like that which exists for
Fs, Js, Bs, etc, which are considered pure nonimmigrant statuses. Even
after filing the I-485, there is no added problem in obtaining the H1B or
L1A or L1B visa stamp or for their dependents. Of course, the issuance of a
visa is never guaranteed, and there are always risks, but having the I-140
does not increase that risk.
----------------
Chat User :
Sheelaji, I am currently on H-4. I recently got my H1B approval. Can I apply
for my SSN right away, or do I have to wait until October 1st?
Attorney Murthy :
One
is allowed to file for an SSN right away, since the SSA could take a few weeks
or sometimes months to issue the SSN. The SSA may request one to return
later, but they could potentially start the process, since there is an
approval of a work-authorized status to start at a future date.
----------------
Chat User :
Can
an H-4 visit India before the H-1 was approved? Is there any problem with
the I-94?
Attorney Murthy :
As a
general rule, one is not considered to be in H-4 status if the principal is
not in H1B status. If the principal was in H1B with a different employer,
then the H-4 is allowed to remain in the U.S. if the principal H1B
travels abroad for a vacation or personal / office related work. At the
time of leaving the U.S., the airline agent removes the H1B I-94 card to
submit to the USCBP. This question isn't entirely clear. If the H-4 is
changing to H-1, then they should not travel while the change of status is
pending. Travel abroad while a change of status is pending will void the
request to change status.
----------------
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>.
----------------
Chat User :
With
1.5 years left on H-1, is it advisable to change jobs, transfer the H-1 and
start the green card in the PERM process?
Attorney Murthy :
It
can be risky since there is not enough time to ensure that the new employer
will work with you and file the PERM immediately to ensure the ability to
obtain a one year H1B extension or 3 years if the I-140 gets approved within
the next 18 months. It is possible, but it will require that the employer
and employee move things along promptly, and often, many employers do not
understand the need to rush things along, especially for a new employee who
may be in some sort of a probationary period. There may be better options if
the current employer has started the green card process. Otherwise, if the
current employer refuses to start the green card process, there may be no
choice but to try through a new employer.
----------------
Chat User :
Is
concurrent filing still possible for EB1 if the PD is current? Thanks.
Attorney Murthy :
Yes,
concurrent filing is possible in any category if the visa number is
available. In EB1, the dates will all become current on September 1, 2006,
including those for Indian nationals. This means that anyone who has
recently filed an I-140 petition in EB1, and those filing during the month
of September 2006 could also file the I-485 and the EAD and AP for the
principal and all dependent family members! That is good news for those who
needed the EAD to work, especially for family members.
----------------
Chat Master :
This
is a moderated chat. If you want to know how the Chat works or have other
Chat questions, you can visit <http://www.murthy.com/aboutchat.html> for
MurthyChat
FAQs.
----------------
Chat User :
In
PERM, are there any obvious errors that should be avoided in cases where the
candidate qualifies only through alternate minimum requirements?
Attorney Murthy :
This
fact could be mentioned when completing the forms, and the language about
"any suitable combination of education or work experience" should be
included, as indicated by the Department of Labor. Hopefully, the attorney
for your employer will be able to go through those issues with you to avoid
a delay or problem in the PERM case.
----------------
Chat User :
I am
currently working on an H-1 visa, and there is a similar opening in my
company for a position, but they have not been able to find any qualified
U.S. workers. Can a PERM application be submitted on my behalf?
Attorney Murthy :
The
newspaper advertisements for the position may not work for a PERM case, as
there is specific language and the way in which the advertisements need to
be placed to work under the U.S. Department of Labor's PERM regulations.
So even though the employer may have searched hard for a suitable candidate,
often a new set of advertisements will need to be placed for the same job
again in the PERM required format. However, it would be best to have the
matter reviewed by an attorney to see if some of the recruitment effort can
be utilized in a PERM case. Since the recruitment must be within a 6-month
period prior to filing, it is best to check this before the ads expire.
----------------
Chat Master :
There are about 30 minutes remaining in tonight's
MurthyChat.
----------------
Chat User :
Dear
Ms. Murthy, can the employer file for an H-1 for someone without any OPT or
CPT? Thank you.
Attorney Murthy :
Yes,
an employer is allowed to file an H1B for a person who was on H-4 status
previously, or just on F-1 or J-1 with no OPT or CPT. As long as one is
qualified for the H1B position with at least the bachelor's degree or its
equivalent, s/he is allowed to be sponsored for the H1B position.
Of course, the H-1 cap has been reached for the current year. When H-1
numbers are available again, the H-1 cases can be filed for people without
OPT/CPT, including qualified people who are abroad and have never been to
the U.S.
----------------
Chat User :
With
a labor pending for more than 1 year, how much in advance of H1B status
expiration can one file for an H1B extension?
Attorney Murthy :
A
person is allowed to file the H1B extension up to 6 months in advance of the
start date, or as little as a day or two before the status expires so that
the new H1B petition reaches the USCIS on the day before the person's
earlier or prior status expires.
----------------
Chat User :
My
wife is working on L-2 with an EAD. Her H1B was approved. Can she transfer
her H1B to a new employer with May, June and July’s pay stubs?
Attorney Murthy :
That
option should be available since the person is maintaining valid legal
status as a dependent on L-2. This may require showing both her valid status
and that of her spouse, and then file to work for a new H1B employer with a
start date of October 1st showing that the person was already
counted against the cap within the last 6 years, or, in this case, against
this fiscal year of 2006 quota!
----------------
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 :
Does
the 240-day rule still apply for PERM labor approval but with an I-140
pending?
Attorney Murthy :
The
only 240-day rule is that a person is allowed to keep working for up to 240
days when filing an H1B extension with the same employer. It is not
clear if AC21 increased that timeframe to as long as it takes for the USCIS
to process the case or if the person is only allowed to work for 240 days
after the expiration of the earlier status in the case of an H1B extension
with the same employer. The example you mention does not seem to require 240
days as the rule is that one can file for a one-year H1B extension if
s/he had filed a PERM or LC at least one year earlier, or, if the I-140
petition is approved, then the person is able to file for a 3- year H1B
extension instead of just one year after the completion of 6 years on H1B
status.
----------------
Chat User :
Attorney Murthy, thanks for all your help. My husband and I just got
approved with our I-140 with EB2. Is it possible to move onto EB1 with our
I-485?
Attorney Murthy :
A
person is only able to file an EB1 based I-140 petition if s/he
qualifies and, ultimately, that I-140 petition is approved
based on his/her being a person of "extraordinary ability" or "an outstanding
professor or researcher" or a multinational executive. If an individual does not
qualify in one of these three categories, then EB1 is not an option for that
person and s/he cannot file the I-485 with the EAD and AP.
----------------
Chat User : I
am on H-1. If I apply for a green card, will I be able to take leave without
pay or work part time?
Attorney Murthy : One who is in H1B is allowed to file for part-time
H1B to work on a part-time basis. Leave without pay is permitted, but one
should be very careful about utilizing this option. It must be clear that
there is genuine leave, not unlawful benching. The best situations involve
those where the individual travels abroad (so that status is not an issue)
or takes leave that is consistent with other laws like the Family Medical
Leave Act, etc.
----------------
Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
----------------
Chat User : Ms. Sheelaji, I overstayed for 15 months without a valid
H-4 and I-94. I traveled abroad, and got a valid I-94 and visa. Can I apply
for I-485? Will the past overstay affect this?
Attorney Murthy : Yes, a past overstay that exceeded 180 days is a
problem unless the USCIS issued a nunc pro tunc approval retroactively,
allowing the person to clean up the mess from the past with a backdated
approval notice. If not, one could process through the U.S. Consulate
abroad to avoid the I-485 denial in the U.S. However, the departure after
being without a valid I-94 would normally trigger the ten-year bar to
reentry. This situation should be discussed with an attorney.
----------------
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 Murthy Law Firm and
MurthyDotCom.
----------------
Chat User : How can one ask for a refund from the INS if they delay
an H1B application under premium processing for more than 15 days?
Attorney Murthy : The U.S. Treasury and Debt Management is supposed
to refund the fees if the USCIS takes over 15 days to make a decision, but
this does not include the time in case of an RFE as another 15 days are
allotted to the USCIS. One could write the Treasury Department to request issuance
of a refund for the government’s failure to process the H1B within the
timeframe required under its own regulations.
----------------
Chat User : Can you please confirm whether an approved I-140's PD can
be moved to another employer to file a new I-140? Is there any risk of the
USCIS not accepting the earlier PD from a prior approved I-140 for a newly-filed I-140?
Attorney Murthy : Generally, an earlier-approved I-140 petition PD
can be used when filing a new I-140 with a new employer, as long as the
earlier employer's I-140 petition has not been revoked by that employer for
use by another employee. It is safer that way.
----------------
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>.
----------------
Chat User : If the start date of an H-1 is October 1st, is
there a possibility that the H-1 is not approved by that date by the USCIS
due to a high volume of applications? If that’s the case, what if the OPT
expires on October 2nd? Is doing premium processing safe at this
point before it affects the person?
Attorney Murthy : Yes, it is common to switch and request a premium
processing by early September or the end of August so that one hopefully is
able to obtain an approval before the end of September and
continue working from early October onwards from OPT to H1B status. The
average time of processing by the USCIS is about 4 to 8 months to process a
regular H1B without paying the premium fees. One would be legally in
the U.S. while a properly filed change of status to H-1 is pending (no gap
in status between OPT grace period and October 1), but it may be best to use
premium to permit work as soon as possible.
----------------
Chat User : For a B-1 holder in the USA with an H1B approved, is it
permissible to legally start working from October 2006 with a change-of-status application, or should I go to a nearby country for H-1 visa
stamping?
Attorney Murthy : If the USCIS approves the H1B with the I-94 card
attached at the bottom of the approval notice, one is allowed to
work in the U.S. without traveling abroad. If the USCIS approves the H1B for
consular notification, the person must travel abroad, apply for the H1B
visa stamp abroad, and reenter on valid H1B status to keep working.
----------------
Chat User : Hello, Ma'am. Greetings! If you apply for immigration for
another country (i.e. Canada), will it affect the start of the GC process in
any way here?
Attorney Murthy : Usually, it should not affect the start of the GC
process in the U.S., though I have heard of one instance of the border
official asking the person in which country s/he wished to live and work
permanently. Otherwise, a person generally is required to comply with
certain living and working timeframes not to jeopardize her/his GC
status in either country.
----------------
Chat Master : This ends tonight's session of the MurthyChat.
----------------
Attorney Murthy : We look forward to continuing to help you, your
family and friends with all of your immigration law needs. We wish our
MurthyChat participants of Indian origin and our Indian national
participants a happy Independence Day for August 15, 2006!
----------------
Chat Master : Thank you all for logging in! The schedule will be
posted at <http://www.murthy.com/chat.html>.
----------------
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
Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.