Chat : August 21, 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 matters. Thank you for your interest in our MurthyChat.

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Chat User : My I-140 is approved and I-485 was filed last week. I may be laid off by my employer following an acquisition. My employer will not revoke the I-140. What are my options?

Attorney Murthy : It depends on what the successor company may do, if your I-485 will be pending for at least 180 days, and if you can find employment considered the "same or similar" to that listed on the LC and the I-140 petition. Then you may be able to continue the GC. If, on the other hand, the USCIS makes a decision on the I-485 in fewer than 180 days, which is their target for processing, that could pose a problem in such a case, and a new PERM/LC may need to be started as a backup. The priority date on the approved I-140 potentially could be retained in a later-filed I-140 unless it is revoked by the employer.

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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'm on H1B (7th year) and cannot wait for my LC anymore. I plan to quit my present job and follow my spouse as her dependent (J-2). Will there be any problems with my changing my status from H1B to J-2? Thank you.

Attorney Murthy : There should not be a problem other than establishing strong ties to the home after having lived in the U.S. for over 7 years. The USCIS may not believe that you both plan to return upon the completion of the J-1 program, since J-1 is a pure nonimmigrant status unlike the H1B, which enjoys dual intent presumption. If travel is needed, it will be necessary to face this issue at the consulate, even if the change of status is approved in the U.S. Also, if the J-1 is subject to the two-year home return requirement, the J-2 spouse will also be subject to that requirement.

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Chat User : Dear Murthi Ji, except the login ID to check PERM status online, what other valid information can I ask my employer to check on the PERM status?

Attorney Murthy : There is no way to check a case status that has been filed under PERM, unlike the earlier system, since there is no person to answer questions. This was even difficult  before, but is now impossible.

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Chat User : Thanks a million for providing this free service. My priority date is August 15, 2001 (India, EB3). I just wanted to know if there is any possibility of that becoming current in the near future.

Attorney Murthy : As we have written in the MurthyBulletin and on MDC, the U.S. Department of State expects forward movement in October 2006 when the new quota is released at the start of the 2007 fiscal year on October 1st. We should know by mid September from the Visa Bulletin the movement of priority dates for October 2006.

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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 : Hi. I’m on H1B for 7 years here. My EB3 green card application is still in RIR labor backlog. At what step can I change my job location to another state? At what step can I change my employer? How do I change job locations? 

Attorney Murthy : Generally, the rule is that the GC is filed based on a future job that the employer intends to offer the foreign national after the approval of the GC. So the fact that a person is working in one location but intends to work in another location upon the approval of the GC is legally feasible, as long as the parties intend for that work to fall into place at the location listed on the LC and the I-140 petition by the time the GC is supposed to be approved. To continue the GC processing, one's LC and I-140 must both be approved, and the I-485 filed and pending for 180 days to take advantage of the AOS portability provisions under the law referred to as AC21. There may be a way to have a new employer file a new GC case and start all over. This should be discussed in a consultation with an experienced attorney.

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Chat User : I currently have a non-capped H1B (Visa and I-94 both valid until 2008. Visa stamp present in passport). My cap-subject H1B petition for a new employer is pending. Can I travel outside the U.S. and return without endangering my new H1B petition?

Attorney Murthy : As a general rule, if a person travels abroad after filing an H1B extension of status, then the USCIS considers that the H1B petition is not deemed abandoned automatically, unlike when a person files a change of status petition with the USCIS. However, even if the EOS is not deemed abandoned by the USCIS, there is a risk if the last action of the person, namely the I-94 card is stamped with an earlier date and just before that, the USCIS had approved the EOS. Bottom line is that any travel abroad always complicates matters, so it is best avoided whenever possible.

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Chat User : If a person on an H-4 visa spends time outside of the U.S., can that time be recaptured when s/he later changes status to H-1? Thank you.

Attorney Murthy : Yes, any time abroad should be able to be recaptured to add time to the H1B status. If the USCIS does not count the time on H-4 status, as they are planning on changing their regulations, then that will take care of that. In the meanwhile, any time abroad, not just the earlier standard of "meaningful interruption," is required to recapture time on H1B and H-4 status.

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Chat User : Appreciate your service. There is widespread rumor that next year all of the BPCs will become current, irrespective of EB category. What are your comments on this?

Attorney Murthy : The position of the Department of Labor has been to wrap up all the BPC cases by August 2007, since there was budget for the BPCs to operate only for 2 years. So, that makes sense. Part of the reason for the backlogs in the PDs issued by the U.S. Department of State is that the Department of Labor BPCs are expected to complete processing the earlier cases. This will likely cause more delays in the EB2 and EB3 cases for many countries and possibly affect India and China even more later in FY2007 than at present.

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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>.

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Chat User : Hello, Attorney Murthy. When can a person apply for an EAD? Soon after the approval of the I-140, or only when the I-485 is applied for?

Attorney Murthy : A person is only able to file the I-485 when the PDs are current, and that is the only time one can file the EAD and AP. So, if the PDs are current, then one could file the I-140 and I-485 together like for EB1s starting on September 1, 2006, but the other categories will not, in many cases, be able to file the I-140 and I-485 concurrently. This will depend upon category, priority date, and country of chargeability.  

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Chat User : My spouse and I are in H1B. My spouse’s GC is in process. Do I need a change of status (H-1 to H-4) before filing my spouse’s I-485?

Attorney Murthy : No, as long as both of the parties in the marriage are in valid legal status in the U.S., then the other party is able to file the I-485 based on the marriage and the spouse not having any other bars to being lawfully admitted to the U.S. as a permanent resident. It is not necessary to be in a dependant nonimmigrant category in order to be a dependant in the green card case.

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

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Chat User : My wife is 7 months pregnant and is in India. Due to medical conditions, she can't travel. If she delivers the baby in India, can she come back with the child? Her status is AOS, and I have a GC. What are the options? Your help is greatly appreciated.

Attorney Murthy : Children of permanent resident mothers born abroad are allowed to enter the U.S. as permanent residents as long as the mother brings the child back to the U.S. on her first entry into the U.S. and the child is under 2 years of age at the time of first entry into the U.S. If the mother’s green card case is still pending at the time of the birth, the child would still be eligible as a derivative family member, as the child of a marriage that existed prior to the green card approval. Thus, it may be necessary to process the child’s case for consular processing after approval of the mother's, or at the same time of the mother's (by changing the mother’s case to consular processing). This situation is a bit complex and should be discussed with an attorney.  

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Chat User : I am on an L-2 visa with EAD. Can my employer file a GC directly for me (instead of first filing H1B)?

Attorney Murthy : Yes, it is possible to process a GC case as long as one is maintaining valid legal status, like the L-2, and working on the EAD. In fact, the EAD has more flexibility for work than an H1B that is employer specific.

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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 : Dear Murthy, is it possible to have 2 simultaneous applications? One for H-1 and another for H-4 extension.

Attorney Murthy : The general rule, per the USCIS, is that the "last action" may control, and this means that if the H-4 is approved after the H1B approval, then the person may not be allowed to work on H1B under the last action rule. So, one option is to travel abroad, apply for the H1B visa stamp, and reenter in H1B status soon after the second approval if the person wishes to use the earlier approved status. The other option could simply be to request a revocation or cancellation of the newly approved COS or EOS, but this process could take the USCIS 4 or 6 months to follow through.

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Chat User : When is it possible to reinstate F-1 status if one falls out of status? Can he reinstate the F-1 only with the school he stopped attending, or can he reinstate with any college?

Attorney Murthy : As a general rule, after September 11, 2001, most F-1s who fall out of status are not going to be able to get reinstated by the USCIS unless one has suffered some type of extreme medical condition that resulted in her/his inability to attend classes. Most other applications for reinstatement are routinely denied, even when the error occurred due to the incorrect advice of the International Student Advisor! It is often safer to apply for the F-1 visa stamp abroad, and reenter after the issuance of the new I-20 from the school, rather than risk a denial and "unlawful presence" in the U.S.

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Chat User : Hi. I am on H1B at a university, and I have an offer from a private industry. Can I start to work in April, when I apply for the visa transfer, as I already have an H1B?

Attorney Murthy : A strict reading of the law called AC21 states that a person is allowed to start working upon filing a new H1B petition, as long as s/he was previously in H1B status or had an H1B visa stamp. This means that one is allowed to keep working. If, however, the USCIS makes a decision to approve the new H1B with a start date of October 1, 2007, but it is approved on September 1, 2007, then the person, in this example, must stop working upon the approval of the H1B petition with a future start date. Check with your employer's attorney, as some company lawyers may decide to take a more conservative position in this regard.

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

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Chat User : Can I apply for two H1B transfers at a time? How much one time does have to find another job after his H-1 gets revoked by INS? Thanks.

Attorney Murthy : There is no grace period under law after the termination or revocation of an H1B petition. A person is allowed to file for more than one H1B legally, but there is always a concern if one is violating an agreement when s/he accepts full-time employment with two employers, promising to work full-time for both of them, knowing full well that the intent is to breach the agreement with at least one of them. There are ethical issues involved, and the employer may be able to sue for breach of contract and for reimbursement of all expenses incurred in filing the H1B and travel costs, etc, if applicable.

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Chat User : Thank you in advance. What happens if we change addresses when the PD is January 2003 (EB2)?

Attorney Murthy : Depends on which stage of the GC the person is in. If the LC or the I-140 petition is still pending, then there is no problem if the beneficiary changes the address, since the petitioner is the employer. If the change of address is after the I-485 filing, then it could create delays in the processing of the case for the adjustment applicant and all family members with the EAD and AP and even the I-485 approval.

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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 working on OPT with the current company for the past 6 months. My H1B will start from October 1st. How many pay stubs do I need from the current company after October 1st to transfer my H1B to a different company?

Attorney Murthy : It is safe to have at least 2 pay stubs, but a person may be able to change employers even before starting work with the previously-approved H1B employer. That will have some level of risk, though.

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Chat User : If an application for an extension of H-4 stay (I-539) is filed late (after I-94 expiry), can the applicant continue to stay in the U.S. beyond 180 days, with the receipt notice and pending approval?

Attorney Murthy : There is a possible risk that the person could be subject to the 3-year bar for filing the extension of status (EOS) after the expiration of the earlier status. This late filing could result in one's inability to obtain the I-485 approval in the U.S. for remaining out of status for over 180 days. There is some level of risk in such cases, but the level of risk depends on how long after the expiration of the earlier status the person filed the H-4 EOS. If the time lag is a few days, then the risk is smaller than if there is a large gap. However, the ability to remain in the U.S. based upon a pending application requires a properly-filed, timely application. It is not safe to remain based on a late-filed application.

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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