Chat : August
27, 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.
----------------
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.
----------------
Chat User : Hi, Murthy ji. I and my wife applied for 485 last month.
We are on H1B, but my wife wants to change her status to H-4. Is this
possible to change status after applying for the I-485? I did not get my
receipt no. What is the process to change the status?
Attorney Murthy : Yes, it is possible for your spouse to file for an
H-4 status even after filing the I-485, since the H and L statuses allow for
"dual intent" meaning maintenance of both immigrant and nonimmigrant intents
without jeopardizing either status.
----------------
Chat User : Hi, Madam. Thanks for your service. I applied I-485 on
August 10th. I have a valid H1B until Feb 2009, but my visa has been expired
in my passport. Can I go to Canada for visa stamping? Do I need the I-485
receipt to go to Canada?
Attorney Murthy : There is a regulation that requires a person who
does not have advance parole to have the original I-485 receipt notice to
travel abroad and reenter the U.S. in H1B status. Generally, applying for
the visa stamp in Canada is not useful unless one has a U.S.-based
education, since a visa denial in Canada will now require that one travel
directly from Canada to the home country; then applying for the H1B visa
stamp at the consulate in the person's home country.
----------------
Chat User : Hello. I have got the approval for H1B and COS (H4-H1).
Can I travel outside the U.S. and reenter before Oct. 1st on H-4? Upon
leaving, I will surrender my current I-94 card with I-94 number same as in
the Approved I-797. Will having a new I-94 card void the COS approval I
already received? Thanks.
Attorney Murthy :
There is the last-action rule that may come into play. Under a USCIS letter
interpreting this type of situation for students, if the entry on the H-4
occurs before October 1, then the Change of Status to H-1 (valid as of
October 1, even though approved before departure) is the last action, and
the status changes to H-1 on October 1st. However, it is important to return
before October 1st. If the return is after October 1st, then the last action
will be the H-4 entry.
----------------
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 : Dear Murthyji, Green Card is approved while doing the
interfiling the I-485 with another company's I-140. Considering that
interfiling is successful - as noticed the PD change in welcome notice - how
soon would one need to join this other company, when currently working in
first company? Will joining another company after three months be covered on
both sides, even if the interfiling is not successful?
Attorney Murthy : This issue seems so case-specific that it would be
risky for you to rely on a one sentence answer in the public MurthyChat on
something of this importance to you and your family. The general rule is
that it is safe to leave the GC-sponsoring employer only about one year (or
a minimum of six months) after the GC approval. There is a risk in leaving
within three months.
----------------
Chat User : EB2 is now showing 2004 dates. Is this correct, as it was
current last month.
Attorney Murthy : Actually, it was current for July, and then all
categories were unavailable for August. It is April 1, 2004 (EB2, India) for
September. That is the strange phenomenon of the priority dates as they can
fluctuate violently sometimes. We have explained the dates being current
during July since the U.S. Department of State wanted to push the USCIS into
processing about 60,000 cases within three months, in order to use all
remaining visa numbers, but the USCIS claims to have completed their
processing of all of these cases within three weeks!! [See more on this
matter in our articles listed on I-485 Fiasco
of 2007 on MurthyDotCom.]
----------------
Chat User : What happens to F-1 status when one has filed I-140/I-485
for AOS? Is is safe to maintain the F-1 just in case?
Attorney Murthy : The F-1 is a pure nonimmigrant status. The common
view is that, after filing the I-485/AOS, one is no longer considered in F-1
status. There is some debate on the issue of the F-1 based EAD for OPT
remaining valid, but the issue is not 100% clear. We at the Murthy Law Firm
have recently submitted this question to the USCIS for clarification. We
also have an article on this topic that will appear in a future
MurthyBulletin.
----------------
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.
----------------
Chat User : Hi, I applied for the I-485 in July, but have not yet
received the receipt notice. I have a valid H1B visa with multiple entry.
Can I travel outside U.S. on business? Will it affect my I-485 application?
Attorney Murthy : Generally, we find that a person with a valid
H1B visa stamp and a valid H1B approval notice can travel and reenter the
U.S. However, there is a regulation that requires one to also have
the I-485 receipt notice, in order to be able to travel as an H-1 without
advance parole and not abandon the I-485. We have found the CBP inspectors
do not require this document.
----------------
Chat User : Hello, Murthiji. I really appreciate your community work.
USCIS has mentioned that they finished receipting until July 02 at NSC. My
case was filed on July 02nd at NSC. But still we have not received any
receipt and the checks have not been encashed. What should I do?
Attorney Murthy : The USCIS often states that it has completed
something, but this may mean that the mailroom finished the preliminarily data entry.
A file may then move to others who actually print
out the receipt notices and mail them. We often find that their information
regarding such timings is not accurate, often off by weeks or even months in some cases. Trust
me, they will cash your checks unless they genuinely have lost or misplaced
the file, which is not uncommon either, unfortunately, but they will
consider it as a July 2nd filing. We have found that many people are
receiving the receipt notices for EAD/AP filings before the I-485. I think
you need to continue to be patient for the time being.
----------------
Chat Master : We have many folks logged in - your Question with the
answer may take awhile to appear on the screen. Please be patient.
----------------
Chat User : Hi, madam Ji. I came on H-4 May 2004. I converted to H1B
in 2005. I applied for I-485. Can I travel to India while my I-485 in process?
Attorney Murthy : Well it depends upon the status in which one wishes to
reenter the U.S. If one would like to maintain backup H1B status, then travel
and reenter on a new H1B visa stamp with the original H1B approval notice.
Otherwise, entry on the AP will require the person to work on the EAD, to be
on the safe side. If traveling on H-1 and not AP, it is best to wait for the
I-485 receipt notice, as explained to several previous chat users this
evening.
----------------
Chat User : Great service, Murthiji. For those whose PDs are not
current, will the USCIS proceed with other steps involved prior to
adjudication of I-485 such as name checks, finger printing, etc; or do we have
to wait until our PDs are current for these steps as well?
Attorney Murthy : Generally, the USCIS will start to process a
case, especially if the PDs are closer to the current month's processing. So, if the
PD is in 2005 for EB2, there is a better chance that it may start to get
processed earlier than a 2007 PD case in EB2. We have heard of people
receiving fingerprint notices on some of the recent I-485 filings, which is
much faster than usual. Ideally, the case will be reviewed and processed so
that it can be approved once the priority date is current.
----------------
Chat Master : There are about 30 minutes remaining in tonight's
MurthyChat.
----------------
Chat User : First off, thanks for this outstanding service extended
by you. We applied for I-485 as a family of four. We have all received our RN.
My son’s papers have been rejected because my attorney filed his with more
money than necessary. Can we appeal again now, or should I wait for the PDs
to be current again? What are our options?
Attorney Murthy : The child will need to wait until the PDs
become current again so the son will need to maintain his H-4 status, which
means the principal will need to be in H1B status the entire time to avoid
the child's falling out of status. Or the child could possibly consular
process, since the 3-year or 10-year bar does not apply against minor children
below the age of 18 years; but the child will not be eligible for I-485
filing unless he has maintained valid status throughout - except for the maximum
grace period of 180 days under 245(k) for employment-based cases.
----------------
Chat User : Hello, Murty ji. Can I change my employer under NIW? I have
recently applied for I-140 and I-485.
Attorney Murthy : Well, if one is not using AC21 portability
provisions, then one must show that her/his work will continue to
be in the national interest of the U.S. Also, what happens if the NIW is
denied? Hopefully one has maintained backup H1B or other legal
status, since NIWs are discretionary and more risky that a regular PERM /
I-140 in most cases.
----------------
Chat User : Dear Murthiji, why is there a lot of difference in
processing time between Nebraska and Texas Service Centers?
Attorney Murthy : There has always been a variation in the
processing times of the various service centers all through the years. Now,
with bi-specialization, there is a variation in the processing times and in
the adjudications. The difference is that people all over the U.S. now are affected by the
variations, instead of only a certain part of the U.S. Individuals have been
complaining about the difference between Nebraska and Texas but, in reality,
they currently are reasonably close, with respect to the I-485s. They are
just over a month different, in comparison to the past when differences
could be over a year.
----------------
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 : For filing I-140 and I-485 on EB3, do we need resume and
experience letter from previous employer? In the labor, there is an option
that says this job does not require any prior experience.
Attorney Murthy : Generally, if a position does not require any
prior experience, then everyone who applies with a resume presumably would qualify
for the position, unless the employer can show that there are
multiple open positions at the facility and not a sufficient number of job
applicants. Of course, there are jobs that will not require any experience,
but then they will be more difficult to get certified by the U.S. Department of
Labor, in most cases. The I-140 must be supported by documentation that the
beneficiary has the required education and/or experience set out in the
labor certification.
----------------
Chat User : Can I CHANGE my job before I receive I-485/EAD/AP
receipts or before I get the EAD approval? What will be the duration on H1B
visa if I'm on my 8th-year extension?
Attorney Murthy : There is always a risk in changing employers or
jobs. This is especially so if the I-485 is approved within the 180 days or if there
is an RFE within the 180 days and the new employer cannot respond to the RFE
(AC21 portability only comes into play after the I-485 has been pending
180 days.). There are risks involved. Discuss these with your
attorney or contact us at law@murthy.com.
----------------
Chat Master : There are about 15 minutes remaining in tonight's
MurthyChat.
----------------
Chat User : Thanks for the service. My I-485 was pending and I applied
for I-131. Now I have my I-485 approved and I received an RFE on the I-131. Do
I need to respond to the RFE?
Attorney Murthy : You could respond stating that the I-485
is approved and, hence, the I-131 is no longer required. That way, your
records are kept clean and pristine without an open issue pending in your
file for any review later. The response may not be essential, but we
would respond cleaning up the records on one in this situation to not leave any loose
ends.
----------------
Chat User : We filed our 140/EAD/485 on Aug 15th. If my wife (H-4)
goes to India in Oct (for 2-3 months), what if we get our fingerprint notice when
we are in India? What is the risk involved? Can we postpone?
Attorney Murthy : Generally, the USCIS will allow one
postponement of the FP notice. For cases filed in July/Aug, based on the PD
fiasco, the FP notices might be delayed due to the large volume of case
filings. However, we are seeing and hearing of some FP notices arriving for
recently filed cases.
----------------
Chat User : Murthji, can a person in H1B status and with EAD approval
start a business or do second job while continuing work for the current
sponsoring employer?
Attorney Murthy : Yes, a person with an EAD is allowed to work
at another part-time job or start a business, etc, as long as s/he can
continue to work either for the GC-sponsoring employer or after AC21
portability eligibility, s/he can work for another employer in the
same or similar field, as allowed by AC21.
----------------
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:
I heard that it is always required that a person must have filed the LC at
least one year earlier to take advantage of either the 1-year H1B extension
or the 3-year H1B extension. What happens if I just filed my PERM case 8
months before the completion of the full 6-years in H1B status?
Attorney Murthy :
No, that is not correct. The LC could be filed 5 months ago and the
I-140 approved, and the individual would be eligible for the 3-year H1B extension
after the I-140 petition is approved, even if it is less than one year ago.
We have done this successfully for many individuals. Our strategy
is to attempt the 3-year extension, even if one was not able to file the
LC / PERM at least a year earlier.
----------------
Chat User : Murthyji, after AC21, is it still valid that one should
stay with the current employer for one year after getting GC to ensure there are
no issues during naturalization? Or can one switch to a similar job with another
employer? Should one inform USCIS of using AC21?
Attorney Murthy : That is a valid question, but one that
has not yet been clarified by the USCIS. There are many gray areas of law
and this is one of them. When speaking with various prominent AILA members one
evening in DC, the author of a key
immigration reference book on immigration, Mr. Ira Kurzban, also agreed that
the only safe route is for one to continue to work for the GC-sponsoring employer for about a year after the GC approval to avoid a
potential problem in the future. Until there is clarification, it
potentially could be risky to do otherwise.
----------------
Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the
MurthyForum - Your ultimate U.S. immigration resources on the Internet all
start with MURTHY!
----------------
Chat User : Hello, Murthy. Thanks for your wonderful service. If there
are different state addresses on the labor, I-140, and I-485, would it effect
the final approval of I-485.
Attorney Murthy : It would not make sense for the employer's
address to be changed between LC and I-140, unless it is within the same MSA
for the prevailing wage to remain valid. If the address changes are due to
the foreign national, then it does not matter since the address is important
during the I-485 stage. It could result in an RFE, especially if the three forms
were filed within a few months of each other. That would raise some
suspicion. This really depends upon the situation and the location/s
mentioned for employment in the LC.
----------------
Chat User:
Why
did I get a 214(b) rejection at the consulate? What are the criteria to
overcome the denial of the visa? How can I overcome the denial?
Attorney Murthy : It depends on one's background and
education and the job offers, etc. It depends on what one
hopes to accomplish and whether the 214(b) rejection was in connection with
an F-1 or a B-1 or J-1, etc. You need to speak with a qualified attorney or, if
you don't have one, you are welcome to consult with us by eMailing law@murthy.com.
----------------
Chat Master : This ends tonight's session of the MurthyChat.
----------------
Attorney Murthy : Thank you for your active interest and
participation in our MurthyChat. We look forward to continuing to help you,
your family and friends with all of your immigration law needs.
----------------
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 © 2007, 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.