Chat : August 28, 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 : Dear Murthyji, is it possible to port a substituted EB3 labor priority date (I-140 approved) to an EB2 PERM labor when the I-140 gets approved?

Attorney Murthy : Yes, it is possible to transfer the priority date from an approved EB3 I-140 petition to a later-filed EB2 I-140 case, and the request should be made at the time of filing the second I-140 petition, rather than at the time of its approval.

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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 : Hello! I have a valid H-4 visa in my maiden name in my old cancelled passport, but my new passport is in my married name. If I have to travel out of the country, can I do so with the above, or do I need a new visa?

Attorney Murthy : The general rule is that one allowed to use the old visa stamp and the old PP with a copy of the marriage certificate in case she (or he, in the case of a man who chooses to hyphenate) is questioned about a change in the last name.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : My priority date is February 2003. The EB3 date, per the Visa Bulletin, is April 2001. How long will it take to get the EAD? I just got my LC.

Attorney Murthy : No one knows for sure how long it will take for the priority dates to move. It could take 6 months, 2 years, 5 years, or longer for the PDs to be current. You need to review the Visa Bulletin on the projected movement of dates. The EAD cannot be requested until the I-485 can be filed. The I-485 cannot be filed unless and until the priority date is available.

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Chat User : I'm on an H-4 visa. I received my EAD through my husband's I-485 application. If I use the EAD, will my H-4 status and the H-4 visa in the passport be invalidated? Thanks.

Attorney Murthy : Clearly, the H-4 visa stamp is not invalidated simply by using the EAD based on the I-485 filing of the I-485 applicant. One is allowed to work on the EAD, and then, when  reentering the U.S. after being abroad, s/he can choose to enter on the AP or on the H-4 visa stamp. The use of the EAD is not consistent with H-4 status. Thus, one using an EAD could be regarded as not maintaining H-4 status.

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Chat User : A friend of mine has been in J-2 status for a year is a post doctoral researcher (his wife holds J-1). Now he has been sponsored for J-1 for a year. How would he transfer his status? Does he need to reenter the country?

Attorney Murthy : A person who is maintaining valid nonimmigrant status is allowed to file a change of status from within the U.S. If s/he is traveling abroad, then one is allowed to apply for a new visa stamp at the U.S. consulate abroad and reenter in the new status, but a change of status within the U.S. is also allowed. If the J-2 is subject to the 2-year home return requirement, s/he will not be able to change statuses from within the U.S.

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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 : Hello, Murthyji. I am currently on H-4. I applied for H1B this year. If my H-1 gets rejected, do I have to apply for H-4 again? (My H-4 I-94 is valid until January 2008.)

Attorney Murthy : In such a case, the H-4 status should remain valid if the H1B change of status (COS) is denied, since the H-4 did not expire while the COS was pending. That is, if no COS is approved, one's status remains as it was, without change.

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Chat User : If one has an approved I-140 in EB3 from the current employer, can this priority date be captured to file a new EB2 in PERM by another employer?

Attorney Murthy : The general rule is that this is certainly possible as long as the prior employer does not revoke or cancel the earlier LC and the I-140 petition approval. This is requested at the I-140 stage.

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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 : I did not apply for advance parole with the adjustment of status application (via marriage). I was told, due to some latest changes, I cannot get it unless there is a work reason or family emergency. Is this true?

Attorney Murthy : The AP is possible to apply for, but if one wants it based on an emergency, then one has to show the emergency. If, however, one is willing to wait the normal processing time, s/he may apply for the AP at any time for general travel needs.

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Chat User : I have an H1B 3-year extension of company A, and my wife has her H-4 stamped. If I change to company B, does she need re-stamping?

Attorney Murthy : The dependents who are in H-4 status neither need to file H-4 extensions nor obtain new visa stamps when the principal changes employers in H1B status. The dependents and, in fact, even the principal, do not need a visa stamp in the passport and the H-4 and H1B visa stamps in the PP can be used to enter until the validity date. The H-4 does need to maintain a valid I-94 at all times. So s/he will need to extend before the status expires. It often makes sense, although it is not required, to extend the H-4s with the H-1s. We find that people often have trouble tracking multiple expiration dates, and it is better when the entire family's has all cases maintaining the same expiration.

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Chat User : EB1 for India is now current and should remain so in the new FY. If so, what are the chances that EB2 for India will move ahead significantly in October 2006?

Attorney Murthy : The U.S. Department of State believes that the EB2 and EB3 dates should move ahead in October 2006 when the new quota of immigrant numbers is released and available. Of course, the pace is difficult to predict and depends, in part, on the number of cases approved by the Department of Labor Backlog Centers.

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Chat User : I am on the 7th-year of H1B. I applied for I-140/I-485 and got the EAD and AP approved. Can I use the AP and travel to India, come back, and still work on H1B?

Attorney Murthy : A person is allowed to travel abroad and reenter in AP status. Technically, however, the safer route is to file the EAD and use that to work. Then if one's H1B expires and the individual still works with the same employer, s/he is allowed to file an H1B extension even if the person has been using the EAD.

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Chat User : Can a single applicant file more than one PERM application on different positions (one EB2 and one EB3)? Can I file a PERM EB3/I-140 once approved and then file the PERM EB2?

Attorney Murthy : The Department of Labor does not allow for 2 PERM cases to be pending at the same time, but one may file a case, get it approved, then file a second case if there has been a change in his/her job duties or job description to reflect the new EB2 job.

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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 : Murthyji, I heard that, if your PD is in 2005, it will take at least 2 years to apply for I-485. Is it true? My whole career depends on this, so please advise.

Attorney Murthy : There is no guarantee of how long it will take, but you do not mention if it is an EB2 or EB3 case. The EB3 could take 3 to 6 years, and the EB2 could be about 2 to 3 years, but there are times when the PDs are current or move faster in a particular month. If one is vigilant, therefore, s/he may be able to file the I-485 and be safer with the EAD and the possibility of taking advantage of AC21 portability to change employers, if the new job is in the same or similar field.

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

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Chat User : I applied for my H1B in May, and the current date of processing is in April. Is it too late to make it a premium case? Will it make sense now?

Attorney Murthy : It is always possible to change a case from a regular case to a premium case, but that decision depends on one's desire to find out what the decision is and also a cost benefit analysis. If a person is not able to work for a month, then spending $1000 to start work a few weeks early may make a lot of sense, especially if s/he is at a high salary level. So the decision to spend on the premium fees will depend on one's salary, ability to be patient, and the employer's ability to wait for the employee to start working, and similar factors.

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Chat User : Dear Ms. Murthy, what is the legal status after F-1/OPT expires and before H1B begins?

Attorney Murthy : The USCIS position is that an individual is not maintaining legal status in the U.S. and s/he is required to depart the U.S., apply for the H1B visa stamp in the home country, and reenter the U.S. in H1B status to get back into valid legal status. The F-1 OPT allows a maximum 60-day grace period, and, if there is a gap in time between that date and October 1st, the start of the new H1B, the USCIS is not supposed to approve the person's change of status. This means that if one does not have an I-94 card attached to the H1B approval notice, s/he is required to depart the U.S. and reenter with the visa stamp and the new H1B I-94 card issued at the border.

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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>.

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Chat User : Dear Murthyji, when we cancel a filed I-485 application for a dependent, does that have any affect while taking citizenship?

Attorney Murthy : Generally, canceling the I-485 of a dependant should not have an impact on the citizenship of the primary unless, there is an issue of moral turpitude involved in the process. Presumably, the dependents are getting their immigrant visas from abroad. If it is based on a divorce, and if there is no domestic abuse or other crime involved, then the primary applicant should be able to file the citizenship, when eligible. It is important to note that the primary cannot just "cancel" the dependant applications. Additionally, in citizenship cases, non-support and abandonment of spouse / children is part of the good moral character inquiry.  

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Chat User : How long will it take to reinstate an I-20 a second time? I got reinstated earlier in 2004 because of SEVIS. I applied for reinstatement in December 2005.

Attorney Murthy : It is unlikely that a person will be reinstated by the ICE or USCIS since the general policy is not to reinstate unless there was a life and death emergency and one was not able to maintain valid F-1 status.

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Chat User : If a person enters the U.S. by road from Canada and does not get a new I-94 issued, is this considered legal entry into the U.S.? How can one prove this?

Attorney Murthy : Presuming the entry is an inspected entry at a proper port of entry with proper proof of eligibility for entry, then it is a legal reentry into the U.S. Since the burden of proof to show travel and reentry is on the person wanting the immigration benefit, we advise people to make purchases on a credit card and show hotel stays or gas or other items purchased across the border. Even a letter from the employer confirming the travel dates may be helpful.

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Chat Master : Murthy Immigration Services, Pvt. Ltd., in Chennai, India has been established to provide comprehensive and convenient service to our clients and prospects in South Asia seeking help with U.S. immigration services. Learn more at <http://www.murthyindia.com>.

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Chat User : Dear Murthy, I have gotten a NOF from DOL. What is the chance of the labor getting approved when an NOF is rebutted?

Attorney Murthy : Well, that really depends on the strength of the case, the documents requested, the person's own credentials or qualifications, and the employer's ability to submit all of the required documentation to make it the strongest case possible.

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Chat User : What are the chances that the non-RIR cases will be processed by the BPC by September 2007?

Attorney Murthy : The U.S. Department of Labor has assured us that they intend for the BPCs to complete their processing of all cases by August 2007. The question is whether that is feasible based on their trackrecord to date. It is possible, if they move cases faster and hire more people, but there is no guarantee that it will be all done before August or September 2007.

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

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Chat User : I filed a new I-140 again with the copy of the labor certificate (since original LC is submitted with previous I-140). Now we received an RFE asking for the original LC. The original LC is struck up with the first I-140 file. Please advise me on how I can handle this situation.

Attorney Murthy : One should reference the USCIS to the earlier file number by mentioning it and requesting that the earlier file be reviewed and the original be transferred to the new file. That is a common procedure, and this generally should be done at the time of filing the second I-140 by referencing the earlier I-140 petition and that the original LC is available in that file.

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Chat User : Murthyji, can I transfer an H1B before the start date of October 1^st? I have paychecks while currently working on OPT.

Attorney Murthy : As a general rule, it is possible to transfer from one nonimmigrant status to another (in this example, from F-1 OPT to H1B) by showing that one is maintaining valid legal status, and then showing that s/he used an H1B quota number already. There may be an issue of breach of contract, in which the earlier H1B employer may be able to sue for and recoup the costs and expenses in connection with the earlier filing based on the express or implied contract theory for reimbursement. That is something for which one should be prepared, as that is a reasonable request. Additionally, the start date would remain at October 1st or after.

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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 : Can somebody with 7 years on H-1 switch to F-1 and come back to H-1 status after being in F-1 for 2 years without being outside of the country for 1 year?

Attorney Murthy : That is not possible as the law requires that the person depart the U.S. for a minimum of one year to be able to recoup the full 6 years on H1B status.

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Chat User : I have 2 I-140 approvals. One from a PERM EB2 labor applied for with my name as the beneficiary (PD is September 2005). The second is from an EB3 substituted labor with a priority date of April 2003. Can I use the substituted labor priority date for my EB2 labor?

Attorney Murthy : As mentioned above to two or three people in this session of the MurthyChat, the priority date can be retained if there is an approved I-140 and then a later-filed I-140. The I-140s can be in different EB categories. This request should be made at the time the second I-140 is filed. If the request is not made at the time of filing, then it may be necessary to do an amended I-140 in order to transfer the priority date.

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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 : Does just receiving the benefits (AP, EAD) change the status from employment- based visa status to AOS or using them will?

Attorney Murthy : Actually, a person is allowed to remain on H1B status, for example, even after filing and obtaining the EAD or AP, since it is only when one uses them that one is arguably only in the AOS pending status and no longer in the nonimmigrant status.

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Chat User : I lost my EAD because my I-140 was denied. I applied for a motion to reopen. Is there any chance of getting my EAD back?

Attorney Murthy : If one is in H1B status, s/he is allowed to file the H1B extensions based on the MTR or Appeal, but s/he is not allowed to obtain and work on the EAD, since the I-485 is deemed denied unless and until the motion is reopened and the case is approved. Sometimes, we will re-file the I-140, even if there is an appeal, if it is possible to make better arguments / submit better proof and increase the chance of approval.

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Chat User : Hi. In 2004, when the H1B cap was first introduced, I had a break of 120 days between OPT and H1B. I plan to go for stamping in Montreal next month. Will this be an issue?

Attorney Murthy : Back in 2004, the USCIS allowed the person to be considered in valid legal status even if the gap was over 60 days. Only since 2005 has the USCIS determined that they are no longer going to cut a break for students and allow them to remain in the U.S. while awaiting H1B approval.

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Chat User : Sheelaji, can we port an older priority date from an EB3 case to an EB2 case with an I-140 already approved?

Attorney Murthy : Yes, that is possible by filing an I-140 amendment requesting the new PD be transferred to an earlier I-140 approval.

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Chat User : How long will it take for H1B premium case processing time? My H1B extension is expiring on January 1, 2007.

Attorney Murthy : The USCIS is only supposed to take 15 days to process a premium case and another 15 days after receipt of the RFE, if an RFE is issued in the case. The timely filing of the H-1 keeps the individual lawfully in the U.S., and, if it is a change of employers, AC21 permits work while the case is pending. If it is an extension, then this is covered under an older rule allowing work for 240 days while the case is pending. Thus, it may not be necessary to use premium processing.

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

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Attorney Murthy : Next week, we will not have the MurthyChat as it is the Labor Day weekend. We look forward to having many of you in 2 weeks time for our MurthyChat. Have a wonderful evening / day. We look forward to continuing to help you, your family and friends with all of your immigration law needs.

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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