Chat : September 10, 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 : 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.

----------------

Chat User : Dear Attorney Murthy, thank you for your wonderful service. I have applied for I-485, EAD, and AP. I have valid H-1 but it is not stamped on my passport. Is there any way of getting an emergency AP so I can travel to India?

Attorney Murthy : It will depend on the circumstances of the local USCIS district office and the discretion of the officer to determine and agree if there is an emergency that mandates issuing the AP. The general rule is that, for security reasons, they are supposed to wait for the service center to issue the AP. Each local office handles this issue somewhat differently. There is no harm in trying, if there is a real life-and-death emergency, though. It is vital to be prepared to document the nature of the emergency; for example, doctor's letters, accident reports etc. Weddings and family events are generally not considered emergencies. Otherwise, be prepared to apply for the H1B visa stamp at the consular post abroad.

----------------

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 : Respected Murthyji, what do you suggest after I-140 denial - re-filing I-140, or Motion to Reopen I-140, or both?

Attorney Murthy : Well, it really depends on the person's background, circumstances, and options available. If one needs to obtain the H1B extensions in the U.S., just to remain here, then the I-140 MTR / appeal may be the only option by filing it well in advance to obtain the 1 or 1 1/2 year extension. Then have a backup plan to start a new PERM filing to be eligible for the 1-year extension in the future, in case the I-140 is denied finally. You must discuss this with your immigration attorney, or consult with our law firm if you cannot speak with your attorney, since some employers will not allow individuals to speak with the lawyer or law firm directly.

----------------

Chat User : Is it advisable to apply for F-2 visa if the F-1 student is on OPT?

Attorney Murthy : There is no harm in the spouse applying for the F-2 visa stamp at the consulate even if the principal is in F-1 status and OPT. In fact, there is a Department of State cable from about 3 years ago that advises consular officers not to deny the F-2 visa stamp once the student has been previously granted the F-1 visa, since the intention of the F-1 principal should be transferred to the spouse and dependent family members.

----------------

Chat User : USCIS received my I-485 on July 12th. Till now I have no receipt notice. I have an emergency situation (my father is sick) and I really need to travel. Please advice. I also need to get my H1B visa stamped. I sincerely appreciate your service.

Attorney Murthy : Well, one could attempt to obtain an emergency AP from the local office by showing the proof of the FedEx delivery and a sworn Affidavit or statement from the law firm that filed the I-485 with the EAD and AP. Check bank records for cashed fee payment checks for the I-485. Those have the receipt number on the back. Also, plan to apply for the H1B visa stamp from abroad by booking the H1B visa appointment through nvars.com for the visa interview, either in the home country or the contiguous territory, depending on where you were educated, etc. Discuss the risks regarding abandonment of the I-485 if you travel without AP or the I-485 receipt and H-1, and considering the implications if one is stuck abroad for security related checks or other reasons. Make an educated decision with the least risk before departing. Ultimately, it is always a choice of risk and benefit in most cases. Hope your family situation / father's health improves!

----------------

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.

----------------

Chat User : Hi, Murthy Ji. I am on H-4 visa. I had applied for H1B in April 2007, and it has been approved. I do not want work due to personal problem and want to continue on H-4. Do I need to again apply for H-4 or is my H-4 status is still valid?

Attorney Murthy : The last action rule would seem to indicate that the USCIS last action supersedes and that is now the status. So, if one wishes to revert to the earlier H-4 status, then the options would appear to be either to travel abroad and reenter using the H-4 visa stamp in the passport and obtaining a new I-94 card on or after Oct 1, 2007, or file to change back to H-4, as well as filing a request with the USCIS to revoke the H1B approval, as one does not intend to work for the H1B-sponsoring employer and wishes to retain the earlier H-4 status. It is still possible to obtain H1B status later, if one is ready to work in H1B status, within the next 6 fiscal years, since one was counted against the H1B quota.

----------------

Chat User : What is the position of I-485 filing? Is it possible to file I-140 & I-485 together even though there is visa retrogression?

Attorney Murthy : No, a person cannot file the I-485 concurrently if her/his priority date is not current. Only when the PDs become current can a person and all family members, like the spouse and minor children, file their I-485s, EADs, and APs with the I-140 petition for the principal applicant.

----------------

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 Murthyji. I really appreciate your service to us all. My husband is on H-1 visa . He got RFE on I-140 (applied date 12th October 2006 ). They need his signature on labor. Is this a typical RFE or do we need to worry?

Attorney Murthy : Well, under the PERM regulations the parties must sign the final LC / PERM papers for it to be binding since the forms are signed under penalty of perjury. If the employer or attorney forgot to obtain and sign all the forms, then the request seems like a simple oversight in this case, unless you have reason to believe that there is another issue or concern. Your company attorney should be able to explain this request easily.

----------------

Chat User : I have a question on current job title vs. GC job title. My current job position is "Programmer Analyst" and GC job title is "Sr. Software Engineer." Do I need to have my current job title changed to my GC job title while applying I-140?

Attorney Murthy : Well, it depends on whether you are already performing that job or your employer was filing the PERM/GC based on what they figured they would use you for, since they had an opening for a Sr. Software Engineer position. The H1B is the current job and the GC is based on a future job offer. Sometimes the positions are the same, but at other times there is a valid need for the employer to require different experience or education for an opening within a year or two for the position.

----------------

Chat User : This is a wonderful service you are providing and thank you for this. My L-1 and my wife's L-2 visas are expiring in 1.5 months. Would it be possible to apply for my wife's EAD right now and then, when we get the extension documents, can we send that as supporting documents? Would they then give the EAD as only valid for 1.5 months? Thus would it make sense to wait until the extension comes through. Thank you in advance for answering this question.

Attorney Murthy : Generally, the USCIS takes about 3 months to issue the EAD, based on the L-2 spouse's status. Filing when there is just over a month left does not seem to make sense, therefore, since the EAD will not be issued for about 3 months, on average. Waiting until the L-2 extension has been approved would seem to make sense in most cases, unless there is a reason to file now with the idea of obtaining an RFE on the EAD and delaying its issuance even further.

----------------

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

----------------

Chat User: Can I carry my earlier priority date after my Labor Certification was approved, since I left the employer soon after that? I believe that my I-140 petition was filed and approvable, but was not yet approved when I left that employer.

Attorney Murthy : No. To obtain the PD one must actually have an approved I-140 petition. The approvable standard only applies possibly for AC21 portability, not for locking in the PD. For obtaining the PD that can be transferred later on, one's I-140 petition must actually be approved.

----------------

Chat User : Is it acceptable not to work for the employer when my I-140 (based on future employment promise) is approved and I-485 has been pending since June 2007? I do not want to work for this employer, now.

Attorney Murthy : Well, there are issues of the bona fides of the intention of both the employer and the employee in such cases. The parties must intend for the employment relationship to take place when filing the I-140 petition and at the time of filing the I-485 AOS application. It is possible, if one is able to show AC21 portability to work for another employer or in another position by showing that the new job or employment is in the same or similar job classification as that of the original LC / PERM / I-140 petition.

----------------

Chat User : When is the best time to apply for 3-yr extension of H1-B visa? 6 yrs will expire by 2008. Pending application for I-140 and I-485. Thank you.

Attorney Murthy : Unless one has obtained the I-140 petition approval, s/he is not entitled to file and obtain the 3-year H1B extension, unless the person has only used 3 years of the H1B status since entering the U.S. for the first time, or since entering the U.S. after a year's absence abroad. H-1 extensions can be filed six months in advance. Sometimes, it is necessary to coordinate the 3-year H-1 request with the Visa Bulletin cutoff dates, so that it is filed at a time when the dates are not current for the case - so that there is 3-year eligibility.

----------------

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 : Hi, Murthyji. We failed to send a document when applying for my N-400. It is a month since we applied for it. What to do, now? Can we send it now or wait until they ask for it? Thanks.

Attorney Murthy : It is safest to wait until the USCIS issues an RFE, otherwise sending it in now will result in the papers not reaching the file for several months or sometimes never reaching the file at all. Hopefully, that paper was not critical, since the USCIS has the right to deny the N-400 under the current RFE rules, rather than being required to issue an RFE. Since N-400s all go to interviews, it may be something that can just be supplied to the officer during the interview.

----------------

Chat User : Dear Murthyji, thank you for the services you provide. USCIS now says to wait 90 days before checking with them for the receipts of the AOS applications filed on July 2nd. What happens after the 90 days have passed? Do you suggest re-applying?

Attorney Murthy : Well, if truly you have waited over 90 days and you are concerned that the employer or the attorney did not file the I-485, and the priority dates are still current, then one could file the I-485 again. However, I would recommend against it since, when the USCIS says wait for 90 days, that usually means a few extra weeks, since their projections often tend to be little rosier than reality. At the Murthy Law Firm, we are receiving many receipt notices for the July cases. Check both for the receipt notice as well as for the filing fee checks to be cashed.

----------------

Chat User : Can we extend the H1B petition from India? I mean, if you are not in U.S. at the time of expiration.

Attorney Murthy : A person can file an H1B extension in the sense that the H1B petition can be filed, but the person's H1B status cannot be extended with the I-94 card attached to the bottom of the approval notice when s/he is abroad. One must file the H1B petition for consular notification and then obtain an H1B visa stamp from the consular post after the H1B petition is approved and obtain the I-94 / H1B status at the port of entry when entering the U.S. from abroad.

----------------

Chat User : Hi, Murthy Ji. I applied for I-485 in September 2004 as a Computer Instructor. Can I change jobs now to a Computer Programmer? Will it affect my Labor or green card?

Attorney Murthy : The general rule for AC21 I-485 portability is that the new job must be the "same or similar." There are no statutes or regulations, but only USCIS policy guidance on this issue. Although the USCIS has been fairly broad and generous in considering what is considered the "same or similar" there could be some debate or concern in cases where the job classification is different but having the same skill sets is helpful. So one is taking some risk. Discuss the risk and benefit with your attorney to determine whether it makes sense for you in your case.

----------------

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

----------------

Chat User : Hi, Murthyji. We really appreciate your service. My question is: I recently applied for my I-485 with my wife. She is in F-1 status and in her final semester, graduating in December. Can she apply for her OPT? What are our options here?

Attorney Murthy : There is some debate on this issue and we recently wrote an article in the MurthyBulletin on this topic. The safer approach is for her to simply file the EAD based on the I-485, since F-1 is not clear-cut dual intent, like the H1B and L-1 statuses, or the dependent statuses of H-4 and L-2. But if the EAD had been issued with the OPT, it is possible that it may be valid even after the I-485 filing.

----------------

Chat User: I am really nervous. My wife, who was the dependent, already got the fingerprint notice, but I have not yet received my notice. Is this a serious problem? What can we do to point out the error to the USCIS?

Attorney Murthy : It is quite common for one spouse to get the FP notice or another communication earlier than the other spouse for various reasons. If the gap in time is several months, then it may make sense to contact them, but a few weeks difference is not at all uncommon in most cases.

----------------

Chat User : I applied for H-1 transfer and received EAC number on June 20th, but did not receive the approval document, yet. The status is still shown as "Pending for approval." How much time does it normally take? Is there a way I can see if the EAC number I have pertains to my application only?

Attorney Murthy : Unless an H1B was filed under Premium Processing, most H1B petitions could take anywhere from an average of 2-4 months or more in some cases. Generally, the USCIS receipt notice is sent to the employer or the attorney and it will have the employer's name and the H1B employee's name on the receipt notice to ensure that it belongs to a particular person.

----------------

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 have never worked for the GC-sponsoring employer. I just got my I-485 approved, but I was going to file for a change of employer under AC21 portability when my I-485 was approved within fewer than 180 days that the I-485 was pending. Do I have to work for the green card-sponsoring employer?

Attorney Murthy : Well, it depends on the intentions of the parties and whether the employer or the USCIS will allege fraud when the person never works for the GC-sponsoring employer. It is safer to work for a year or two, in most cases, unless one can show that the company closed down or other extenuating circumstances that made the work difficult.

----------------

Chat User : Murthiji, thanks for the Great Service! Is there any impact on I-485 processing, while I-485 is pending and file for a new H1B through same employer?

Attorney Murthy : There is no impact on the I-485 processing for a person to file the H1B extension with that same employer or even with a new employer, in most cases. Of course, if moving to a new employer from the employer that sponsored the labor certification / I-140, then approval of the I-485 case will depend upon eligibility under AC21 portability.

----------------

Chat User: I am very unhappy in my current job and wish to change my job. Can I use the earlier Labor Certification approval and continue the rest of the process with a new employer? How can I take advantage of the Labor filing date for a future case? My 6 years on H1B get over in Sep 2008, so I don't know how risky it is to change employers now?

Attorney Murthy : The general rule is that a person is always free to change jobs with the possible risk that s/he must start the entire GC process from scratch with the new employer. Only after the I-140 petition approval can the person possibly carry the earlier PD to the next job. There is a risk, unless the new employer files the new PERM now, before Sep 2007, in case the earlier employer cancels / revokes the GC process when the individual leaves the employment.

----------------

Chat User : I am single with a U.S. master's degree and have a valid H1B petition. I have also applied for I-485. I don't want to use EAD and AP yet, as I am not married. Can I travel abroad to get H1B stamped without waiting for AP approval?

Attorney Murthy : Yes, it is possible to travel abroad to apply for the H1B visa stamp. The only reason it is often worth waiting for the AP approval is, in case one is stuck abroad for months or years with a security check of some sort, the AP may allow him/her to reenter the U.S.

----------------

Chat User : Hi. Is it possible to request a COS from H-4 to H1B when it was denied earlier?

Attorney Murthy : It is always possible to file a new application for a COS from H-4 to H1B, as long as one is still maintaining valid legal status and understanding why the earlier case was denied. That way, one hopefully could address the issue in advance, instead of receiving another RFE or denial on the same basis. Of course, if the H1B was not approved, then there is likely to be a cap issue with a new H1B filing.

----------------

Chat User : I am in EB2 category and I am Indian, but I am married to a girl who is UK citizen. So what will be my priority date? Thanks

Attorney Murthy :  The priority date is still the date that the labor certification was first filed (or the I-140 for cases not requiring a labor certification.) What you are really asking is which country you will be "charged" to. It is possible to request cross chargeability to your wife's country, so that you would be counted against the world wide quota instead of India.

----------------

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