Chat : September 11, 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 : 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 : If one gets a change of status from L-1 to H-1 starting October 1st, is there any grace period for which s/he can keep working with the L-1 employer even after October 1st?

Attorney Murthy : Generally, the last action rule would likely apply in such a case so that the H1B becomes effective on October 1, 2006, in this example. One possible way to get around this result is for the person to travel abroad and return on the L-1 status so that becomes the latest action of the DHS for the individual. The other option is for the H1B employer to withdraw or cancel the H1B so that the L-1 remains valid and operational instead of the H1B. This option is safer if the person's H1B has not yet started on Oct. 1st. After his/her status has changed from October 1st, then the safest route is to travel abroad and reenter on L-1 status, but the risk with this is that one may not be able to argue that s/he has been counted against the H1B cap, though technically, that person should have been counted and so, arguably, should not have to be counted against the H1B cap again.

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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 : What happens to the existing LB status if an H1B (at visa stamping) gets rejected?

Attorney Murthy : The L1B petition remains valid if the L1B petition date has not expired. If the L1B visa stamp in the PP has not yet expired or been canceled by the consulate and the L-1 job is still available to the individual, then s/eh can choose to travel and reenter the U.S. in L1B status.

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Chat User : I have applied for a GC (basic) under EB3 and I’m waiting for labor clearance. Am I eligible to file under EB2 due to a promotion? Should I file now under EB2 and PERM as well? Thanks.

Attorney Murthy : Well, depending on the priority date of the earlier petition, it may make sense for nationals of India and China, in particular, to recapture the earlier PD. One would then use that earlier PD when filing the second I-140 petition in the EB2 classification to get the best of both worlds. Generally, the PERM has to be filed based on the job requirements and one's qualifications and the industry standard, which determines EB2 versus EB3 classification.

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Chat User : Hi. Can you shed light on the pros and cons of entering the U.S. on H-1 versus advance parole? Does H-1 status offer significantly greater protection in case of denial of the I-485? Thanks!

Attorney Murthy : Yes, the H1B status certainly offers greater protections for a person if the I-485 is denied. In H1B status, one may file a new I-485 with fewer problems and a greater chance of approval, since one would have traveled abroad and reentered in H1B status, in such a case. On the other hand, the nice thing about the AP that makes it attractive for some is that one does not need to apply for the visa stamp at a consulate abroad altogether and avoids the delays and potential risk of a visa denial in that case.

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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 : I am on an H-4 visa. My husband is on an H-1 visa. He is in 7th-year extension now. Our I-140 was approved. My question is, can I file for an H1B visa next year?

Attorney Murthy : Well, in this example, until the USCIS changes its interpretations and regulations on the time available under H1B and H-4, if both individuals have used up the full 6 years on the H1B and H-4, then the H-4 spouse cannot obtain H1B until and unless the spouse files her/his own separate GC (either LC or I-140 petition) that has been filed and pending for over 1 year, or the I-140 petition must be approved for the 3-year H1B extension. Or, if the PD is current, then both parties can file the I-485 with the EAD to be able to work in other jobs while also maintaining the sponsoring employer's job until it becomes portable under AC21.

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Chat User : Good evening, Ms. Murthy. In your May 05, 2006 NewsBrief, you had mentioned "Decoupling H1B and H-4 Time." Please let us know if there is any update on this.

Attorney Murthy : The USCIS often mentions their intentions on how they plan to interpret or apply a particular law during seminars or meetings. Some of the USCIS's plans take a few months, others a few years, and sometimes their intentions may not materialize. The USCIS plans to decouple the time on H1B and H-4 status, but so far, they have not issued any final or even interim regulations on this issue. The USCIS realizes that it is not fair for the regulations to restrict the H-4s to the same timeframes as H1Bs when the law itself did not contain any timeframe restriction for H-4s. We hope that some guidance is issued in the near future as we have written to the USCIS on this matter and requested favorable consideration. We were excited about the possibility of this important change that we would have helped to bring about. If there were such a change, we would report it promptly in our MurthyBulletin and post it on MurthyDotCom.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : Can one work after the OPT expiration date while waiting for an H1B approval?

Attorney Murthy : One is not allowed to work after the F-1 OPT expires if there is a gap between that date and the H1B start date. One is required to stop working from the date the F-1 OPT expires. Otherwise, it is considered unauthorized employment and could jeopardize the ability to file one's I-485 later, when processing for the green card. There is a sixty-day grace period at the end of OPT, but this does not allow one to work. The grace period simply allows one to remain in the U.S. or file a change of status petition or application, etc., and wait here for the decision granting or denying that petition or application.

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Chat User : My F-1/OPT ended on August 31st. I have applied for H-1. What would my status be if the H-1 approval doesn’t come by the end of October (60 days)?

Attorney Murthy : One is allowed to convert from a regular case to a premium processing case to obtain a faster decision, since the cost of the $1000 extra may be worth it, depending on the salary of the person. For most professional positions, a few weeks delay in salary will often exceed the additional cost of the $1000 premium fee. The F-1 OPT has a 60-day grace period, but that only requires one to file the new COS during that time. The decision does not need to come at the end of the grace period, but the individual is not allowed to start work until the H1B petition with the change of status (tear-off I-94 card at the bottom of the H1B approval notice) is approved by the U.S., granting the change of status and employment authorization.

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Chat User : My Labor got approved recently, and I have a PD of May 2004. Is it worth waiting for a couple of months to file the I-140, or should I file it immediately? If I delay for a couple of months, will there be any problem in the future?

Attorney Murthy : The USCIS and the U.S. Department of Labor have not issued any final regulations on the timeframe of when the I-140 petition must be filed. Under existing law, as of today, the I-140 may be filed several months or years later, and the underlying LC remains valid. On the other hand, one gains nothing by waiting, in most cases, unless one is strategizing to delay for some reason (like when one expects the I-140 petition to be denied but needs it to be pending to obtain H1B extensions, etc). So, file the I-140 petition under the regular process, and wait, since after the I-140 petition is approved one is able to obtain 3-year H1B extensions as long as the PD is not current for that person. Of course, plan strategically and discuss the matter with your immigration lawyer to ensure that you get what you are seeking by delaying the filing. If you don't have a lawyer, please feel free to contact us at <law@murthy.com> to schedule a standard consultation to discuss your case.

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

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Chat User : Will the status enquiry with USCIS for I-140 EB2 help in any way (if the processing date is more than 5 months beyond the notice date)? Thanks.

Attorney Murthy : That may help, but we often find that the USCIS Customer Service is ineffective, and they simply take the complaints and ask the individuals to call back after 30 or 60 days. It may be more effective to use either one's congressperson or the AILA Liaison to find out what is going on.

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Chat User : I have an approved labor (approved August 31, 2006). Can I file I-140 and I-485 at the same time? I am from Europe. My 6th year expires August 13, 2007.

Attorney Murthy : Well, it depends upon whether the LC was approved under EB2 or EB3 as EB3 is not current for a person from Europe, or anywhere in the world, as of today. So, if one has an EB2 LC approved, then, since the PDs are current for nationals of all countries in Europe, the I-140 could be filed with the I-485, with the employment authorization document and the advance parole for all immediate family members at one time. Otherwise, it is not possible. Also, it is not the person's citizenship or PP that determines eligibility, or which country s/he is charged against for immigrant visa numbers, but the birthplace of the person, in most cases, unless s/he can enjoy cross chargeability.

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Chat User : Hello, Madam. My company has applied for my H1B renewal to Vermont Service Center, and I got the receipt notice from the California Service Center. Which center is actually processing my petition?

Attorney Murthy : We have written articles about this, where sometimes a particular service center may help out by issuing a receipt notice and, in many cases, that service center will take over the processing of the case. Sometimes, however, they may return the case to the service center which has jurisdiction over that case. Search for an article on this topic in one of our recent MurthyBulletins on MurthyDotCom dealing with the CSC issuing receipt notices for VSC in certain types of filings.

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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 : What happened to the quota that is allocated for Chile / Singapore for FY2007? Did the USCIS receive 6800 applications? If not, is there any possibility of allotting that remaining quota to the Indians for this year?

Attorney Murthy : Well, the USCIS cannot issue any leftover Chile / Singapore numbers for nationals of one specific country, like India. Nationals from all countries will want them. The USCIS is supposed to have a system to allocate certain cases that were received on May 26, 2006 under the general H1B quota, to be selected based on a random lottery and some of those cases that were rejected and others that are being held may be allocated H1Bs from the unused Chile / Singapore quota. We did report on this matter in a MurthyBulletin article.

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Chat User : My H1B and company A cancelled my visa as I resigned from that company. Now I hold the papers of new company. When I need to visit India, do I need to go to the consulate to get my visa stamped, or can I visit India with the H-1 papers from my current company?

Attorney Murthy : The rule that is being implemented is that one is allowed to use the H1B visa stamped for an earlier employer, that has not yet expired along with the H1B approval notice issued by the USCIS, for the new employer at the time of entering the U.S. The purpose is that the person is supposed to obtain a new I-94 card at the airport by the CBP Inspector to match the latest H1B approval validity date of the new employer's H1B petition, and not the earlier expiration date of the visa stamped in the passport.

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Chat User : Hi. My company has filed an H1B for me. The application was received on July 6, 2006. However, my grace period will be over on Oct 11, 2006. Can I still legally stay in the country if the USCIS does not approve or deny my application within 90 days?

Attorney Murthy : As long as one has filed the change of status H1B petition while still maintaining valid nonimmigrant status, s/he may stay in the U.S., but cannot work until the new H1B petition and the change of status have been approved (presuming there is no gap between the F-1 OPT grace period and the H-1 start date). As explained above to another MurthyChat participant this evening, it may make sense to spend the extra $1000 in premium processing, since that will allow one to start working from October 1, 2006; not only to make some money but for the person's resume, and it would also likely help the new employer who may not be willing to wait for potentially lengthy USCIS processing times for the regular H1B processing of the case.

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

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Chat User : If I'm on CPT in school, can I apply for an H1B with my existing degree?

Attorney Murthy : If a person has completed a bachelor's degree or higher education, s/he is allowed to file for an H1B for certain professional positions. However, since the H1B quota, both for the regular cap cases and the U.S. master's or higher degree quota all have been used for the coming 2007 fiscal year, it is not possible to file a new H1B until April 1, 2007 with a request for the start date to become effective on or after October 1, 2007. The exception to this is for those positions / employers that are H1B cap exempt.

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Chat User : Dear Murthyji, is it possible for an H1B visa holder to start a firm in the U.S. along with a citizen, take some IT projects, get the work done in India and get paid in India (or in the U.S.) as the owner?

Attorney Murthy : A person who is a foreign national can make passive investments in a business, but is not allowed to work for that business in the U.S. while living in the U.S., since that is considered unauthorized employment. So, to put money up or invest is okay, but doing work like searching for projects, hiring or firing employees, or speaking with potential clients for IT projects, all that work is not legally permissible for the person on H1B status, since one would need a separate, concurrent H1B for that work. It is not likely, however, that such an H1B would be approved for a new startup company, in most cases.

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Chat User : For PERM, how long can I delay filing my adjustment of status after my I-140 is approved and is current?

Attorney Murthy : There is no time limit under law, but we advise a person who may be waiting to get married that s/he should not wait too long, since there is always a risk of losing the job if the economy changes or if the employer merges with another entity, etc. Keep a max timeframe, for example, of 6 months, and then go ahead and file the I-485, while aggressively seeking out a life partner or whatever may be the reason that prompts your question.

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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 : Hi. I sent my H-1 for renewal. In the meantime, my I-94 was expired and now I got some query. So what options do I have?

Attorney Murthy : If the query has to do with something other than the person's status, and can be responded to so that case is approved, it should not pose a problem that the I-94 card has expired. On the other hand, if the H1B extension is denied, then one has to apply for all future H1B visas in the person's home country consulate, and the visa stamp in the PP, if still valid, becomes void by law.

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Chat User : Can an H-4 status individual work using EAD while the I-140/I-485 is pending? If the underlying I-140 gets rejected, what options does the H-4 holder have? Thanks.

Attorney Murthy : A person on H-4 status is certainly allowed to work using the EAD. If the I-485 is denied, the person is required to stop working at that time. Depending on the person and the spouse's options, s/he may be able to file a new I-485, travel abroad, and reenter in H1B and H-4 status again. One should also discuss whether there are any other possible options with a qualified immigration lawyer, to discuss one's background and other factors. If you don't have a lawyer, then you may certainly contact our law firm at <law@murthy.com> for a consultation to discuss possible options.

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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