Chat : September 18, 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 : 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.

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Chat User : How long does it take to transfer an H-1 from company A to company B? During the transfer process, is it possible to cancel the H-1? If so, how long does it usually take for company A to cancel the H-1? Thank you in advance for your information. 

Attorney Murthy : The USCIS takes about 6 to 8 months, at present, to process an H1B if it is regular processing (not premium processing). The employer sends a letter to the USCIS to cancel or revoke the H1B petition, and the USCIS takes about 3 to 5 months to send a letter confirming the cancellation or revocation of the H1B petition.

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Chat User : Can we transfer an H1B authorization (I-797) that was approved for a period starting October 1, 2006 without pay stubs (since the current employer is forcing to get into unreasonable terms of contract after getting the approval notice and did not give a copy of the I-797 notice)?

Attorney Murthy : Generally, a person requires a copy or other evidence of the H1B approval and evidence that s/he is maintaining valid legal status at the time of filing the new H1B petition. Although the law does not require one to wait until October 1, 2006 to file a new H1B petition, the risk is if the employer revokes or cancels the H1B petition before the new H1B petition is approved. Premium processing of the new case may be an option, therefore, to get around this problem. In the worst case, a person can request a new H1B petition approval and request consular notification so that s/he has to travel abroad and apply for a new H1B visa stamp at the consulate to reenter the U.S. in H1B status.

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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 : My spouse got his LC and filed for I-140 with my name appearing as a dependent. Will these be considered as immigration intent and hurt my chances of getting a J-1 for medical residency? Thank you, attorney.

Attorney Murthy : Generally, the I-140 filing by the principal beneficiary, naming the spouse as a dependent, is not considered a filing by or on behalf of the spouse, since the employer files the I-140 petition for the benefit of the employee and dependent family members. This should not result in a denial of the J-1 status, but it is a factor that the family has lived for many years in the U.S. The longer one has lived in the U.S., the more difficult it is to show ties to his/her home country.

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Chat User : Does the USCIS allow someone to study full time and work full time or study full time and work part time in H1B status? Thanks in advance.

Attorney Murthy : The USCIS allows a person to work full time on H1B status and pursue studies, as long as the studies are incidental to the H1B work status. That is, the H-1 work must be the primary purpose for the individual to be in the U.S. Therefore, part-time work and full-time study may be a problem, unless, perhaps, the study was clearly related to the job. On the other hand, a person may be on F-1 status to study full time, and then can work incidental to the F-1 status in the library or on campus as part of the F-1 status.

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Chat User : If I have stayed 1 year of my H1B in India, can I apply for a change of status to L-1 in the USA? I have performed managerial functions and might require travel back to India again.

Attorney Murthy : A person is allowed to file for the L1A as a Manager /  Executive if one fulfills the requirements for that position by showing a year abroad in that capacity. If one is traveling back and forth, then s/he is not subject to the total time limitations on L-1 or H1B if the travel results in the person remaining abroad for over 6 months in each year.

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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. Currently, I am in Canada on a student visa that will expire on September 26, 2006. My USA H-1 visa was approved on September 15, 2006. Can I enter the USA before my Canadian visa expires? Thanks for taking my question.

Attorney Murthy : A person is allowed to enter the U.S. in H1B status 10 days before the start of the H1B. However, it generally would be necessary to have the H1B visa in the passport in order to do so. The exceptions to the need for a visa are for Canadian citizens and in situations that fit within the contiguous territory rule. Assuming that the H1B is cap-subject and starts on October 1, it would be permissible to reenter as a student. If the H1B was approved as a change of status prior to one's departure from the U.S., then, the status will be changed to H1B on October 1. If the travel occurred while the change of status was pending, that request for the change of status is deemed abandoned by law. There are many variables here, so it may be best to schedule a consultation with a good attorney. If you don't have one, you are free to send us an eMail at law@murthy.com or call our law firm.

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Chat User : A girl comes on a student visa to the U.S. and gets married to a green card holder. Is she required to go to school, or can the visa be converted due to marriage? Will there be any problem if she doesn't attend the school? Thanks.

Attorney Murthy : A student who enters to study but does not attend class could have a major problem in more than one way. One is the potential fraudulent intent in entering the U.S., and also, before that, in applying for the F-1 student visa from the consulate abroad. This would pose a problem even if the spouse were a U.S. citizen. Then, second, the marriage to a GC holder does not give the spouse any legal status to live or work in the U.S. since the priority dates take about 5 to 8 years, on average, for the spouse to get any legal status. This could result in a removal or deportation for a person in this situation. Overall, this is risky, and I am surprised that the GC holder spouse did not speak or consult with an attorney before planning to get married. We would also note that the student spouse may create problems with fraud / misrepresentation if s/he didn't mention a fiancé/e on the visa application, but got married soon after in the U.S., and then filed for immigration benefits after applying for and obtaining the F-1 student visa.  

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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 : Does it cause any problems if the immigration officer does not give a new I-94 while entering the U.S. from Canada?

Attorney Murthy : The immigration officer never gives a new I-94 card to a person entering from Canada unless the trip to Canada exceeded 30 days. If one needs the proof of travel, we recommend purchasing some items, staying in a hotel, traveling by plane, or some other evidence to show that the person traveled abroad on the specific date at question.

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Chat User : Can an amendment to an H-1 petition and premium processing be done at the same time?

Attorney Murthy : Yes, a person is allowed to file an H1B amendment with premium processing. We file that routinely when it is needed for a specific reason to clear up a problem. Otherwise, generally, for an H1B amendment, premium processing is not required since one is allowed to start working in the new position simply based on the filing of the H1B amendment, in most cases.

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Chat User : If we have multiple approved H-1 petitions, is it possible to go for stamping for company A and, if the visa is rejected, go for company B stamping?

Attorney Murthy : Generally, the consulate is more likely to make things more difficult if the person got an H1B denial with a particular employer and very soon thereafter filed a new visa application with a new employer. If the problem has to do with the employer, the new H1B visa with the new employer may work out. But, the problem often could be with the candidate or the concern that the person possibly is trying to misuse the system.

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

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Chat User : Can we use same company experience while filing EB2? What is the affect on an EB3 case if the EB2 case is rejected in the I-140 stage, assuming that we are porting the EB3 priority date to the EB2 case?

Attorney Murthy : It is safest not to rely on the experience with the same employer in attempting to use that work experience for the EB2 filing. If the earlier EB3 is already approved, then there is no downside in trying it. The law under PERM requires that the work experience and the job under PERM must be at least 50% different, however, for one to be able to use that work experience.

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Chat User : What are the advantages of premium I-140 if, after approval, we cannot move forward because of retrogression in the I-485 priority dates?

Attorney Murthy : One main advantage, for most people, in obtaining the I-140 petition approval is the ability to file the 3-year H1B extension instead of simply the one-year extensions. Second, the priority date gets locked in after the I-140 petition approval, which can be helpful in many cases - even psychologically for the person. This may be helpful if the GC-sponsoring employer declares bankruptcy, goes out of business, fires the person, etc. So there are other advantages in obtaining the I-140 petition, even if one cannot file the I-485. We wrote a two-part article on this topic that is available on MurthyDotCom.

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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 Attorneyy Murthy or one of our other experienced attorneys.

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Chat User : Hello, Murthiji. I have a question regarding L-1 visa. Is there any minimum time before which a company can apply for one’s L-1 visa? Currently, I am on H-4 visa in the USA. I have an offer from a company that requires I go to India for 6 months. After 6 months, can the company get me to the USA on an L-1 visa? Thank you in advance for your help.

Attorney Murthy : The earlier rule about the minimum of 6 months work experience abroad for blanket L-1 companies no longer applies. Now, a person must work for the qualifying L-1 employer or a subsidiary or affiliate for a minimum of one year abroad to be eligible to qualify for the L-1 status.

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Chat User : Is it legal to work in the grace period after OPT if the H-1 isn't approved?

Attorney Murthy : It is not legal to keep working after the expiration date of the OPT. The grace period simply allows one to remain in the U.S. with the idea of packing up and departing the country; not to remain and continue working. This could pose a problem if the time of unauthorized employment exceeds 180 days by the time one files for the GC, as this will prevent one from obtaining the I-485 approval under 245(k) of the INA law. Unauthorized employment also eliminates the ability to use portability in the H-1 context to work for a new employer while an H-1 case is pending (once one has held H-1 status).

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Chat User : With an H-1 petition already filed, say by company A, can a person on OPT still change employers? What happens to the H-1 petition that was filed?

Attorney Murthy : The only problem here is that, if the person wants to file a new H1B petition, but there are some questions on the earlier filing by the USCIS, that earlier employer will likely not respond to the questions, so that the person is not able to obtain an H1B approval. Then the person will have to wait another full year to attempt to qualify under the FY2008 H1B quota, as the quota for FY2007 is already used up! That may be a problem. If the H-1 case has already been approved, then it is possible to file a new one to change employers. It is advisable to carefully consider the risks and discuss issues with a qualified immigration attorney. If you don't have a good attorney, please contact us at law@murthy.com.

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Chat User : My husband is under 7th-year extension. I am on H-4 visa. I previously had H1B status. Can I switch back to H1B from my H-4 visa even if I have already spent more than 6 years in the U.S.? Thanks for taking my question.

Attorney Murthy : The USCIS does not allow one to obtain any extensions of the H1B status after the completion of 6 years in the U.S. in either H1B or H-4 status unless the person started or filed the LC or I-140 petition at least one year earlier or the I-140 petition is approved and the PDs are retrogressed to be able to obtain H1B extensions.

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

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Chat User : PERM approved. Premium I-140 rejected. Labor has been pending for more than year. 6th-year H1B will end in 6 months. Can one get a 7th-year extension and try to apply for I-140 again?

Attorney Murthy :  One can and should file the I-140 petition under regular processing, assuming that there are some better arguments that can be used to file the second time. They can then use the receipt notice to file the 7th-year H1B extension. It may also be possible to appeal the I-140 denial if the appeal period has not run and there is some basis for appeal. This, too, can be used for an H-1 extension. As a backup plan, it may be a good idea to start a new PERM process in case the other I-140 petition is likely to be denied again, due to substantive reasons.

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Chat User : Can one file for EB2 while in OPT and have completed a master's coursework but has not submitted a final thesis? Thank you.

Attorney Murthy :  It is possible to file the EB2 by showing the employer will accept the equivalent to an M.S., as long as the person has completed the coursework towards the M.S. degree. This means, if any other person applies for the job, the employer must consider that individual with similar qualifications for the position without the actual M.S. degree.

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Chat User : Last year, I was on OPT and have applied for H-1 in the master’s cap. It was rejected, since I didn't have my degree. I have joined another school, and I am doing an MBA and, presently, I am on an F-1 visa. I have applied for the 65,000 quota this year on time. Do you think I will be fine this time?

Attorney Murthy : If one filed the H1B under the regular quota so that it reached the USCIS before May 26, 2006, then the person may be okay with regard to the H1B quota, but it also depends upon whether the employer has any problems or if the job truly requires a person with a master's degree, etc. There is no guarantee that the H1B petition will be approved, but, in most cases, a person is eligible for the H1B if all the criteria are satisfied for an H1B position.

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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 : If you have an H1B from company A, can you work in another similar field for 10 hours a week in addition to company A? What are the repercussions, if any? Thanks.

Attorney Murthy : If a person wishes to work for a different employer for 10 hours per week, then that second employer must file for a concurrent part-time H1B for that employee. Otherwise, it is considered unauthorized employment that could pose a problem for the person when obtaining the GC or trying to remain legally in the U.S.

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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 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