Chat : September 25, 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 : My husband received a 221-G asking for all my pay stubs and W2 forms, for his H-4 visa. Will there be any problem in his next interview, if I transfer my H-1 visa to some other employer?

Attorney Murthy : Generally, there is no problem in transferring to another employer. If the consular officer wishes to review certain information, like pay stubs, hopefully you as the H1B holder have that information. If not, then one could explain s/he has left the H1B employer for failing to provide the appropriate information and pay / salary so the H1B holder left that employer for a different position. Sometimes the consular officer likes to find out if the employee has filed a lawsuit with the DOL (U.S. Department of Labor) against the employer.

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Chat User : A person is changing status from OPT to H-4. However, s/he finds out that s/he has worked 5 days extra after the H-4 approval notice. Is this a big problem?

Attorney Murthy : Generally, an inadvertent error for a few days should not result in major problems or in one's being denied the I-485 at the time of filing for the GC. It is best to avoid working without authorization, but there is a reason for the "grace period" that allows a certain time for falling out of status or inadvertent errors and still allows one to adjust status in the U.S. So, hopefully, this 5-day timeframe should have no adverse immigration consequences for the individual. Keep in mind, however, that the AC21 provisions allowing an H-1 worker to work for a new H-1 employer based upon a pending H-1 petition with a new employer, only apply to persons who have not worked without authorization.

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Chat User : Hi. My OPT was denied on grounds that the INS received it after my graduation date. Is there any appeal to this decision? Also, please suggest other options, if I have any.

Attorney Murthy : The law is pretty strict now and requires one to file for the F-1 OPT before graduation, not even one day later, unlike the rule before that gave a 2-month window of opportunity. Although a Motion to Reconsider is permissible, in most cases we find that the USCIS makes almost no exceptions, barring serious injury or near-death situations, unfortunately. One option may be to enroll in school again, complete a second MS-type of degree within 9 months, and then seek to obtain another OPT by filing for it 2 months prior to graduation, if possible.

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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 : If someone applies for H-1 transfer from company A and starts to work for the new company also with just the receipt, can there be a situation wherein the H-1 transfer is finally rejected?

Attorney Murthy : Yes, of course, if the employer is not bona fide or the job is not considered a specialty occupation, or for some other reason, the H1B can certainly be denied. So, one always takes a risk when changing employers and starting to work before obtaining the H1B approval with the change of status.

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Chat User : Attorney Murthy, can you please clarify this rumor - the current Immigration Bill would allow MS candidates filing for I-485 to not be subject to Priority Dates (and retrogression). Does the MS have to be in the same field of employment? How about an MS in Civil Engr, doing a software job?

Attorney Murthy : There are many immigration bills and some of them have introduced the concept of exempting certain candidates from the PD delays that affect professionals. There is no point getting too excited about this bill, or any other, unless one of them passes and becomes the law. In the meanwhile, if every person writes to Congress, calls and leaves a message, and/or sends an eMail to express her/his support for certain bills, and not against others, then it may help to pass pro-immigration legislation.

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Chat User : I'm on L-1 and my wife is on L-2. I'm leaving to India for visa stamping. She is traveling on 2nd Nov while I'm traveling on 5th Nov. Is it possible for L-2 (dependent) to travel before the L-1?

Attorney Murthy : Yes, travel abroad for the L-1 or L-2 is not a problem. As long as the parties maintained valid legal status in the U.S., it should not pose a problem for either one to travel abroad.

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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 : My employer gave me an approved labor under EB3 and filed for I-140. With today's news, with I-140 premium processing is eligible for for EB3 also, is it possible for my employer to request premium processing of my I-140 (by paying extra fees)?

Attorney Murthy : Today's news with the expansion of the Premium Program allows for the expansion of PP for many other categories, but likely does not allow for premium processing for certain types of cases, like labor substitutions or where the original LC is missing, or for NIWs, etc. I guess one could certainly try it. The USCIS may reject the Premium Processing request and return the fee. They could reject the whole case, potentially, and it would have to be re-filed. If they accept the money and they cannot approve it within the 15 days one could request a refund of the $1000 premium fee.

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Chat User : On H1B for 6.5 years now; GC papers affected by retrogression. If I go out of U.S. for one year, will I be able to come back as H-4 (dependent of spouse)? Or when will I be able to convert to H-4? Thank you very much.

Attorney Murthy : Depending upon the circumstances of the case for the principal H1B holder, the dependent is allowed to obtain H-4 status if the H1B filed the LC/I-140 at least one year earlier, or if the H1B's I-140 petition has been approved. It is not clear from your question, so you should consult with an attorney as to whether and when you may be able to file for H-4 without departing the U.S. for an entire year, to see if such an option is available in your case. Otherwise, if it is necessary to leave the U.S., it should be possible to return as an H-4 after a year, assuming that the H1B spouse is maintaining status.

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Chat User : Do consulates ask for pay stubs and client letters for a fresh H-1 during visa stamping interviews, i.e. even before entering the U.S.? If so should we submit the pay stubs from our previous employer in India?

Attorney Murthy : The consulate often does not request pay stubs or other information from the employer in India, or for any work experience outside the U.S., other than possibly experience with a prior employer to determine if one is able to perform the job outlined on the H1B petition or to establish the minimum criteria in the case of a person with a 3-year degree, for example. If the H-1 petition referenced experience and provided experience letters in support of the candidate, it may be necessary to provide information to verify the authenticity of those letters.

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Chat Master : A search feature (http://www.murthy.com/chatdb.html) is available for MurthyChat Sessions archived on our WebSite. If your Question does not receive an answer tonight, please check transcripts of previous sessions for possible answers at http://www.murthy.com/chatlogs/chattran.html.

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Chat User : Hello Murthyji. Can you throw some light on EB2 visa number movement for India?

Attorney Murthy : No one can throw much light on this tricky subject, as the numbers move based on how quickly or slowly the USCIS and the DOL process cases and based on immigrant visa usage according to the per-country quota demand for immigrant visas. You should review the U.S. Department of State Visa Bulletin that we report on regularly and analyze for the benefit of our MurthyDotCom and MurthyBulletin readers, at least once a month, and report the trends that the DOS shares.

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Chat User : While the application for COS from H-4 to F-1 is being processed, can one go to Canada or Mexico with a valid I-20 to get F-1 stamping?

Attorney Murthy : When a person travels abroad while the change of status is pending, then by law, the change of status is deemed abandoned upon departing the U.S. If one's F-1 visa stamp is denied in Canada / Mexico, then the person should not be allowed reentry to the U.S., unless the earlier H-4 visa stamp has not yet expired and the consulate has not canceled or revoked the earlier H-4 visa stamp.

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

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Chat User : Can I get my H1B stamped on I-129 in absence of I-797 in Mexico?

Attorney Murthy : In order for the consular officer to issue the H1B visa stamp, one is required to submit the original I-797 for the visa issuance along with the other papers required for the H1B visa stamping, as would have been explained by your attorney or the employer.

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Chat User : I have a Pending H1B case for the first-time application. Additional evidence is asked from the employer. How much time does the employer have to respond? Can it be converted to premium processing?

Attorney Murthy : The employer has up to 12 weeks to respond to the RFE and, after that, the USCIS can take a few extra weeks or months, depending on their workload and the complexity of the case. A case is allowed to be converted to Premium Processing at any time by filing the form and paying the additional $1000 fee to request a review within 15 days.

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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 : Can we do premium processing of an I-140 that used a substitute labor of a case currently pending with AAO?

Attorney Murthy : This would seem to be the type of case that makes less sense to take advantage of premium processing, unless I am missing something here. Premium processing is not available for labor substitution cases. It is for cases that are pending at the USCIS, not those that have been denied and appealed.

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Chat User : Hi, Murthiji. Thanks for this service. There is a rumor in immigrant community that DOS has suspended AC21 law this year,  that removes 7% country quota in EB categories. Therefore they issued only 7% to India in EB2 and allocated remaining visas to EB3 category? Is this correct? Can DOS suspend AC21 provision in one year and enforce next year?

Attorney Murthy : The DOS has not done that and cannot do that under law. Although human errors may occur at any time, it is less likely to occur in an area such as this. I am always amazed at how the rumors start and fly around with no factual or legal basis from a legal authoritative source. The fact is, both India and China have large populations that result in many people from these countries having to wait much longer due to the per-country quota limits.

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Chat User : If for some reason one's thesis defense is delayed and his/her H-1 application suggests that the thesis has been finished when it won't actually be finished until 2 months after the application was submitted, will it cause a problem?

Attorney Murthy : Generally, if at the time the H1B petition was submitted, the information was accurate and bona fide but the thesis could not be completed for some reason, the H1B petition may remain valid. There is no harm in sending or filing an H1B amendment to reflect that correction and any other details that may have changed at the time of starting the H1B employment to avoid any appearance of impropriety in such a case.

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

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Chat User : 7th-year extension of H1B denied because of lack of document evidence. Meanwhile, I-94 expired. While doing appeal with AAO, how much longer can we stay in U.S. without a valid I-94? Is it legal to work during this processing time?

Attorney Murthy : There is no grace period after the expiration of the I-94 card date and it is not legally permissible to work while an appeal is pending at the AAO, unless the appeal results in a reversal of the case and the H1B is approved retroactively. If there was an error on the part of the USCIS in denying the case, and one is 100% sure of this, based on fool-proof evidence, then one may be willing to take a small risk. Otherwise, the time worked is considered unauthorized employment and could pose a risk to both the employer and the employee later.

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Chat User : If DOB is printed wrongly on I-94 when status is changed to H-4/H-1, what should be done to fix this issue quickly; especially if one has to travel immediately and have stamp the new H-1 visa in India?

Attorney Murthy : The fastest way is to file an H1B amendment and request the correction under the Premium Processing program. One could wait for the USCIS to correct it, if travel abroad and the visa application are not required on a rush basis and if it was the error of the USCIS and not the employer or attorney's error. The USCIS will correct it free of charge, though it may take a while.

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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 : My question is related to I-485 portability. Can I port from one employer based in CA to another employer in NJ, and still continue to maintain my current home address in CA? As a consultant, I could be based out of CA. Thanks in advance for your reply.

Attorney Murthy : It is possible to port to an employer located anywhere in the U.S., as long as one qualifies and meets the criteria for I-485 portability under AC21. The location of one's home or job may not be critical, but sometimes is a factor taken into account by the USCIS officer, if an interview is scheduled.

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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 I am traveling abroad on Monday evening. We look forward to having many of you in 2 weeks time at our MurthyChat. Have a wonderful evening / day. We look forward to continuing to help you, your family and friends with all of your immigration matters.

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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