Chat : October 09, 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 : Welcome! I am here in beautiful Bangalore to conduct our live, weekly MurthyChat. 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 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 : Do you think upgrading an I-140 application to premium processing would lead to more investigations or more chances of RFEs by the service center? Thanks for you time.

Attorney Murthy : It is difficult to say since no one has had much time to analyze this. I know that the rumors were that, for H1Bs, there were more RFEs with the PPP cases since they went to supervisors for adjudication. If the case is strong and the employer and employee have all of the required information, the case could be filed under PP taking into account all the issues. Overall, our experience with H-1 / nonimmigrant PP has been good.

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Chat User : Thanks for this great service. If the initial evidence does not meet the criteria for I-140 ability to pay, how can additional evidence such as bank statements, payroll records, etc. be used to show the ability to pay? Could you kindly elaborate?

Attorney Murthy : Under the statute and regulations, the USCIS, in its discretion, may decide to accept alternative data to be convinced of the employer's ability to pay the prevailing wage. There is certainly no assurance that the USCIS will accept the additional or alternative evidence, but if a person has nothing else and needs the earlier priority date and understands that there is a risk of denial, one can always try to see if there is sufficient evidence to convince the USCIS examiner. In fact, at the Murthy Law Firm, we have successfully obtained I-140 petition approvals in many cases based on the additional or alternative evidence.

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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 : How risky is it to go with a pre-approved labor at present?

Attorney Murthy : If a person meets all the criteria as of the filing date of the earlier LC, then it is fine, as the law still allows LC substitutions to be accepted. It is important to make sure the employer is legitimate, with a good reputation, and not involved in some of the fraudulent schemes related to labor substitutions about which we have written.

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Chat User : I am going for H-1 stamping from company X. I am already having an L-1 stamped in my passport from company Y. What will happen to the L-1 visa if the H-1 gets stamped?

Attorney Murthy : The visa stamp in the PP itself remains valid if the Department of State stamps a new visa in the PP and does not cancel the other stamp. However, a person is only supposed to work with one employer and have one legal status at a time. A person who chooses to work in H1B status, and later decides to go back to the L-1 employer, in this example, may do so if the underlying L-1 petition has not been canceled or revoked by the employer or the USCIS.

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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 : Thank you very much for this great service. I had a question regarding the validity of my H1B. If my wife travels to India on AP, does my H1B expire because of that?

Attorney Murthy : If a person holds H-1 status and the spouse travels on AP, this should not impact the H1B's status. This action by the spouse would mean that s/he was no longer an H-1 or H-4. However, based upon the March and May 2000 Legacy INS Memos, it would appear to allow the spouse to enter on the AP and use the EAD to work, while the principal continues to work on the H1B status and then file H extensions after that, as well, if needed to get the paroled spouse back into H status. It is still a gray area, but, generally, we have succeeded in getting such H extensions even after reentry on AP based on the May 2000 Legacy INS Memo.

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Chat User : I have been on an H1B visa for the past 4 years. I plan to quit my job and go back to India. How long can I legally stay in the U.S. after quitting my job? Also, does the employer notify the USCIS, or do I need to notify the USCIS so that my 2 years of H1B are saved?

Attorney Murthy : Under law, there is no type of grace period when a person quits H1B employment. The law seems to require that s/he pack up and leave immediately. The 10-day rule is only available when one's H1B petition has expired but does not apply in the example you mentioned. The employer is required to notify the USCIS to cancel / revoke the H1B petition if they wish, but that is more for their own protection than for keeping the 2 years for the beneficiary. That applies automatically by operation of law. You should keep ticket information, boarding card/s, and/or passport stamps so that you can prove that you left the U.S., should the evidence be required at some later time.

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

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Chat User : Hi. I got my H-4 extension after I got the H-1 change of status. Do I have to again apply for a COS, or am I effectively on H-1 petition? Thanks in advance. Have a nice holiday.

Attorney Murthy : This is a gray area, and there is much debate as to what happens in this case. There are arguments that can be made to support the position that such a person would be in H1B status since the EOS to H-4 is incorrect as the person’s status had been changed by the USCIS. However, to be on the safe side, it is better either to file another COS or request that the USCIS cancel the later-approved H-4 and send a confirmation or travel abroad and reenter the U.S. in H1B status. But that will require filing and obtaining an H1B visa stamp from abroad.

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Chat User : What are the chances that a new law for labor substitutions may make all the applications filed at this time (with a pre-approved labor) null and void?

Attorney Murthy : There is no guarantee if and when the Department of Labor regulation on LC substitution elimination will ever become a final regulation. Even if it does become final, the chances that the previously-filed and pending LC cases will be denied or become null and void is not high, but there is always a risk that the regulation could make it retroactive or effective from a particular date, usually the date that the regulation is published in the Federal Register. So, although there is some risk, it is not a very high risk based on past practices since most laws and regulations tend to be prospective rather than retroactive.

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Chat User : I have my I-140s approved in EB3 and EB2 categories. How can I transfer the priority date of the EB3 application to the EB2 application?

Attorney Murthy : Generally, in such a case where the second I-140 petition has also been approved, an I-140 petition amendment should be filed to request the transfer of the earlier PD from the first case to the later-filed-and-approved EB2 case. Generally, we try to request it at the time of filing the second I-140 petition, if at all possible, rather than having to file another new I-140 petition for this purpose. We have also been successful in not filing or requesting a new I-140 petition with the earlier PD, but just filing the I-485 when the PD becomes current. This can sometimes confuse the mailroom at the USCIS, and they may incorrectly reject the I-140 package. So it is safest to obtain an I-140 petition approval with the earlier date for the EB2 approval.

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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 : If one applies for an H-1 transfer under premium processing, with a one-and-a-half-month-old pay stub, what is the possibility of approval, provided the earlier H-1 has not yet been revoked?

Attorney Murthy : The USCIS will likely issue an RFE requesting more recent pay stubs from the beneficiary. If one is not able to send it upon request, then the H1B petition may be approved, but the COS will likely be denied. This will require that one travel abroad and reenter the U.S. in H1B status. Of course, if the USCIS approves the H1B petition with the COS, then one should be able to continue working with the new employer.

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

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Chat User : Dear Ms. Murthy, must be nice in Bangalore. I am sure many would have asked you this question. What is your prediction on the upcoming Visa Bulletin for November 2006, specifically for EB3 India?

Attorney Murthy : It is difficult to predict the movement of visa numbers for any category other than our reliance on what the U.S. Department of State shares with all of us in the monthly Visa Bulletin. Guesses are often not accurate as there are so many factors involved. I wish I could give you a more precise answer, but one does not exist by law. Thanks for your comment on Bangalore. The weather here is quite nice. There’s no humidity. It’s just cool in the evenings and mornings, but not too cold.

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Chat User : Hi. I entered the United States in March on an H-4 visa. I have a valid H-1 approval notice valid from October. Can I start working with just the valid approval notice without getting my H-1 stamped?

Attorney Murthy : One is allowed to start working for the H1B employer if both the H1B petition and the change of status have been approved by the U.S. with the bottom, tearoff portion of the I-94 card attached to the approval notice. If that is the case, the visa is not needed unless the individual wishes to travel abroad. However, if no H1B I-94 has been issued, then it would be necessary to leave the U.S., obtain the visa, and enter as an H1B (obtaining the I-94 card with the H1B status at the airport or other Port of Entry).

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Chat User : I applied for an H-1 in April, which has now been approved and stamped. In the meanwhile, I got married to a U.S. citizen. Can I travel to the U.S. on the H-1 and immediately apply for an EAD without starting to work for my employer?

Attorney Murthy : A person should not enter in H1B status with the implied promise or agreement to work for the H1B employer at the time of seeking admission to the U.S. and never work for that H1B employer, since that is considered fraud or misrepresentation to the CBP Inspector at the airport. Thus, if the H1B is used for entry, the individual needs to be available for work at the H1B sponsor. If the H1B job is not desired, the case could be processed as a K-3 or immigrant visa case based upon the marriage, prior to entry to the U.S. Otherwise, it is acceptable to enter on the H1B, work for the H1B employer, and file the I-485 with the EAD and AP and make any desired employment changes using the EAD at a later time.

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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 : I am working as a teacher on an H-1 visa. Can I transfer my H-1 for another profession (I do have eligible degrees and experience), or do I need to file a fresh H-1?

Attorney Murthy : Any time a person changes employers, s/he is required to file a new H1B petition. If the individual was previously in H1B status, then s/he may be able to take advantage of H1B portability, especially if both the earlier and new employers are either cap subject or cap exempt. People incorrectly use the term "fresh" and "transfer," but whenever one changes employers - or even when working concurrently with another employer - an person in H1B status is required to file a new H1B petition.

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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 back to the U.S. at that time. We hope to have all of you in our MurthyChat in 2 weeks time. We look forward to continuing to help you, your family and friends with all of your immigration law needs at the Murthy Law Firm.

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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