Chat : October 23, 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 matters. Thank you for your interest in our MurthyChat. We hope that all of you who celebrate Deepavali had a festive and joyful holiday season!

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Chat User : Good evening, Attorney Murthy. If one's I-140 was denied because of being unable to prove the ability to pay, is it worth filing a second I-140 petition with the same employer? Will the second petition be affected by the denial of the first one? Thanks. More power!

Attorney Murthy : The second petition will likely be affected by the earlier denial as the USCIS will want to know what has changed for them to approve the I-140 petition this time around if it is based on the same timeframes. Usually, one files a new I-140 petition only when the H1B extension is needed for strategic reasons, in most cases, since there is a high chance of a denial unless key evidence that existed was not presented the first time around.

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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 : I have a master’s degree in computer science, and I’ve been working for the past 21 months on OPT and H1B visa as a software developer. My employer is willing to sponsor me for a green card. What is the best option available for me to apply for a green card? How soon can the process be started?

Attorney Murthy : Well, it is difficult for anyone to analyze the entire strategy of an individual's case based on limited information. The nature of the complexity of the job, the minimum requirements for the job, etc, will determine the EB classification for the position. On the other hand, the size of the employer, its financial ability, etc, will determine if the PERM and I-140 can be approved easily or with difficulty. The options of what is available will vary from possibly an EB2 or EB3, in most such cases. Other options may exist, however, after one understands other details of the case!

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Chat User : Dear Sheelaji, I was on H-4 for 3 years, and now on H-1 and in the 6th year. Can I apply for H-4 once my H-1 expires? Is there any news about decoupling of H-1 and H-4? Thank you very much.

Attorney Murthy : The USCIS usually approves the extra time beyond H status, so that both the H1B and the H-4 spouse can enjoy continued time in the U.S. based on the one-year H1B extension on the basis of the principal having applied for the LC or PERM at least one year earlier or the I-140 approval for the H1B principal, allowing for the 3-year H1B extension.

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Chat User : Can an I-140 PD under EB3 from an old company be carried over with a new company that has filed a fresh GC process in EB2? Can we carry over the PD even if the old company revokes the approved I-140?

Attorney Murthy : It is possible to enjoy the benefit of an earlier PD filed under EB3 and carry that over at the time of filing the I-140 petition based on the new EB2 filing with a new employer. Although it is potentially possible to enjoy that benefit even after revocation of the I-140 petition by the earlier employer, it is safer for the individual if the earlier I-140 petition is not revoked.

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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. Quick question. I had my H-1 visa stamping done in March 2005. Can I come to the U.S. now on my H-1, of course, with the same employer?

Attorney Murthy : Yes, one is allowed to use an earlier visa stamp that is in the PP and that has not yet expired along with the most recently approved H1B petition shown at the airport at the time of entering the U.S. to obtain a correct I-94 card at the border. Actually, it is possible to use that visa stamp to work for a different employer. For the first time entry it is safer to work only for that employer, however. In either event, one will require an H1B petition approval to work for the H1B employer lawfully in the U.S.

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Chat User : I obtained my master’s degree in 2004 in a U.S. university and have been on H1B since then. I haven’t left the country since then. What are my chances of getting my H1B stamped in Canada? After getting the H1B stamped, if I change jobs and travel outside the country, do I need to get the H1B stamped again before reentering the USA?

Attorney Murthy : Generally, for one with a U.S. education, especially a master's degree, from a reputable, accredited U.S. university, there is a fairly good chance of getting the visa stamped in Canada or Mexico, if there are no other issues / problems in the case. The earlier visa stamp can be used as long as it has not expired when one has changed employers, and as long as the USCIS has approved a new H1B petition for that employee to work for the new employer either immediately or upon return to the U.S. from foreign travel.

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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 a new employer file for an H1B transfer and I-140 (substituted labor) at the same time, or do they have to wait for the H1B approval notice before filing the I-140?

Attorney Murthy : A prospective employer is allowed to process both the H1B and the I-140 petition simultaneously. Although the new employer must file the new H1B petition before one is not allowed to work for that employer, since the LC substitution and the I-140 petition are based on a prospective or future job offer, they can be processed separately.

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Chat User : I have used 6 years of my H1B and have got extension for 3 more years. Can I change employers based on a 7th-year approval? Is it legal to do so? Thank you very much for advice.

Attorney Murthy : After one has an I-140 petition approved in her/his name, s/he is allowed to file for a new 3-year H1B extension with a new or different employer based on the I-140 petition approval with another employer. Then, during the 3-year H1B timeframe, the person could potentially start a new PERM/LC process with the new employer and, thereafter, rely on the new filing for future H1B extensions, in case the earlier employer cancels or revokes the earlier LC or I-140 petition.

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Chat User : When we port priority dates, is it better to do so while filing a second I-140 or after approval?

Attorney Murthy : The general rule is that the earlier priority date is requested at the time of filing the second I-140 petition by sending in a copy of the earlier I-140 petition approval. After the approval of the second case, it is much more difficult to obtain another new I-140 petition approval with the earlier priority date.

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

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Chat User : Madamji, if I am between changing jobs and transfer of H-1s and my parents have a visa appointment at the same time, will it affect their interview?

Attorney Murthy : The fact of a change in employers should not affect your parents’ visa appointment for a tourist or B-2 type of visa, unless the H1B is about to expire within a month or two, and the parents don't plan to visit until after the expiration date of the H1B petition approval. In case the consular officer asks about your status, the parents should be able to mention that your H1B is valid for a certain period of time and, ideally, should avoid that issue since the consular officers tend to focus more on the ties of the B-2 visa applicants to the home country. So the cover letter of your parents and how they interview and appear before the consular officer will make a difference.

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Chat User : Can an Indian who came to the U.S. on B-1 then converted it to F-1 and then H1B go to visa stamping in Mexico or Canada?

Attorney Murthy : I answered the other question above for another chat user. Now, for this situation, it is possible to travel to a neighboring country. The chance that the H1B visa will be denied, however, is much higher for one who must explain the change in his/her intention repeatedly. The burden of showing there was no fraud and the level of education attained in the U.S. are factors that the consular officer will take into consideration.

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Chat User : My PERM labor conversion got rejected. What options do I have? I'm on my 7th-year extension (expires March 2007), so I have only a few months. Should I file a new PERM or go for an appeal?

Attorney Murthy : There is often a risk associated with filing for a conversion of the earlier LC case to PERM since certain language is often omitted as required under the new PERM regulations. Filing the appeal may allow for the 1-year H1B extension. The downside is that the appeal is likely not to result in an approval and, ultimately, will delay getting the GC in the long run. You should understand the pros and cons with either decision and discuss these with a knowledgeable immigration lawyer, though the need for the H1B filing may require that both a short- and a long-term solution to be carefully considered in this type of situation.

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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 : Good evening, Attorney Murthy. Can a nurse use a different lawyer to deal with her RFE, if needed?

Attorney Murthy : Any person is allowed to hire any competent professional to represent her or his interest. The only potential problem is that, if the RFE is based on the I-140 petition filed by the employer, the employer must agree for the nurse to hire her or his lawyer to respond to the RFE. On the other hand, if the RFE is based on the nurse's or the family's I-485 application to adjust status, then that is considered a personal application, having nothing really to do with the employer, thereby giving greater latitude to the nurse and family members.

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Chat User : Is it possible to obtain an H1B for a civil engineer from India who is 60 years old on a construction job if a construction company is willing to offer a job?

Attorney Murthy : Yes, it certainly is possible. In the U.S., there is a law that prohibits discrimination against a worker based on age. If the employer is willing to sponsor a person for the H1B, therefore, the fact that the individual is 50 or 60 or 80 years old has no bearing on the approval of the case, as long as the employer is a bona fide entity and the employee has the legally required minimum credentials to qualify for the position and is capable of performing the duties. Many in the U.S. work well past age 60.

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Chat User : What is the procedure to acquire a priority date on one company's I-140 onto another company's I-485 application that is pending where both companies' labors and I-140s are approved?

Attorney Murthy : After a person has filed the I-485 with one employer, but wishes to pursue the GC option through a more recently approved I-140 petition that includes the earlier PD, s/he may request the interfiling of the second I-140 petition with the pending I-485 application to adjust status, especially if the new I-140 already has the earlier PD from the first case. The USCIS is aware of this policy, but your lawyer or the company must argue it and present it to the USCIS adjudicating officer for favorable consideration.

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

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Chat User : I am a U.S. citizen. I filed an I-130 petition for my parents. They got green cards in 1996. My father's health was very poor, so they both went back home. My father passed away. How can I bring my mother back to the U.S.? Can she use the same green card, or is it better to file a new petition and start all over again?

Attorney Murthy : If a permanent resident has been living outside the U.S. for over a year without prior permission, the GC is deemed abandoned in most cases, unless the individual can demonstrate compelling reasons that prevented him/her (your mother, in this case) from traveling to the U.S. The easiest route is often to simply file a new case, since the waiting time is not onerous and the risk of the consulate accepting the reasons you have mentioned to resurrect the earlier GC are slim. Since it is a fasttrack process, as there are no priority date backlogs, the USCIS and the consular processing time of about 6 to 9 months is about the time for your mother to enter the U.S. as a GC holder, in this type of case, even with a new I-130 filing.

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Chat User : How can one correct the service center error on the H1B?

Attorney Murthy : By sending a letter to the USCIS and, preferably, going through the AILA Liaison or the Premium Processing Unit in a PPP-filed H1B case to correct the error on an expedited basis. Your company attorney may be familiar with the process for a correction, but it could still take a few weeks or months, depending on the reason for the error. If the error was caused due the form being typed incorrectly, then it is not considered a USCIS error, but if it is their error, then they will correct it free of charge and, if requested, put it on a fast track for re-issuance of a new H1B approval notice, too.

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Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : We at the Murthy Law Firm look forward to continuing to help you, your family and friends with all of your immigration law needs. We hope that our MurthyChat participants who celebrate Deepavali had a festive and joyful holiday season!

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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