Chat : October 29, 2007

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.

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Chat User : I am out of status but my I-129 case is pending. Can I stay in U.S.?

Attorney Murthy : If a person filed the H1B or other NIV petition on her/ his behalf prior to the expiration of the earlier NIV status, then s/he may be allowed to continue to live and sometimes work in the U.S.

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Chat User : What will my dependent's status be if my I-14 is denied and s/he uses the EAD? Currently, s/he is on 7th-year H1B. Can my dependent come return to H-4/H-1?

Attorney Murthy : If the dependent also has backup H-4 status that has not yet expired, then by using the EAD, does not prevent him/her from potentially reverting to H-4 status by filing the extension of the H-4, along with the principal's H1B extension, for example.

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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 : How can one prove her/his legal entry into the U.S. by road from Canada, where no I-94 was issued but the passport endorsed by Canadian immigration for Canadian entry? Thanks very much.

Attorney Murthy : The law allows that a person entering from Canada could be considered as admitted but the burden rests on the person who requires the immigration benefit. So the visa to enter Canada and the entry stamp for Canadian immigration are factors that could be taken into account. The statement of such a person is deemed sufficient, in most cases, especially when one has valid legal status in the U.S. It is also a good idea to keep receipts for gas, hotel, food etc, to prove the travel and reentry.

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Chat User : Do we have to renew AP and EAD every year, whether we use them or not?

Attorney Murthy : It is optional, although they expire each year. The AP and EAD only need to be renewed if one needs them or uses them. Generally, though, it may make sense to renew each of them, since, if a person loses her/his job and it takes about 3 or 4 months to get a new EAD, the cost of the EAD extension each year will likely be much less than the loss of 3 months' salary. Of course, it is a cost-benefit analysis in the long run for each person, but for most professionals it seems like a no-brainer to extend it rather than risk being without a good job or a good salary for so many months.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : Respected Madam Murthy, I recently got my EAD, I am on an H-4 visa. If I apply for SSN, would my H-4 status become invalid? Or would it become invalid when I start working, using my EAD? Thanks in advance.

Attorney Murthy : Simply applying for the SSN does not invalidate a person's status if s/he still maintains H-4 status and never uses the EAD to work for any employer.

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Chat User : Can one reenter the country based only on a valid H1B without a stamp and AP?

Attorney Murthy : The general rule of law is that a person is allowed to reenter the U.S. simply based on the AP, as long as the I-485 is still valid or has not been denied and mailed to him/her. That is why having a backup H1B status is helpful, in case the I-485 is denied and then the CBP Inspector refuses to allow the person to reenter the U.S. One who is entering with an AP and no H-1 stamp would be entering on the AP, not on the H-1.

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Chat User : Hi, Ms. Murthy. Will rescheduling the fingerprint appointment affect or abandon GC processing? Is there a grace period to apply for fingerprint rescheduling? Thanks for your time and service.

Attorney Murthy : The USCIS's recent position is that, if a person cancels the I-485 interview, then s/he does not need to be given another opportunity and the USCIS is allowed to consider the case as abandoned and deny the I-485. However, with FPs the USCIS or the ASC support centers will generally allow one to come in on an alternate date or timeframe, in many cases, unless there is a feeling that the individual is simply dragging his/her feet and delaying the process for no good reason.

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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 Atty Murthy or one of our other experienced attorneys.

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Chat User : I am switching to a new job. My new company is applying for my H1B transfer petition with premium processing. My case status is "pending" on the USCIS website. Is it safe to travel aboard while my status is pending? I have not had any visa stamp before on my passport

Attorney Murthy : Generally, it is never safe to travel abroad when a case is pending. If the H1B petition is denied and the earlier H1B employer revokes or cancels the earlier H1B petition, then the individual has no legal status and cannot find another H1B-sponsoring employer as easily if s/he is stuck abroad. In most cases, t is safer to wait for a decision and then make travel plans to avoid the risk of being stuck abroad - possibly for months or longer. It is also going to be necessary to have the approval in order to obtain the H-1 visa needed for return.

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Chat User : I used cross chargeability law under my wife's country quota to file our 485 in June. I received the EAD. Does that mean they have accepted the case and will process the FBI check when the PD date arrives? Thank you for you service.

Attorney Murthy : The issuance of the EAD does not mean that the I-485 has been accepted, necessarily, though it is a better sign than if it had been rejected outright. If the PD becomes current, the USCIS will proceed with the case in all likelihood but there is not a 100 percent guarantee is such instances that the case is deemed filed correctly.

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Chat Master : For the latest news in U.S. immigration and what it all means to you, subscribe to MurthyBulletin - our FREE, weekly eNewsletter delivered to your Inbox! Visit http://www.murthy.com/signup.html to find out how.

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Chat User : Thanks for your great service. Can I work on EAD and H1B concurrently? Can my wife still be on H-4 while I am working on EAD and H1B?

Attorney Murthy : The spouse can retain H-4 status as long as the principal spouse continues to work solely for the H1B employer in H1B status while having the EAD approval as well. You can review the March 2000 and the May 2000 Legacy INS memos on this subject. They are available for review on MurthyDotCom. A person does not work concurrently on EAD and H-1, if s/he uses the EAD to work for an employer other than the H-1 sponsor, then s/he is working on EAD.

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Chat User : My OPT expired October 15th. My H-1 cap case is still pending. Can I stay in the U.S. and wait for a decision on my H-1?

Attorney Murthy : One is allowed to remain in the U.S., if s/he has filed a change of one nonimmigrant status to another; as in this case, from F-1 to H1B. After the expiration of the F-1 OPT on Oct 15th, one is not allowed to work legally until a decision is made on the H1B petition. If s/he needs to work, then the individual may want to consider converting the case to a premium processing case by paying the extra $1000 in fees to the USCIS. If, however, s/he does not need to work right away, then s/he could wait until the USCIS makes a decision. There is always a risk in case the H1B is denied after all that time.

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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 competed 180days, received EAD & AP. My I-140 is not approved, yet, however. May I switch to a similar job in some other company?

Attorney Murthy : There is a risk since, if the I-140 is denied, one cannot enjoy AC21 portability as easily or even if the USCIS issues an RFE the employer will likely not bother with responding - jeopardizing one's GC status. If the new employer will sponsor a new GC, then it may be an option if one is miserable. Remember, though, if the I-140 is not approved, the earlier PD is not available and such an individual will end up losing everything.

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Chat User : Is it safe to travel and return on AP while 7th-yr H1B is still pending?

Attorney Murthy : Generally, it is safe to travel and reenter on the AP even while an H1B petition is pending except, as pointed out above, if the I-485 is denied when abroad and the CBP Inspector refuses to allow one to reenter the U.S. If the person is allowed entry on the AP, then even if the I-485 is later denied but the H1B petition EOS is approved, the person is safe in H1B status.

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

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Chat User : Is it legal to work for L1B employer to survive the notice period (15 days), once the H1B COS is approved?

Attorney Murthy : Generally, under the ACWIA rule, an employer is required to start the H1B employee no later than within 30 days, if entering from abroad, or within 60 days if s/he is within the U.S. even after the H1B approval date. However, once a person's status has been changed to H1B, they are in H1B status as of the effective date of the H1B (for cap cases, this is normally October 1st). They lose their old status on that date, and cannot work in the old status.

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Chat User : Dear Madam, can two LC's be filed from two different employers at the same time; one with a different employer filing, as future employment, and other with the current employer? Is there any risk associated with this?

Attorney Murthy : Yes, two different employers are allowed to file two separate LCs for the same person. The potential risk, if any, is for individual who must decide with which employer s/he wishes to work on a full-time and permanent basis, once the I-485 is approved.

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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 : Ms Murthy, if I-140 is pending, can AC21 be used if one's job is terminated, although the employer doesn't revoke I-140. Thank you for your service.

Attorney Murthy : As mentioned above, the risk is if there is an RFE on the I-140 and the employer refuses to respond, either because they don't have the required information or because it will cost another $2000 or $3000 to respond to a complex RFE, etc, for example. Then one risks losing everything from the earlier GC case and cannot extend the H1B after the I-140 is denied.

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Chat User : Atty Murthy, if a person uses the AC21 rule to change jobs after 180 days, will a higher salary (about 50 percent more while moving from the Midwest to NY) cause the I-485 to be denied? The job content is pretty much the same. Thank you

Attorney Murthy : Generally, a higher salary is less of a concern, especially when it is justified when moving from a smaller city to a larger metropolis, for example. The main issues are the job duties, with the salary simply being reviewed to see if it is so different as to raise questions as to whether the new job is the same / similar. We have had people receive significant raises, and sometimes pay cuts, without problems under AC21.

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Chat User : How can I change the wrong name on my EAD? They denied the SSN number because of the name error.

Attorney Murthy : If the name error was caused by the USCIS, they are allowed to expedite and issue a new EAD at no extra cost to you. This is done by complaining to the USCIS Customer Service number. If the error in the name was caused by you or the attorney typing the information incorrectly, then the USCIS will not issue an expedited EAD and will require a new filing with full fee to correct the error. Unfortunately, human error may occur once in a while and, hopefully, if it is minor the matter will be resolved promptly, but using the various avenues to contact the USCIS like through the AILA Liaison may be helpful at times.

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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 if I get a new I-94 (new number) in my passport (F-1 D/S) due to travel and return on F-1 OPT status in May 2007, when my H1B was already approved (effective Oct 1st) with Change of Status granted on old I-94.

Attorney Murthy : Under the USCIS Memo, it should not matter a whole lot, per the Efren Hernandez's letter that was reported in our MurthyBulletin and is available on MurthyDotCom. Effective from Oct 1st one's status changes to H1B and the earlier I-94 card number is considered the correct I-94 card number.

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

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Chat User : IF I want to transfer my H1B from one employer to another, is it necessary that job profile be the same for both employers, or they can be totally different?

Attorney Murthy : If one is changing jobs or employers, the new H1B can be completely different, except that the job must match the person's education and background to be eligible for an H1B approval.

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Chat User : What will be the impact on my AOS and I-140 when my company is sold to other company before 180days? My I-140 is still pending. Thanks a lot.

Attorney Murthy : I just answered the same question above on the validity of the I-140 petition. If the new job is the same, and if the new employer agrees to respond to the RFE as the successor with a new I-140 petition filing, if required, the case may go forward with the earlier PD. Otherwise, all could be lost if there is an RFE or a denial, etc.

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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, Ms. Murthy. How can I find out whether my name check is cleared?

Attorney Murthy : The USCIS will inform one if there is a delay in the I-485 process due to a security-check or name-check matter. If there is no word, then all is likely clear and fine, as with most cases.

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Chat User : Thanks for your service, Ms. Murthy. Is there a grace period for fingerprint rescheduling?

Attorney Murthy : Usually, one is allowed to go within the window provided or request an alternate timeframe, if one was traveling abroad, for example.

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Chat User : Ms Murthy, I have not received any reply for the RFE sent for I-140. It is over 60 days, now. What should I do? Could you please advise? Thanks

Attorney Murthy : Generally, the USCIS takes about 6 to 15 weeks but with the recent onslaught of work this summer, it would seem reasonable for them to take much longer to process RFE responses since even just the receipt notices are taking many months more. Contact the Customer Service if the processing is beyond their suggested time frame but often their estimated processing time is rosy and unrealistic in many cases.

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Chat User : My H-4 extension is being rejected without any reason. I have heard that filing procedures changed. What should we do to file properly?

Attorney Murthy : The burden of filing correctly rests with the person wanting an immigration benefit. If the procedures changed or the forms or filing fees changed and one put the incorrect amount or used an older version of the form, then s/he is no longer considered to be in valid legal status. This could create a problem in terms of one's ability to live in the U.S. or to file the I-485 and get an approval if the total time out of status exceeds 180 days. Also, the USCIS potentially could start removal proceedings against such a person, if s/he is out of status in the U.S. You need to consult an attorney to understand the risks and options in such a case, especially if it has serious legal consequences.

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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 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 © 2007, MURTHY LAW FIRM. All Rights Reserved