Chat : October 31, 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 matters. Thank you for your interest in our MurthyChat.

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Chat User : After an H1B transfer petition was approved with a new petition, how long is one allowed to work for the old company before the previous H1B is cancelled?

Attorney Murthy : The USCIS does not cancel or revoke the later-approved H1B petition until that employer cancels or revokes it. Technically, it remains valid for the entire three years, if it is valid for that timeframe. Once a later H1B is approved, it is generally expected that the H1B employee will work with that new employer and that the older H1B petition will be revoked or canceled, but it does not always happen in that manner.

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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 : Is it possible for parents on a multiple-entry visitor visa to get an extension beyond 6 months by reentering from Mexico or Canada?

Attorney Murthy : Generally, the only time a person gets another 6-month reentry into the U.S. from neighboring countries is if the trip to that country exceeds 30 days. Otherwise, the same I-94 card is supposed to be used so that the parents will not get another 6 months. Plus, there is a risk of future visa denials when people stay for over 6 months in the U.S., as that clearly shows that they cannot generally have strong family or financial ties to the home country if a person can live for over 6 months in another country.

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Chat User : The job title for my approved labor / I-140 is different from the present, renewed H-1 job title (both are from the same employer). Will this cause any issues in going further with my GC process?

Attorney Murthy : As a general rule, the H1B process and the LC/GC process are considered separate and distinct, as the former is for the present job while the LC/GC is for the future job. So the difference in job titles or salaries is not directly relevant in that sense.

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Chat User : Murthyji, thanks a lot for your service. My wife's H-4 to H-1 COS was approved while in India. She did not get her I-94 attached. Can she come back on a valid H-4 stamping? If yes, can she get stamped for H-1 in Mexico or Canada?

Attorney Murthy : Generally, it is safer for a person to apply for the H1B visa stamp in the home country, especially if one has no U.S. education as only the consulates in the home country can verify educational qualifications. Yes, it is possible for one to reenter in H-4 status, but there is no guarantee that s/he will obtain the H1B visa stamp in Canada or Mexico. If that visa stamp is denied, the person will need to travel from Canada / Mexico directly to the home country and apply for the H1B visa stamp from there. With the wait times reduced to about 1 to 2 weeks, it makes sense, in most cases, to first try for the H1B visa stamp from India. Of course, one should consult an experienced immigration attorney to discuss any case-specific nuances based on her or his field of study / work, etc.

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Chat User : Hi. I received an offer from another company, which is ready to sponsor my GC. However, my current company is not ready to give me an experience letter. I am told that a previous experience letter is a must for GC processing. Please let me know if this is really mandatory. Thanks, in advance.

Attorney Murthy : Experience letters from prior employers are required if a person needs to use that earlier experience to establish eligibility for the job's minimum requirements. It is possible to use other evidence in lieu of the employer's experience letter, but it is up to the Department of Labor and the USCIS as to whether the alternative pieces of evidence are satisfactory in their determination to approve the LC or the I-140 petition. So there is a risk without the employer's letter.

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Chat User : The salary that is being offered is not very high compared to what I am getting today (about 8K), but it’s about 36% more than it was at the time of my LC. Given all this, could you please advise if you see any risk in my changing jobs?

Attorney Murthy : The salary is merely one issue with regard to changing jobs, since the main criterion is that it be the "same or similar" job for AC21 portability to apply. Also, of course, the LC and I-140 ideally should be approved and the I-485 pending for over 180 days. If the only potential problem is the salary, then the fact that the salary is higher than the LC prevailing wage may be sufficient. If there are any other issues in the approval of the I-485, however, those will also need to be reviewed and analyzed before taking that new job!

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Chat User : Thanks for this service. Is it possible to transfer an H-1 (fresh H1B starting October 1) when we are outside the U.S. and have not started working for the H-1 sponsoring company?

Attorney Murthy : Yes, it is possible to file another, new H1B petition by showing that the beneficiary / employee was already counted against the H1B cap, so that a new employer would file a new H1B petition. Then, after it is approved, the person applies for the H1B visa stamp from the consulate showing the latest H1B approval with the new employer. That way, when entering the U.S. for the first time, the visa stamp reflects the current H1B employer with whom the H1B employee intends to work.

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Chat User : My OPT card expires in May 2007. My H1B will be approved in Oct 2007. What will my status be in the meantime?

Attorney Murthy : After the completion of the F-1 OPT, there is a 60-day grace period. If the gap in status is beyond the grace period, then one must either travel abroad or obtain other status while in the U.S. Otherwise, the USCIS cannot approve the change of status for the individual from within the U.S. The person will be required to travel abroad and have the visa stamped at the consulate abroad.

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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 : I am on an H1B in civil engineering. I want to move to software. Is it possible to transfer my present civil engineering H1B to a software H1B? I have an M.S. in civil engineering from a U.S. university. Thanks.

Attorney Murthy : Well, we have seen other fields of engineering being used for work in the S/W field, and that is not uncommon. As long as the employer can show the relationship between the degree and the job, it may work. Often, we find problems at the consulates in approving the H1B visa in such cases, even though the USCIS in the U.S. does not seem to care, since they consider engineering a specialty occupation. It is certainly helpful to have a degree in C.S. or electrical or electronics engineering for work in computer-related fields, however.

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

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Chat User : I am on an H1B and the company I work for filed for Chapter 11 bankruptcy protection recently. Does this affect my current status? Will it have any effect when I go for my stamping in India?

Attorney Murthy : If the H1B employer intends to continue having work and can afford the required DOL prevailing wage, then the H1B remains valid. Bankruptcy and layoffs seem to have a much greater negative impact on LC/GC processing than on H1B processing or visa issuance, in most cases.

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Chat User : Can a person maintain status when starting to work as per job offer terms at a later date, even though the H-1 is approved from October 1st?

Attorney Murthy : It may be okay, but it could create problems if there is a gap in legal status or if the H1B employer is deemed to have obligations to pay the employee under the terms of the H1B petition. It is best to understand the risks in not starting employment. If the parties do not wish to use the later-approved H1B petition, then it is safest to revoke or cancel it.

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Chat User : I will be graduating from an associate degree nursing program (ADN) this December. I am not eligible to get OPT since I have used mine for my master's degree. What I intend to do is get my RN license while taking classes and maintain F-1, then apply for a job that will give sponsorship. Do you foresee any flaw in my plan?

Attorney Murthy : Yes. The big potential flaw in this plan is that the Schedule A numbers are no longer current starting in November 2006, so that unless one can obtain some other legal status after the completion of the RN license, it will not be legally possible for such a person to stay in the U.S. simply based on being sponsored since the EB3 category for all countries has several years of waiting required. Additionally, nurses generally do not qualify for H-1, thus creating a significant problem since their green card visa numbers will not be current after the end of October.

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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 : What happens to me if the H1B transfer to company B is denied? Do I have to leave, or can I find a new employer?

Attorney Murthy : If the original H1B petition with the first employer remains valid and that employer is willing to continue to offer employment, then it is possible to use that earlier, valid H1B petition. If the second H1B petition is denied, then there is no grace period allowed by law, but a person could file a new H1B petition and then premium process it to see if the USCIS will approve the extension of status or require the individual to depart the U.S., based on the timeframe of having been out of status.

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

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Chat User : Does one need to join the GC-sponsoring company when filing I-485?

Attorney Murthy : It is safest to join the GC-sponsoring employer at the time of filing the I-485 or at some point during the I-485 process to demonstrate a good-faith intent to work for that employer, as required by law. If one does not join at some point, the case may not end up being approved, or, if it is approved, the validity of the GC could become an issue later.

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Chat User : I am in my 7th year of H1B with a pending labor with the old company. Company B is processing my GC using a substituted labor and also planning to file a new PERM labor. What are the risks / possibilities of my 8th-year extension?

Attorney Murthy : There should be very little or no risk in obtaining an 8th-year H1B extension based on the LC of an earlier employer, since the LC/GC process is based on a future job offer. It is good to have backup plans in case the earlier employer cancels the LC or uses it for another employee, at some point.

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Chat User : Hello, Ma'am. I am on F-1 visa, and it is still valid. I am a physical therapist. I have filed for I-485, and I have received the receipt from USCIS. My question is, can I quit school since I have received the receipt, or should I wait until I get the EAD before I quit school? Thanks.

Attorney Murthy : A person is allowed to quit school based on filing the I-485 AOS application, but s/he is not allowed to work legally until the EAD is issued. After the individual has filed the I-485, the F-1 status is no longer valid (since F-1 is a pure nonimmigrant status), while the filing of the I-485 is an expression of an intent to immigrate permanently to the U.S.

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Chat User : Hi. My H-1 is valid since October 1, 2006. I received a very good offer from a big company, but I do not have the SSN and pay stubs as I am in the first month of my employment. Can I apply for an H-1 transfer without an SSN or pay stub?

Attorney Murthy : The general rule is that it is safest to obtain at least 2 pay stubs to demonstrate that one has maintained valid H1B status. Otherwise, the USCIS will likely deny the EOS, and that will likely require one to depart the U.S. and apply for a new visa stamp from abroad and reenter the U.S. in the H1B status. Also, it may jeopardize the job with the large employer, many of whom are not willing to cut any slack for lapses in paperwork in such cases.

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Chat User : Hi, Miss Murthy. What are the chances of approval regarding filing the labor when the earlier labor was filed incorrectly? I do not want to file PERM since I will lose my priority date.

Attorney Murthy : This question does not seem to make sense. If the earlier LC was filed incorrectly and denied or rejected, then that earlier PD is lost unless the DOL is retaining that PD for some reason. It is possible that if the earlier LC is valid, then that can continue even after a new PERM case is filed, since the DOL allows both a pre-PERM and a PERM case to be filed and processed simultaneously, per the revoked FAQ of the DOL.

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Chat User : Hello, Murthyji. I recently converted from H-4 to H1B starting from October 1st. I do not have my SSN yet, and hence, cannot work. Am I considered out of status?

Attorney Murthy : The employer is supposed to be able to take a person to start working even without the SSN, since the law does not require the SSN to start working. Many employers use the 0000 series of numbers, or the person obtains a TIN from the IRS to be able to start working right away. One is not considered out of status, but there is a risk in such cases, since one is supposed to start working and getting paid, by law, as the employer promised to pay the required PW starting from October 1st. The employer must understand that they are possibly in violation of the law in such a case.

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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