Chat : November 06, 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 in our MurthyChat today. Thank you for your interest in our MurthyChat.

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Chat User : Ms. Murthy, thank you for the chat session. Can I file for I-485 through a company without joining that company? Can I join them after the I-485 is approved?

Attorney Murthy : A person is certainly allowed to file for the LC/I-140 and I-485 before joining the sponsoring employer, but to show that the entire operation was bona fide, the USCIS cannot forever believe in mere words. Often it is better for the individual to join the sponsoring employer before the I-485 is approved to avoid any potential USCIS concerns about fraud or misrepresentation later.

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Chat User : Good evening, Ms. Murthy. I am pursuing my second master’s degree and will be applying for H-1 COS. After my status changes to H-1 and I start working, can I continue to pursue studies, as well, towards my second degree? Thanks a lot for your reply!

Attorney Murthy : A person on H1B status is allowed to continue studying, as long as the education is incidental to the H1B status. In this case, pursuing the second degree while on H1B status should not pose a problem legally, since that is the general rule for studying while working on H1B status. The H-1 must be the primary purpose for being in the U.S., with studying being secondary.

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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 : When one ports the PD from EB3 to EB2 and files the I-485 using EB2, does the EB3 case get cancelled?

Attorney Murthy : No, the EB3 case remains as the underlying or earlier petition that potentially could be used if there is a problem with the new EB2 filing or its approval, unless the employer revokes the earlier LC/I-140 petition for use by another employee.
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Chat User : I'm on 7th H1B extension. If a future employer files a PERM application for me, how would that affect a current pending LC (traditional method) filed by a current employer? Will the USCIS notify the current employer when a PERM is filed by another company?

Attorney Murthy : Generally, the rule is that the U.S. Department of Labor will not notify any earlier or other employers of the filing of another PERM/LC by any other employer. That is not its role in the legal process. The DOL views its responsibility as solely to protect the U.S. worker and not any other entity. Both processes could continue, so that the employer or employee can make a decision as to which case should be pursued when it is time to make a final decision.

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Chat User : Can an Indian-born, EB2-retrogressed applicant (PD March 2005) use her mother's country of birth (China) through cross-chargeability to file the I-485?

Attorney Murthy : The rules on cross-chargeability are fairly complex. If both parents are born in another country, and can show their ties to that country, then, possibly, there is a chance to argue. In a case like this, however, without knowing other details, it is difficult to be sure. When making claims based upon the birthplace of the parents, it is necessary to show that the birth occurred while the parents were temporarily in the retrogressed country. Some additional research may need to be done to see if there is any possibility of filing under cross chargeability.

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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 : I'm in F-1 status now. I have an employer who wants to sponsor my H1B. If we do all the paperwork right now, when would I be able to start working for him?

Attorney Murthy : As a general rule, the law allows that a person who is subject to the H1B cap under either the regular quota or the advanced-degree quota will need to file so that the H1B petition reaches the USCIS on or after April 1, 2007 for a start date on or after October 1, 2007 for that company. Of course, in the meanwhile, the person should be able to file and obtain the F-1 OPT to be able to work for the employer, hopefully, by filing the OPT application prior to graduation.

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Chat User : Can one use AC21 portability for self employment purposes?

Attorney Murthy : If the question refers to setting up a company or other legal entity and having that entity act as a sponsoring employer for "same or similar" job under AC21 portability, there is a USCIS Memo that seems to allow this type of scenario for approval of the I-485 under AC21. If the question is whether one can, as an individual, claim to be self sponsoring, that may pose to be a bigger problem. So it depends on the nature of the "self sponsorship" for AC21 to work.

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Chat User : Murthiji, if I-140 premium is rejected, can we reapply under regular I-140, or can I get my H-1 transferred (and work for them) to a different company with whom my labor is already pending for more than a year and get 7th-year extension?

Attorney Murthy : The rule appears to be that, if a person's I-140 PPP case is rejected or denied for premium processing for one of the reasons outlined by the USCIS, the case should go into the normal processing route. It is also possible to file and work on an H1B with another employer with whom the LC has been pending for over a year to obtain the 7th-year extension, or work for the same employer and obtain the 7th-year H1B extension.

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Chat User : Dear Madam, can you please clarify what duel intent means in the case of I-485 or H1B? Thanks.

Attorney Murthy : Dual intent, under the law, means that a person is allowed to file an H1B extension through the employer even after filing the I-485 application for adjustment of status. Prior to 1990, if a person had filed the I-485, s/he could not have filed any other nonimmigrant status, since an immigrant intent to settle permanently in the U.S. had already been expressed.  The term "dual intent" means that the law specifically recognizes that, for H1Bs and L-1s and their dependents, one is allowed to maintain both the nonimmigrant and immigrant intentions and not be considered in any conflict, unlike prior law.

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Chat User : I am on H1B and have about 3 to 4 years of experience with a firm. The same firm is applying for my green card. Can my experience count towards the labor certification?

Attorney Murthy : The general rule is that any experience gained with the sponsoring employer should not be counted when filing for LC or PERM, unless the prior work or job with the same employer is at least 50% different under PERM compared to the new job for which the PERM application is being filed. To avoid an audit, most lawyers will advise against using the earlier experience with the same employer in filing the PERM case with the same employer, unless there are no other options.

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Chat User : I am on OPT. Can I continue to work until I get a decision from the USCIS regarding my H-1 even if my OPT expires?

Attorney Murthy : One is not allowed to keep working after the OPT status expires unless the new H1B or other work status has been approved in the U.S. In fact, if the gap between the expiration of the F-1 OPT and the start of the new work status is more than 60 days, the person is not allowed to remain legally in the U.S. Additionally, an H-1 approval alone does not necessarily mean that one can start to work on the same day. There needs to be an H-1 I-94, and the work cannot start until the start date of the I-94. H-1s can be filed six months in advance of the requested start date.

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Chat User : Murthyji, thank you for your excellent service. Can employer B file my H1B 9th-year extension based on employer A's approved PERM filed 365 days ago and I-140 not yet filed? It should be the same AC21 law as regular RIR, right? Thanks.

Attorney Murthy : Another employer is allowed to file for the H1B extension based on the LC filing with a different employer, as long as the PERM or LC was filed at least one year earlier with that different employer. There is no change in any of the underlying laws or regulations about H-1 extensions with PERM.

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Chat User : Can an employer reuse an LC for another beneficiary employee when the I-140 was denied for the original employee?

Attorney Murthy : Yes, the employer is allowed to use the same LC for another employee, but the I-140 with the new employee will work only if the reason for the earlier I-140 denial was that the person was not qualified under the earlier LC. If the I-140 denial was due to the employer's lack of financial ability to pay the wage from the date of filing the LC, then the second and future employees using that same LC will likely have the same problem of a denial on the I-140 petition. The law requires that the sponsoring employer establish ability to pay the full required prevailing wage from the date of filing the LC.

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

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Chat User : Sheelaji, I’m planning to go to India for first time H-1 stamping next year in May. I have my W-2 for 2004 and 2005. I have not worked for 2 months, so no pay stubs. Please let me know whether this will affect my chances of stamping.

Attorney Murthy : Depending on the consulate and the interviewing officer, the lack of pay stubs could delay or result in a denial of the H1B visa stamping in such a case. On the other hand, when explaining the reason for the lack of pay stubs (e.g. the fact that the person moved to another job, that s/he was not feeling well and could not work) the consular officer is generally not allowed to deny the H1B visa stamp in such cases.

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Chat User : I got my H1B visa stamped in India recently. I haven't come to the USA yet, but I want to change my employer? Can I?

Attorney Murthy : The new employer has to file a new H1B petition, and that has to be approved. Also, to be on the safe side, it is better for first time entry to obtain a new H1B visa stamp to work for the second employer as the Port of Entry inspector may be concerned about using the earlier visa stamp with the earlier employer, though technically that may be allowed.

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~~~Chat User : Murthyji, I applied for my H-4 to H-1 transfer to start work by October 1, and my receipt date is May 6th. I am still waiting for a response / approval. Should I apply for premium processing at this stage or just wait longer?

Attorney Murthy : The USCIS general processing timeframes are about 3 to 6 months. With premium processing, the USCIS has to make a decision or issue an RFE within 15 days. So it really depends on your and the employer's ability to hold the job offer open for the person. I advise most professionals that, at their salary level, generally, paying the extra $1000 is a cost effective benefit since their lost salary because of the delay is usually a lot more than $1000 even with all taxes taken into consideration.

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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 a person with an approved H1B along with an I-94 stay in the U.S. even after the 60 day OPT grace period expires?

Attorney Murthy : If the USCIS has approved the person's change of status with the I-94 card attached at the bottom of the approval notice, then the general rule is that the person is allowed to stay here and start working from the start date mentioned on the H1B approval notice. The USCIS is not supposed to approve the COS after the 60 day grace period, in most cases, so that if the person wishes to take a conservative position, it may be worth traveling abroad, applying for the H1B visa stamp from abroad and reentering 10 days before the start of the H1B petition date to avoid any problems later on.

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

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Chat User : Should the answer to the question "have you ever been refused a U.S. visa" (question number 31) in form DS 156 be "yes" if s/he had applied for an H1B visa earlier and it got rejected as the H1B application reached the USCIS office on the day H1B cap got closed and was not selected in random lottery?

Attorney Murthy : No, the term "visa" on the DS 156 refers to the visa request filed at the U.S. consulate and not an H1B petition filing that was "rejected" for meeting the H1B cap or after the cap deadline was reached. The consulate is trying to find out if the person was denied a prior visa status for a legal or factual reason that needs to be taken into account with this filing. The question does not ask if any prior filing was ever rejected or denied by the USCIS or any other federal agency before.

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Chat User : Does having an expired conditional green card affect the ability of a Canadian citizen to travel between the U.S. and Canada?

Attorney Murthy : Yes, if the conditional GC has expired, the person is not allowed reentry into the U.S. on the basis of their green card unless the person had filed the I-751 and it is pending with the USCIS. The I-751 receipt notice will explain that the person is allowed to travel and work while that application is pending. If the person has allowed their conditional residence status to lapse and has returned to Canada, they could travel to the U.S. in a different category for which they may be eligible. They would have to prove eligibility and, if the category required nonimmigrant intent, the previous status as a permanent resident would potentially create problems for a reentry to the US. There can also be serious immigration problems if there was any fraud or appearance of fraud in the marriage case.
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Chat User : If an H-4 visa holder goes to the Chennai embassy to get the H1B stamped, in case of rejection, queries or administrative processing of H-1 at the consulate, will the visa officer cancel the current, valid H-4? My H-4 is valid until December 31, 2006.

Attorney Murthy : Generally, the rule is that the consular officer is not supposed to cancel the H-4 dependent visa, in this example, unless they suspect fraud or misrepresentation in the H1B visa process. So generally, the person should be able to reenter the U.S. on H-4 if the H1B visa is not stamped. The alternative is for the person to enter the U.S. on H-4 status, and then file an H1B amendment / change of status soon after entering the U.S.

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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 : Murthiji, thanks a lot for this precious service. Can the primary of an I-485 maintain H1B status while the dependant uses EAD or AP?

Attorney Murthy : Based on what we have seen the USCIS allow, it seems that it is possible to do that though the Legacy INS Memos from March 2000 and May 2000 do make this issue confusing by requiring the family members to maintain consistency. We have seen cases for the family getting approved in such cases, and there is no harm for the spouse on H-4 to file the H-4 extension with the H1B principal and also extend the EAD and continue working on the EAD!

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Chat User : I am on H1B and feel like I am going to be laid off. What are the options available for me to be in status? Can I go back on F-1 status? Thanks, in advance.

Attorney Murthy : Well, the options for a person really do require you to consult a knowledgeable attorney as the options will depend on the person's prior education, work experience, background, legal status, market conditions, etc. If the person had previously filed for the GC, then the USCIS will likely not approve the COS to F-1 in this type of case. So that is why you need to consult a good lawyer. If you don't have one, feel free to send an eMail to law@murthy.com for this purpose. I hope that this preliminary info helps you all the same to get an idea of the options and risks.

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

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Attorney Murthy : We appreciate the opportunity to help you in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration law needs. Thank you for your interest in using our services.

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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