Chat : November 13, 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 : Dear MurthyChat participants, 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 matters. Thank you for your interest in our MurthyChat.

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Chat User : I have a bachelor's degree with 6+ years of experience. Is it possible to file for a GC in EB2 category instead of EB3? What are the risks of doing that?

Attorney Murthy : As mentioned in other sessions, education and experience are only one factor that the U.S. Department of Labor and the USCIS take into account in determining whether the EB2 or EB3 is the appropriate category for a person. The other 2 factors are the employer's minimum requirements and the industry norm. All 3 must align for EB2 classification. The employer signs documents under penalty of perjury, so they cannot "fudge" on this issue to help an employee, since it is a federal crime to misrepresent the minimum criteria for a job.

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Chat User : Is I-140 premium processing possible? How would that help the process? How much time does it take to complete the GC if filed this year?

Attorney Murthy : The I-140 premium processing only helps in getting the I-140 petition approved faster but does not necessarily help a person born in India or China to get the GC earlier, if that person's priority date is retrogressed or if the person cannot cross charge to another country. It does allow the person to get a 3-year H1B extension after the I-140 approval instead of just one-year H1B extensions that can be expensive and require one to keep renewing the H1B each year.

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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 : Can I make a new application for an H-1 visa while my change of status to F-1 application (from H-4 to F-1) is still pending?

Attorney Murthy : One is allowed to file a new COS case, but if the H1B quota is exhausted, that is only possible if it is cap exempt employer unless the person was previously on H1B status or had an H1B visa stamp. The downside in filing the H1B is that the USCIS does not need to approve the COS with the I-94 card attached until the interim F-1 is approved, so there is a risk that may require the person to travel abroad, apply for the H1B visa stamp from the consulate, and then reenter the U.S.

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Chat User : I am on my 7th year H1B. What happens to this 7th year approved H1B if the labor certificate on which the 7th-year extension happens to get rejected?

Attorney Murthy : The USCIS position is that the H1B petition that is approved remains valid until the end of the time mentioned on the approval notice, even if the underlying LC is denied. So, during that time one could start a new LC case; then potentially depart and reenter a few months before the H1B expiration, file another extension for the time abroad, and arguably be able to qualify for another extension. Also, with PERM and I-140 premium processing available, if the person's I-140 petition is approved within 5 to 9 months of filing, s/he is able to file and obtain the 3-year H1B extension. Alternatively, if one obtains an earlier PD from a previously-approved LC, then s/he could possibly file the I-485 with the EAD and AP, if the earlier PD is issued on the I-140 petition approval for that person.

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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 : Is it advisable to resubmit the I-140 (substituted labor) petition under the new premium processing, especially when it’s been pending for more than a year?

Attorney Murthy : The USCIS has stated that they will not accept an I-140 petition under premium processing in an LC substitution case or with NIWs or certain categories, as outlined in our MurthyBulletin article on this subject.

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Chat User : I am on L1B from company A, and I applied for an H1B from company B. My H1B got approved last week. Do I need to join company B immediately, or do I have some grace period and can continue work with company A for more time?

Attorney Murthy :  The ACWIA law of 1998 allowed the employer up to 60 days if the person is in the U.S. and 30 days if s/he is entering from abroad to start paying the H1B employee. The "last action rule" of the USCIS means that the last action of the USCIS governs the individual's status and, arguably, from the date of the H1B approval start date one is deemed to violate status if s/he does not start working for the H1B employer. As of the date the H1B starts, one is no longer an L-1 and should not be working for the L-1 employer. To be on the safe side, the person possibly should consider traveling abroad and reentering in the desired status to ensure that s/he is not considered to be violating status.

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~~~Chat User : I am on H-4 and have been out of status for over 180 days (300 days). My nunc pro tunc application got denied today. What are my options to obtain valid status?

Attorney Murthy : This type of issue cannot possibly be discussed with all its nuances in a live chat session. There are serious legal implications to the life of a person and possibly the family. Depending on the person's background and education, s/he could consider other options, but some or all of them could be fraught with risk.

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Chat Master : We make a concerted effort to respond to only one question per person. Questions are selected when they are brief and relevant to many people.

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Chat User : Can I change my employer during this 7th-year extension and get a labor certification filed under PERM? Will I be able to get an 8th-year extension, if needed?

Attorney Murthy : While it is technically possible, if it is timed accurately, the risk is high if there is any delay in filing the PERM right away. It would be better if the person only joined the H1B employer after filing the PERM, so that one year later the 8th year H1B can be filed without jeopardizing the person's legal status in the U.S. If one is truly unhappy and willing to take this type of risk, it is important to understand the legal and factual implications of such conduct before taking this leap of faith. If the future employer is not willing to file the PERM before the person starts working for them, then there is a risk that the PERM will not be pending at least one year, and then the person may not be able to obtain the 8th year H1B extension.

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Chat User : I am on an H-4 after 6 years with H1B, but I started my PERM during the 6th year. That's why I couldn't file the 7th year extension. My PERM and I-140 are approved. I didn't know about the recapture of vacation time. Can I do it now?

Attorney Murthy : Yes, a person is allowed to file for the recapture of vacation time abroad, and then if the USCIS grants that and approves the H1B with the I-94 card attached, the person could potentially request that time and then file a 3 year H1B extension based on that H1B approval. It may be possible to file for a three year extension, without recapture, since the PERM and I-140 are approved. We routinely go over these types of options and any other legal creative options with people who contact our law firm for a consultation on such complex issues to help the person to keep working legally or remain legally in the U.S. as far as possible.
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Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.

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Chat User : Can a self petitioner for EB1 extraordinary ability apply for an EAD to change to a similar job before the I-485 has been pending 180 days? Are there risks of doing so? Thank you.

Attorney Murthy : Since both the EA and the NIW are exempt legally from the requirement for an employer or a specific job, the only requirement legally is that the person continue to work in the same or similar field for which the I-140 petition has been approved and in the field that will prospectively benefit the U.S. The risk in such a case is that if the I-140 petition is either denied or if there is an RFE, then the earlier employer will likely not help out in such a case after the person has left that employer. If the I-140 petition has been approved, then the risks are much lower as long as the person can find the similar line of work.

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Chat User : Can an individual file I-140 in EB1 and EB2 category concurrently? Thanks for your service.

Attorney Murthy : A person is allowed to file as many GC cases as they can afford to do so since the USCIS position is that the person is allowed to file cases as long as the person informs the USCIS honestly about previously filed cases and explains the reasons, if asked, on any of the forms. It will not automatically result in future cases being jeopardized in such cases.

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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 : I have transferred 5 H-1s within three and one half years. Is it going to have any negative impact if I go for H-1 revalidation?

Attorney Murthy : The law itself does not regard a multiple change of employers as a negative item, but any consular officer may ask or think that it is not common so may ask about it. Certainly, any future employers will likely think that a person who keeps changing employers is not stable or mature to stick with a particular job, so from a practical point of view, it is best to stay for a few years with each employer. From the consulate's point of view, though, they may not even mention it other than to request W-2s from all prior employers to ensure that the person maintained valid legal status while on H1B in the U.S.

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

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Chat User : Hello, Madam. My husband is a GC holder, and I am on an L1A visa. Is it advisable to file my GC through my husband’s status, or should I apply through my employer? If the GC is denied when applied for through my employer, can I reapply through my husband? Thanks, in advance.

Attorney Murthy : A person on L-1 or H1B or their dependents can file for the GC and yet maintain the L or H status since it is a dual intent status. That is the good thing with it. Filing for the GC based on a GC spouse could take 5 to 8 years. It is faster to file it through the employer in most cases unless the GC holder is eligible to file for U.S. citizenship in the near future so that the I-130 petition can be upgraded to that of the spouse of a U.S. citizen within a few months or a year or two. It is possible to do both.

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Chat Master : Your participation has made this the Internet's most popular chat on U.S. immigration law! MurthyChat is one of the few weekly chats on U.S. immigration law offered and run by a law firm. Another FREE and VALUABLE SERVICE proudly offered by the Murthy Law Firm and MurthyDotCom.

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Chat User : While filing LC, does an employer need to pay the same wage as it is entered in the form or when the LC is approved? Could the LC for the forth coming promotion be filed now?

Attorney Murthy : It is possible to file the LC based on a future job offer though the U.S. Department of Labor with the PERM process could ask the employer to show why they are not paying the employee the required wage from the present. The USCIS is more lenient on this issue and considers that it is a future job and as long as the employer can demonstrate viability financially, then that is all that matters along with the person's credentials to get the job done for the employer.

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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 : Greetings. My labor has been stuck in the backlog center for 2 years. I haven't received a 45 day letter yet from the Department of Labor. Is it a good idea to file another labor with my employer under PERM? Will I lose my priority date if I do so? Please advise. Thanks, in advance.

Attorney Murthy : The U.S. Department of Labor has requested all employers who have not received the 45 day letter to notify them via a particular eMail since all 45 day letters should have been issued by the DOL as of a few months ago. There is no downside in filing a new PERM case, but if a person requests the transfer of the earlier PD and the DOL denies that conversion, then the person loses the earlier PD altogether. Some people allow both processes to continue, and then when filing the second I-140 petition, request the transfer of the earlier PD from the earlier case to the later case filed LC / I-140 petition.

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Chat User : Mine is a pre-approved EB3 labor. Now my PD is current. I have my EAD. I am eligible for AC21. How safe is it to use AC21 to shift employers?

Attorney Murthy : If the I-140 is approved and the person has an I-485 pending for over 180 days and the new employment is "same or similar," then the person can take a risk. The level of risk depends on how the new and old job duties are and various factors that the USCIS takes into account in approving the AC21 portability, as described in various Legacy INS and USCIS memos on this subject. It is always best to maintain H-1 status, if possible.

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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