Chat : November 20, 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 today.

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Chat User : I have 2 labors approved from different states for the same employer. Can two I-140s be filed around the same time? One for CP and the other for AOS?

Attorney Murthy : The USCIS does not encourage or even seem to allow the same person to select one CP and one AOS option. This is different than their earlier policy position on this issue where the strategy was to use CP on one I-140, and the AOS on the other. Now it is safest not to pursue both options but to keep the other LC to use later, in case something goes wrong with the other one.

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Chat User : Hello, Madam. As a physical therapist, my I-485 was denied on November 7, 2006. I have no visa screen, yet. Is there any way I could apply for an administrator H-1 visa or EB2/EB3 immigrant status without leaving the U.S.?

Attorney Murthy : The general rule is that a person's job must require a B.S. or B.A. level of education for the H1B petition approval. So one must have a bachelor's degree in administration or accounting to even qualify. It is not clear if you could qualify with simply a physical therapy degree and qualifications. Also, if one is out of status s/he cannot obtain another I-485 approval, since maintaining lawful nonimmigrant status in the U.S. is required for one to be eligible for the I-485 approval or to take advantage of the 245(k) rule of the total time not exceeding 180 days of having fallen out of status. These are complex issues that you should discuss with a knowledgeable lawyer. If you don’t have a lawyer, then feel free to contact law@murthy.com to consult with one of us here to help you.

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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 : A candidate is working in the USA on H1B whose I-140 has also been filed. If he files for an F-1 (to study for full-time MBA), is there a likelihood that the F-1 will be declined because he has shown immigrant intent by filing the I-140?

Attorney Murthy : Yes, the law clearly provides that a person is not entitled to obtain a pure nonimmigrant status after s/he has expressed an intent to immigrate to the U.S. Generally, the filing of an I-140 petition on one's behalf is a clear indication of that immigrant intent. In rare cases, where the person can establish that s/he will return to the home country or the consulate to pick up the visa stamp, it is possible to obtain the F-1, though unlikely in most cases.

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Chat User : Can a person holding a visitor visa come to the U.S. in April 2007, convert to H1B and start working here without going to India for stamping?

Attorney Murthy : Theoretically, that is possible, but if a person enters on the B-2 tourist status, s/he should not file any change of status for at least 60 to 90 days to avoid the fraudulent intent issue under the doctrine of preconceived intent. We believe that in 2007, if a person does not file the H1B cap subject-case on or about April 1, 2007, it may be too late to qualify for that year's quota unless the U.S. Congress raises the H1B quota. So the chance of this happening is not likely and it will require that one enter by January 2007, then file in April and extend the B-2 status; then, hopefully, obtaining the H1B petition and change of status so that s/he can continue working. It could create problems when in obtaining any visa stamp from abroad later. There are issues of fraud / misrepresentation if one enters as a visitor with the intention of changing to an H1B.

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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 : My labor and I-140 are approved. The I-485 has been pending at NSC for around 5 months. Is there a way to find out whether or not my security / name check has been cleared? Do you know if AILA is doing anything for the security check problem? Thank you.

Attorney Murthy : Neither AILA nor the U.S. President nor any other person or entity is allowed to interfere with the FBI security and name checks. Apparently, post September 11th, that is the biggest issue with which no one, even a congressperson or U.S. senator can help. If there is a delay, there is a DHS person at BTS who can verify and look into the matter. Frequent reminders are helpful in obtaining a faster result, but not determinative in most cases to obtain a faster result. People have started filing more mandamus cases against the government to compel decisions where security checks are causing extended delays.

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Chat User : I am getting pre-approved labor from company A. How can I be sure that the same labor is not being used by some other person? Also, is it safe to switch to the new company in the 7th year if I get a pre-approved labor? Please advise.

Attorney Murthy : If you have the original LC, then one is less likely to have problems. On the other hand, if it is an LC copy, then the risk is higher that the earlier person may have received the GC leaving the second person out of the picture. It is never completely safe to switch when one has only one year left, since, if the LC sub-case is denied, s/he may be out of luck. Hopefully, the person has some backup plan in place.

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Chat User : If the start date of an H1B is after the end of OPT but within the 60-day grace period, can one stop working at the end of the OPT date, stay legally in the U.S., and then start working from the start date of the H1B? Or should s/he leave the country and renter with an H-1 stamp before the start date? The H1B is approved and came along with the I-94.

Attorney Murthy : If the H1B is approved with the I-94 card attached and, in this scenario, the H1B starts within 60 days of the F-1 OPT expiration, then there is no problem. One can start working legally with the H1B.

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Chat User : My I-140 under EB3 is approved. I want to use my wife's country priority date instead of mine because that is more recent. What are the risks involved in such cases? What are the things to be careful about?

Attorney Murthy : There should be no risk to request cross chargeability in such a case. Either the DOS or the USCIS will grant it or not and, most likely, grant it based on the spouse's country of birth. There is some discrepancy between the USCIS and the U.S. Department of State on the exact application of the rules pertaining to allowing the spouse's foreign state chargeability to the principal applicant and family members. However, we are finding that the USCIS is generally granting requests for cross chargeability. There are no risks. Either it is allowed or not, in the worst case.

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Chat User : In May 2006, the USCIS announced that they will be issuing new guidance on H1B program and the possibility of decoupling the time spent on H1B and H-4 visas. Until now, no new regulation has been issued. Does that mean the decoupling regulation is no longer under consideration?

Attorney Murthy : Often, with the government, their processing time for issues is much slower that in the private industry for various reasons, including needing input from several government agencies with differing interests. Sometimes, we see a matter take years to germinate and, in other cases, it falls by the wayside. The USCIS has said that they understand the issue and need to address decoupling. Exactly when and if this will ever materialize is difficult to say.

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

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Chat User : Is not getting an FP notice normal for EB3 I-485 filed on June 6th at CSC? AP and EAD were approved by July, though.

Attorney Murthy : The general rule is that if the PD is not current or if the USCIS believes that the I-485 may take a few extra months to get reviewed, they will not send in the FP request, since the government has had to waste a lot of time and money in having to get folks to take repeated FPs, costing tax payers substantially more than necessary for tens of thousands of people.

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Chat User : My wife is on H-4 and completed her 6-year stay in the U.S. In the last 6 years, she was in India for 18 months (not continuous). Is it possible for her to get a new H-1 based on the time she spent in India? Please advise.

Attorney Murthy : It is possible to recapture any time spent abroad, so, in this case, it would appear that one is eligible to recoup that time. Except, with the H1B cap having been met, unless it is a cap-exempt employer, one must to wait until April 1, 2007 to file the H1B with a start date on or after October 1, 2007.

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Chat User : I am currently on H1B (my first work visa). I entered the country only a few days ago. I wish to transfer the H1B to a new company in the next couple of weeks. Is this possible without pay stubs? If so, is there a time limit within which a new employee can transfer without pay stubs?

Attorney Murthy : There is no legal minimum, but the USCIS has the discretion to waive certain irregularities. It is always risky to rely on the discretion of the government for a benefit when one is legally not entitled to that immigration benefit. The safest rule is to wait for the 2 pay stubs before moving or filing with a new H1B employer to avoid the problem of incurring time out of status in the U.S. or the possibility of the denial of the extension of H1B status, in this case. Additionally, when one enters on an H-1 from company A, but never works for company A, it raises issues of the person's intent when s/he entered. It is not appropriate to enter based upon an H-1 visa / petition from company A if one has no intention of working for company A.

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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 : My 5 years of H-1 is going to be completed March 2007. When do I need to start the GC process? Is placing ads before March enough, or does the actual application filing need to be done before March?

Attorney Murthy : Not only does the application need to be complete, but the application must be filed and pending with the DOL to be eligible for the 1-year H1B extension. Now, if the PERM and I-140 are both approved before March 2007, then one is actually allowed to obtain the 3-year H1B extension under AC21, if the case is subject to retrogression.

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Chat User : Hi. I am planning to travel to India using AP. What would happen if my I-485 gets approved while I am in India? Is there any problem in reentry?

Attorney Murthy : There is no problem if one's I-485 is approved, since s/he is allowed to be paroled into the U.S. On the other hand, if one's I-485 is denied when s/he is abroad, that person cannot reenter using the AP, and the CBP inspector will likely deny her/him, since the AP is based on the I-485 pending or its approval under existing USCIS / INS policies.

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Chat User : Desi consultant A filed for my H-1 and sent me the receipt. On September 23^rd, the H1B was approved. I never worked, so I don’t have any pay stubs. I got an eMail last week telling me that he has revoked my H-1. Can I still get my H1B transferred?

Attorney Murthy : It is unlikely that the USCIS can approve the H1B EOS for a person who is not maintaining legal status and whose H1B petition has been revoked. The only chance of this somehow getting approved is if the USCIS has not acted on the revocation request. The safer route may be to file a new H1B petition after departing the U.S. to avoid a potential EOS denial. If one has been outside the U.S. the entire time, it may be possible to get a new H-1 approved without the need for a cap number, since the person has been counted against the cap.

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

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Chat User : Attorney Murthy, I was laid off from my previous work on Friday (last week) while on H1B. My employer says they will inform INS of the H-1 termination. How long do I have to be able to stay in the U.S. before I go back home? If I find a job and a new employer files for a new H-1, can I continue to work while in the U.S., or do I go back and stamp my H-1 and then begin work? I have not yet taken an H-1 stamp on my passport.

Attorney Murthy : I am sorry to hear of the layoff last Friday. I am sure that it is pretty tough for you. By law, there is no legal "grace period" of how long one may stay in the U.S. since the person whose position or job has been terminated has to make plans and depart at the earliest to avoid the risk of becoming subject to removal from the U.S. The safer route is to file the H1B after departing the U.S. Sometimes, the USCIS will approve the H1B with the EOS. If the gap is short though they tend not to do so in most cases, so relying on it can be risky. By short, we generally mean 1 or 2 pay periods (less than a month, usually), but this is entirely discretionary and not something to which anyone is legally entitled.

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Chat User : My OPT expires on December 6^th. My H1B is still pending. How long can I stay legally in the U.S. after my OPT expires? If my H1B is denied, will the period between the expiration of OPT and denial of H1B be considered legal or illegal?

Attorney Murthy : A person who has filed for a change of status while still maintaining lawful status (and if the H1B can be approved without the gap in status) is considered okay. On the other hand, if there is a gap after the grace period of the F-1 OPT and the H1B start date, then it could pose a problem, since the USCIS may decide not to approve the I-94 card or the extension of status. This will then require one to depart the U.S. and apply for the H1B visa stamp at the consulate and then reenter the U.S. in H1B status. There is a grace period of 60 days given after the OPT extension. One cannot work during this time, but can legally remain in the U.S.

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Chat User : I am in the 7th year of H1B and have my labor and I-140 approved. Can I switch jobs while waiting for I-485 priority dates to become current and reapply for labor with the old priority date?

Attorney Murthy : The safer route is to file a 3-year H1B extension with the current or a potential future employer. Then, since one has 3 years, s/he is able to start a new PERM and should be able to take the earlier PD, since the I-140 petition was approved in the first case. There is a slight risk if the earlier I-140 petition is revoked in certain cases.

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Chat User : Hello, ma'am. If an H-1 transfer is under process from company A to B and before H-1 approval, company A files for an L-1 with a COS, will it impact the processing of the H-1 requested by company B?

Attorney Murthy : The two processes are distinct, but there is a potential risk that the last action rule may prevail. This could be a problem should one prefer another status for some planning or strategic reason, but it should not pose a risk.

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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 : The I-140 for company A is rejected. Can I use a pending LC from company B to file for an H1B extension and work for company A?

Attorney Murthy : Yes, it is possible to use the LC with another employer to file an H1B with a different employer. Legally, that is permissible, since the USCIS and the law allows the GC to be based on a future job offer.

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Chat User : Hello, Ms. Murthy. I am on an H-4 visa and found a job, but I’m not able to file for an H-1 because of visa unavailability until next year. The company has an approved labor with an older priority where they can file I-485 and EAD. Is it possible to file for I-485 and EAD for the principle applicant on an H-4 visa?

Attorney Murthy : Yes, it is certainly possible to file the I-140 with the I-485 for a person on H-4 status, and, after the EAD is approved, s/he is able to work for the GC-sponsoring employer under law.

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

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Attorney Murthy : We wish you a Happy Thanksgiving. We should each be grateful for all the good things that we have been fortunate to enjoy, and let us share in the spirit of Thanksgiving to be thankful each day of our lives. 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