Chat : November 26, 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 by providing some general guidance or pointers with your immigration matters in today's MurthyChat!

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Chat User : My H-4 status is valid for another 3 years. I received EAD on my husband's pending I-140.Can I change to EAD, or will I have to wait till the I-140 is approved?

Attorney Murthy : A person is allowed to start working on the EAD, but there is a risk if the I-140 petition is denied and the dependent I-485 and EAD both are denied for any reason. Otherwise, legally, as long as the EAD is valid and the underlying I-485 remains pending with the USCIS, one is allowed to keep working on the EAD with any employer and does not require the H1B petition approval, necessarily. As we point out, there is a benefit to having a backup H1B status in many cases.

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Chat User : While on OPT, can one go straight into PERM-GC process AND still work while it is being processed, or is the H1B needed to bridge them?

Attorney Murthy : One is able to file the PERM/GC process while the OPT is being processed, but there is a risk since the F-1 OPT is based on a pure nonimmigrant intent that the person will depart the U.S. after completion of the F-1 OPT. By filing the PERM for the GC the individual negates the pure nonimmigrant intent and has now expressed the intent to settle permanently in the U.S. This creates a potential problem for the F-1 OPT approval. The H1B provides some safety, as it enjoys dual intent status. The GC process also normally takes well beyond the OPT period, and the individual needs an H-1 or other nonimmigrant status to remain in the U.S. while the GC case is pending.

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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 : My spouse is currently on F-1 will start using her I-485 EAD for work. In case her I-485 gets rejected in the near future, can I still apply for an H-4 dependent visa for my spouse? Similarly, can my spouse still apply for H1B in the future after using her EAD?

Attorney Murthy : One is allowed to file for an H1B extension of status even after working on the EAD. Similarly, s/he can file for H-4 status, as well, or a change to H1B.
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Chat User : If one completes 6yrs on H1B and leaves the U.S. for a year, then applies for another H1B, is s/he counted again against the H1B cap? Thanks.

Attorney Murthy : A person who has completed the full 6 years in H1B status and never started an LC or I-140 petition filing, who then departs for one year to be able to become eligible for the full 6 years in H1B status again, must be counted against the H1B quota / cap when s/he attempts to reenter the U.S. after the year spent abroad.

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Chat User : What is the use of H1B extension (beyond 6 yrs), after filing I-485, getting EAD & AP, etc, apart from acting as a backup in case of I-485 denial?

Attorney Murthy : Actually, the backup status in case of an I-485 denial is pretty useful, since one could be required to pack and depart the U.S. within 30 days, having to sell home, cars, assets, etc. The USCIS usually gives about 30 days to depart the U.S. before starting enforcement action. Even in those 30 days one would start to accrue unlawful presence. This can be disruptive for the family and results in economic, emotional, physical, and mental hardship for everyone in the family. Also, instead of simply renewing the EAD each year, one can obtain 3-year H1B extensions, which give more peace of mind so that forgetting to file the renewal of the EAD will not result in problems in continuing employment, drivers' licenses, etc. Also, there is the issue of reentry from abroad in NIV status instead of in parole status, which affords greater legal protections for one who is admitted instead of paroled into the U.S. These are some examples of the benefits available to one who in H1B status and the family members in H-4 status.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : If one has used more than 5 years on H1B and filed for extension, how much extension will s/he get with approved I-140?

Attorney Murthy : After one has an approved I-140 petition, s/he is allowed to file and request a 3-year H1B extension instead of the balance of the one year remaining in the H1B status! That is the advantage under AC21 that provided the 3-year extension timeframes that are unlimited so, potentially, one could keep extending the H1Bs in 3-year increments as long as the priority dates are not current.

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Chat User : Hello, Ms. Murthy! I have valid H-4 visa stamp in the passport. I recently changed my status to H-1 and have approval notice for it. If I leave the country, do I need H1B visa stamp to reenter? Thanks in advance.

Attorney Murthy : If a person, who has an H1B petition with the change of status approval from the USCIS chooses to reenter the U.S. using the H-4 visa and status, then s/he is opting to revert to H-4 status and cannot work for the H1B employer after reentering the U.S. unless s/he files another change of status to H1B again! If one wishes to work for the H1B employer, s/he must obtain an H1B visa stamp in the passport and reenter in H1B status at the port of entry to be able to work legally for the H1B employer.

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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 : My I-485 application was rejected. My employer says it was due to a mistake on the part of the USCIS. Is there any timeframe to respond to such incident? Once reapplied, will retrogression impact in anyway?

Attorney Murthy : Retrogression always impacts the ability to file a new I-485, since the USCIS cannot accept the I-485 filing if the priority dates are not current. If it was truly USCIS error, then one could re-file and request that it be sent to the highest levels of review by the director of the particular USCIS service center due to the USCIS error. If the error was made in good faith by the employer, the USCIS will not show any mercy, as the law does not protect a person from his own ignorance or lack of knowledge or even a simple error!

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Chat User : I have been out of the USA for 14 months out of my 5-year stay on L-1. Will that be added to my H-1 stay here?

Attorney Murthy : Yes, it is possible to deduct time abroad to recapture it against the total six years available in H1B status. Then if one starts the LC or I-140 and it is pending at least for one year, the person is able to file for one-year H1B extensions or for the 3-year extension, if the I-140 petition is approved.

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Chat User : Hello, Murthy ji. Do you think name checks will clear fast in the coming months or will be slower?

Attorney Murthy : According to the CIS Ombudsman, name checks pending for over 3 years will be given top priority, since there are many people who are quite upset, and understandably so. If you are reviewing our articles on the Ombudsman's office and their efforts, you may be aware of this development. Of course, that is part of the reason many are thinking of filing the writ of mandamus lawsuit, but the problem with a lawsuit is that it is both time-intensive and expensive to file and the USCIS has started to fight back instead of simply approving the cases like in earlier years.

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

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Chat User : Hello, Murthiji. Is one able to retain an earlier EB3 priority date, if s/he applies for a new EB2 Labor application later with the same employer?

Attorney Murthy : Yes, one can certainly do that as long as the I-140 petition was approved in the earlier EB3 case and the new case is filed in EB2 either with the same or even a totally new employer. Then, when filing the I-140 for the second time with the EB2 case, the employer requests the transfer of the earlier PD to the later-filed case. It is a win-win all around, but it does require that there is a new job with the same employer that requires the additional education or work experience or both to qualify for the EB2 position.

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Chat User : I have worked for my current company for the past 9 years. My 485 application was applied in June 2007 and approved Nov 2007 (last week). When can I leave my employer without invalidating my GC?

Attorney Murthy : The problem is that the law is not crystal clear on this matter. One is allowed to leave the sponsoring employer even before the GC approval under AC21 portability. But, since AC21 is silent on the issue of what happens after the GC approval, the safe rule is to go back to the earlier rule of staying with the GC-sponsoring employer for at least  6 months to one year after the GC approval.

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Chat User : Hi, I am Indian (EB2, I140 approved) and my PD is June '06. I will be marrying a Nepali girl (F-1 Student) next month. Can I file her I-485 next month and request cross chargeability for my application? Doesn’t cross chargeability hold good both for applying for the I-485 and approval of I-485?

Attorney Murthy : Congratulations on your upcoming marriage! Wishing you both the very best for a happy married life! Yes, the I-485 holds good for both applying and the approval of the I-485. Your wife could file based upon her country of birth and your category / priority date. In that filing, she can ask for cross chargeability for your case. You may also need to make a request directly for your case, and then follow through. The issue will be getting your eligibility for cross chargeability recognized, since the cases were filed separately.

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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 status was H-4 until H1B was approved starting Oct 2007. Through my husband's GC, I obtained my EAD from Nov 2007. What is my status now? Is it legal?

Attorney Murthy : A person is allowed to maintain both the H1B and the I-485 pending status simultaneously, since the H1B is considered a "dual intent" status. One is legally allowed to obtain the H1B approval even after filing the I-485.

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Chat User : I currently have 2 valid H-1s. Is it legal to work for both the companies at the same time and receive paychecks?

Attorney Murthy : Unless the second H1B was filed for concurrent employment, a person cannot simply work for both H1B employers if the two H1Bs were supposed to be consecutive and not concurrent. However, under the "dormant H1B" concept, it is possible to change from employer A to employer B and then back to A if both employers have approved H-1 petitions that have not been withdrawn.

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Chat User : My GC has my husband's PD as my "resident since" date. I was not in the USA or even married to him at that point in time. Is it okay, or do I need to get the card corrected?

Attorney Murthy : If the I-551 card has an error, then it should be sent back to be corrected. Discuss it with your attorney to see what can be done and how best to approach this problem, since one will not have a valid travel document if it is necessary to mail the original GC to the USCIS.

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Chat User : Can a person who is on H1B visa and got the extension notice marry a USC and continue to work and apply for GC through the spouse?

Attorney Murthy : Yes, one can maintain both the H1B status and file for GC based on the U.S. citizen spouse, since H1B enjoys the benefit of "dual intent" and a person can maintain both the H1B and the I-485 status concurrently.

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

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Chat User : Dear Murthyji, any idea how long the name check from FBI is going to take? My check was initiated on 10-24-2007.

Attorney Murthy : It depends. Some name checks are completed within a few months and some take a few years. It depends on how quickly the FBI gets the information back to verify it, etc. Often, though, security-related checks can take several months or longer.

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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 : Namaste, Murthiji. I'm on a valid student visa, which expires next year. My parents have petitioned me for GC and I'm not eligible for AOS for some years. Can I leave the country and come back on the same student visa? Many thanks in advance.

Attorney Murthy : It is possible for a person in F-1 status, for example, to travel and reenter the U.S. on F-1 visa and status, even after an I-130 petition has been filed for the benefit of that person. The risk is if the CBP Inspector at the airport finds out or asks about an I-130 filing, then the individual could be prevented entry in the F-1 status, which is a pure nonimmigrant status.

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Chat User : Is it possible to file one H-1 as a programmer and second as a Biotechnologist?

Attorney Murthy : Well, a person can file for either concurrent or simultaneously H1Bs to work for two different employers at the same time or in two separate jobs, so that one can act as the backup for the other in case of an H1B denial. The problem is that an H1B can only be approved for a specialty occupation and one must have the education or work experience in the specific field. The two fields in this example are quite distinct, unless one has two separate bachelor's degree - one in programming or CS and the other in biotechnology. However, if a person does have this type of dual qualification, then s/he could have H-1s approved in both fields.

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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 : When you respond to an RFE for an H1B petition and it gets rejected, are you out of status retrospectively from when you applied for the petition, and does the 180-day rule apply or is it from the date of the rejection?

Attorney Murthy : Usually the date of the denial of the H1B petition will govern, but that will require that one filed the H1B while maintaining valid status and that the employer filed a timely non-frivolous H1B petition. Otherwise, the expiration date of the earlier H1B could trigger the 3-year or 10-year bar if one was not maintaining status on the date of the new H1B filing. So, like with most issues under U.S. immigration law, a simple question does not provide a simple answer. The law requires many preconditions to be satisfied to afford a person protection when filing the H1B extension of status.

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

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Attorney Murthy : Hope you had a good Thanksgiving break and could spend some time with family. Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family, and your friends with all of your immigration matters.

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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 © 2007, MURTHY LAW FIRM. All Rights Reserved