Chat : November 27, 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.

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Chat User : I have a B.S. (3 years) with 9 years of experience. Can another B.S. degree obtained in the U.S. after LC filing (EB3) be submitted with the I-140 to justify qualifications instead of providing an educational evaluation that explains the equivalency for a bachelor’s degree?

Attorney Murthy : As a general rule, any education or work experience gained after the LC filing can never be counted towards satisfying the minimum requirements for the position. The individual must meet the requirements as of the time of filing.

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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 : If I apply for I-485 from company A and then join company B immediately, can I use AC21 to transfer the I-485 processing from company A to company B after 6 months (assuming company A does not cancel the application)?

Attorney Murthy : As has been explained before, assuming that the parties all intended at the time of filing the LC and the I-485 to enter into that employment relationship on a full-time, permanent basis, then if the I-140 petition has been approved and the I-485 remains pending after 180 days, it is possible to argue AC21 portability. Please note that the USCIS has started to approve some I-485s within 180 days and, for those cases, there is no benefit of AC21 portability that applies.

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Chat User : For an H-4 visa holder, if the first and last name of a person is changed legally and updated in the Indian passport, should INS be informed about the name change? If so, what is the procedure?

Attorney Murthy : If truly a person has changed both the first and last name, then the safer route would be to file an H-4 application amendment by showing the USCIS that it is the same person who has had a legal name change. This new approval notice and visa stamp in the PP, preferably a new one, would help when traveling from abroad and attempting to enter the U.S.

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Chat User : Good evening, Ms. Murthy. What issues can an F-1 visa holder (valid for 3 more years with 1 year Ph.D. study completed) expect at a U.S. port of entry upon returning from an overseas wedding to a USC? Thank you.

Attorney Murthy : Usually, the POE inspector may not know about a change of marital status unless that specific question is asked at the border. If the Ph.D. student intends to continue studying and pursuing the Ph.D. program, then entry on F-1 status is viable. Any change of status should not be filed for at least 3 months to avoid any potential problem about preconceived intent or fraud down the road.

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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 : Can one travel using AP while his/her H1B extension is pending?

Attorney Murthy : Travel 101 - The general rule is that if one travels while an H1B EOS is pending, then s/he is allowed to work in H1B status if the H1B petition is approved after the individual enters the U.S. On the other hand, if the person's H1B was approved previously, but s/he enters on the AP as a parolee, then s/he is considered on parole status. It would be best for such a person to obtain an EAD to work legally. However, the Legacy INS has stated that they do not regard a paroled adjustment applicant’s work to be unauthorized without the EAD, if the individual’s H-1 or L-1 petition has not expired. S/He is also allowed to file an H1B extension when it is time to renew it based on the March 2000 and May 2000 Legacy INS memos.

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Chat User : Can an amendment petition be filed to move an H1B start date? If not, is there any way to change the H1B start date after it is approved?

Attorney Murthy : Yes, a person could potentially file an H1B amendment to change the start date; especially, as we have seen in many cases, when s/he entered on L-1 or another legal status from abroad but wants to work for the H1B-sponsoring employer after a few months. On the other hand, if the person has already failed to maintain legal status after the USCIS has approved the change of status, then the USCIS may decide not to approve the amendment, since the individual is no longer maintaining valid legal status in the U.S.

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Chat User : Hi! My employer used an EB3 pre-approved labor in my case last year. I got my I-140 approved in March of this year. I recently got promoted with a similar job description with some hike. I am eligible now for EB2 with qualifications and experience. Can my employer re-apply for my labor in EB2 and port the date from my EB3 application?

Attorney Murthy : Congrats on the I-140 petition approval. Yes, it is possible to use the earlier PD from a previously-approved EB3 case after a new PERM LC is filed under EB2 and the new I-140 petition is approved in EB2 with the earlier PD based on the new job title and duties.

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Chat Master : For anyone in need of advice on a specific matter, you may wish to visit <http://www.murthy.com/consult.html> following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Atty Murthy or one of our other experienced attorneys.

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Chat User : Coming spring, I’ll be graduating from graduate school in the U.S. Can my employer file a new EB2 case under PERM and utilize the PD from my previously-approved labor/I-140 filed under EB3?

Attorney Murthy : Under existing law, it is possible to use the earlier PD from an earlier case when filing the I-140 petition the second time around, in most cases.

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Chat User : Can I make a new application for an H-1 visa (for a job in a government non-profit organization) while my change of status application (H-4 to F-1) is still pending in the INS?

Attorney Murthy : It is possible for the new employer to file for the new H1B cap-exempt position as long as the original H-4 status still remains valid, meaning that the I-94 date on the H-4 status remains valid. If that date has expired, then, under the USCIS bridging Memo, the USCIS has to wait for the interim status, F-1 in this example, to be approved, in order for the USCIS to approve the H1B petition.

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Chat User : Hi, Murthyji. Can a friend's / cousin's address be used as a permanent address for a GC application (also use the same address for the bank, payroll, and other purposes) and in the meanwhile, be physically residing in different locations within the U.S.?

Attorney Murthy : It is possible to use an "in care of" (c/o) address, but that does not obviate the legal need to file the AR11 and otherwise notify the USCIS on every other pending application on the change of temporary addresses in the U.S.

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

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Chat User : Hi. I am on the 7th year of my H1B, and my GC is pending for labor (in backlog). On my current status, can I move to India for 1 year and work remotely for my current company? What impact does it have on my H-1 and green card?

Attorney Murthy : If a person lives abroad for over a year, then the person would likely be subject to the H1B cap quota and would need to wait and reenter the U.S. only after October 1st by filing for the H1B by April of that same calendar year. The GC process will continue since the GC is based on a future job offer. If the trip abroad is for, say, 10 months, then the person could try to file the H1B extension in one-year or 3-year increments, based on the LC pending over a year, or after the I-140 petition approval, respectively.

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Chat User : Dear Murthy, is it risky to apply for premium processing (I-140/EB1/OR at Nebraska) after responding to an RFE? Thank you.

Attorney Murthy : It is not risky to request a premium processing for an OPR case after responding to the RFE, though it is possible for USCIS to make a decision within a few weeks anyway on that case. It may make sense to send the RFE response and the form with fees for premium processing at the same time to avoid any further delays. The general rule is that PPP cases tend to be reviewed by senior folks or supervisors, so there was a concern that they tend to be scrutinized more carefully and result in denials, but the denials are not due to the PPP filing but rather to the strength of the case - or the lack thereof.

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Chat User : I hold an H1B with a non-profit organization. I recently applied for another H1B for the 2006 quota with consultancy (I just have a receipt number). I now have a job offer from another employer. Is it possible to transfer with this new receipt as reference? Please help.

Attorney Murthy : Since the H-1 cap has been met, it is not possible to file anymore cap-subject cases until the next cap filings start on April 1, 2006. In this situation, it is necessary to obtain approval of the pending case first, so that one has been counted against the cap. Once that has happened, it would be possible to file another H-1 case, since no cap number would be needed once the person was 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 : I applied for a new H1B. My name and DOB were printed wrongly on the I-94 and I-797. My employer has filed an I-102 to request a correction. Will this succeed, and, if so, how long does it normally take?

Attorney Murthy : Rather than waiting for several months for the I-102 correction, another option is to file an H1B amendment, and, if necessary, file it under premium processing to obtain an earlier response.

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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 : Is an H-4 to H1B transfer counted against H1B quota restrictions?

Attorney Murthy : Yes, an H-4 to H1B is counted against the H1B quota if the H-4 was not previously in H1B status within the last 6 years.

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Chat User : My wife had completed BDS in India. She is in H-4 status. How difficult is it to change from H-4 to F-1 for her master’s degree?

Attorney Murthy : For any person to change from H-4 to F-1, s/he must show strong family and financial ties to the home country, showing intent after completion of the F-1 program to return home permanently. So the difficulty will depend on the nature of the documents submitted to the satisfaction of the USCIS examiner. It should be noted that H-4s are permitted to study.

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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 : Is an M.S. degree from a U.S. university with no experience enough to qualify for EB2 labor filing?

Attorney Murthy : It is possible to qualify for an EB2 based simply on the M.S. degree, but the risk with that is that the Department of Labor believes that there are many U.S. citizens or U.S. workers who will qualify with no experience. That may result in many more responses and the DOL denying the LC case.

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

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Attorney Murthy : Next week, we will not have the MurthyChat as I have a meeting with some dignitaries in the Washington, D.C. area at that time on Monday evening. We look forward to having you in two weeks time at our MurthyChat. Have a wonderful evening / day.

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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