Chat : December 01, 2008

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.

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Attorney Murthy : Welcome to today's MurthyChat! We all share in the sadness of the recent incidents in Mumbai and support the people there as well as the Indian government in efforts to root out terrorism and end the murder of innocent people. We invite you to submit your questions in today's chat session, so that we can provide some general guidance to you on your immigration matters.

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Chat User : My H-1 was approved without COS when I was in India in 2007. My current status is H-4. If I go to Canada for H-1 stamping, can they cancel my H-4 visa and ask me to go to India directly?

Attorney Murthy : In most of these situations, the H-4 is not supposed to be canceled, unless there is a security issue for the individual applying for the visa. Of course, there is no guarantee that will not happen. Generally, unless a person has a U.S. education or previously obtained an H1B visa in the home country, the consulates cannot issue a new H1B visa stamp in Canada or Mexico under current policy guidelines. Please review the Dec 05, 2008 MurthyBulletin for an article on this matter.

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Chat User : My wife currently possess both H-1 and L-2, and is working on H-1 for employer A. Can she go back to India, take long-term leave from Employer A, come back and start working on L-2 for employer B, without resigning from A?

Attorney Murthy : The question you pose is more on employment law then an issue of U.S. immigration law. If Employer A has an agreement or employment contract with your wife, there is a possibility of a lawsuit with potential financial damages involved for breach of an employment agreement or contract. From an immigration point of view, this potentially could be possible, with the agreement of company "A." It is not entirely clear what would be accomplished by taking "leave." It would be best to set up a consultation with us at the Murthy Law Firm in order to determine the best possible strategy to accomplish the desired goals.

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Chat User : What does it mean for your process to be transferred to the National Benefit Center? Is this good or bad news?

Attorney Murthy : Generally, a case is transferred to NBC when it should have been filed with the NBC in family-based cases, under current USCIS processing guidelines. Often it means nothing other than that it was forwarded to the location that is supposed to process that particular type of case.

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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 : Currently, I have my EAD on my spouse. My current employer as applied for my Labor and I140. I have approval of both. If I change my job, what is the best option to work with my spouse EAD or H1B and apply for green card?

Attorney Murthy : I am having a problem understanding your confusing question, since you refer to your spouse's EAD but then ask if you can work on your spouse's EAD or need a new H1B. A person cannot work on the spouse's EAD. Each person must file her/his own EAD to work legally in the U.S. Perhaps you mean an EAD that is based upon a GC case filed by the spouse's employer. It is often wise to file and maintain valid H1B status in the U.S. with a new H1B-sponsoring employer, if possible. If one changes employers, it is possible that the GC process can continue if the conditions under AC21 portability for the I-485 apply with the I-485 pending for over 180 days and the I-140 petition is approved, as in this case. If only the I-140 has been approved, and there is no I-485 filed for the case, AC21 would not apply. The I-485 cannot be filed without a valid job offer from the LC sponsor. Please set up a time to consult with us, as this question has many parts, and you need a proper strategy.

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Chat User : Good evening, Attorney Murthy. We have a valid H1B/H-4 visa stamped on our passports filed by our ex-employer. I changed employment to a new employer, using my EAD card. After three months of working on EAD with my new employer, they filed for our new H1B/H-4 visas. Can we still use our ex-employer’s H1B/H4 visa stamped on our passports for traveling?

Attorney Murthy : The DOS/CBP position is that the earlier visa stamps remain valid as an entry document, but the new H1B approval notice is required to be shown at the airport (or other port of entry) to obtain a new I-94 card valid until the approval notice dates mentioned on the latest H1B approval notice for both the H1B and the H-4. Before taking this step, however, please consult with a qualified immigration attorney regarding potential issues of abandonment of the I-485, if you return using the H-1/H-4 rather than an advance parole.

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Chat User : Thanks for your service. I want to know whether it possible to transfer H1B of Company A (I-94 was valid until March 2008) to company B. I have not completed 6 years cap of H1B so far. Presently I am in L1B in Company A. Thank you.

Attorney Murthy : The general rule, as per USCIS policy, is that the H1B can be filed by a new employer for the balance of time left in the 6-year total available of H1B and L-1 time counted together, without the quota issue if the person's H1B was filed within the last six fiscal years.

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Chat User : I-140 approved, I-485 (cross chargeability) pending, PD is current for 2 months now. I have 10th-yr H-1 renewal pending for ~11 months, which USCIS said is under background check. Do you have any advice on the course of action? Thank you.

Attorney Murthy : The options in such a situation depend on an individual's background. If there is some known reason for the background delays, it must be considered. If there is no known reason, then possibly a writ of mandamus, demanding that the USCIS issue a decision on the case should be filed and demanded on both the I-485 and possibly the H1B extension, as well.

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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 : What issue can be there be at the port of entry when one has H-1 visa stamp of previous employer but H-1 approval of current employer?

Attorney Murthy : As I explained earlier in today's MurthyChat, the earlier H1B visa stamp is valid as an entry document, but the individual entering must show the latest H1B approval notice with the current employer to obtain the I-94 with the validity dates to match the latest H1B approval notice dates.

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Chat User : Is it possible to travel out of U.S. and return on previous company's H-1visa stamp with new company's H-1 approval, if one has been on bench (out of status) for 4-5 months in U.S. with the new company before moving out of U.S.?

Attorney Murthy : Generally, it is possible to travel abroad and reenter using the earlier employer's H1B visa stamp even if one has been out of status. Having been out of status could pose a problem when one applies for the I-485 during the last stage of the GC process, especially if the period out of status exceeds 180 days. Then it is risky, but the travel normally fixes the problem.

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

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Chat User : Thanks for your service, Madam. For how many months can a person on H-1 remain out of the U.S. in order to not risk his return with the current H-1 employer?

Attorney Murthy : Well that will not depend on U.S. immigration law but on the employer's policies. Some employers will terminate the employment if the person is out for more than 2 weeks or a few days without permission. In other cases the employer may be willing to keep the position open for longer. The H1B visa stamp and the H1B petition both remain valid for the entire time, unless the employer revokes the H1B petition. If the employer agrees to the leave time, perhaps due to a reduction in work, then this is possible. But, legally the employer has no obligation to keep the employment open for a long time since, presumably, the employer expects the individual to work based on the H1B approval notice.

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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 H-1 approved petition was sent to USCIS by the U.S. Consulate at Chennai for further review on the employer in Sep 2008. I am now in the U.S. on H-4. May I shift employers and start working, as my case is already approved? What is the best way forward?

Attorney Murthy : It is possible that the H1B petition was returned by the consular officer to the USCIS for a revocation of the H1B petition based on a review of the employer. In that case, the person cannot work for the H1B employer unless a new H1B petition to work for a new employer, or at least an amendment to work with the same employer, has been filed or approved. It potentially would be possible to obtain another H1B approval. The best way forward will require a consultation with a knowledgeable attorney to understand nuances and help the person with the specifics based background, risk profile, and the earlier H1B approval situation.

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Chat User : My husband is working on L-1 and my H-1 is stamped, as well. I am currently in India. Which one in better from a long-term perspective: H-1 or L-2 followed by EAD?

Attorney Murthy : For any good lawyer to be able to provide case-specific advice, one should schedule a consultation with the lawyer to provide a lot more details regarding the background and goals of the individual. If the goal is simply to work for the short term, most likely the L-2 with the EAD is sufficient. On the other hand, if one wants GC sponsorship, either as a backup for the spouse or for other reasons, then having an H1B with the employer ready and willing to sponsor the LC/GC may make some sense. It also depends upon how secure the L1's employment is at this time. It is wisest to discuss the options during a detailed consultation for your own security and to ensure the wisest decision.

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

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Chat User : If a person working on H1B (with I-485 filed by his employer in 2007, with I-140 approved) is laid off, what happens with the statuses and GC application for him and his dependants? In that situation, is he legally allowed to be unemployed?

Attorney Murthy : The rule of law is that the GC is based on a future job offer. So working today is not as critical as showing a full-time job offer in the same or similar job classification at the time of the I-485 approval. That is the crux from a legal perspective for the USCIS to approve the I-485/AOS. One would not be maintaining H1B status, but would still have the I-485 pending. We have a lot of AC21 information, including FAQs on MurthyDotCom. We can advise on concerns of this nature, and represent people with I-485s after layoffs, as well.

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Chat User : My H-4 and I-94 expired on 30.Sep.08. My H1B is still pending and was selected in May 08. How long can I stay in the USA, based on my H1B application pending?

Attorney Murthy : If changing from H-4 to H1B, then, generally, one is in a period of authorized stay while the H1 case is pending. There is not a time limit, as long as the H1B petition was properly and timely filed. If one previously held H1B status, under AC21, the person may be able to work indefinitely based upon the filing of the H1B petition by the new employer.