Chat : December 11, 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 related issues. Thank you for your interest in our MurthyChat.

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Chat User : Is it possible for a person to travel on advance parole and for his/her spouse to continue working on an H-1 visa?

Attorney Murthy : It is possible for one spouse to be on the H1B and the other spouse to use the EAD and AP to return since the I-485 is based on each person's adjustment of status application at the USCIS.

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Chat User : Hi. I'm in the U.S. on an L-1 visa. My wife is a green card holder, and she applied for my I-130. I want to change to an H1B visa next year. My question is, can I apply for H1B while my I-130 is pending? Thanks for your response.

Attorney Murthy :  The general rule is that, since H1B and L-1 are both dual intent statuses, there is no problem in filing for an H1B while the I-130 petition is pending. There is no conflict of intent in such a case, as the law allows one to have both the nonimmigrant and immigrant intentions simultaneously with the H and L as they are considered dual intent, under law.

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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 : Hi! I am going for H1B revalidation / stamping with my family (H-4) to India. We could not get a family appointment. My son and wife got H-4 interviews about one and one half hours earlier than my H1B interview on the same day. Will there be an issue for my family? In other words, can an H-4 be issued prior to H1B visa issue?

Attorney Murthy : There is no prohibition, generally, that the H1B principal needs to obtain an H1B visa stamp in the PP for the family members to obtain the H-4 visa stamps. As long as the H1B petition has been approved, the consular officer is allowed to stamp the H-4 visas. It may be worthwhile for the family to try to go together or explain that the H1B principal is available at the same time.

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Chat User : I am leaving the U.S. to get my H1B visa stamped on my passport for my current employer. After I renter the country, I plan to get my H1B transferred to a new employer. After that, if I leave the country, do I have to get my passport stamped again before reentering?

Attorney Murthy : The general rule is that a visa stamped for one to work for a prior employer continues to be valid for use with a new or subsequent employer as long as the expiration date of that visa has not yet passed. An individual entering the U.S. must show the new H1B petition approval with the current H1B employer on the next entry along with the earlier, unexpired H1B visa stamp, in order to obtain an I-94 with the correct validity date to show the latest expiration date at the time of entry.

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Chat User : I am on F-1, and it has been more than 90 days since I applied for my EAD. I had an RFE and responded to it. My case is pending, and it has been more than 60 days. I have graduated. Is my F-1 status jeopardized?

Attorney Murthy :  As long as a person filed for the EAD / OPT prior to graduation and it is pending at the USCIS / ICE, then s/he generally is allowed to remain in the U.S. If the F-1 OPT is finally issued, then one may start working from its validity date. If it is denied, then the person is required to depart the U.S.

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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 one refile for a GC in EB2 category and port the earlier-approved EB3 LC and I-140 even without a copy of the previous LC and I-140? What evidence is required to prove to port the earlier PD to the new one?

Attorney Murthy :  It is possible to port an earlier PD from any employment-based category, whether EB1, EB2 or EB3, to another EB category with a new employer. One must submit a copy of the earlier I-140 petition approval to show that the LC and I-140 petition were approved to request the earlier PD to be ported to the new I-140 petition that is filed after a later approved LC / PERM. Without the I-140 approval, the request could still be made, perhaps using the USCIS online status printout for the I-140, if the person has the receipt number. However, there is no assurance that this will work.

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Chat User : My 2003 EB2 labor is currently pending at the BEC. Since then, I got promoted twice, and my title has changed and my salary has increased by 37%, but I perform 80% of the same job duties and report to the same manager. Would this require a refile under PERM? If so, how can I retain my original PD?

Attorney Murthy :  Correctly speaking, each time there is a substantial change in the job title and job duties, usually about a 15% change in salary, the USCIS considers that to be a new position and may require a new LC filing. The earlier PD cannot be ported to a new case since conversion requires an identical case for PERM, though the DOL has recently issued guidance on this topic. The safest approach is to obtain the earlier LC approval, file the I-140 petition, and, after it is approved, use that earlier PD to a later filed LC / PERM with the second I-140 petition.
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Chat User : Hi, Ms. Murthy. I am a GC holder, and my husband is on F-1 (student visa since 2003). We got married in August 2006 in India. How can my husband obtain a GC at the earliest?

Attorney Murthy : As you know, the delay for spouses of GC holders makes it more practical in some cases for the spouse to maintain separate status and file based on an employer, unless the GC person is eligible to obtain U.S. citizenship in the near future. It is worthwhile discussing this issue and potential options based on timing and status expiration with a qualified immigration lawyer. If you don't have one, then feel free to eMail law@murthy.com, and we can help you.

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Chat User : Hello, Madam. I have a valid H1B in my passport and a valid AP and EAD with a pending I-485. If I leave the country and reenter the U.S., should I reenter on H1B or AP, and why?

Attorney Murthy :  It is usually better for one to enter on H1B status, since that leaves both options open in case the I-485 is denied for some reason. That is why, wherever possible, it is recommended to maintain backup H1B status even after filing the I-485 AOS application.

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Chat User : Does one need to apply for AC21, or is it just a law that allows one to transfer companies after the I-140 is approved and the I-485 pending for 180 days?

Attorney Murthy :  Although the law allows just transferring companies, the USCIS since June 2001, the very first Memo interpreting AC21 mentions that they "expect" that the person will notify the USCIS / INS of one's decision to change employers under AC21 to avoid the possibility of the I-485 denial. It is also safer so that there is no allegation of fraud later, in case the I-485 is approved and the person wants to file for citizenship after 5 years.

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Chat User : I've been waiting for my labor through PERM for two months now. Do I need to worry about it yet, or should I wait at least 90 days?

Attorney Murthy :  There is no magic timeframe. Although many cases are certified within 60 to 90 days, some are earlier and some are later. Sometimes there is an audit and, at other times, there seems to be some other delay. In case the advertisements are expiring the employer and the attorney need to decide if it makes sense to file the PERM case again to save time and money.

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Chat User : I filed my I-485 in August 2004. I got my EAD and have renewed it a couple of times so far. I’m still on H1B. When I go for vacation to India on AP and once I'm back in the USA, will I be on H1B status or on EAD?

Attorney Murthy :  As mentioned in the May 2000 USCIS / Legacy INS Memo, one may enter on the AP but is legally allowed to file for the H1B petition extension, so can get back in H1B status even after entering on the AP. It is safer to use the EAD to work after entering in AP, but one is allowed to file the H1B extension later, too.

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Chat User : I am in F-1 status that expires February 2^nd. My private university does not give OPT. A company is ready to file my H-1 for April 1, 2007. Kindly let me know how to stay in status for February and March.

Attorney Murthy :  The general rule is that, after the expiration of the coursework on February 2, 2007, one is allowed to stay on for a 60-day grace period and still be considered as maintaining valid F-1 status. However, the problem is not April 1, 2007, but the gap from April 2, 2007 until October 1, 2007, the start of the H1B status. One is not considered to be maintaining status during that gap in status. This may require that one reenroll in school or convert to B-2 status for tourism, or consider other options that may apply in that particular case.

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

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Chat User : Ms. Murthy, my 5 years of H-1 will complete in February 2007. Is it mandatory that my PERM be started before the start of the 6th year to get the 7th year extension? Will I get a 3-year extension if my I-140 is approved during my 6th year?

Attorney Murthy : It is possible to obtain the 3-year H1B extension based on the I-140 petition approval, but it is taking a risk in case there is a delay by either the DOL or USCIS in approving the LC and I-140 petition, respectively. It is safer to have a backup plan and file the PERM before February 2007, if possible,  to avoid the possibility of having to depart the U.S. for a few months, or longer, for failing to act in a timely and prompt manner where there may be sufficient time to file the PERM ASAP.

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Chat User : Hello, Madam. Thank you for your great service. I'm on L-1, and I have a valid H-1 (filed as change of status). I left the country and reentered to be on L-1. Can I switch to an H-1 employer now?

Attorney Murthy :  To change back from L-1 to H1B, it may be that one either has to file an H1B amendment / change of status now, so that the last action rule of the DHS shows that the person's H1B is the latest valid, correct information; or one may choose to travel abroad, apply for the H1B visa stamp, and then reenter the U.S. in H1B status.

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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 : How do multiple AC21 job changes affect PD porting from EB3 to EB2? Does the risk increase with each AC21 job change? When a PD is ported, what happens to the pending I-485?

Attorney Murthy :  Changing jobs under AC21 is a different process from retaining the priority date when refiling a green card case under EB2, where there is an earlier EB3 PD. When one changes jobs under AC21, s/he continues the existing green card case, based upon the EB category and priority date in that case, even if the new job may qualify for a better EB category. This is different from the situation in which one has an approved EB3 I-140 petition and later has an employer file a new EB2 PERM case, and the person requests to retain the PD from the EB3 case to the EB2 case.

If one has a pending I-485 application and s/he obtains an approved I-140 with a current priority date, the individual may wish to try to interfile the latest I-140 petition approval with the pending I-485, and the USCIS can proceed to approve the I-485 AOS based on the PD's being current and the new I-140 petition approval. If the PD is not current, then the I-140 petition can be kept in abeyance, and when the PD becomes current, the USCIS is supposed to use the most current I-140 petition approval to approve the I-485.

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Chat Master : We are happy to provide you with this FREE SERVICE. Another great service from the Murthy Law Firm and MurthyDotCom!

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Chat User : Good evening, Ms Murthy. I would like to refile I-140 under premium processing. I filed one under EB2 category premium processing in the last month, but it was denied due to my not having provided sufficient experience letters from previous employers. I now have those letters and would like to refile I-140 under premium processing. Can I do this?

Attorney Murthy : It is possible to keep filing I-140 petitions under the PPP, but it is better to file them correctly and slowly with all the required information instead of rushing to file with insufficient information. The PPP is helpful if one needs it for the 3-year H1B extension since, if the PDs are not current, it is not so helpful in being able to file the I-485 or enjoy AC21 portability unless the PDs are current. It is necessary to have the original labor certification in order to use PPP. Therefore, in this situation, it is likely that the original labor certification accompanied the first I-140 and is not available for filing with the subsequent I-140.

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

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Chat User : Hello, Murthiji. Is it advisable for an EB3 applicant who is in the last stages of the I-485 application, but is waiting for visa numbers to be available to reapply in EB2 category, especially when the future of EB3 visa number availability is unknown?

Attorney Murthy :  There is a backlog for both EB2 and EB3 for nationals of India, though it is true that one expects EB2 to move a little faster than EB3. If there is truly a new job in EB2 for which one qualifies, then the person could file under that EB2 classification and ask for retention of the priority date from the EB3 case.

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Chat User : At the time of I-140 and I-485 filing, is the USCIS only concerned with whether the requirement was gained before the priority date and not the joining date? Thanks.

Attorney Murthy : Both factors / criteria are taken into account. One should have acquired both the education and work experience before joining the current or sponsoring employer and prior to filing the LC / PERM case, since any experience gained with the current employer cannot be counted unless the future job description is at least 50% different from the earlier position.

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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 : I have an H-4 extension approval notice and a subsequently issued H-1 approval notice, but I haven't been working. Can I travel to Canada and reenter on my H-4 approval notice to change status back to H-4?

Attorney Murthy : The only problem that I can foresee with travel to Canada or Mexico for fewer than 30 days is that no new I-94 card is issued at the border, so that the burden is on the person to show foreign travel and reentry on H-4 status at the time of filing for the I-485, for example, to show that one stopped being out of status for over 180 days. It is usually safer to travel abroad outside the U.S. contiguous territory and reenter, especially where one has a valid H-4 visa stamped in the PP, so that s/he simply obtains a valid new I-94 card at the border that can be submitted when filing the I-485.

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Chat User : Hi, Ms. Murthy. I'm on H-4. Can I stay in the U.S. when my husband goes to India on a 3-week vacation?

Attorney Murthy : Yes, it is possible for the principal H1B to travel abroad while the H-4 dependent/s remain in the U.S., as long as it is clear that the H1B is traveling abroad temporarily and has not decided to return permanently.

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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 : Hi. The district office in New Orleans is not issuing interim EAD cards. It's been more than 90 days since I applied for my EAD, and I have responded to their RFE. I have a job offer lined up. I am not sure how to go about this! Kindly advise.

Attorney Murthy :  As we have written some articles in the MurthyBulletin, most district offices have stopped issuing interim EADs based on instructions from USCIS HQ. Follow up with the local office and the service center to find out what is going on with the EAD renewal. Have the employer write a letter to the senator and/or congressperson to push, and do not keep quiet until something happens, since the government may not realize that your job may be jeopardized with the EAD.

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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 are pleased to help you, your family, and 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 © 2006, MURTHY LAW FIRM. All Rights Reserved