Chat : December 17, 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 : I am here in India to participate in our regular MurthyChat. We welcome your questions and look forward to helping you with your immigration matters.

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Chat User : I-140 got denied; reason given was filed in wrong category. What happens to my I-485 if I re-file the I-140 in EB3? The denied I-140 was filed in EB2.

Attorney Murthy : You must have your file reviewed carefully to consider your options. It is possible that one may be able to file a Motion to Reopen within the first 30 days and request the USCIS to assign EB3 classification for a quick review. In fact, if the RFE had been correctly responded to, this option of allowing the USCIS to either assign EB2 or EB3 should have been given. Other options may be to file a new EB3 and start a backup, new PERM process. You must consult with a knowledgeable attorney to try to remedy this situation. Normally, the denial of an I-140 petition means that the I-485 will also be denied, because the I-485 is based upon the underlying I-140.

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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 : When I-140 filed under EB2 is denied and a new I-140 is filed under EB3 (within 15 days of denial), what happens to the pending I-485? Can it be interfiled or will it be denied?

Attorney Murthy : Generally, the USCIS will allow the pending I-485 to remain pending along with the EAD and AP until a decision is made on the current I-140 file, as long as the current file has been appealed or an MTR has been filed. A new filing may not afford the same level of protections unless the USCIS joins the two files on their own, which does not happen as easily.

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Chat User : During the GC process, after the prevailing wage is determined and you are hired at a rate equal to that wage, is it required by law that your employer matches the prevailing wage when it goes up every year?

Attorney Murthy : The law only requires the employer to hire and pay the foreign national the GC wage at the time the GC is approved. The DOL wage changes do not entitle a person to that wage since that wage is simply an amalgamation of various factors and, in every industry and with each employer, there is always variation based on one's education, work experience, and ability to perform an outstanding or average job.

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Chat User : I have got H1B and EAD and want to work using EAD - not for the H1B employer, but would like to keep H1B for backup. What are my options?

Attorney Murthy : An option is to file a new H1B to work for the new employer to ensure maintenance of H1B status, while keeping the EAD available in case it is needed. If one works on EAD, s/he is not keeping the H1B status.  

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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 : Can one file for H1B transfer with another employer after entering USA on Advance Parole?

Attorney Murthy : It is possible to request H1B status again within the U.S., even if one has entered on AP, provided that the individual continues to have a valid H1B I-94 and continues to work for the H1B-sponsoring employer after entering the U.S. on AP.

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Chat User : What is your opinion on retrogression? How long will it take before people with PD 2006 get their I-485 approvals?

Attorney Murthy : It is difficult to predict and it will depend on EB2 v. EB3. Based on prior years, it could take 3 to 6 years longer, but then a window could open up for a month or two in the middle like last time. The DOS insists that it did what was right all along with the July 2007 Visa Bulletin and it would do the same thing again if the same set of facts were to occur again!

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Chat User : Any chance of being allowed to work during the 3-month gap between OPT and H1B?

Attorney Murthy : Unlikely, based on the USCIS policy of not providing even "cap gap" relief to permit one to remain in the U.S. after the OPT 60-day grace period, but it is possible if one obtains something like the F-1 CPT after enrolling in a new course of study.

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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 : I got my H-1 approved in Jan 2007, but I couldn't work, hence moved to H-4. Now I plan to work, how can I get back my previous H-1 status?

Attorney Murthy : By similarly filing a COS from H-4 to H1B from within the U.S. or traveling abroad, applying for the H1B visa stamp, and reentering the U.S. in H1B status to work for the new H1B employer.

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Chat User : Great Service! My employer didn't include the ETA750B from while filing my I-140 with labor substitute. Is it a mandatory form?

Attorney Murthy : It is possible that the USCIS will deny the I-140 petition based on failure to include a piece of material evidence. If you are lucky, you will get an RFE and can include it then. Keep it fully ready with the dates to match everything else by reconfirming matters.

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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 : I am a permanent resident. I need to leave the U.S. for about two years. How do I make sure I can return, and what does this mean for becoming a U.S. citizen?

Attorney Murthy : One can try to file for the reentry permit to maintain the ability to return to the U.S. in GC status, but it will not preserve the time and continuity of residence for filing for U.S. citizenship. The reentry permit does not guarantee the maintenance of the GC, but usually the CBP Inspectors tend to respect that approval in allowing one to reenter the U.S. within the 2-year timeframe, as long as the person continues to have ties to the U.S. and has not abandoned residence.

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Chat User : What may happen if the spouse uses EAD when I-140 of the primary applicant is not approved?

Attorney Murthy : There is no problem if the spouse uses the EAD, but the risk is if the I-140 petition is denied. Then the EAD will also become void and the spouse will need some other basis to work for the employer, if possible, or at least to maintain legal nonimmigrant status, like the H-4 status.  

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Chat User : Is there a separate application for AC21 portability or is it just enough if one notifies USCIS after change of job? Thanks.

Attorney Murthy : The law does not provide for an application, but one must show eligibility under AC21 portability by evidencing the nature of the new job duties, job title, and arguing that it fits into the criteria. Then, if there is another change of employers, it is safer to notify the USCIS again to avoid any appearance of fraud at the time of the I-485 approval.

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Chat Master : After the Chat, browse MurthyDotCom - your best source for a wealth of information on U.S. immigration issues. Our Bulletins, Updates, Chat Transcripts, and FAQs are all there to help in your search for details and answers. Begin at: http://www.murthy.com

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Chat User : Applied B-2 visa extension for my in-laws. Got the receipt. Can they stay here even if they do not get approval before their current I-94 "to" date?

Attorney Murthy : Although one is allowed to remain while the EOS is pending, if there is a 10-year B-2 visa stamp, for example, and the EOS is denied, then the B-2 visa stamp becomes void under law and cannot be used to enter the U.S. if one stays beyond the date of the valid I-94 card. It is safest to avoid the temptation to file extensions, since it shows that the in-laws obviously do not have very strong ties to their home country if they can remain abroad in the U.S. for over 6 months! Even if it is approved, it can cause problems for future travel. Of course, if there is a true life-and-death emergency, or they are physically unable to board the plane, an EOS is appropriate.

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Chat User : What are the options for people who don't have I-485 receipts if they want to switch jobs using AC21 after 180 days of I-485 on file?

Attorney Murthy : If one has an A (or Alien) number, that may be sufficient in lieu of the I-485 receipt number, but it is safest to wait for the I-485 to ensure that the USCIS is able to merge the file to the correct person. Check the back of the filing fee checks for the receipt number, so that at least that is on hand, along with the online status printout.

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

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Chat User : Hello, Ms. Murthy. Can a person be without pay on an EAD for a long duration, or should s/he be on payroll all the time?

Attorney Murthy : A person does not need to be working while on EAD, unlike the H1B status, since one is allowed to work, then stop, then work again, as the EAD is not as restrictive as the H1B status that requires working only for the named H1B employer and under the terms listed in the H1B petition. Of course, if the USCIS issues an RFE on the I-485 that requires a job offer letter, one will need to be able to produce that letter. It is not necessary to actually be working (for instance if a break is taken before starting a new job), but one will need a valid job-offer letter.

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Chat User : Good morning, Madam. My H1B extension got approved in Nov 2007.My actual salary and amount mentioned in LCA has a difference of $20,000. Will this be a problem during my visa interview in India?

Attorney Murthy : This could pose a problem, though with the GC cases we find that the consular officers are not as strict as with H1Bs, since the H1B requires the payment of the wage at the time of person working in H1B status, while the GC only requires the payment of that GC wage when the GC is approved and the person enters the U.S. as an immigrant. It should be okay, assuming that the wage being paid is higher than the LCA, unless that raises questions about whether the H1B needs to be amended to reflect some changed or enhanced job duties.

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Chat User : Have been in H1B status since Oct 07; on bench no pay. Have EAD through spouse. Can I resign H1B employer and look for job based on EAD?

Attorney Murthy : Yes, it is possible to work using only the EAD and argue that there was no unlawful presence, since the I-485 was already filed and the EAD approved.

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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 : If F-1 is rejected, is it possible to reenter the U.S. on the previous, valid H4? Is getting LC cleared a detrimental factor for the dependent's F-1?

Attorney Murthy : It is possible for one to reenter the U.S. in H-4 status if the F-1 is rejected, as long as the consular officer does not cancel the H-4 visa stamp. Any number of factors, including the spouse's LC, could be taken into account while considering the F-1 visa issuance abroad.

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Chat User : After AC21, can an employer revoke approved I-140? and, if so, how does it effect the I-485 process? Thanks.

Attorney Murthy : An employer has the right to revoke the I-140 and the I-485 applicant must respond to the NOID by showing eligibility under AC21 portability. It is laid out in the Yates Memo that we have summarized on MurthyDotCom. If the applicant has provided information about the use of AC21 to the USCIS, they should not even need to send a NOID. They should just process the case. However, they do not always follow their own procedure. We see denials, on rare occasion, because the I-140 was withdrawn. For these, a motion to reopen is necessary and, in all of our cases with this problem, this has worked to put the cases back on track.

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Chat User : If I change jobs on H1B 8th year while I-140 is pending, can my new employer file for visa extension?

Attorney Murthy : It is possible for the new employer to file an H1B one-year extension now and then for 3 years, if the I-140 petition is approved with the earlier employer. This option is possible only as long as the I-140 remains pending and has not been revoked or denied by the USCIS.

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Chat User : My H1B amendment (job designation changed) is pending. I am planning to visit India soon for the first time. Should I wait for the approval? Will getting it stamped to reenter be a problem?

Attorney Murthy : The consulate cannot issue an H1B visa stamp on a petition that has not been approved. Either one must pay the premium fee and attempt to obtain the latest approval or use the earlier approval with the new receipt notice to file for the H1B visa stamp. However, if the job has changed so that the job in the approved H-1 petition is no longer valid, then it is necessary to get the amendment approved and use that to apply for the visa.

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Chat User : Respected Murthije, my I-140 is cleared and I filed my I-485 in July. Now my company has changed the name and address. Is there any problem with this change?

Attorney Murthy : If this is simply a change in the company name, not involving any change in corporate structure / merger or spin-off issues, then it may be that nothing needs to be done. If there is an RFE for an employer letter, then the employer will need to include proof of the name change to clarify its proper identity as the same employer that filed the LC and I-140. There could be an issue with the relocation. If the company relocated and the workplace is not included on the labor certification as a place that the foreign national will be working, then it would be necessary to argue AC21 portability after 180 days of the I-485 pending. AC21 does allow for relocation within the same company. On the other hand, if there is a merger or buy-out situation, then one has two choices. Either it is necessary to file a new I-140 showing that the new employer is a successor in interest for immigration purposes to the old employer, or argue AC21 portability.

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

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Chat User : If the dependent uses her EAD and leaves the county and gets H-4 stamped on way back, does it invalidate her EAD? What's the impact on the primary's H1B?

Attorney Murthy : The general rule is that the H-4 and the EAD are both valid under the dual intent doctrine for Hs and Ls. It does not impact the principal in H1B or L-1 status, in such cases. However, it is best not to enter in the H-4 and then resume use of the EAD immediately upon return, as that is contrary to H-4 status. If immediate employment is desired, then it would be best to travel on AP.

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Chat User : Can one work as an independent contractor on EAD? Will this affect his GC? I-140 and labor are approved.

Attorney Murthy : A person is allowed to work as an independent contractor on the EAD. When the USCIS issues an RFE to confirm a full-time job or employment letter, one must be able to demonstrate that to obtain the I-485 approval. It is possible to use AC21 though one's own company. Thus, it may be possible to set up one's own company and then contract for services through that company, so that there is a valid employment offer.

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Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to http://www.murthy.com/mforum.html.

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Chat User : My employer is yet to file for LC. Looking at the current retrogression in EB2 category, do you advise getting the LC filed under EB3 category instead of EB2, for which I am also eligible?

Attorney Murthy : Generally, the EB2 will always move ahead of EB3 at some point, and this type of situation seems like a temporary aberration, though it is symptomatic of the fact that all eligible Indian nationals attempt to file under EB2, causing backlogs in that category. It is difficult to be absolutely certain as to whether this trend will continue.

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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 : Should we consider dependant receipt dates for AC21 180 days count? or only the primary applicant's receipt date?

Attorney Murthy : Only the primary applicant's filing dates are relevant for counting the 180 days to argue AC21 portability eligibility.

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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 : How does one find out if the name check has been cleared? Thanks for an excellent service!

Attorney Murthy : By contacting the FBI / USCIS. Unless there is a delay based on name check, a majority of the cases are approved with the security and name checks, but some linger on for years. These are a small minority of cases, in terms of total numbers.

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Chat User : Can AC21 be used in case one has used approved labor to get the I-140?

Attorney Murthy : It is possible to use AC21, even in LC Sub cases, but one must be more careful since it is possible that an annoyed employer may request the USCIS to revoke the approved I-140 petition, causing a delay in the I-485 approval and requiring the person to show AC21 portability eligibility.

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Chat User : Hello, Murthyji. Due to my lawyer's mistake, we filled a second I-485 application. Now both of my applications have been accepted at USCIS. Because of this, I received two sets of FPs and EADs. Will this create any complications? What should I do at this stage?

Attorney Murthy : We advise most people not to file two I-485s, since it is possible that this may cause delays in the approval of both I-485s. However, once it has been done, you may just want to process both until you get an RFE on this matter, as trying to withdraw one may cause more confusion. For renewals, only one EAD/AP should be requested.

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Chat User : I am on F-1 visa with an OPT and my husband has green card. The I-130 has been filed for me. Will there be an issue if I leave the country to visit my parents in India while on F-1 visa? Will the I-130 processing affect applying for an H-1 visa?

Attorney Murthy : It could create an issue if the CBP officer finds out about the I-130 filing when attempting to enter in the F-1 status. It should not affect the H1B, as that is a dual intent visa.

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

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Attorney Murthy : For the next two Monday evenings, we will not have the MurthyChat as it is Christmas Eve and New Year’s Eve. We expect to have all of you and others in our MurthyChat with us in 3 weeks at the same time. Thank you for your interest in using the services of the Murthy Law Firm and for using our MurthyChat. Happy New Year!

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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