Chat : December 18, 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. Thank you for your interest in our MurthyChat.

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Chat User : I plan on changing jobs using AC21. Should I inform USCIS of the job change or wait until they issue RFE on I-485? Thanks.

Attorney Murthy : It is safer and better, per the USCIS memos, to proactively notify the USCIS. This way, whether or not there is an RFE, it will protect one as having notified the gov't, in case the I-485 is approved by the USCIS without an RFE. Otherwise, there is a potential risk in concealing the fact that one has changed employers.

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Chat User : If a Perm case is filed based on future (promotion near end of 2007) job description, can one utilize corresponding LC and I-140 approval for H-1 extension (different job, but same company)?

Attorney Murthy : The general rule, based on USCIS policy memos, is that one is allowed to use the LC and I-140 petition approval for any employer and any job, even if it not related or connected to the H1B petition for filing the 3-year H1B extension based on the PD not being current and the I-140 approval. So if it is with the same employer as in this example, it is less of an issue.

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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 : Good evening & a happy year ahead for you! I came on a B-2 visa, converted it to F-1 & then H-1. For visa stamping should I go to Mexico or Canada or to my home country (India)? Please advice.

Attorney Murthy : Well, there is a risk whenever one applies for the H1B visa stamp in this type of situation, since the consulate anywhere will want to investigate before issuing the visa. It is likely that the consulates in Mexico and Canada will request that you apply for the visa in the home country, unless you completed and obtained your degree (bachelor's or master's) from the U.S. which is implied in your changing status to the F-1. In that case, the neighboring countries may decide to issue the visa, but if they deny it or refuse to consider it, then the visa applicant is required to travel abroad to the home country to apply for the visa.

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Chat User : If employer-based green card holder's employer fires the employee for any reason, is there any way that employment-based green card holder's green card is adversely affected?

Attorney Murthy : If the individual has already obtained the green card, then being fired would not affect the validity of the green card. It may be an issue if one applies for naturalization, as the USCIS is likely to look at the length of employment following green card approval. If this period of employment is not very long. In this case it may be necessary to explain the situation. If, on the other hand, the green card case is pending (not approved) when the person is fired, how much is lost depends upon the stage of the case. Generally, if the sponsoring employer fires the employee and has no intention of rehiring that employee, then the entire GC process is lost forever, possibly barring carrying the PD from that case after the I-140 petition approval or in the alternative, if the LC and I-140 petition were approved and the I-485 was filed and pending for over 180 days. In the latter case, the AC21 portability will allow the individual to continue pursuing the GC if the new job is considered the "same or similar."

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Chat User : I have been employed with a company on the H1B since August 2006. If I get laid off, do I get a grace period to stay in the U.S., which could buy me some time to look for another job? Is the process for the H1B transfer as rigorous and time-taking as a filing for a new H1B petition?

Attorney Murthy : The law does not provide for any grace period for an H1B employee after being fired or laid off. The employer has a legal obligation to pay for the one-way transportation for the principal beneficiary. Each time a person files an H1B with a new employer, the process is very similar, except that one is not subject to the H1B quota. Other than that, the documents, process, etc, need to be similar to the original H1B filing.

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Chat User : Currently I'm working in L-1 status and my wife's working in L-2. My 7-year cap is going to come up sometime next year, but my wife has some years left. If my wife's employer changes her visa to an L-1 or H-1, can I continue to stay in the U.S. on a dependent visa even after my cap?

Attorney Murthy : The law is not clear on this matter, but it is generally understood that the H-1/H-4 and L-1/L-2 times are counted against each other in determining the maximum. If your spouse or you file the LC/GC process, then there are extensions of the H-1 that may be allowed. If the decoupling memo is released by the USCIS, as promised over a year ago, then there may be some hope. Otherwise, it is risky to rely on the good intentions of the gov't. Consider other alternatives, like pursuing an F-1 for higher studies, etc.

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Chat Master : Please make your question as brief as possible. Keep in mind that lengthy, case-specific Questions are not as likely to get answers as shorter, general ones.

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Chat User : I am on H-1 thru employer A and subsequently my I-485 was filed through my husband thru his employer B. Can I extend my H-1 thru my employer A without harming my I-485 filing?

Attorney Murthy : Based on the reading and interpretations of the memos of Legacy INS from March 2000 and May 2000, it certainly appears possible for one to renew an H1B with one employer and continue the I-485, whether as a dependent or with another employer. In this scenario, extending the H1B should not pose a problem due to the dual intent memos.

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Chat User : Thanks a lot in advance for the kind-hearted services, Labor/I140 approved, got 3-yr extension after completing 6yrs of H-1. If I change my employer now, can I get 3-yr extension, and can I keep my priority date even if my employer cancels I-I40?

Attorney Murthy : Based on the current understanding of the law and the USCIS interpretations, one is allowed to file for a 3-year H1B with a new employer based on the I-140 petition with another employer. Also, the person should be able to retain the earlier PD unless the USCIS believes that there was some sort of fraud. We have seen them grant the earlier PD in most cases, even after the earlier employer revokes or cancels the previously-approved I-140 petition. Many employers nowadays are choosing not to pursue revoking the I-140 petition, especially if the employee paid for the processing.

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Chat User : My question is regarding application for citizenship. Is it advisable to apply for citizenship when the green card is expiring in six months, or is it better to wait after renewing the green card.

Attorney Murthy :  There is no correlation between the expiration of the actual GC and filing for U.S. citizenship. If the U.S. citizenship is approved before the issuance of the I-551 card, then one will just get the Certificate of Naturalization rather than the renewed I-551 card. Of course, one must wait for the 5 years after getting the GC (3 months earlier filing allowed) or 3 years if married to a U.S. citizen (3 months earlier filing allowed here too).

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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 : Hi, Ms. Murthy, I had a question regarding H1B visa. A medical software company is willing to sponsor my cousin, a doctor, as a medical consultant. Is that feasible?

Attorney Murthy : It is possible that an employer can sponsor a person as a medical consultant, but if one is practicing medicine in any form, then that is considered illegal without a license in most states. So, it depends on the nature of the job duties, since a person without the appropriate state and other licenses may be able to act in some capacity but cannot be a nurse, doctor, pharmacist, etc, without having obtained the appropriate certification. It is wise to check with the state laws and it really depends on the nature of the job duties in such cases.

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Chat User : Is it likely for EB3 PD to move faster for countries other than India / China / Mexico? Any prediction?

Attorney Murthy : It is difficult to predict movement of PDs, since it depends on worldwide quotas and usage. The Department of State shares their analysis and predictions based on their projections and we report them to you all in our weekly MurthyBulletins and on MurthyDotCom. It is likely that all EB3 cases will move though India and China more slower than others, due to the high demand based on the the large populations in those countries.

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

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Chat User : Hi, Murthyji. If I don't apply for AC21, and I change my job with the same title and skill set after I-140 approval, and the I-485 is pending more than a year, will there be any problem?

Attorney Murthy : Why would a person not want to notify the gov't of a change of employer when the USCIS "expects" to receive notification per their June 2001 Legacy INS Memo? It is much safer and the cost and effort involved is not onerous, but it helps to provide a lot more protection in case of an RFE or, more importantly, if no RFE is issued and the I-485 is approved. The risk in the latter case is that, at the time of filing for naturalization, there could be an allegation of fraud for failing to notify the USCIS of the change in employers.

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Chat User : My I-140 is approved and I-485 is ready to be filed. Meanwhile, can I file a new PERM with new employer (he is very keen on filing)? Is it lawfully permissible to file perm while I-485 is pending?

Attorney Murthy : Under existing law, it is certainly possible for any other employer to start a new PERM filing for an employee with the intent and hope of hiring that employee in the future. After the PERM approval and the I-140 petition approval with the new employer, if the earlier PD is transferred to the new I-140 petition, then it may be possible to interfile the I-140 approval from the second case to the pending I-485 Adjustment application so that the person is allowed to work for the new employer and obtain the I-485 approval based on that new, substituted I-140 interfiled petition.

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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 : Thanks for your service. If a person already has a recent H1B stamping on the passport, but enters the U.S. in H-4, can s/he do a H1B transfer, or will the individual be counted against the visa cap?

Attorney Murthy : If the person has been issued an H1B petition approval within the last 6 years, then s/he should be allowed to file for a new H1B petition with a new employer and not be counted against the H1B quota. We at the Murthy Law Firm have successfully filed such cases. We saw one H1B case filed by another lawyer, which the USCIS threatened to deny, but we filed a motion and won. The employee was able to obtain a new H1B petition approval in a similar case without being counted against the annual H1B quota.

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

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Chat User : Thanks for your wonderful services Ma'am. I have an EB3 approved labor with PD 2004. I filed using EB2 and my I-140 was approved with PD 2006. Can I use my EB3 date for my EB2 next step processing?

Attorney Murthy : It is possible to request that the USCIS transfer the earlier PD from the earlier EB3 approval of 2004 to the new EB2 filing that was approved in 2006. Either an I-140 petition amendment can be filed or both I-140 petitions can be submitted when the PD is current with the I-485 and the EAD and AP.

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Chat User : I have an approved labor and I-140 from my company and am waiting to file the I-485(EB2). My boss now says he can only support me part time. Can I apply for a 3-yr H-1 extension on a part-time basis? Will this affect my green card processing in any way?

Attorney Murthy : The law allows for the GC-sponsoring employer to file and obtain the H1B 3-year extension based on either the FT or PT job. The only problem in this type of scenario is that, if the employer's financial tax returns or other statements do not show that they can afford to pay you based on the Department of Labor prevailing wage for the full time job from the date of filing the LC until the GC approval, the USCIS could deny the I-485 later on this basis alone. The LC is always based upon a full-time job offer, and the employer must be in the position to offer a full-time job. However, it is possible that the USCIS may not issue an RFE on this matter, but there is certainly some risk involved in hoping that they may overlook this.

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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 : My I-140 premium petition was approved last month. It was a labor cert substitution EB-3, Priority date Jan 2002. Which is the better approach: waiting for the EB-3 date to become concurrent or leverage my post-graduate degree and try to amend status to EB-2. My understanding is that the EB-2 status, if achieved, will make my priority date current.

Attorney Murthy : If one is able to, for example, file a new EB2 PERM case and then obtain an I-140 approval with the earlier PD in EB2, and if the PDs are current, then it is possible to file the I-485 with the EAD and AP so that the last stage of the GC-processing can continue.

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

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Attorney Murthy : For the next two Mondays, we will not have the MurthyChat, as it is Christmas and New Year on those days. We hope to have all of you with us for the next MurthyChat session in 3 weeks: same time and place! We wish you a Happy Holiday Season and Best Wishes for the New Year!

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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