Chat : March 31, 2003 Pursuant to our commitment to quality and attention to detail, Attorney Murthy reviews the MurthyChat logfile before it is posted on the website. This helps to clarify information and avoid confusion in both the questions and answers, given the nature and dynamics of the live chat.  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. ---------------- Attorney Murthy : Hello, dear MurthyChat participants. We are really happy that so many of you are with us again today. We hope that you find our MurthyChat helpful and cutting-edge, with the latest interactive information available on U.S. immigration law. We look forward to another wonderful session with you of our unique and popular MurthyChat. ---------------- Chat User : Is it advisable to get H1B stamped (from F-1) in Canada as I have to go there for my PR stamping? Attorney Murthy : It is generally not advisable for most folks to get their PPs stamped in either Canada or Mexico unless a person studied in the U.S. since the chances of getting the visa are not very good if a person studied in a third country. Even for a person who studied in the U.S., if there are any other issues, visa issuance could be problematic. ---------------- 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. ---------------- Chat User : Dear Ms. Murthiji, my wife and I are expecting our first child in the month of October 2003. Is there any restriction / consideration for my wife (being pregnant) to travel to India on approved AP? Attorney Murthy : There are no immigration law restrictions for a person who is pregnant. However, there may be airline or health-related restrictions based on her health and other factors. I have heard that some airlines do not allow a person who is more than 7 months pregnant to fly, though I don't know details or if that is accurate. It would also be necessary to check with the doctor regarding health restrictions. If the child is born outside of the U.S. to an H-4 mother, he or she will need to enter the U.S. as an H-4. The child would be a U.S. citizen if born in the U.S. ---------------- 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. ---------------- Chat User : Dear Ms. Murthy, I am presently on H-1 visa and it is going to expire in one month. Should I renew my H-1 or let it expire as I am filing for I-485 and EAD in 1-2 weeks. Attorney Murthy : It is not wise to allow the H1B to expire since the EAD may take about 3 to 4 months to be issued and one cannot work legally unless one has filed the H1B extension while still maintaining lawful H1B status. The I-485 filing keeps one lawfully in the U.S., but work is not allowed without a valid EAD or a work-authorized nonimmigrant status, such as the H-1. ---------------- Chat User : My wife traveled abroad on H-4 for 3 months. If my company cancels my H-1 and I apply for an H-1 transfer during this time, will she be able to reenter the U.S. on the old H-4? Attorney Murthy : Yes, generally, the H-4 visa stamp, along with the H1B approval notice with your latest employer, should enable your spouse to enter with a validity date matching your approval notice. We sometimes see that some people forget to renew the H-4 for the spouse when the dates are not coinciding, so it is safest for spouses to file their extensions together. In fact, it may be a good idea to file her H-4 extension either with you, if she is still in the country, or after her reentry to the U.S. to match your H1B approval notice date. ---------------- Chat Master : Please make your question as brief as possible. ---------------- Chat User : Can the dependents of the principal applicant of I-140 / I-485 file the I-485 at the same time with the principal applicant? Is this permitted? Thanks a lot. Attorney Murthy : Yes, that is legally permitted. In addition to filing documents showing eligibility to file the I-485, the spouse and children will need to submit the marriage certificate or birth certificates, respectively, to establish the familial relationship. ---------------- Chat User : If one files for I-485 and it is pending for a year and the PD for the case retrogresses, what happens to that pending I-485? Thanks. Attorney Murthy : That pending I-485 continues to remain valid, and the person has the legal right to renew the EAD and AP, etc., but the BCIS cannot approve the I-485 when the PD is not current. Essentially, the case simply remains as a pending case until the PDs become current again. ---------------- Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient. ---------------- Chat User : I am a GC holder and my fiancée is an F-1. If I marry him, will he be able to work immediately or would he have to wait until he gets a visa number? Attorney Murthy : He will not be able to obtain work authorization to work legally until the PDs become current. The PDs are backlogged for many years for spouses of LPRs. Also, since the F-1 is a pure nonimmigrant visa, by filing his I-130, he would not be able to extend his F-1 status, so that could also pose a problem. If the GC holder is eligible for naturalization, and becomes a U.S. citizen (USC), the situation changes considerably, as the spouse of a USC is not subject to visa number limitations and priority date issues. ---------------- Chat User : My I-485 has been pending for more than 365 days. I just changed my job and work on 1099 now. If the new job description is similar to the old one, may I use AC21 to continue my GC application? Thanks. Attorney Murthy : It is possible, but ultimately one has to show an employer / employee relationship when going to the INS interview, in all likelihood, since that is the traditional role. It is possible that it may work without the traditional role, but there is a risk with no regulations on AC21 law. ---------------- Chat User : I am wondering if it is possible to be under unpaid training / internship (i.e. not accepting stipend) if you have H-4 visa status. Attorney Murthy : Some volunteer work is allowed on H-4 status, but it has to be pure volunteer work. Some states only allow a nonprofit agency like the Red Cross, etc. to be considered volunteer work for a person on H-4 status. As a starting point, think about whether this is the type of activity that is normally done on a volunteer basis. ---------------- 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 Attorney Murthy or one of our other experienced attorneys. ---------------- Chat User : On what grounds can EAD be rejected if the I-140 is approved? Attorney Murthy : If the I-140 is approved, then the EAD should be granted unless the person's I-485 has not been properly completed or has the wrong fee or is otherwise improper or incomplete. ---------------- Chat User : Do I have to be in status while filing for AOS based on my husband’s citizenship. Attorney Murthy : That is not necessary if a person is married to a U.S. citizen and the person entered the U.S. legally. If the person entered without inspection, s/he will need to qualify under 245(i) in order to adjust status. Section 245(i) includes cases filed before April 30, 2001 and the person was present in the U.S. on December 21, 2000. ---------------- Chat User : I work for a client company in Pennsylvania. My employer is in New York. Is it possible to apply for my labor and green card in Pennsylvania? Thank you. Attorney Murthy : In some cases, that is possible if the contract is considered a long term or "permanent" contract. If one could lose that contract at any moment, then the rule is to file the GC in the state where the company or employer's headquarters is located. ---------------- Chat Master : For the latest news in U.S. immigration and what it all means to you, subscribe to MurthyBulletin - our FREE, weekly eNewsletter delivered to your Inbox! Visit <http://www.murthy.com/signup.html> to find out how. ---------------- Chat User : Hello, Sheelaji. Can I take up a new job if I have lost my EAD card, but still have the EAC number and A number? Will my old EAD become invalid if I apply for a new EAD card? Attorney Murthy : One is generally required to have the EAD to be able to work legally, unless the employer has a copy with them in their records and do not need to see it again until it expires. It may be possible to request that the BCIS issue a duplicate card based on the other one's having been lost or stolen. ---------------- Chat User : Could you tell us why the I-140 activity is getting slower and slower at the Nebraska Service Center? Attorney Murthy : All processing of cases has slowed down in all the service centers, not just at NSC or TSC or VSC or CSC! Part of the reason is that the BCIS cannot approve any cases without verifying IBIS or security related information on each person. These security checks are the main reasons for the inordinate delays since BCIS officers have been told that their jobs are on the line if there are any errors and a person obtains the GC or citizenship or other approvals s/he should not have. Officers have been reassigned from regular case processing to security check processing. ---------------- Chat User : After filing I-140 with the intention of CP, can I change to AOS? My I-140 is at the INS now. Attorney Murthy : Yes, that is possible to file the I-485 now with the I-140 receipt notice. The BCIS will assume that the person has changed his/her mind about AOS from CP. ---------------- Chat User : Should we assume that the clock starts for the I-485 as soon as I-140 and I-485 are filed concurrently? Attorney Murthy : Yes, the clock starts except that, if the I-140 is denied after 4 or 5 months, it gives the person no legal rights to live or work in the U.S. unless the person had other legal status like the H1B or the L-1. Also, see our recent MurthyBulletin article about the effect of withdrawing the I-140 prior to approval, even if the I-485 has been pending for 180 days or more. This will cause denial of the entire case. ---------------- Chat Master : There are about 30 minutes remaining in this session of the MurthyChat. ---------------- Chat User : What documents should I provide if I need to get my F-1 stamped in India? I changed from H-4 to F-1 after coming to the U.S. Is there a chance that I will be denied stamping? Attorney Murthy : Yes, there is a good chance any person could be denied the F-1 visa since the F-1 is a pure nonimmigrant visa, unlike the H-4 which enjoys dual intent. So, unless a person can establish strong family and financial ties to the home country, s/he should be denied the F-1 visa. Documents showing strong ties should be submitted and these documents vary from person to person. ---------------- Chat Master : Whether you are an individual or a company representative, you may request our fees for handling your case by eMailing a brief outline of your situation to law@murthy.com. More information is available at <http://www.murthy.com/repre.html>. ---------------- Chat User : Is my H1B status (expires 2005) valid if I travel on advance parole? Attorney Murthy : If a person chooses to reenter the U.S. and show the AP rather than the H1B approval notice and the H1B visa stamp, then the person chooses to enter as a parolee and not on the H1B status. Then the person loses the H1B status, unless s/he files an extension with the BCIS again after entry to extend the H1B status. ---------------- Chat User : Are there any solid chances of the PERM process' starting this year at around August 2003? Attorney Murthy : The latest information we received from attending the Spring Conference in Washington, D.C. on Friday, March 28, 2003 was that PERM may only become a reality later this year with rules and regulations becoming final by early next year. So it looks like the date keeps moving forward. It is best not to rely on it fully, since there are a lot of problems with PERM as it exists today in the interim regulations. ---------------- 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. ---------------- Chat User : Is the security check before I-485 RFE or after? Attorney Murthy : The security checks have be done before a person can obtain any approvals from the BCIS. ---------------- Chat User : How can a GC holder bring the spouse to the U.S. without much wait? Attorney Murthy : Depending on the person's education and experience, options like the H1B or F-1 may work out. Otherwise, based on marriage alone, the person has to wait until the PD becomes current or the principal becomes a U.S. citizen, which may be the fastest way. ---------------- Chat User : How can one determine with INS that an H-1 case has been filed under premium category? Thanks. Attorney Murthy : If the INS has cashed a check for $1000 and the employer filed a form to request premium processing. There is a separate telephone number and fax number with confirmation of the PPP sometimes sent to the attorney or the employer by eMail, also. ---------------- 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> ---------------- Chat User : Is an interview with BCIS a must for I-485 approvals? Attorney Murthy : No, that is usually randomly selected in employment-based (EB) cases. Most family-based cases require the I-485 interview, but in EB cases only randomly or if the person has a criminal record or some other problem. There is an article on this topic on MurthyDotCom, based on an INS memo. ---------------- Chat User : My I-485 is pending over 180 days. My wife got a job in another state. What are the steps I have to follow to avoid any delays or problems while I continue to work for the same employer? Attorney Murthy : She could file the AR11 with BCIS headquarters, notifying them regarding her new temporary address. Then, leave all the other forms with your address since that may be considered her permanent address for all approvals, etc., to be mailed there and avoid delays in transferring files from one state to another. The precise steps depend on who is the primary applicant. ---------------- Chat Master : There are about 15 minutes remaining in tonight's MurthyChat. ---------------- Chat User : Hi. Last month I filed for I-140 and I-485, but now I have been laid off. The company is going to revoke my H-1 and I-140. Will I still get the EAD? Can I use that with my new H-1? Attorney Murthy : Many employers do not withdraw the I-140 and do not need to withdraw it, by law, unless they wish to use the I-140 for another employee's benefit. Even if the BCIS approves the EAD, as soon as they learn that the I-140 is withdrawn they will likely deny the I-485 and revoke the EAD. So, it is best not to rely on the EAD but to file for an H1B with a new employer. Usually, it takes the BCIS about 3 or 4 months to open the mail, and, in this case, the decision to withdraw the I-140 so soon after filing it could be problematic for the continued validity of the I-485 or the EAD. It is safest to file the new H1B ASAP. ---------------- 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>. ---------------- Chat User : I have done fingerprints and I have AP approval. I am wondering if there is any problem if I stay outside of the U.S. to wait for the GC? Thanks. Attorney Murthy : There should be no problem to stay outside the U.S. before GC approval. Once a person becomes a GC holder, then one is required to live and work permanently in the U.S. Failure to do so could be deemed an abandonment of permanent residency status, especially if the absence exceeds 180 days in any one trip. Of course, in order to get the GC approved, it is necessary to have an appropriate job offer, either from the LC sponsor or under AC21. If an individual is out of the U.S., not working for the sponsor, it may cause a problem if an RFE is sent requesting pay stubs / employment letter. The same is true if the case is set for an interview. ---------------- Chat User : My F-1 visa expired, but I was given an EAD. Will I still be legal with that only until I get my H-1 visa? Attorney Murthy : Yes, the EAD and the endorsement on the I-20 from the designated school official provide valid legal status in the U.S. Before the 1-year F-1 OPT, one should file for the change of status to H1B so that one may continue to live legally in the U.S. The BCIS takes about 6 months to approve the H1B. So, it is best to file the COS to H1B as much in advance as possible. ---------------- 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 Law Office of Sheela Murthy and MurthyDotCom. ---------------- Chat User : Hello, Sheelaji. I am currently on H1B and want to do MS. Do I need to change my status? Thanks. Attorney Murthy : If one continues to study while working full time for the H1B employer, or PT if the H1B petition had been filed for a PT job, then studying and working is legally allowed while on H1B. Otherwise, a change in status would be needed. A change in status from H to F is discretionary and requires proof of nonimmigrant intent. ---------------- Chat User : Great job! In CP, do you receive the GC at the end of the interview? If not, how long do you have to wait? Attorney Murthy : Ideally, if things go well at the CP interview, then the consular officer stamps the PP with the immigrant visa. This enables the person to enter the U.S. at any time up to 6 months, and then the person obtains the GC stamp at the airport and gives the index fingerprint for issuance of the actual GC (now pink and white in color and no longer green).  The stamp is proof of status, valid for a year, which should be enough time to allow for the plastic card to arrive. ---------------- Chat User : My I-485 has been pending for the last 480 days. Should I wait or call INS? Please advise. Attorney Murthy : The VSC is only starting to review cases from October and November 2001. This means these cases have been given to an officer. We have been told to wait about 4 months for the officer to review the case from the cut-off date for processing. So, wait for about 4 months from the cut-off date according to the particular service center's processing date. We saw a case this morning, which was over 512 days since filing the I-485, and I suggested waiting another 3 months or so before contacting the BCIS. They should put information on their website once they adjudicate the case. ---------------- Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY! ---------------- Chat User : Is it possible to reenter the U.S. with an un-expired H-4 and H-1 approval (if H-1 stamping is not done, for some reason). Attorney Murthy : It is possible, though sometimes the consulate may cancel the H-4 if they presume that the person does not intend to use it, and could refuse to issue the H1B if the person is deemed not qualified or if the consulate believes there may be fraud, etc. ---------------- Chat Master : This ends tonight's session of the MurthyChat. ---------------- Attorney Murthy : Hope you enjoyed this session and benefited from our MurthyChat. We look forward to having you with us next week at the same time. Thank you for your active participation and your interest in U.S. immigration law. Have a Good Evening / Good Day, wherever you are located. ---------------- Chat Master : Thank you all for logging in! We will see you next week! The schedule will be posted at <http://www.murthy.com/chat.html> ------------------ end © The Law Office of Sheela Murthy, P.C.
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