Chat : April 26, 2004
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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.
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Attorney Murthy : Hi, dear MurthyChat participants. Thank you for sharing your time with us today. We hope that you find our MurthyChat helpful!
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Chat User : I am concerned about the H-1 cap for fiscal year 2005. How long will they last? Your guess?
Attorney Murthy : No one is 100% sure, of course, but the estimates are that the H1B cap could be reached by October / November of this year based on USCIS projections. If that happens, Congress will likely have to pass legislation to increase the cap since businesses are not likely to wait an entire year to bring skilled workers to fill in for shortage occupations. Recently, the USCIS said that the April 2004 usage was "surprisingly low," so this may mean that the H1B numbers may not be used up until sometime next year, hopefully!
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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 : I am on H-1 now. I-140/I-485 was filed based on NIW. If I change jobs and start to use EAD exclusively, can my future employers apply for H1B for me?
Attorney Murthy : It depends on how much time was left on your prior H1B before reaching the full 6 years. The USCIS takes the position that a person cannot obtain an extension of H1B status unless s/he is maintaining H1B status in the U.S. at the time of filing the H1B extension. By working solely based on the EAD, one is not able to change or extend status within the U.S. but may be able to apply for a new H1B and then have to travel abroad and reenter the U.S. Also, there is a chance that the USCIS could consider such a person subject to the H1B cap, so the safest approach is to extend the H1B while one still has the opportunity to do so.
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Chat User : Hi. Just want to know the advantages of being on EAD (pending I-485) than on H1B.
Attorney Murthy : The advantage of working on the EAD is that it does not limit a person to work only with one employer since the H1B is employer specific. Also, if a person loses a job on short notice, s/he does not have to wait to file a new H1B to start working, since, on an EAD, the person may start working with a new employer from the very next day. The risk of the EAD is that, if the I-485 is denied for some reason, like the I-140 being revoked or the USCIS revoking a previous approval that happens occasionally, when the USCIS audits files, then not having an H1B as a back-up risks putting all the eggs in one basket. Once the I-485 is denied and the EAD is revoked, one is no longer able to legally stay in the U.S. So it is safest for a person to maintain back-up H1B status, if possible.
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Chat User : Great service. What are the options to bring a spouse if the I-485 is pending and H-1 is expired?
Attorney Murthy : Either the spouse enters on his/her own status, independently, like the F-1 or the B-1/B-2 (difficult to obtain the visa since these are pure nonimmigrant visas) or the H1B (easier to obtain at the U.S. consulate since it is a dual intent visa) or, if that is not an option, then the spouse has to obtain the immigrant visa through consular processing abroad via following-to-join.
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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 : Does making use of an advance parole invalidate the H1B status? My 7th-year H1B extension has been applied for and I’m planning to travel by making use of my AP.
Attorney Murthy : The May 2000 USCIS (Legacy INS) Memo makes it clear that merely by traveling abroad and reentering on the AP should not invalidate the right to file and obtain an H1B extension of status or choose to use the H1B to enter the U.S. on the following occasion.
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Chat User : Good evening. Does one have to give any specific reason/s for applying for AP other than the fact that a pending is pending? Thanks.
Attorney Murthy : Generally, in employment-based cases, a person is entitled to obtain the AP without a specific bona fide emergent reason, if one is willing to wait for the normal processing timeframes. If one is looking to obtain it faster, through the discretion of a local USCIS District Office, then one must explain the emergent medical condition or other family emergency necessitating travel without waiting for the service center to approve the case. In non-employment based contexts, APs are rarely granted except for humanitarian or emergent reasons, so the form has space for those reasons for the USCIS to consider them in deciding whether to approve the AP.
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Chat User : I am a senior citizen of Indian origin and Indian passport holder. My son is a U.S. citizen. I would like to know whether I could become a green card holder, and if so, how.
Attorney Murthy : As long as the son is an adult over the age of 21 years and is in a stable job financially, so that he can meet or exceed the required poverty guidelines to sponsor a family member, then the adult child sponsors the parent for permanent residency in the U.S. Since the relationship is considered that of an immediate relative, there are no backlogs or waiting times for the priority dates to become current. This means that the adult child may sponsor the parent immediately and the parent is able to stay legally in the U.S. or come in from abroad within a few months on the immigrant visa. The only waiting time is the time required to process the paperwork, either at the USCIS if the parent is in the U.S., or at the consulate if the parent is abroad. Of course, the adult child has to file the papers and be willing to sponsor the parent for immigration benefits as required under law. There is no automatic right for a parent or spouse to obtain the "green card" unless someone files the appropriate papers.
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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 : Can a person convert a visa status from F-2 to B-1/B-2 without leaving the U.S.? Thanks.
Attorney Murthy : A person may file for a change of status (COS) within the U.S. without leaving the U.S. A person may not obtain a new visa stamp in the passport from within the U.S. A visa is only required when entering the U.S. from abroad. The change of status or COS is required to enable a person to stay legally within the U.S. Under present USCIS interpretations of the law, it is often better to remain on the F-2 status instead of the B-2 status since F-2 is valid for D/S while the B-2 has a date certain for its expiration. This means that if the person on B-2 overstays, s/he starts to accrue unlawful presence and will be subject to the 3-year or 10-year bar. On the other hand, a person who merely overstays on the D/S status is not subject to the 3-year or 10-year bar for failing to maintain status, and this means that if the F-1 spouse stops studying or the parties are divorced, it may be safer to remain on F-2 in some cases instead of B-2 if the dependent spouse plans on remaining in the U.S. for the long term.
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Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.
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Chat User : Is it legal for an H-4 or H-1 holder to set up and run a home business?
Attorney Murthy : A person on an H1B or H-4 status is allowed to invest in a business but is not legally allowed to work for that business while in the U.S. A person is allowed to volunteer for a volunteer or a non-profit organization, but may not work for a profit venture without obtaining the necessary permissions from the USCIS or the U.S. Department of Labor.
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Chat User : Great help, Murthyji. Can one travel to India on his/her valid
H-1/H-4 visas while I-485/I-131 are pending with the USCIS?
Attorney Murthy : Yes, a person is legally allowed to travel and reenter on the H1B approval notice or the H-4 visa stamp and the H1B visa stamp and reenter without using the AP at all.
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Chat User : How early can you apply for an H1B extension before the status expires?
Attorney Murthy : A person is allowed to file for an H1B extension up to 6 months before the status expires. This means that the USCIS can receive the H1B extension papers exactly 6 months before the start date and should accept the case for filing. By filing the extension to work for the same employer, a person is legally allowed to stay and work with the USCIS for at least 240 days or about 8 months from the expiration date of the prior H1B status. So this will provide the person safety to remain legally in the U.S., since some H1Bs are taking about 8 months for approval and sometimes longer if there is an RFE issued on the case.
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Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.
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Chat User : What is the new rule about concurrent filing?
Attorney Murthy : As mentioned in our MurthyBulletin article from this past Friday, the USCIS policy is to process all new cases that are filed concurrently, meaning where the I-140 and I-485 are field together. We do not believe that this also applies to previously filed cases, but we are not sure since this rule regarding faster processing only starts on or after April 30, 2004.
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Chat User : My parents have come here on B-2 visa. Their visa is valid for long, but their I-94 expires after a month. How do I file for their extension?
Attorney Murthy : The I-94 governs the timeframes that a person is legally allowed to stay in the U.S. The visa stamp is merely to be able to enter the U.S. from foreign travel. The USCIS often does not grant B-2 extensions unless one has good reasons to show why the purpose of the visit could not be completed within the allotted 6 months from the time your parents initially entered the U.S. The burden of proof to establish strong family and financial ties to the home country has to be established. Sometimes we find that obtaining the extension within the U.S. from the USCIS will prevent the parents from obtaining another B-2 visa in the future from the consulates since a person who is able to remain outside her/his home and work for over 6 months, obviously, in the eyes of the USCIS, does not have strong ties to the home country. So, consider the options and understand the risks before filing for the B-2 extensions for the parents.
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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>.
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Chat User : I have an I-140 approved. I am planning to go for consular processing. How long it is taking to do so? Is it advisable to do so? Thank you very much.
Attorney Murthy : It depends on the consulate. Some consulates accept Attorney Certified I-140s while others do not. Others will accept the AC I-140 based on their workload and other considerations or factors. If the AC I-140 is accepted, it allows the person to obtain the GC much faster if obtaining the EAD is not a consideration. On the other hand, if the consulate does not accept the AC I-140, then there is no benefit in converting the case to CP, since it takes over 2 years to obtain the I-824 approval at some service centers.
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Chat User : Is it okay to file for an H1B visa after the completion of OPT, i.e. in the grace period?
Attorney Murthy : It is okay to file for the H1B within the 60-day grace period available after completion of the F-1 OPT or within 30 days after the J-1 OPT. However, the H1B beneficiary is not allowed to work legally while waiting for the H1B to be approved. Also, it is not clear if there is a gap in status from the time that the grace period expires and the start of the new H1B if the person is legally allowed to remain in the U.S. and obtain a change of status from the USCIS or if the USCIS will require the person to depart, apply for the visa in the home country, and then reenter the U.S. to get back into valid, legal status.
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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 : Sheela, could you please tell me what is concurrent filing? Some people say that the I-140 and I-485 must be filed together in single packet. Some people say if the I-485 is filed before the I-140 is pending, it will be considered concurrent filing. Can you please clarify?
Attorney Murthy : It is true that previous definitions considered both as concurrent filing, since prior to July 31, 2002 a person could not file the I-485 unless the I-140 had been approved. It appears, under the recent USCIS policy change, that the USCIS plans to consider for faster processing only those cases filed after April 30, 2004, if the I-140 and the I-485 are filed together. This appears to be a reasonable reading of the new policy, but no one is 100% sure how the USCIS plans to implement their policy. Only NSC has issued its policy guidance on a pilot project, but the other service centers have not issued any policy guidance on how they plan to implement this faster processing under the recent Fujie O'Hata Memo regarding concurrent filing.
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Chat User : Can one file two I-485s? One is based on his/her own I-140. The other is based on the spouse's I-140. Thank you.
Attorney Murthy : It is best not to file two separate I-485s since that causes confusion. The safer approach is to file for CP with one spouse's I-140 and for I-485 with the other spouse. If there are two I-485s, then the cases are likely to be scheduled for an interview, and this could delay an already slow I-485 processing.
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Chat Master : This ends tonight's session of the MurthyChat.
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Attorney Murthy : Hope you enjoyed this session of our MurthyChat. We look forward to having you with us next week at the same time. Have a Good Evening / Good Day, wherever you are located.
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