Chat : May 17, 2004 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 : Hi, dear MurthyChat participants. Thank you for sharing your time with us today. We hope that you find our MurthyChat helpful. We look forward to another wonderful session with you of our popular MurthyChat. ---------------- Chat User : Can I apply for two I-485s, one for my wife's I-140 and the other for my I-140? Attorney Murthy : It is generally advisable not to file two separate I-485s since it can confuse the USCIS examiner and often result in a personal interview due to the file being very thick for a person. It is best to try and pursue one AOS and one I-140 CP case whenever possible if the two spouses have two different cases being processed simultaneously. ---------------- Chat User : If my spouse (who is on H1B) files a derivative I-485 based on my I-485 filing, are her current pay stubs needed? Attorney Murthy : Generally, when filing the I-485, the USCIS does not focus on the pay stubs of the derivative spouse, though often the USCIS will request that the spouse submit evidence of all H1B or H-4 approval notices or other evidence of having maintained lawful status in the U.S. to be eligible to file the I-485 and obtain an approval. ---------------- 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 : I'm on H-1. I'm stuck back home waiting for the visa clearance for more than 5 months. My H-1 expires on August 15, 2004. What shall I do? Can it be extended for the next 3 years? Attorney Murthy : Yes, a person may file a new H1B valid for the entire 3- year period either from now for 3 years or from August 15, 2004 for 3 years. Then, if that new H1B petition gets approved, one could use that approval to apply for the new H1B visa stamp to enter the U.S. instead of using the H1B petition that is valid only for 2+ months from now. Sometimes, security clearances can take long especially when there is a "match" or "hit," but it is important to keep reminding the government or consulate to see if they can speed up matters by providing them with more information if needed promptly. ---------------- Chat User : Is it still worth doing premium processing for H1B 7th-year extensions for Nebraska since regular processing only takes 6 - 7 weeks? Attorney Murthy : That depends on the person's needs, of course. If one cannot wait for 6 or 7 weeks then it may be worth it. For most H1B employees though, the faster timeframe may not make it worthwhile spending the additional $1000 in Premium Processing fees if the NSC is truly approving regular H1Bs within 6 to 7 weeks instead of the standard processing times that apply at most service centers of 6 to 8 months. ---------------- Chat User : Is it possible / legal to change the H1B worker’s job title (designation) by the employer without filing for an amendment (I-129) for H1B? Attorney Murthy : A simple change in just the job title without any major change in the job duties in and of itself may not require an H1B amendment. When one is filing an extension, or if there are other changes, then adding the changed job title may make sense in many cases. ---------------- Chat User : Thanks for your service, Sheela Murthy ji. My parents came to the USA with a visitor visa for 6 months. It expired, but they have filed for I-485. Are they in legal status? Do they need to file any other documents? Attorney Murthy : Generally, if a person files for the I-130 and the I-485 based on the priority dates being current in that family-based category, then the person is considered to be in a period of stay authorized by the Attorney General or, now, the Director of the Department of Homeland Security presumably since March 1, 2003. In order for one to be able to work or travel, s/he may be eligible to file for the Employment Card or the Advance Parole and many find those options valuable. It may be worthwhile discussing the case with a qualified attorney to see if one eligible and any other benefits that s/he may be able to avail of under U.S. immigration laws. ---------------- 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 : A spouse on H-4 wants to use his / her EAD while I-140 is pending. Will s/he be out of status if the I-140 gets denied and can s/he come back to H-4 again? Attorney Murthy : As long as the H-4 status is valid, a person may maintain both the H-4 and the I-485 pending status. If the I-140 gets denied, the person will be eligible to revert to the H-4 status as long as the I-94 card has not yet expired. If the H-4 status is about to expire, the person should either file an extension or, upon the I-140 denial, should plan on traveling abroad and applying for the H-4 visa stamp at the consulate and reentering on H-4 status in order to live legally in the U.S. In such cases, it may require the person who was not on any status even for a single day to mention that s/he was "unlawfully present" in the U.S. on the visa application form at the consulate. The dual intent doctrine under law allows one to change between the H status and the I-485 pending status, and both may be valid simultaneously, so it is safest to maintain both whenever possible. These issues have been crystallized in the March 2000 and May 2000 Legacy INS Memos and may be reviewed on MurthyDotCom. ---------------- Chat User : I am on H-4 and now filing for H-1. If anything happens, can I be in the U.S. on H-4? Attorney Murthy : If the H-4 status is still valid and will not expire for a while, and if the USCIS denies the change of status to H1B, then the person's H-4 status remains valid. Generally, one does not give up the prior status unless that status had expired in the interim while waiting for the USCIS to issue a decision on the new case or the H1B spouse loses his / her status due to being terminated or quitting the H1B employment, etc. ---------------- Chat User : Hi. My wife is in India now. She just got the H1B approved. Can she go for the stamping now? If yes, could she come to the U.S. prior to October 2004? Attorney Murthy : If a person is subject to the H1B cap or quota for this fiscal year, then the spouse cannot enter before September 20, 2004 on H1B status. The spouse is able to enter on the H-4 status now, then stay and work from October 1, 2004 if the USCIS had approved both the change of status and the H1B petition. Or if the spouse wishes to enter on H1B status, then she would need to wait until after September 20th to enter the U.S. Based on the Department of State Memo, the consulate may issue the H1B visa stamp at any time, even before September 20, 2004 to prevent a rush around September end and early October at the consulates. We wrote about this DOS Memo in our MurthyBulletin a few weeks ago. ---------------- 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 : Does a change of status from L-1 to H-1 come under the 65k cap? How long does the regular and premium processing take? Attorney Murthy : Any change of status generally means that the person is subject to the H1B quota for this fiscal year unless the person was already counted against the cap within the last 6 years. Depending on the service centers, the processing time for a regular case may be anywhere from 6 weeks to 8 months, and for the Premium Process it would take 15 days, but if an RFE is issued, it could take another 15 days. ---------------- Chat User : Can we combine 2 foreign degrees to arrive at a U.S. equivalent Bachelor’s Degree? I have 3 years B.Sc. and 3 years MCA. Is that equal to a U.S. Bachelor / Master’s Degree? Attorney Murthy : Although some service centers seem to allow a combination of degrees, it appears that other service centers are not allowing such a combination, especially for the I-140 stage in the GC processing. Most service centers have no problems with such combinations for the H1B process, but often deny the I-140 petition saying that the educational requirement of a Bachelor’s or Master’s or its equivalent requires a single degree and not a combination. This is frustrating especially when a reputable credentials evaluator has evaluated the equivalency of the two degrees as equating to a single U.S. degree. ---------------- Chat Master : There are about 30 minutes remaining in tonight's MurthyChat. ---------------- Chat User : Is it legal to file a labor petition without employer presence in the state? Attorney Murthy : It is legal and possible only if the person's full-time, permanent work is expected in that state and the job is not a roving job or job that could be gone to another state within a few months or years. The GC is based on a future, permanent job offer, and the LC should be filed in the work location where the full-time, permanent job offer is expected. If there is not a specific work location, then the employer is required to file where their corporate headquarters is located or where the HR headquarters is located, not in a temporary work location. ---------------- 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 : If we change the attorney when I-485 pending, can the new attorney get all the documents from the old attorney legally? Attorney Murthy : Yes, a new attorney is able to obtain documents from the prior attorney. Generally, by law, a person is able to change lawyers at any time since it is the client's choice and the client's money, except where the attorney may enjoy a lien on the work product in some states where the client has failed to pay the agreed upon legal fees. If there is no issue on the fees, then the new attorney sends out the request for a copy of the file, and the prior attorney will send it but may legally charge to make copies and for the FedEx charges. The law requires that the prior attorney cooperate and send copies of all documents within a reasonably prompt timeframe. ---------------- Chat User : Thanks, Sheelaji. Can an approved LC from one state be used in another state with the same company having less salary? Attorney Murthy : If the terms of the AC21 law apply, a person may certainly use the approved LC to work in one state for use in another state. We recently received an approval of this issue and also an AAO appeal case where this issue was resolved, though the AAO came up with another reason to require the USCIS to look into other factors. ---------------- Chat User : Is the new H-1 processing going on now, or is it withheld until September 2004? Please clarify. Attorney Murthy : The USCIS is allowing a person to file and is issuing H1B approvals with a start date of October 1, 2004 for anyone who filed a case on or after April 1, 2004. There were a few cases where the mail contractors made a mistake and returned the H1B petition filings to some companies even though those cases should have been accepted for processing the H1B if they were filed on or after April 1, 2004. It is best to file the new H1B petition at the earliest to avoid a possible cap problem though the USCIS says that the H1Bs are being filed "surprisingly slowly" against the 2005 fiscal year cap. ---------------- Chat Master : There are about 15 minutes remaining in tonight's MurthyChat. ---------------- Chat User : Will there be any risk in applying for I-140 and I-485 together after the changed law with effect from April 2004? Attorney Murthy : On April 15, 2004, the California Service Center informed AILA that they do not want anyone to withdraw a previously filed case to be eligible under the new, faster processing concurrent program since it would defeat the purpose of the pilot program. CSC has stated that they will not consider the new cases to enjoy the benefit of the pilot program. If it is a new filing, then the concurrent filing should be faster and result in a person's obtaining the GC faster, though s/he may not be able to obtain an EAD or AP if the I-485 is approved within about 90 days. ---------------- 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 : Hi, Murthy ji. What, according to USCIS, is concurrent filing? Applying for I-140 and I-485 on the same date or applying for I-485 before I-140 approval? Attorney Murthy : Before April 30, 2004, either option was generally considered "concurrent" or sequential concurrent. Now, it appears that the pilot programs require that the two actually be filed together in one envelope since the service centers want to review both at the same time and to consider if this plan will actually work to reduce their backlogs and get caught up with their work by avoiding issuing the EAD and AP if a decision is rendered within 90 days. ---------------- Chat User : Is there any problem in having my H-4 extension in process as well as H1B with H-4 to H-1 transfer also submitted? Attorney Murthy : The potential problem with pursuing two separate options at the same time is that the later in time may govern and result in the person's ending up with H-4 status instead of the H1B status and not being able to work. A USCIS official had mentioned in the June 2003 AILA Annual Conference in New Orleans that if this occurs, the person should request that the USCIS cancel the later approved EOS to H-4 based on service error, since the person is not eligible for an extension of status when the USCIS has already approved the change of status. That is a good way to try and solve the problem, since, until then, many thought that the only solution was for the person to travel abroad and reenter or file another change of status petition with the USCIS. ---------------- Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY! ---------------- Chat User : I am a visitor. I married a U.S. citizen and filed for AOS. When will I get my GC? Attorney Murthy : Possibly, as long as the gap in time after entering on the B-2 tourist status and getting married was not within the first 90 days since that may result in a finding of fraud or misrepresentation in many such cases. Of course, this also presumes that the non-U.S. citizen spouse has no other problem issues and the marriage is a valid, bona fide marriage both at its inception and at the time of the USCIS interview and again about 2 years or so later when there may be another interview at the time of the removal of the conditions on residency. ---------------- Chat User : How long does it take to get the green card after getting the labor certificate. I mean how long does it take to process I-140 and I-485 after getting the labor certificate? Attorney Murthy : Depends on the service center. Until recently, it was taking about 2 to 3 years for both processes. Now, with the new pilot projects and other avenues to try and speed up the I-140 and I-485 processing, it may be as quickly as within 90 days in a few cases if the two are filed "concurrently." ---------------- Chat User : Is there any risk involved in substitute labor (all basic requirements are satisfied)? Thanks. Appreciate your answer. Attorney Murthy : If the requirements are all satisfied as of the date of the original LC filing or when the PD was originally established, then it may be fine. The issue of a person satisfying all the requirements may not be simple in some cases. Also, the financial viability of the employer may be a problem for a longer time since the employer will be required to submit tax returns or audited financial statements in many cases from the date the original LC was filed. ---------------- Chat Master : This ends tonight's session of the MurthyChat. ---------------- 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. ---------------- 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>. © The Law Office of Sheela Murthy, P.C.
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