Chat : October 18, 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.
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Attorney Murthy : Hi, dear MurthyChat participants. We hope that you find tonight's session helpful. We look forward to spending another wonderful evening with you in our popular MurthyChat.
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Chat User : Can a person with an expired H1B visa get the 7th-year visa stamped at Chennai or Bombay based on an approved 7th-year H-1 petition?
Attorney Murthy : Yes, that is possible since, once an H1B petition has been approved, one is eligible to obtain the H1B visa stamp assuming that s/he has maintained status and satisfies the consular officer that, otherwise, s/he is qualified to perform the H1B specialty occupation job and the H1B employer is bona fide.
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Chat User : If the primary applicant receives the fingerprinting notice and the dependent did not, under what circumstances can dependents get their fingerprinting done by submitting the I-485 receipt notice?
Attorney Murthy : It is possible sometimes to go to the local ASC or Fingerprinting Office to submit FPs for the entire family, based on the I-485 receipt notice of the principal and all family members. It is also wise to call the USCIS Customer Service telephone number and submit a telephone enquiry and send in a letter on the dependents files to inquire on the FP status. Finally, follow up with an AILA Liaison request if it is well past the normal processing time for the I-485. Keep in mind that the new rules require that the FP should only be done towards the end of the process, ba final decision is made on the I-485.
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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 : Can a person study with a pending AOS, and can he change the visa status while on AOS?
Attorney Murthy : One is allowed to study, work with an EAD or do nothing after having filed the I-485, since s/he is considered to be in a period of stay authorized by the Attorney General or the Director of the DHS. After being on an I-485 pending status, one is not required or allowed to change to any other status except for the H or L or their dependents, since only those categories are clearly dual intent under the law.
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Chat User : I would like to know if changing status from H1B to F-1 would stop the H-1 clock or will it keep running as in the case of changing from H-1 to H-4/L-1? Thank you.
Attorney Murthy : Generally, a person who has filed the change of status from H1B to F-1 is considered to be in F-1 status only after the approval of the F-1 status. Until that time, s/he is still on H1B, and the clock for the 6 years could keep ticking away. However, after the person obtains F-1 status, the clock does not continue running as with H-4 or L-1 or L-2, which are allowed to have the aggregate time of 6 years for the H1B and their H-4 dependents, 5 years for the L1B and their dependents and 7 years for the L1A and their dependents. Time on H1B is counted against the 5 years or 7 years allowed to L1Bs and L1As, respectively.
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Chat User : My EAD and I-140 had been approved 1year ago, and I am working with the same company. Am I eligible to work on a 1099 using an EAD?
Attorney Murthy : It is possible to work on the 1099 as an independent contractor for a very limited time, and even that could sometimes pose a risk. We have seen some cases approved and others denied or at least receive an RFE. It depends on the lawyer and if the lawyer will attend the interview and the risks that one is willing to take. Ultimately, when one's GC interview is scheduled, it is safest before then to start working for the GC-sponsoring employer for a few months before the final decision or before the I-485 interview.
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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 have an H1B visa stamped, but I have not entered the USA as of yet. If another employer wants to file an H1B for me, does the H1B cap apply to me?
Attorney Murthy : The H1B cap only applies to a person who has never been on H1B status nor obtained an H1B approval within the last 6 years. It is possible to file for a change of employer based on a previously approved H1B petition. The forms should be filled out, checking the appropriate box indicating that the person has an H1B approval. It is safer not to travel on the earlier H1B visa stamp for the first time but to obtain a new H1B visa stamp after the new H1B approval notice to avoid any allegations of fraud at the time of entry.
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Chat User : Can I travel using AP and still keep H1B status upon return to the U.S.? I-140 and I-485 are still pending.
Attorney Murthy : A person is safer to travel and reenter on the H1B to maintain H1B status. However, it is possible to travel abroad and reenter on the AP and then file an H1B extension with the USCIS under the May 2000 Legacy INS memo.
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Chat User : Can I apply for a new EAD in L-2 status? Currently, I am using the EAD issued on my F-1.
Attorney Murthy : That same EAD is valid as long as a person maintains F-1 status, and about 4 months before the earlier EAD expires, s/he is allowed to submit evidence showing that the s/he has filed for a change of status from F-1 to L-2 and then file the EAD extension with that receipt notice and filing by sending in a copy of the existing EAD. That way, there will, hopefully, not be a gap in the ability to keep working on the EAD, if timed properly.
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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 Attorney Murthy or one of our other experienced attorneys.
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Chat User : Hello, Sheelaji. Is there any chance of the H1B cap being increased for this fiscal year?
Attorney Murthy : It is possible, but right now all the politicians are more concerned about the elections on November 2, 2004. At the time of the elections, they are not willing to touch any hot items like immigration, even if it is to help out U.S. companies or businesses. If there is sufficient pressure on legislators there is a likelihood of an increase in the H1B quota or more exemptions being added and the H1B numbers being increased.
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Chat User : I need to convert from F-1 to H-1. I will have an F-1 I-94 and H-1 approved I-94. Which one should I hand over at the port of exit?
Attorney Murthy : It does not matter if you’re handing over an F-1 I-94 or an H1B since the F-1 I-94 card does not have an expiration date. If it is like a B-1 or B-2 or any other status for which the I-94 card's validity date has expired, it may be safer to hand over the new, valid I-94 card but keep a copy of the entire approval notice to show with the original top portion when applying for the H1B visa stamp at the U.S. Consulate abroad.
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Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.
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Chat User : Can a person holding an H1B visa accept stipend and tuition reimbursement by working as a Graduate Research Assistant from the university (while maintaining his/her status as full-time worker)?
Attorney Murthy : A person on an H1B status is allowed to study and attend school as long as it is considered incidental to the full-time work on H1B status. It may be an issue if a person obtains financial aid and an income as a GRA or a TA etc, since the H1B only allows one to work with one employer and obtain a salary or wages from that H1B employer. A person is not allowed to concurrently hold both the F-1 and H1B status, unlike the ability to work for two different H1B employers by filing 2 separate H1B petitions, one for each employer.
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Chat User : Can you please explain in detail about the news on your website, "Travel Possibly Limited for I-551 Stamp Holders?"
Attorney Murthy : Yes. Some of us went to Chicago to attend the AILA conference on October 15th, 2004 where senior officers from the Customs and Border Protection and the USCIS mentioned that, since October 26, 2004, there is a requirement under law to start requiring fraud resistant documents, the I-551 stamp will start being phased out! It is a big deal, and we were concerned about this issue since many folks are not aware that the government is planning to phase them out starting from October 26, 2004. It is likely that people will still be allowed in since there has not been sufficient publicity on this issue to the general public, but there may be additional waiting times in secondary inspection, etc; more so than before, until the stamp is no longer allowed as the only evidence of permanent resident status.
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Chat User : Madam, thanks for the excellent service. Is there a limit to the number of times we can go for an interim EAD if we don't receive the EAD for long time without any update from USCIS?
Attorney Murthy : The law does not have a limit, but, in a way, the benefit is that the interim EAD is valid for 240 days. So, if the USCIS keeps renewing it for free, a person may actually save a few dollars in not having to pay the USCIS filing fees each year, even though it is a big waste of time and money to have to go to the local USCIS office every 7 or 8 months to keep renewing the interim EAD there due to the delay in receiving the EAD valid for one year.
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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 : My I-485 was approved last week. I took an InfoPass appointment in November, but after reading your NewsFlash about 1-551, I am confused. Please help me.
Attorney Murthy : On October 15, 2004, at the AILA Conference in Chicago, senior officers from CBP mentioned that the goal of the government is to start to phase out the use of the I-551 stamp as the sole evidence to travel and reenter the U.S. This measure is apparently due to high security concerns and the possibility of fraud with the stamp. We explain this further, with any updates, in an article on MurthyDotCom, once we receive more information. As mentioned in the Newsflash, this is initial information that that I-551 stamp will SLOWLY BE PHASED OUT OVER TIME, possibly starting as early as October 26, 2004.
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Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.
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Chat User : I have been approved for two H-1s, starting October 1st 2004. I am planning to go to India and get the stamping. Should I get the stamping for the employer I am currently working for? What happens to the other H-1 then?
Attorney Murthy : A person should obtain the H1B visa stamp with the employer that s/he intends to work for upon reentering the U.S. Filing for the wrong employer is considered fraud under U.S. law, since one is submitting evidence to obtain a visa to work for the specific H1B employer immediately after entering the U.S. If the H1B employee does not intend working for the other H1B employer, it is wise for that employer to revoke or terminate that H1B approval so that there are no loose ends, since it is risky for the employer under Department of Labor regulations.
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Chat User : Hello! I am on H-4 and I have changed my status to H-1. Is stamping the H-1 necessary for my next India trip? Can I come back on the same H-4 which was stamped earlier?
Attorney Murthy : A person who chooses to reenter the U.S. on the earlier H-4 visa stamp then chooses to revert the status to H-4 and no longer will be able to work legally for the H1B employer after reentering the U.S. on H-4 status. If that is the goal, then there is no problem. On the other hand, if the intention is to keep working for the H1B employer, then that person will need to either enter on a new H1B visa stamp, with the H1B approval notice and obtain a new I-94 card at the POE or enter on the H-4, then again file for a change of status to H1B to work legally.
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Chat User : Is it safe to travel after applying for OPT but before you graduate? Is it safer to travel after you have received the receipt for your OPT from the USCIS? Thank you!
Attorney Murthy : If one has an F-1 visa stamp in the PP and intends to continue to work in the same field as that studied, then it is fine. If the POE officer believes that the person has no job or will not work in the field of education, then that person may have a problem at the border. It is possible to travel in either instance, but there is always a level of risk when one travels outside the U.S., especially on student status in today's immigration climate.
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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 : Will pursuing another major to maintain F-1 status be affected if an F-1 student marries a GC holder and applies for the I-130 petition?
Attorney Murthy : The USCIS cannot approve an extension of the F-1 status for one who has expressed an intent to immigrate to the U.S. by having an I-130 petition filed on his/her behalf, since the F-1 is a pure nonimmigrant status and the F-1 student has to establish there is no intention of abandoning his/her home and ties to the home country.
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Chat User : Once the 1099 income is accepted on H1B on the side job, is it going to jeopardize the green card processing in the I-140 stage and I-485? Can anything be done to correct this?
Attorney Murthy : A person on an H1B is not allowed to work on a 1099 at all. One who is on an EAD is allowed to work as an independent contractor if s/he is the I-485 dependent on the EAD and not the principal applicant for the GC, to be on the safe side. If the total time working was less than 180 days, there is possible hope to obtain the I-485 in the U.S. Otherwise, it adds complications and will not generally allow the person to obtain an approval of the I-485 from within the U.S. You should consult an immigration attorney to discuss this issue since it could have serious consequences.
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Chat User : Hi, Murthy. Is it legal to work for a new employer as soon as an H1B transfer is filed? When was this law effective? Thanks for your help.
Attorney Murthy : The law allowing a person to start working when s/he has previously maintained H1B status is part of the AC21 law that was passed in October 2000 and written about extensively on MurthyDotCom and, possibly, on the USCIS website, too. It was effective retroactively since the law uses the phrase that AC21 H1B portability is allowed for any case filed "on, before, or after" the date that the AC21 law was passed.
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Chat Master : This ends tonight's session of the MurthyChat.
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Attorney Murthy : Next week we will not have the MurthyChat since I will be traveling abroad. We look forward to having you with us in two weeks at the same time on Monday, November 1, 2004, while I am abroad. Have a good evening / day. We look forward to the opportunity to help you, your family and friends on all matters relating to U.S. immigration law.
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