US Immigration News

Many MurthyDotCom readers will consider options for naturalizing to U.S. citizenship at some point in their immigration journeys. This often gives rise to questions regarding family members, including one’s children. This is a broad overview of how children born outside of the United States may derive U.S. citizenship automatically when their parent/s naturalize to U.S. citizenship.

Background: Naturalization Applicants Must be 18 or Older

In order for an individual to apply to become a naturalized U.S. citizen (USC), s/he must be age 18 or older. Thus, in the typical situation of a family living in the United States as lawful permanent residents, the minor children will not be eligible to file for naturalization with their parents. In many cases, these minor children do not need to request U.S. citizenship. Rather, it is automatically conferred when either parent naturalizes, if certain requirements are satisfied.

Permanent Resident Children

The laws regarding the derivative acquisition of U.S. citizenship by minor children were broadened by the Child Citizenship Act of 2000 (CCA). This law became effective February 27, 2001, and remains effective as of this writing. Under current law, children under 18 automatically acquire U.S. citizenship if three requirements are met.

• The child must have U.S. lawful permanent resident status (“green card” holder).
• At least one parent must be a U.S. citizen by birth or naturalization.
• The child must be residing in the United States in the legal and physical custody of a USC parent.

In this situation, once all three requirements are met, U.S. citizenship is automatically conferred upon the child/ren by operation of law without the need to file a specific application requesting U.S. citizenship. These provisions apply to one’s adopted child/ren as well as biological child/ren.

Example One

The Kumar family, consisting of parents and two young children, reside in the United States as permanent residents. In May 2017, the mother was sworn in for U.S. citizenship. The two young children were immediately U.S. citizens upon their mother’s naturalization.

Example Two

Mr. and Mrs. Smith were born in the United States and, thus, are U.S. citizens. They adopted a baby girl from abroad. The child was admitted into the United States in May 2017, as a lawful permanent resident. This child automatically became a U.S. citizen upon admission, as she then met the requirements outlined above.

Recommendations: Obtain Documentation

U.S. citizenship is automatically conferred in the situations described above, and, thus, it is not legally necessary to obtain documentation of the child’s U.S. citizenship. However, it is best to obtain official documentation of U.S. citizenship to avoid any possible future questions or complications. Typically, parents obtain a U.S. passport for their child, as this is needed for travel abroad. Additionally, it is possible to request a certificate of citizenship from the USCIS, using Form N-600.

Pre-Child Citizenship Act Cases: 18 Before 27.Feb.2001

As stated, the laws changed on February 27, 2001, thanks to the CCA. However, these laws do not apply retroactively. Any lawful permanent resident, who turned 18 prior to February 27, 2001, generally required both parents to naturalize prior to her/his 18th birthday, in order to acquire U.S. citizenship automatically.

There were three exceptions that permitted automatic acquisition of U.S. citizenship based on the naturalization of only one parent. These were: (1) one parent is deceased and the surviving parent is naturalizing; or (2) the naturalizing parent has custody of the child in a legal separation or divorce; or (3) the child was born out of wedlock and the naturalizing parent is the mother.

Conclusion

There are complexities to the rules governing acquisition of citizenship by operation of law. The situations described here are only one way that an individual may become a U.S. citizen without filing an application. Those with other questions or concerns about the eligibility of their children under the CCA or in other situations should discuss these with qualified immigration attorneys.

Originally published 27.May.2011, this MurthyDotCom NewsBrief has been updated for our readers.

 

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The post Derivative Citizenship: Children of Naturalized U.S. Citizens appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Typically, there is no requirement for the F-1 student to remain in school once an application to change status to H-4 is properly filed.  (01.Jun.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I am on F-1 and my husband is on H1B. I am applying for a change of status to H-4. Do I have to continue my F-1 studies until the change of status is approved? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

It seems unlikely that an immigration officer would take issue with a person using the full 60-day grace period.  (01.Jun.2023)

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The post I was laid off last week and plan on leaving the U.S. before my grace period ends. If I use the full 60 days, will that be used against me next time I apply for a visa? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, this is not accurate. There is no new program that allows people to apply for a B-1/B-2 visa in order to apply for a job in the U.S. What you likely are referring to is an update from the USCIS regarding options for nonimmigrant workers who have been laid off. The USCIS indicated that laid off workers could change to B-1 or B-2 status, as searching for a job is a permissible activity on B-1/B-2.

Consular posts, which are responsible for adjudicating visa “stamp” applications, fall under the jurisdiction of the U.S. Department of State (DOS), not the USCIS. So, they are not bound by this update from the USCIS. Still, a consular officer certainly has the discretion to issue a B-1/B-2 visa to a foreign national seeking to apply for a job in the U.S. As with virtually all B-1/B-2 applications, however, they will be adjudicated on a case-by-case basis. (01.Jun.2023)

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The post Is it true there is a new program that allows people to apply for a B-1/B-2 visa stamp in order to come to the U.S. and find a job? appeared first on Murthy Law Firm | U.S Immigration Law.

An individual seeking lawful permanent resident status in the United States may wait several years for the U.S. Citizenship and Immigration Service (USCIS) to issue the lawful permanent resident card (green card). On occasion however, the USCIS can erroneously issue a green card before an immigrant visa is available for the individual. In such a case, an individual must take action to resolve this error to avoid potential future immigration complications.

Statutory Limits on Issuance of Green Cards

There are statutory limits to the number of immigrant visas available for foreign nationals under the employment-based and most family-based categories (except for immediate relatives of U.S. citizens). To be eligible to receive a green card, an immigrant visa number must be immediately available. Immigrant visa availability is determined by the priority dates listed on the U.S. Department of State (DOS) visa bulletin final action date chart. An individual’s priority date must be “current” for a particular month for the individual to be issued a green card or immigrant visa.

Erroneously Issued Green Cards Can Result in Long-Term Problems

On occasion, the USCIS mistakenly issues green cards before the individual’s priority date is current. A prematurely issued green card can pose potential problems down the road. The USCIS may issue a notice of intent to rescind (NOIR) the erroneously issued green card. After rescission, it is possible USCIS may choose to reopen the underlying I-485 adjustment application and return that application to pending status, until the individual’s priority date is current again. But, it is also possible that, after the rescission, the individual could be subject to deportation.

It is also possible that the USCIS may not discover the error until many years after the green card was issued.  Often, the error is only detected by the USCIS when an individual applies for naturalization. A discovery at that time may mean that the individual is ineligible for U.S. citizenship, or that the individual was never a lawful permanent resident.

Safer to be Proactive with Erroneous Green Cards

As a preliminary step, a green card recipient should check the visa bulletin to confirm that the individual’s priority date was current on the date the I-485 adjustment of status application was approved. If the individual discovers the error, the individual should consult with a qualified immigration attorney. The attorney will likely contact the USCIS to request that the person’s I-485 be put back into a pending status so that the green card can be lawfully approved once the priority date becomes current.

Conclusion

The journey to lawful permanent status in the United States can be a long process fraught with pitfalls. In most cases, the journey happily concludes with the receipt of a properly issued green card. However, in cases where the USCIS erroneously issues a green card, the individual should swiftly take appropriate action.

 

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The post Addressing Green Cards Issued In Error by USCIS appeared first on Murthy Law Firm | U.S Immigration Law.

International medical graduates (IMGs) often overcome the two-year home residence requirement (HRR) through a waiver based on the support of an Interested Government Agency (IGA). These waivers require three years of service as a physician in certain designated underserved areas. The grant of this waiver opens up the possibility of pursuing U.S. permanent residence (informally, “green card”) status. IMGs completing waiver requirements most commonly choose between two options to file and obtain the green card: the NIW and the labor certification-based green card process. For physicians, both options are within the employment-based, second preference category (EB2). The option available through labor certification will be covered in a future article. The topic presented to MurthyDotCom and MurthyBulletin readers at this time is the NIW option for physicians.

NIW Eliminates the Labor Certification Requirement

The NIW is separate from the J-1 waiver of the two-year HRR and serves an entirely different purpose. The NIW is a waiver or elimination of the standard requirement of obtaining a certification from the U.S. Department of Labor (DOL) as the first step in an employment-based green card case. Thus, the law does not require the employer to advertise the position or otherwise engage in the labor certification process. The medical care that must be provided by the physician to qualify for the waiver is considered to be in the national interest and important enough to override the purpose of the labor certification process. (The VA has an internal policy requiring recruitment efforts in NIW cases.)

Requirements for IMGs to File for Physician NIWs

The NIW category discussed in this article pertains ONLY to practicing physicians. These requirements differ from other NIW cases, which previously have been discussed in other articles available on MurthyDotCom.

To be eligible for the NIW, the IMG must meet two basic requirements. These are:

• commit to work full time in an area designated by the U.S. Department of Health and Human Services (HHS) as having a shortage of health care professionals or at a Veterans Affairs (VA) health care facility
  AND
• obtain a determination by a federal agency or a state department of public health that the IMG’s work at such facility is in the public interest

For cases filed after November 1, 1998, the IMG must agree to work in an HHS designated health care professional shortage area, or with a VA facility, for a period of five years before becoming eligible to obtain permanent residence in the United States.

NIWs for Physicians Expanded since 2007

Previously, unless sponsored by the VA, the NIW category for physicians was limited only to primary care physicians, defined as family or general medicine, pediatrics, obstetrics / gynecology, general internal medicine, and psychiatry. However, there were significant changes in 2007 that expanded the scope of the NIW for physicians and added flexibility. These changes were the result of a federal court case and subsequent guidance from the USCIS. Regular readers of MurthyDotCom and MurthyBulletin will recall our article on this topic, Physician NIWs Now Available to all Specialties, published Feb 23, 2007.

Work before NIW Approval May Count toward Five-Year Requirement

The time a physician serves in a qualifying capacity in an designated shortage area or a VA hospital prior to the approval of the NIW petition is counted toward the five-year requirement, if the physician was in a lawful status other than J-1 and the medical service meets the applicable criteria. That is, the three years of work needed for the J-1 waiver are counted toward the five years of service needed for the NIW. Thus, for a physician who has obtained a waiver of the J-1 two-year HRR, which requires three years of work in a qualifying area, the NIW is an attractive option. We note that this additional two years of work does not need to be with the same employer through whom the J-1 waiver was obtained. The work simply needs to be in an HHS designated health care professional shortage area or with the VA.

USCIS Cannot Set Time to Complete Five-Year Requirement

Following the federal court litigation and the USCIS guidance memo referenced above, the timeframe for completion of the five years is no longer in place. The previous requirement was that the five years of service be completed within six years.

While there is no set timeframe for completion of the five-year commitment, however, this does not mean that the physician can delay completion indefinitely, while benefiting from an I-485, Application for Adjustment of Status (AOS) and Employment Authorization Document (EAD). The USCIS can deny a I-485 as a matter of discretion, if the examiner concludes that the physician is using the pending I-485 and EAD solely to enable employment other than the qualifying employment. The elimination of the six-year requirement should help in situations where, due to personal or family illness or other matters beyond the control of the physician, more time is needed to complete the required five-years of medical service.

Specialists Accepted in PSAs

As mentioned, prior to 2007 the NIW was limited to primary care physicians, unless sponsored through the VA. General eligibility has expanded to specialists. However, the qualifying areas in which they are permitted to work are more limited, as they must be classified by the Department of Health and Human Services (HHS) as physician scarcity areas (PSAs), which have a shortage of specialists. Specialists remain eligible without this restriction if sponsored through the VA.

I-485 Filings Permitted with EAD and AP Benefits

Unlike any other green card category, the physician NIW category permits the filing of I-485/AOS, even during the time when the applicant is completing a J-1 waiver service requirement. (This does not eliminate the need for an available visa number in the EB2 category at the time of the I-485 filing.) The ability to file the I-485/AOS is significant, as it allows for filing of the I-485/AOS by eligible dependants, who may also obtain EADs and advance paroles (APs), which are useful ancillary benefits during the lengthy processing of I-485s.

Self-Petitioning Permitted

Another benefit of the NIW category is the ability of the IMG to self-petition. While there must be a qualifying job offer forming the basis of the case, the employer does not need to sponsor the case. Thus, the employer’s effort is typically far less than in cases based upon labor certification. The category also allows for employment with a practice owned solely or in part by the IMG. This option is not available in PERM labor certification cases.

Job Changes Possible

It is possible to change employers in the NIW category, but not under the AC21 portability provisions. Physicians who relocate in order to change employment while pursuing the NIW option generally are required to go through certain additional administrative steps. These may include re-filing Form I-140 and getting a new physician-need statement from a state health department.

Conclusion

The NIW option is useful for IMGs and has become more widely available and more flexible following changes implemented in 2007. Physicians should not rule out this option because of misconceptions regarding the nature of underserved areas. While many underserved areas are located in remote, rural portions of the United States, many are not. There are numerous urban areas that qualify – especially in inner cities – as well as a variety of other locations.

International physicians seeking legal assistance with U.S. immigration matters can reach a Murthy Law Firm attorney at Doctors@murthy.com.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

 

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The post NIW for Physicians Completing J-1 Waiver Service appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Many, if not most U.S. consular posts accept third-country national visa applicants. Some, however, do significantly limit which third-country nationals qualify. If a consular post has any restrictions on visa applications by third-country nationals, this information typically can be found on the consulate’s website. (24.May.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post Now that nearly all the COVID-19 pandemic restrictions and flexibilities have been eliminated, is it still possible to apply for a visa at a U.S. consulate that is not in your home country? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Unfortunately, in order to apply for an H-4 EAD, the individual normally must be physically in the United States when the application is filed. It is, however, typically possible to leave the U.S. while the EAD application is pending. (24.May.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I am in H1B status and my I-140 was just approved. My wife has been working for a U.S. company from India, and now wishes to apply for an H-4 EAD. Is it possible for her to apply from India? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

A civil lawsuit generally would have no impact on a person’s H1B status or green card application.  (24.May.2023)

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The post I am in H1B status and have an approved I-140. I own home and installed a shed in my backyard. My neighbor is threatening to sue, claiming that the shed violates local zoning laws, is encroaching on her property, etc. I believe my neighbor is completely mistaken, but, if she sues and somehow wins, is there any chance this could harm my current status or future green card case? appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Department of Homeland Security (DHS) has announced that temporary flexibilities due to the COVID-19 pandemic allowing an employer to perform remote document inspection and deferring the physical presence requirements for employment eligibility verification (form I-9), will end on July 31, 2023. After this date, employers will be required to review an employee’s identity and employment authorization documents in the employee’s physical presence. The DHS also announced a 30-day period during which employers must complete in-person physical document inspections for any documents that were inspected remotely during the temporary flexibilities period.

What were the COVID-19 flexibilities for form I-9?

On March 20, 2020, the DHS announced a temporary policy under which an employer with a remote workplace and who is taking physical proximity precautions due to the COVID-19 pandemic is not required to immediately review an employee’s identity and employment authorization documents in the employee’s physical presence. Instead, an employer can inspect the employee’s documents remotely (e.g., over video link, fax, or eMail, etc) and defer a physical inspection of the documents until an employee undertakes non-remote employment on a regular, consistent, or predictable basis. Upon the employee’s return to the office, the employer must perform a physical inspection of the employee’s identity and employment authorization documents within three days.

What will be required of employers after the form I-9 COVID-19 flexibilities end?

After the form I-9 flexibilities end, an employer will have 30 days (i.e., until August 30, 2023) to complete an in-person physical document inspection for any employee whose documents were only inspected remotely while the COVID-19 flexibilities were in place. A physical inspection will be required whether an employee will be physically returning to the workplace or will continue working remotely. If an employee will remain remote, the employer may authorize a representative to perform the in-person inspection and to complete the employer’s portion of form I-9 on the employer’s behalf.

Will remote inspection become available again?

On August 18, 2022, the DHS proposed a new rule with alternative procedures, allowing remote document examination for form I-9. However, until a final rule is published, in-person document inspection for form I-9 will be required after July 31, 2023.

Conclusion

The DHS and other U.S. government agencies are steadily ending temporary policies implemented during the COVID-19 pandemic. Therefore, an employer must stay up to date on policy changes to be compliant with current laws and regulations.

 

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The post DHS to End I-9 Verification Temporary COVID-19 Flexibilities appeared first on Murthy Law Firm | U.S Immigration Law.

F-1 status, how students can avoid violating their F-1 status, and employment options available to F-1 students are the topics discussed by Murthy Law Firm attorneys in the May 2023 podcast.

The MP3 is available here and will soon be available in the archive of our teleconferences and podcasts on iTunes.

The post MurthyAudio: F-1 Overview appeared first on Murthy Law Firm | U.S Immigration Law.

The typical H1B cap-filing season raises questions about extensions of F-1 student status and optional practical training (OPT) before the beginning of H1B status. Many foreign national students tend to have questions about coordinating H1B filings with the expiration of their F-1 status and OPT employment authorization. Important information about the operation of the so-called “cap-gap” extension of F-1 status and OPT follows.

USCIS Guidance

The U.S. Citizenship and Immigration Services (USCIS) provides helpful information regarding cap-gap in an article entitled Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations. This information, which was updated last in May 2020, provides USCIS guidance on transitioning from F-1 to H1B status.

Background: The Cap-Gap Rule

The cap-gap rule comes from a 2008 regulation issued by the U.S. Department of Homeland Security (DHS). It provides for automatic extensions of status for certain students to bridge the gap between the end of their student status, typically OPT, and the start of the next government fiscal year, on October 1st. Due to annual quotas on the number of H1B petitions, October 1st is the earliest date a cap-subject H1B worker may begin employment in H1B status. Many students’ F-1 status and OPT authorization, however, expire earlier in the summer due to the typical academic calendar. Under specific circumstances, the cap-gap rule extends student status and/or employment authorization. The rule and general considerations are summarized below.

Eligibility Under the Cap-Gap Rule

An F-1 student whose status expires (1) after the filing of an H1B petition requesting a change of status effective October 1st of the same year, and (2) before the requested start date of October 1st, receives an automatic extension of F-1 status. The student has a preliminary cap-gap extension, valid through June 1st, while waiting to see whether the H1B petition filed on her/his behalf is selected in the lottery. This extension is until September 30th if the H1B petition is accepted and remains pending or is approved.

If authorized for OPT as of the date of filing the H1B petition, the student beneficiary’s employment authorization is eligible for automatic extension through the entire cap-gap period. If the petition is denied, withdrawn, revoked, or rejected, however, the F-1 status and work authorization end. The student should be eligible for the standard 60-day grace period from the date of the triggering event or the academic program end date, whichever is later. If, however, the USCIS denies the change-of-status request based on a violation of student status, or denies or revokes the petition based on a discovery of fraud or misrepresentation, there is no grace period.

Actions Required of DSOs and F-1 Students

If the student’s H1B registration application submitted by the intended employer is selected in the cap lottery, the employer may then file the H1B petition on behalf of the student within the 90-day filing window. If the H1B petition is filed prior to June 1st, the student beneficiary is advised to contact the designated school official (DSO) and provide evidence of filing, such as a copy of the petition and proof of mailing. The DSO then should issue a preliminary cap-gap form I-20 that extends the student’s status temporarily, until June 1st. The student should return to the DSO to receive a new I-20 for the full cap-gap period once the USCIS issues a receipt notice (I-797). Students whose H1B petitions are filed after June 1st, may obtain a new I-20 for the full cap-gap period with evidence of filing. The full cap-gap authorization should be valid until September 30th. The preliminary and the final cap-gap I-20s may be used as evidence of status and employment authorization, if applicable.

Students May File for STEM Extension During Cap Gap

During the cap-gap period, the student beneficiary may also apply for the 24-month STEM extension, if otherwise eligible. If the H1B petition is withdrawn, revoked, or denied, and the student has entered the 60-day grace period, s/he is no longer eligible to apply for a STEM extension. More information about the 24-month STEM extension rule is available in the MurthyDotCom NewsBrief, 24-Month STEM OPT Effective from May 10, 2016 (08.Apr.2016).

When a SEVIS Data Fix is Required

“Data fix” is a term used to describe a request made by a DSO to the USCIS to correct a student’s SEVIS record. In some situations, it may be a useful tool to correct an action that otherwise could result in termination of student status. The USCIS provides cap-gap guidance with several examples of instances in which a student may want to consider contacting the DSO to request a data fix.

One common scenario is when an H1B petition is approved for change of status, effective October 1st, but the student no longer desires a status change on that date. Instead, the student wants to continue to use the unexpired OPT. In such a case, the petitioning employer should request to withdraw the approved petition before October 1st. Once the USCIS acknowledges withdrawal, the student should take the acknowledgement letter to the DSO and request that the SEVIS record be changed back to active student status. A data fix is no longer possible in this scenario, if the matter is not addressed before October 1st, when the student’s status automatically changes to H1B.

International Travel During Cap Gap

Many students inquire as to whether they may travel outside the United States during the cap-gap period between the academic program and the new H1B job. Students generally should not travel while the H1B petition and change-of-status request is still pending. The request will be considered abandoned and the student may have to remain outside the United States while the petition is adjudicated, and then apply for an H1B visa after approval.

Students whose H1B petitions and change-of-status requests are approved, however, may travel abroad and reenter the United States in F-1 status prior to October 1st. The student must also have an unexpired F-1 visa, along with proper I-20s showing approved cap-gap and endorsement for travel. More information regarding travel during cap-gap can be found in the MurthyDotCom NewsBrief, Students Should Not Travel during Cap-Gap Period (30.Jun.2016).

Conclusion

While the cap-gap rule may be deceptively simple, H1B petitioners and beneficiaries are encouraged to examine their specific circumstances to make sure that they achieve their desired objective of maintaining status and possibly employment authorization during the period prior to October 1st. When in doubt, it is recommended that any petitioning employer and individual beneficiary consult with a knowledgeable immigration attorney to develop the best possible course of action for the specific situation.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

 

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The post Cap-Gap Extensions of F-1 Status and OPT appeared first on Murthy Law Firm | U.S Immigration Law.

The annual cap on the H1B category, combined with tremendous demand, has forced many employers and foreign national professionals to seek out reasonable alternatives. One such option for citizens of Chile or Singapore is the H1B1 visa category. This nonimmigrant category is very similar to the H1B category and is also subject to an annual cap. But, because it is not heavily used, the H1B1 category is typically available year round.

Background on H1B1

The H1B1 category was created by the free trade agreements signed by the United States with Chile and Singapore in 2003. There are 6,800 H1B1 numbers available each fiscal year to citizens of these two countries. These numbers are deducted from the H1B annual limit of 65,000, which is available worldwide each year.

Requirements for a Grant of H1B1 Status

The requirements for the H1B1 are more or less identical to those of the H1B, with a few key differences:

• There is no requirement that a petition first be filed with the U.S. Citizenship and Immigration Services (USCIS). Rather, a U.S. employer may sponsor a Chilean or Singaporean citizen to apply for an H1B1 visa directly at a U.S. consulate or embassy. If the beneficiary is already in the United States, however, a petition may be filed with the USCIS to change status to H1B1, or to extend the person’s H1B1 status.

• H1B1 status generally is granted in one-year increments, and may be extended indefinitely; there is no six-year limitation.

• Even if one does not possess a bachelor’s degree or its equivalent, it may still be possible to qualify for H1B1 classification in certain situations. More specifically, a Chilean citizen who is offered employment as an agricultural manager or physical therapist does not need to have the equivalent of a 4-year degree. Similarly, a Singaporean or Chilean citizen who is offered employment as a disaster relief claims adjuster or management consultant is not required to possess a degree.

• The spouse and minor children of an H1B1 employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.

• Unlike H1B and L-1 status, H1B1 status is not considered dual intent. Therefore, one in H1B1 status must demonstrate the intent to return to her/his home country following the completion of the H1B1 work assignment. However, the U.S. Department of State has made it clear that a future intent to immigrate to the United States should not, in and of itself, be a reason for denial of H1B1 status.

Conclusion

For citizens of Chile and Singapore, the H1B1 category provides tremendous flexibility when exploring options for working in the United States. Those with questions about applying for the H1B1 visa are encouraged to schedule a consultation with a Murthy Law Firm attorney.

While some aspects of immigration have changed significantly in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.

 

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The post Overview on H1B1s for Citizens of Chile and Singapore appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

If there has been a material change to the nature of the position (as described on the ETA9089 form) that typically would require a new PERM labor certification and I-140 petition for that new position. Given that you have an approved I-140, however, you should be able to retain the priority date. (16.May.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post In 2020, my I-140 was approved for a position as a Senior Engineer. My employer recently promoted me to Engineering Manager. Does the company need to file a new PERM case for me? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Assuming you are in your 60-day grace period, being laid off would generally not impact your ability to file your I-485 based on the I-130 petition filed by your husband. (16.May.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I recently married a green card holder, and my husband is getting ready to sponsor me for a green card. I was on H1B status, but just got laid off. Does this prevent me from filing my I-485 application based on the I-130 my husband is filing? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Unless the principal spouse is in valid H1B status, the dependent spouse typically cannot enter in H-4 status. (16.May.2023)

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The U.S Customs and Border Protection (CBP) initiated a “stampless” entry pilot program in April 2022, and is now in the process of implementing the program at all airports, seaports, and land ports of entry (POEs) as part of a larger effort to streamline the legal entry process. Under this program, the CBP has stopped using ink stamps in passports to document entries into the United States. While this streamlined process is welcomed by many, the elimination of ink stamps may pose challenges for some foreign nationals as it requires the individual to proactively document all entries into the United States.

Impact of the Stampless Entry Program on Foreign Nationals

A foreign national should always document entries into the United States, and ink stamps in passports have been the best method for doing so. A nonimmigrant visa holder can use ink stamps to demonstrate maintenance of status or available H1B or L-1 recapture time. Additionally, a lawful permanent resident can use ink stamps to demonstrate the length of absence for the purpose of challenging an allegation of green card abandonment or when filing for naturalization. With the stampless entry program, a foreign national no longer will be able to rely on ink stamps in the passport for such purposes.

Options for Foreign Nationals to Document Travel Dates

In the absence of an ink stamp in a passport, a foreign national may use alternative methods to document entries into the United States, including:

• downloading the I-94 that is generated in CBP’s online system after entering the United States.
  The individual should review the travel history and take immediate action to correct any inaccuracies. However, this is only an option for nonimmigrants, since lawful permanent resident entries are not entered into the online I-94 system.
• requesting an ink stamp from the CBP officer at the time of entry into the U.S.
  CBP officers are still permitted to stamp passports, though officers might not comply with this request.
• retaining contemporaneous evidence of travel to document entries.
  Such evidence may include flight boarding cards, flight itineraries, flight status eMails, hotel stays, and other receipts.

Conclusion

Despite the potential benefits of expedited processing with the new system, a foreign national must proactively use alternative methods to document entries to satisfy any evidentiary burdens that arise when applying for immigration benefits.

 

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The post Expansion of CBP Stampless Entry Program appeared first on Murthy Law Firm | U.S Immigration Law.

Today, the U.S. Department of State (DOS) released the June 2023 Visa Bulletin. Most cutoff dates in the employment-based categories remain unchanged. All cutoff dates listed refer to those in the final action chart (i.e., Chart A), unless otherwise specified.

Visa Bulletin Summary Employment-Based, First Preference (EB1) Category

There is no movement in the EB1 category, with China and India both retaining a cutoff date of February 1, 2022. The EB1 category remains current for all countries of chargeability.

Employment-Based, Second Preference (EB2) Category

The EB2 category remains unchanged from the May 2023 Visa Bulletin. The cutoff date for EB2 India is still set at January 1, 2011, while China’s remains set at June 8, 2019. All other countries of chargeability retain a cutoff date of February 15, 2022.

Employment-Based, Third Preference (EB3) Category

There is no movement in the EB3 category. EB3 India keeps a cutoff date of June 15, 2012. Worse still, the DOS cautions that the cutoff date for EB3 India likely will retrogress further in the near future. For China, the EB3 cutoff date remains set at April 1, 2019. For all other countries of chargeability, the EB3 cutoff date continues with a June 1, 2022, cutoff date.

EB3 Other Workers

The only movement for EB3 other workers is for China, which sees its cutoff date advance to September 1, 2015. EB3 other workers for India retains a June 15, 2012, cutoff date. The EB3 other workers cutoff date for all other countries of chargeability remains set at January 1, 2020.

Employment-Based, Fourth Preference (EB4) Category

There is no movement in the EB4 category, with all countries keeping a cutoff date of September 1, 2018.

Employment-Based, Fifth Preference (EB5) Category

The only movement in the EB5 category is that India’s EB5 unreserved (i.e., EB5 immigrant visa numbers not set aside for rural, high unemployment, and infrastructure projects) cutoff date retrogresses to April 1, 2017. For China, EB5 unreserved keeps a cutoff date of September 8, 2015. EB5 remains current for all other EB5 categories and countries of chargeability.

Conclusion

MurthyDotCom will continue to closely monitor and report on movement and predictions related to the monthly visa bulletin. Subscribe to the free MurthyBulletin to have weekly updates sent to your inbox.

 

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The post June 2023 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

Today, the Office of Foreign Labor Certification (OFLC) announced that it is postponing the implementation date for using the new Foreign Labor Application Gateway (FLAG) system until June 1, 2023. The full announcement reads as follows:

“Following up on the announcements of April 21, April 27, May 1, and May 8, 2023, the Office of Foreign Labor Certification (OFLC) is postponing the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway (FLAG) from May 16, 2023, to June 1, 2023. Applicants should continue to use the current PERM and CW-1 forms until such time.

“As a result of the transition to the revised version of the form and the transition to FLAG, OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 31, 2023, at 6:59 pm Eastern Standard Time. OFLC will no longer accept the previous version of Form ETA-9089 or Forms ETA-9141C/9142C, and their related forms, after May 31, 2023, either electronically or submitted by mail.”

 

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The post OFLC Postpones Implementation of New Form ETA 9089 appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Unfortunately, a PERM case that has only made it to the recruitment phase typically cannot be used as a basis for extending H1B status beyond the standard 6-year max. (11.May.2023)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I have used more than 5 years of H1B time and was recently laid off. I do not have an approved I-140, but, before being laid off, my employer reached the recruitment stage of my PERM case. If I find a new employer, is there a way to use that to extend my H1B beyond 6 years? appeared first on Murthy Law Firm | U.S Immigration Law.