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Updated: 1 hour 16 min ago

Alternate Sources for PERM Prevailing Wage Determinations

Thu, 02/29/2024 - 19:24

In applying for a PERM labor certification, an employer first must request a prevailing wage determination from the U.S. Department of Labor (DOL). Although prevailing wage determinations typically are based on internal DOL data, there are times when an employer may be required or have the option to use a different wage source for a prevailing wage determination.

Overview of a PERM Prevailing Wage

The first stage of the PERM process is the employer’s requesting a prevailing wage determination from the DOL using form ETA-9141, application for prevailing wage determination. Once received, the prevailing wage determination establishes the minimum wage the employer can offer for the sponsored position when conducting the mandatory PERM recruitment, which is the same minimum wage the sponsored employee must be paid upon becoming a lawful permanent resident (i.e., receiving a green card) and working for the sponsoring employer.

DOL Wage Determination System

A prevailing wage is determined using data collected under the DOL Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) Program, and is based on a three-part framework. First, the nature of the job offered, classified per the standard occupational classification (SOC) system, which considers a position’s job duties and specific vocational preparation requirements. Second, the area of intended employment, or the area within normal commuting distance of the intended worksite. And third, the wages received by workers employed in comparable positions within the same geographic area.

Alternate Wage Sources

A prevailing wage determination will be based on OES data unless another wage source is provided. Depending on the circumstances, an employer may be required to or have the option to provide alternate data for a wage determination.

Private Wage Surveys

In some cases, the OES data can reflect a higher wage than the actual average wage for a position in a certain area. In such a case, an employer may provide the DOL with a privately published wage survey conducted or funded by the employer. The private wage survey must be recent, such that it was published within 24 months of the prevailing wage request, and must be based on data collected within 24 months of the survey’s publication. The wage data also must be based on a sufficient sample size of workers who are similarly employed across any applicable industries in the area of intended employment. The employer’s requested wage determination should be the arithmetic mean of the collected wage data.

Private wage surveys can be either submitted with an initial prevailing wage request or with a request for reconsideration of a prevailing wage determination initially issued using OES data. An employer must provide the DOL with the methodology used to conduct the private survey to demonstrate the survey’s compliance with reasonable statistical standards.

Collective Bargaining Agreements

When a position is covered by a collective bargaining agreement (CBA) negotiated between a union and the employer, the DOL must use the wage rate contained in the agreement for the position. When filing the ETA-9141, an employer must disclose the existence of the CBA and submit a copy of the relevant CBA sections with the prevailing wage request.

Professional Athletes

If the sponsored position is for a professional athlete and is covered by a professional sports league’s rules or regulations, the DOL must use the wage dictated by the league’s rules or regulations. A professional athlete means an individual employed as an athlete by a member team of an association of six or more professional sports teams with total combined revenues exceeding $10 million per year, or by a minor league team affiliated with such an association.

Federal Contract Acts

An employer covered by the Davis-Bacon Act for a federal construction project, or McNamara-O’Hara Service Contract Act for a federal service project, may request that the DOL use the current contracted wage under the applicable act for the PERM prevailing wage determination. However, a covered employer is not required to make this request and may request an OES-based prevailing wage instead.

Conclusion

While most prevailing wage determinations use OES data, there are cases in which an alternate wage source may be required or preferred. Considering the nuanced circumstances of each PERM case, it is important to consult a knowledgeable attorney to maximize the likelihood of success during the PERM process.

 

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The post Alternate Sources for PERM Prevailing Wage Determinations appeared first on Murthy Law Firm | U.S Immigration Law.

Three years ago, I got a green card through my U.S. citizen wife. I am now filing an N-400 application to become a U.S. citizen. The form asks me to list all my travel outside the U.S. over the past 5 years. Is it ok to only list it for the past 3...

Wed, 02/28/2024 - 21:18
Answer

In the past, for clients who are filing N-400 applications based on marriage to a U.S. citizen, we have only listed travel for the past 3 years, and have not found this to be an issue. (28.Feb.2024)

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 Three years ago, I got a green card through my U.S. citizen wife. I am now filing an N-400 application to become a U.S. citizen. The form asks me to list all my travel outside the U.S. over the past 5 years. Is it ok to only list it for the past 3 years, since I am filing based on marriage to a U.S. citizen? appeared first on Murthy Law Firm | U.S Immigration Law.

I am currently on H1B, with my I-94 valid through 2026, and my employer had advised me I am eligible to take 3 months of unpaid leave through the Family and Medical Leave Act (FMLA). If, at the end of my leave, I decide to change to H-4 status (or...

Wed, 02/28/2024 - 21:14
Answer

An H1B worker typically is entitled to take FMLA leave to the same extent as any other similarly situated employee at that company. So, assuming you are eligible for FMLA, you would normally be viewed as having maintained H1B status throughout the FMLA period, even if this period is unpaid.

At the end of the voluntary leave, you may resume working for your employer. Or, if you terminate your employment, you generally can apply for a change of employer or change of status, the same as a person can following any other termination of employment. Rather than providing pay stubs to evidence maintenance of status, you can instead submit documents showing you were on FMLA leave. (28.Feb.2024)

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 currently on H1B, with my I-94 valid through 2026, and my employer had advised me I am eligible to take 3 months of unpaid leave through the Family and Medical Leave Act (FMLA). If, at the end of my leave, I decide to change to H-4 status (or change employers), is that permissible? appeared first on Murthy Law Firm | U.S Immigration Law.

After completing my MBA, I got one year of OPT. If I now go back and get a second master’s degree, but this time it is a STEM degree, can I get two years of STEM OPT?

Wed, 02/28/2024 - 21:12
Answer

A person typically qualifies for a new period of OPT after each educational level. The “master’s” period of OPT would be exhausted after completing an MBA, so one would not qualify after then completing a second master’s degree. And, you cannot apply for a two-year STEM OPT extension unless you first qualify for the initial one year of OPT. (28.Feb.2024)

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 After completing my MBA, I got one year of OPT. If I now go back and get a second master’s degree, but this time it is a STEM degree, can I get two years of STEM OPT? appeared first on Murthy Law Firm | U.S Immigration Law.

Murthy Snapshot: Ukrainian Re-Parole

Wed, 02/28/2024 - 14:01

On February 27, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced that eligible Ukrainian nationals paroled into the United States due to the invasion of Ukraine by Russia can apply for a two-year humanitarian period of re-parole. While we work to provide our readers with a detailed analysis of this update, below are the key points you need to know:

  • Humanitarian re-parole is available for Ukrainian citizens initially paroled into the U.S. on or after February 11, 2022.
  • A form I-131, application for travel document, should be filed for re-parole before the expiration of the initial parole period.
  • The USCIS recommends filing the I-131 online, instead of by mail, to reduce possible errors and delays with the application.
  • After the re-parole is approved, a parolee can apply for a new employment authorization document (EAD).
Your Takeaway:

The U.S. has a proud tradition of offering humanitarian relief to foreign nationals during emergency situations. The Russian invasion of Ukraine has been particularly devastating to Ukrainian nationals, and the re-parole for Ukrainian nationals should offer at least a modicum of relief and protection to those who are unable to return home.

 

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The post Murthy Snapshot: Ukrainian Re-Parole appeared first on Murthy Law Firm | U.S Immigration Law.

AOS for G4 Retirees

Tue, 02/27/2024 - 20:26

Are you or your family member retiring from a career as a G4 or NATO-6 employee? G4 retirees can apply for a green card if certain physical presence and U.S. residence requirements are met. Contact us to learn more.

The post AOS for G4 Retirees appeared first on Murthy Law Firm | U.S Immigration Law.

MurthyAudio: Q&A on the 60-Day Grace Period

Tue, 02/27/2024 - 18:55

Suggestions for H1B visa holders navigating job loss and the 60-day grace period are offered by Murthy Law Firm attorneys in this insightful Q&A session.

 

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

 

         

The post MurthyAudio: Q&A on the 60-Day Grace Period appeared first on Murthy Law Firm | U.S Immigration Law.

EB2 or EB3: Understanding the Difference

Mon, 02/26/2024 - 15:50

The Murthy Law Firm periodically receives questions from those who do not know the categories of their pending employment-based permanent residence (“green card”) cases. This is a useful piece of information, which determines timeframes and options for an individual or family. While generally available from the employer or attorney filing one’s green card case, there may be some foreign nationals who need to independently verify this information. Some useful guidance is provided here for the benefit of our readers. It includes possible indicators of the employment-based (EB) preference category assigned to particular I-140 immigrant petitions to help in understanding your situation.

Overview: Differences Between EB2 and EB3

In a green card case based on a labor certification, there are two possible category options: EB2 and EB3. As many of our readers know, however, the difference between these two preference categories is significant – as well as the processing times, in most situations. The category impacts the timing of eligibility for filing an application to adjust status (I-485), one’s eligibility for approval of the I-485, and ultimately, the resulting grant of permanent residence.

Preference Classification Determined by USCIS at I-140 Stage

The first stage in a labor certification-based green card process is the filing of the PERM labor certification (PERM LC). This application is filed with the U.S. Department of Labor (DOL). The contents of the PERM LC determine the appropriate EB category. However, the selection and assignment of a preference classification occurs during the second stage, which is the I-140 immigrant petition. The I-140 is filed with the U.S. Citizenship and Immigration Services (USCIS).

In the PERM LC, the employer states appropriate minimum job requirements in terms of education and experience. The sponsored individual must be able to demonstrate that s/he possesses the required education and experience as of the date the PERM LC is filed. The education and experience requirements dictate the EB category of the case during the I-140 stage. The employer requests the EB category in the I-140 petition, based upon the PERM LC. The USCIS makes the final determination of whether the case fits within the requested category during adjudication of the I-140 petition.

EB2 Requirements and Determination Criteria

The adjudicator determines the I-140’s preference classification, following the legal guidelines for each category. The EB2 classification is for those positions offered to individuals who are members of the professions holding advanced degrees.

EB2 Based on Master’s Degree or Equivalent

There are several possible ways for a sponsored individual to qualify for EB2. Most commonly, it requires a showing that the employer needs an individual with an advanced degree in the position and that the sponsored worker has that degree. The qualifying degree may be an advanced degree (master’s or doctorate) earned in the United States or its foreign equivalent.

EB2 Based on BS Degree Equivalent Plus 5 Years Experience

Alternatively, EB2 qualification includes a position requiring a U.S. bachelor’s degree or its foreign equivalent and five years of progressive (i.e. post-baccalaureate) experience. For cases filed on this basis, these requirements must be met in order for the USCIS to assign the EB2 classification to the petition. Thus, if an individual knows the requirements for the position, as stated in the PERM LC, this will indicate the case category.

EB2 Based on Exceptional Ability

It should be noted that EB2 is also appropriate for those with exceptional ability in the sciences, arts, or business, who will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. This option is outside the scope of this article, but it is a matter to discuss with your attorney, or with an attorney at the Murthy Law Firm, if you believe you may be eligible for this category of EB2.

Receipt and Approval Notice: Category Stated

The USCIS receipt notice and approval notice for Form I-140 indicate the EB category of the case. If the I-140 is determined to be in the EB2 classification, then the USCIS issues a receipt notice (Form I-797), which usually has this notation in the Notice Type box: “Mem of Profession w/Adv Deg, or of Exceptn’l Ability Sec. 203(b)(2).” The same information is stated on the approval notice once the petition is approved. Some I-140 receipt notices notate the classification in the preference classification box and formatted as “203 B2 ADV DEGREE-EXC ABILITY.”

EB3 Requirements and Determination Criteria

The EB3 classification incorporates skilled workers and professionals. In addition, EB3 has a subcategory of other workers. Although all three of these types are assigned to the EB3 classification, typically, those filed as EB3 other workers are subject to an even longer wait for their priority dates to become current.

EB3 for Skilled Workers

The skilled workers classification is for individuals with at least two years training or experience not of a temporary or seasonal nature.

EB3 for Professionals

The professionals classification is for individuals who hold at least a U.S. bachelor’s degree, or a foreign equivalent, and who are members of the profession. When the USCIS issues a receipt and approval notice in the EB3 category, it usually contains the notation: “Skilled Worker or Professional, Sec 203(b)(3)(A)(i)” or “(ii).”

EB3 for Other Workers

The other workers classification is for individuals who are capable of performing unskilled labor. The employer petitioning to fill a position in this category typically requires less than two years of training or work experience. The notation on the I-797 usually reads, “Other workers Sec. 203(b)(3)(A)(iii).”

EB Category on I-140 Petition Receipt / Approval Notice

Knowing your EB preference category and the priority date assigned to the I-140 petition is vital to understanding your immigration situation. This information is found on the I-140 receipt and approval notices. It is not necessary to memorize sections of law in order to decipher these notices. For EB2, it is enough to remember that the section for EB2 ends in 2. For EB3, the section ends in 3, but one must remember that, if the Roman numeral (iii) appears, s/he is in other workers. And, as explained above, the answer as to the EB preference category is also contained in the requirements for the position.

Conclusion

Sponsored workers who do not have access to the I-797 (receipt or approval notice) for their I-140s, may be able to obtain these by requesting copies of their A files under the Freedom of Information Act (FOIA). While the I-140 is the employer’s filing, depending upon the situation, a FOIA request may enable one to obtain copies of the I-140 filing and related notices and USCIS correspondence. Once a copy is in hand, the preference classification should be clear. Individuals for whom questions remain on this matter may contact the Murthy Law Firm for a consultation with one of our attorneys.

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 EB2 or EB3: Understanding the Difference appeared first on Murthy Law Firm | U.S Immigration Law.

Murthy Takes Action: Firm Pushes for Increase in Number of Green Card Available Annually

Thu, 02/22/2024 - 20:47

The attorneys in our firm regularly track governmental policies and takes action to improve the immigration process for our clients and the immigration community at large. To that end, the Murthy Law Firm recently submitted a petition for rulemaking to the U.S. Department of State (DOS), proposing an amendment to the DOS regulation governing immigrant visa number allocation. The proposal we submitted, if implemented, would dramatically increase immigrant visas, resulting in an increase in the number of green cards that could be issued each fiscal year. If adopted, this would significantly reduce backlogs in oversubscribed preference categories, such as the employment-based, second and third (EB2 and EB3) categories.

Overview of Immigrant Visa Number Allocation

Statutory limits restrict the number of foreign nationals who may be granted lawful permanent residency (i.e., a “green card”) under all employment-based (EB) and most family-based (FB) categories each fiscal year. The annual limits are controlled using immigrant visa numbers, which are allocated between the EB and FB green card categories. Immigrant visa number allocation is capped per-country, further limiting how many visa numbers can be issued annually to individuals born in a particular country. To be eligible for an immigrant visa number, an individual’s priority date must be current on the DOS monthly visa bulletin, as explained in the MurthyDotCom NewsBrief, Priority Dates: How Does the Visa Bulletin Work? (03.May.2023).

Current DOS Policy Has Resulted in Massive Backlogs

Under current DOS regulations, a separate visa number is allocated to each person who is issued a green card. This means that if the principal beneficiary of an I-140 petition is married with two non-U.S. citizen children a family of four likely would go on to use four immigrant visa numbers, once the green cards eventually are issued.

This policy exacerbates the long wait for an immigrant visa number, especially for an individual born in an oversubscribed country such as India or China. According to recent data, millions of approved EB and FB petitions are waiting for immigrant visas to become available. This is in addition to more than 2 million pending FB and EB petitions combined. Additionally, more than 600,000 combined FB and EB applicants with pending green card applications are waiting for visa numbers to be issued. Of the immigrant visa numbers available for allocation each fiscal year, approximately half of the allocated visas are used for dependents.

Murthy Submits a Petition for Rulemaking

To address this issue, the Murthy Law Firm has submitted a petition for rulemaking to the DOS, proposing new regulatory language that would have the DOS count only the immigrant visa issued to the principal applicant. As we explained to the DOS, a plain reading of the Immigration and Nationality Act (INA), upon which the regulation is based, supports the Murthy Law Firm’s proposal that a single immigrant visa number should be allocated for all members of a family. Our petition to the DOS explains our interpretation of the INA and our proposed regulatory language is reasonable, lawful, and within the authority of the DOS to adopt.

Conclusion

At this time, an immigrant’s wait to become a lawful permanent resident could be more than a decade. This is not what the INA or its visa allocations were enacted to accomplish. The purpose of the statute is to facilitate lawful and timely immigration to the United States so that foreign nationals can become fully participating members of our society. The Murthy Law Firm urges the DOS to adopt the proposed regulatory amendment to enable more valued immigrants to realize their American dream.

 

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The post Murthy Takes Action: Firm Pushes for Increase in Number of Green Card Available Annually appeared first on Murthy Law Firm | U.S Immigration Law.

MurthyAudio: Q&A on ATP/AC21

Thu, 02/22/2024 - 19:51

Unravel the complexities of AC21 portability and I-140 adjudication with expert insights from Murthy Law Firm attorneys in this exclusive Q&A session.

 

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

 

         

The post MurthyAudio: Q&A on ATP/AC21 appeared first on Murthy Law Firm | U.S Immigration Law.

My parents have been visiting on B-2 for almost six months. Can they leave and return after a few weeks to help me with my new baby?

Wed, 02/21/2024 - 20:26
Answer

There is no set length of time that a person must wait to request readmission on a B-1/B-2 (or B-2) visa. However, U.S. Customs and Border Protection (CBP) officers at the port of entry always have discretion to admit (or deny admission to) a person requesting to enter on a B-1/B-2 visa. Under normal circumstances, some of the issues that officers tend to look at are the recency and duration of previous stays. Officers are also permitted to take into consideration other matters, like the reason the individual is requesting readmission. (21.Feb.2024)

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 My parents have been visiting on B-2 for almost six months. Can they leave and return after a few weeks to help me with my new baby? appeared first on Murthy Law Firm | U.S Immigration Law.

I am in F-1 status and my wife is in F-2. I found an employer to file an H1B registration for me this year. Does anything need to be filed for my wife during the registration period?

Wed, 02/21/2024 - 20:24
Answer

No, there normally is nothing that would need to be filed for the H1B principal’s dependents during the registration period. (21.Feb.2024)

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 F-1 status and my wife is in F-2. I found an employer to file an H1B registration for me this year. Does anything need to be filed for my wife during the registration period? appeared first on Murthy Law Firm | U.S Immigration Law.

What is Cross-Chargeability?

Tue, 02/20/2024 - 17:42

If using your spouse’s or parent’s country of birth rather than your own will make your priority date become current more quickly, you can “cross-charge” it to them. Contact us if you think this may apply to you!

The post What is Cross-Chargeability? appeared first on Murthy Law Firm | U.S Immigration Law.

Update on Emergency Student Visa Appointments in India

Mon, 02/19/2024 - 15:02

The official U.S. Visa Information Service website for consular services in India has updated its guidance for Indian students applying for emergency student visa appointments. This guidance was prompted largely by a shortage of regular visa appointments at U.S. consular posts in India, necessitating many F-1 applicants to request emergency student visa appointments.

Background

One of the primary obstacles faced by Indian students is the scarcity of regular visa appointment slots, especially during off-peak seasons. Typically, the bulk of F-1 visa appointments are concentrated around June and July, aligning with program start dates in the Fall semester. Similarly, a smaller window exists in November and December for students commencing studies in January.

Limited Availability of Emergency Appointments

Appointment slots for student visas are scarce beyond these conventional visa processing timeframes. This poses a significant challenge for applicants intending to commence programs on off-cycle start dates. This is compounded by the fact that emergency appointment requests generally are entertained only under exceptional circumstances. Per the guidance, prior to requesting an emergency appointment, prospective students who are unable to schedule an appointment before the scheduled start date should consult with the university and consider deferred enrollment for the following semester.

Submitting an Emergency Appointment Request

If the F-1 visa applicant wishes to submit a request for an emergency appointment, either the original form I-20 or DS-2019 indicating a program start date within 60 days will be required. In addition, the notice indicates that the applicant cannot have had a student visa refused within the past year – although, a separate webpage that provides more information on applying for emergency appointments says that students cannot have been refused a visa within the last six months.

Conclusion

The consideration of emergency appointment requests serves as a vital lifeline for applicants facing exceptional circumstances. However, it is essential to recognize that such avenues are not readily accessible and are reserved for genuine emergencies.

 

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The post Update on Emergency Student Visa Appointments in India appeared first on Murthy Law Firm | U.S Immigration Law.

FAQs on FY25 H1B Cap and the Electronic Registration System

Thu, 02/15/2024 - 23:53

The H1B registration period for fiscal year 2025 (FY25) is nearly upon us. The U.S. Citizenship and Immigration Services (USCIS) will kick off the two-week H1B registration period on March 6, 2024. And, while there are a few minor changes to the registration system this year, the core process of submitting registrations will be very similar to last year’s system. Below are answers to a number of frequently asked questions from foreign nationals and prospective H1B employers.

1. What is the H1B cap?

The H1B cap is an annual limit on the number of individuals who may be granted H1B status, not including those who are exempt from the cap (which includes those who previously have been counted against the H1B cap). The cap is set by Congress and currently is set at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for nationals of Chile and Singapore. This does not include the 20,000 additional H1B numbers available to persons who have earned masters’ degrees or higher from certain U.S. institutions of higher education, commonly referred to as the “master’s cap.”

2. How does the H1B electronic registration system work?

During the registration period designated by the USCIS, the employer must submit a separate electronic registration, along with a registration fee, for each cap-subject H1B candidate the company seeks to sponsor for the next fiscal year. This year’s registration period will start at noon Eastern Time (U.S.) on March 6, 2024, and end at noon Eastern Time (U.S.) on March 22, 2024, and the registration fee will be $10.00.

At the end of the initial registration period, assuming it is determined that more registrations have been received than needed to reach the regular cap and the master’s cap, the USCIS will conduct a lottery for all registrations submitted, and then a second lottery for the remaining registrations that qualify for the master’s cap.

By the end of March, the USCIS will notify the employer / petitioner for each selected registration that they may file an H1B petition on behalf of the employee / beneficiary listed in the registration. The notice will provide the petitioner with a 90-day filing window to submit the petition. For registrations selected during the initial registration period, the 90-day filing period generally begins on April 1st and ends on June 30th.

The USCIS also has procedures in place to select additional registrations, or even reopen the registration period, if the H1B quota has not been exhausted after the initial selection.

3. What information must be included in the registration?

For each registration, the petitioning employer will need to provide certain basic information on both the employer and the sponsored foreign national, including whether the individual qualifies for the master’s cap. Details on the beneficiary that must be provided generally include:

  • Beneficiary’s full name
  • Date of birth
  • Country of birth
  • Country of citizenship
  • Gender
  • Passport or travel document number

The employer also is required to make certain attestations, such as that each registration relates to a bona fide job offer and that, if the registration is selected, the employer intends to file an H1B petition for the individual.

4. What are the requirements to qualify under the master’s cap?

To qualify, one must have completed a master’s degree (or higher) from a qualifying U.S. university. The university must be properly accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Additionally, the university must be a public or private nonprofit institution. If either of these two requirements is not met, the degree does not qualify the individual for the master’s cap exemption.

5. In May 2024 – two months after the electronic registration period ends – I will complete my final course to earn my master’s degree. Can my prospective employer submit my registration under the master’s cap?

Assuming the degree otherwise meets the requirements for the master’s cap, yes, this appears to be permissible under the registration rule. However, if the registration is selected, the employer and employee must wait to file the H1B cap-subject petition with the USCIS until completion of coursework or the attainment of the degree, as explained below.

In the preamble to the final rule that created the registration system, the USCIS noted that the “final rule does not alter the general requirement for establishing eligibility at the time the petition is filed.… Eligibility for H1B classification does not need to be demonstrated at the time a registration is submitted.”

Accordingly, if a beneficiary completes all degree requirements before the petition is filed, this should be permissible. Given that the 90-day filing window for the vast majority of registrations selected will run from the start of April 2024 through the end of June 2024, H1B candidates expected to graduate before the end of June 2024 should be able to use those degrees to qualify.

6. I am graduating with a bachelor’s degree this coming May. Can I have an employer submit a registration for me in March based on that degree?

Yes, the same general concept applies here as with the previous question about the master’s degree. The beneficiary must complete all the degree requirements before the petition is filed and hence this should work.

7. Can I submit an H1B registration on my own? Do I need an employer to do it on my behalf?

Foreign nationals cannot submit H1B registrations (or petitions) for themselves. Only U.S. employers, or an employer’s legal representative, may submit an H1B registration or file an H1B petition on behalf of a foreign national. A person cannot self-sponsor for H1B.

In certain situations, it may be possible to be sponsored for an H1B position by a U.S. entity owned by the H1B worker. The USCIS tends to be very reluctant to approve these filings. (It also does not eliminate the need for a U.S. entity to submit the registration and file the H1B petition.)

8. Can more than one company submit H1B registrations for me?

It is possible for an individual to be registered for the lottery by more than one U.S. company. However, a single company normally cannot file multiple registrations for the same individual. Similarly, related or affiliated companies are not allowed to submit registrations for the same beneficiary unless there are truly two separate job opportunities that can be clearly documented when the H1B petition is filed.

Note that, based on a rule change implemented this year, sponsorship by more than one employer will no longer improve one’s odds of selection in the lottery. Rather, the foreign national will be limited to no more than a single entry in the lottery system, irrespective of the number of registrations submitted for that individual.

9. I found a U.S. company that is willing to sponsor me for an H1B position, but I have to hire an attorney to file the case and cover all the costs. Is that okay?

By law, certain fees associated with an H1B petition, including the ACWIA fee and the fraud prevention and detection fee, must be paid by the employer. It is strongly recommended, however, that the employer pay the attorney fees and all government filing fees, even those not specifically required by statute or regulations.

The U.S. Department of Labor (DOL) views nearly all fees paid in connection with the preparation and filing of an H1B petition to be an employer’s business expense. DOL regulations state that the imposition of an employer’s business expense on an employee represents a reduction in wage payments. If the employee’s wage falls below the required wage (the higher of the “prevailing wage” or the employer’s “actual wage”) due to this reduction, then the payment of these fees would constitute a wage violation. The employer may be liable for back wages, civil monetary penalties, and/or be disbarred from immigration programs, including filing H1B, H1B1, and/or E-3 petitions, in the event the employee’s wage falls below the required wage due to payment / reimbursement of the employer’s business expenses.

10. I am in F-1 status and have an optional practical training (OPT) work permit. Is it true that I can continue to work after my OPT expires based on cap-gap? Does registration provide any cap-gap benefits?

Under the cap-gap provisions, if an employer timely files a cap-subject H1B petition (i.e., not merely a registration) for a change of status for an October 1st start date (i.e., filed before the OPT period ends), then a foreign national in F-1 status may continue working between the expiration of the employment authorization (as indicated on the employment authorization card) and October 1st. If the petition with a change of status to H1B is approved by October 1st, the person then would begin to work in the H1B position on October 1st. If the H1B petition is denied, the cap-gap period for temporary work authorization generally terminates.

If the petition is still pending as of October 1st, assuming the OPT period has expired, one normally must stop working until the H1B petition is adjudicated. If approved, the foreign national would begin working in the H1B position upon the date of approval; if denied, the individual typically must depart the U.S.

The electronic registration program that the USCIS is operating does not provide any cap-gap benefits. Only if the registration is selected and the cap-subject H1B petition is filed according to the normal, existing cap-gap rules is a person in F-1 status able to benefit from cap-gap work authorization.

11. Do I have to be in the United States for a company to submit me for registration? If the registration is selected, do I have to be in the U.S. for the H1B petition to be filed?

No, the law does not require a person to be in the United States for a company to submit a registration for that individual. If a registration is selected for someone who is outside the U.S., the employer typically will have to file the petition within the filing period assigned by the USCIS for consular notification. Once the petition is approved, then the individual normally will have to apply for an H1B visa “stamp” at a U.S. consular post abroad before requesting admission in H1B status.

12. Will the USCIS issue requests for evidence (RFEs) on registrations?

No, the USCIS does not issue RFEs during the registration process and lottery. The USCIS has indicated that it will run the lottery with the information provided through the registration program.

13. Will premium processing be available for cap cases this year?

There is no word yet from the USCIS as to whether any restrictions will be placed on the use of premium processing for FY25 cap filings.

 

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The post FAQs on FY25 H1B Cap and the Electronic Registration System appeared first on Murthy Law Firm | U.S Immigration Law.

I am on H-4 and recently got an approved I-140. Can I use that to apply for an EAD?

Wed, 02/14/2024 - 13:11
Answer

You cannot apply for an H-4 EAD based on your own approved I-140. If your spouse has an approved I-140, you can use that to apply for an H-4 EAD. Or, once your priority date is current, if you file your I-485 application, you may then also apply for an EAD based on the I-485. (13.Feb.2024)

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 H-4 and recently got an approved I-140. Can I use that to apply for an EAD? appeared first on Murthy Law Firm | U.S Immigration Law.

I am on OPT and am in the process of applying for an OPT extension. The F-1 visa in my passport, however, is scheduled to expire in a few months. Is that going to create a problem with my request to extend my OPT?

Wed, 02/14/2024 - 13:06

Answer

The expiration date of the F-1 visa in one’s passport typically has no impact on the F-1 status. The F-1 visa is an entry document. It generally must be valid when the person is requesting admission in F-1 status. But, if the person is already in the U.S., it makes no difference if the visa expires, other than that the visa typically would have to be renewed if the person travels abroad and then wishes to return in F-1 status. (13.Feb.2024)

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.

 

 

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved

The post I am on OPT and am in the process of applying for an OPT extension. The F-1 visa in my passport, however, is scheduled to expire in a few months. Is that going to create a problem with my request to extend my OPT? appeared first on Murthy Law Firm | U.S Immigration Law.

I received a notification from the consulate informing me that my H1B visa has been revoked. Does that mean I am now out of status?

Wed, 02/14/2024 - 12:58
Answer

The revocation of a visa by a consulate normally has no impact on one’s current status. (13.Feb.2024)

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.

 

 

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved

The post I received a notification from the consulate informing me that my H1B visa has been revoked. Does that mean I am now out of status? appeared first on Murthy Law Firm | U.S Immigration Law.

Running Out of H1B Time?

Wed, 02/14/2024 - 00:48

Did you know there are exceptions to the durational limit of H1B status? When H1B work is seasonal or intermittent, the 6-year limit doesn’t apply. Similarly, an exception exists if you spend 6 months or less per year in the U.S. Questions? Call us! We’d love to talk!

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