US Immigration News

The October 2022 Visa Bulletin, future predictions for the Visa Bulletin, and documentation required to file an I-485 application are the topics discussed by Murthy Law Firm attorneys in this podcast.

Employers and their representatives are invited to participate in the teleconference scheduled for October 05, 2022 – another in our series designed especially for them. Find out how to register here.

 

 

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The post Teleconference: Impact of Visa Bulletin Movement appeared first on Murthy Law Firm | U.S Immigration Law.

The impact of timing issues when filing H1B and other nonimmigrant extensions and when the PERM process (i.e. green card) should be started are topics discussed by Murthy Law Firm attorneys in this teleconference.

Employers and their representatives are invited to participate in the teleconference scheduled for September 07, 2022 – another in our series designed especially for them. Find out how to register here.

 

 

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The post Teleconference: Timing Issues – Green Card / H1B Extensions appeared first on Murthy Law Firm | U.S Immigration Law.

The impact of criminal issues (such as DUI and shoplifting) on nonimmigrant status and lawful permanent residence (i.e. green card) is the topic discussed in this teleconference from 08.Aug.2022.

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

 

 

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The post MurthyAudio: Impact of Criminal Issues appeared first on Murthy Law Firm | U.S Immigration Law.

In 2004, the U.S. Citizenship and Immigration Services (USCIS) confirmed the continued validity of an approved change-of-status petition with a future start date, when a person travels abroad after such approval but reenters the United States before the future start date is reached. This clarification has been useful, especially for cap-subject H1B petitions, which typically request a future start date. This option is explained here for the benefit of MurthyDotCom readers.

How Does the Last-Action Rule Apply During International Travel?

The basic question posed to the USCIS in 2004 was, “What happens if the USCIS has approved one’s status and petition with a future start date and, thereafter, the individual travels outside of the United States, reentering in the present (unchanged) status prior to the future start date?” We know that, for one who has obtained, for example, an H1B petition approval with a change of status, and who remains in the U.S. until the H1B start date, that person’s status would change as of the date listed on the H1B approval notice. So, the question is whether the intervening international travel changes the equation under the “last-action rule” where the last action of the USCIS governs one’s status.

The USCIS responded that the travel does not change the equation. The USCIS, through Efren Hernandez, then Chief, Business and Trade Services Branch, reasoned that the last action would not be the travel and reentry in the prior status, but the previously-approved petition and change of status with a future start date. The travel does not invalidate the previously-approved USCIS change of status effective from a future date. This is because the last action regarding the foreign national’s status governs.

Example: Filing a COS from F-1 to H1B with Future Start Date

The question posed to the USCIS assumes that one is in F-1 status and an employer is filing for a change of status to H1B with a start date six months after the time of filing. So, moving the example to the present time, on May 1, 2022, the employer filed an H1B petition with an October 1, 2022 start date. The case is approved on August 23, 2022, with a change of status from F-1 to H1B. The I-94 reflecting the change of status is attached to the approval notice. The person’s F-1 and optional practical training (OPT) is valid, so the beneficiary decides to travel outside the United States on August 25, 2022, returning to the U.S. on the F-1 on September 6, 2022, nearly a month prior to the H1B start date of October 1, 2022.

So, the question posed is whether, after the international travel, the previously-approved change of status from F-1 to H1B, with an effective date from October 1, 2022, is still valid, or is the last action considered to be the F-1 admission reflected on the I-94 created at the U.S. port of entry on September 6, 2022.

USCIS Reasoning of “Later in Time” Governs

The USCIS stated that the change of status would take effect automatically on the effective date of the H1B petition / change-of-status notice of action of October 1, 2022, in this example. The intervening admission to the U.S. does not override this later effective date. The “last action” rule does not change this fact because the last action that has been taken is the effective date of the H1B petition and change of status approval. Although the I-94 card reflecting the H1B change predates the latest I-94 update entered electronically at the port of entry, the change of status to H1B does not become effective until October 1, 2022, after the person’s entry into the United States.

USCIS Letter Guidance Applied

This analysis was provided by the USCIS in the form of letter guidance. Such guidance does not carry the binding force of law or regulation. However, the USCIS has generally applied the analysis contained in the letter since 2004.

Distinguish from Travel While Change of Status Pending

This guidance should not be confused with the rule that a person who travels abroad while a change of status is pending abandons the request for the change of status. In the question posed, the petition and the change of status had been approved before the person departed the U.S. While the example used was a change from F-1 to H1B, there are other scenarios in which the same logic applies.

Conclusion

The 2004 Hernandez letter remains helpful and relevant even after many years. While it would be preferable for the USCIS to provide this guidance in a more formal matter (e.g., adding this to the USCIS Policy Manual), at least the letter provides a measure of confidence for foreign nationals who have to travel before the start date of an approved H1B petition goes into effect.

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, originally from May 6, 2005, which remains relevant and has been updated for our readers.

 

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The post Travel After Change-of-Status Approval with Future Start Date appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

When the USCIS issues an RFE for medicals on a pending I-485 application, that may be an indication that the case is close to being approved. We tend to see this a lot as we approach the end of the fiscal year (i.e., September 30th).

That being said, this is not always the case. There are times when an RFE for medicals is issued and, for one reason or another, the case remains pending for a good while longer. In general, however, an RFE for medicals tends to be a good sign. (03.Aug.2022)

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 I-485 is pending and I was issued an RFE for my updated medicals. Does this mean my green card is about to be approved? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

There is guidance indicating that you should be able to travel while an amendment is pending if you have a valid H1B visa in your passport and the receipt notice for the amendment. However, we cannot entirely rule out the possibility that a CBP officer at the U.S. port of entry might deny admission without the H1B amendment approval notice.  (03.Aug.2022)

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, prior to moving to a new project, my employer filed an H1B amendment for me. Can I travel while that case is pending? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

If you earn a U.S. master’s degree from a qualifying university, you normally would qualify for the master’s cap. There is no requirement that a person be in F-1 status while attending the school in order to qualify for the master’s cap. (03.Aug.2022)

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The post If I get a U.S. master’s degree while in H-4 status, would that make me eligible for next year’s H1B master’s cap, or do I have to be in F-1 status to qualify? appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Citizenship and Immigration Services (USCIS) has announced two accommodations being made related to the COVID-19 pandemic. First, the USCIS again has extended the response time flexibility, initially announced on March 20, 2020. Second, the USCIS has made permanent the policy that allows all benefit forms and documents to be submitted with reproduced original signatures.

Response Time Flexibility

The USCIS has extended the response time flexibility for a variety of request types and notices. This flexibility applies to applicants and petitioners responding to any of the following, issued from March 1, 2020, through October 23, 2022:

• Requests for evidence (RFEs)
• Continuations to request evidence (N-14)
• Notices of Intent to Deny (NOIDs)
• Notices of Intent to Revoke (NOIRs)
• Notices of Intent to Rescind
• Notices of Intent to Terminate regional investment centers
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

The USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before making a final decision on the case.

In addition, the USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if both of these criteria are met:

• The form was filed up to 90 calendar days from the issuance of a decision
• The USCIS made that decision between November 1, 2021, and October 23, 2022, inclusive.

The USCIS will consider a form I-290B received up to 90 calendar days from the date of the decision before it takes any action.

Allowing Reproduced Original Signatures Permanently

The USCIS has made permanent a policy, which was initially implemented as a temporary measure on March 21, 2020, to accept reproduced original signatures for all benefit forms and documents. As explained by the USCIS when the policy was initially announced, “[t]his means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.” This includes forms that normally must be submitted with an original, or “wet,” signature, such as form I-129. The USCIS further cautions that, if a document with a reproduced signature is submitted, the USCIS could later request the document with the original signature.

Conclusion

Given that the COVID-19 pandemic is still impacting many aspects of daily life, it is encouraging that the USCIS has extended these flexibilities. Moreover, making permanent the policy to allow for reproduced signatures is a small, but important step toward bringing the agency into the 21st century.

 

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The post USCIS Extends Flexibilities Related to the COVID-19 Pandemic appeared first on Murthy Law Firm | U.S Immigration Law.

The impact of criminal issues (such as DUI and shoplifting) on nonimmigrant status and lawful permanent residence (i.e. green card) is the topic discussed in this teleconference.

Employers and their representatives are invited to participate in the teleconference scheduled for August 03, 2022 – another in this series designed especially for them. Find out how to register here.

 

Copyright © 2022, MURTHY LAW FIRM. All Rights Reserved

The post Teleconference: Impact of Criminal Issues appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. consulates in India have recently altered the method for a visa applicant to appear for a follow-up appointment following a 221(g) refusal. The new process appears to be an improvement over the prior method, which required the applicant to schedule the follow-up appointment via the CGI Federal portal.

Follow-Up Appointment Process

U.S. consular posts are permitting 221 (g) applicants to appear for a follow up interview in one of two ways:

1. The U.S. consular post will notify the applicant of the date and time of the new appointment.
2. Alternatively, the U.S. consulate may advise the applicant to appear for the follow-up interview on any business day during a specific time range.

Conclusion

The new process appears to be an improvement over the prior method, which required a visa applicant to schedule a follow-up appointment on the CGI Federal website. Under the new system, there is greater clarity and more availability of interview appointments. Hopefully, this will help to clear some of the backlogs that have plagued the consulates since the start of the COVID-19 pandemic.

 

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The post Change in Method of Scheduling 221(g) Appointments in India appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Citizenship and Immigration Services (USCIS) will soon begin the second phase of its efforts to expand the availability of premium processing service for two categories of I-140 petitions that historically have not been eligible for premium processing. Specifically, the USCIS is expanding the option of premium processing to certain pending I-140 petitions filed under the EB1(c) multinational executive and manager category and EB2 national interest waiver (NIW) I-140 petitions.

Phased Expansion of Premium Processing

The first phase of this expansion of premium processing service began on June 1, 2022. As detailed in the USCIS announcement, this expansion of premium processing will be phased in as follows:

• Beginning August 1, 2022, the USCIS will accept form I-907 requests for premium processing for EB1(c) petitions filed on or before July 1, 2021.
• Beginning August 1, 2022, the USCIS will accept form I-907 requests for EB2 NIW petitions filed on or before August 1, 2021.

Conclusion

The USCIS is expected to continue expanding this service, and eventually all EB1(c) and EB2 NIW I-140 petitions will be eligible for premium processing. As more details are released on these expansion plans, they will be posted on MurthyDotCom.

 

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The post USCIS Continues Phasing in Premium Processing for Certain I-140 Petitions appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Filing an L-1 petition (or applying for an L-1 visa under a company’s L-1 Blanket) should not impact the H1B petition. If the H1B petition is approved for consular notification (i.e., approved without an I-94), you would likely need to leave the U.S. and obtain an H1B visa “stamp” in order to enter in H1B status, or you could just continue with the L-1, if you prefer. (27.Jul.2022)

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 working in India. An unrelated company filed an H1B for me this year, which was selected in the lottery. My H1B petition was filed for consular processing and is still pending. My Indian employer wants to transfer me to the U.S. in L-1 status. If I apply for an L-1 now, will it impact my H1B? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Typically, there is no need to be in the U.S. when an I-140 is filed. (27.Jul.2022)

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 my U.S. employer filed a PERM for me, I was transferred overseas on a temporary assignment. My PERM was recently approved. Can the I-140 be filed now, or do I have to be in the U.S. when the I-140 is filed? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, this should not impact your ability to retain the priority date from Company A’s approved I-140. Unless the I-140 filed by Company A is revoked for fraud, willful misrepresentation, the invalidation of the underlying labor certification, or material error, you generally will be allowed to use that priority date for any future I-140 filed on your behalf. (27.Jul.2022)

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 2016, my I-140 from Company A was approved. In 2019, I transferred that priority date to an approved I-140 filed by Company B. I then requested the priority date again be transferred to an I-140 filled by Company C. That I-140 is still pending. I now wish to move to Company D. Will I lose my priority date from Company A’s I-140 if I leave before Company C’s I-140 is approved? appeared first on Murthy Law Firm | U.S Immigration Law.

There has been a shortage of nonimmigrant visa (NIV) appointments at the U.S. consulates in India throughout the ongoing pandemic. This problem has been exacerbated by certain agents who have been booking visa appointments in bulk, and then charging visa applicants for these scarce appointment slots. In response, the U.S. consulates have taken steps to mitigate the negative impact such agents are having on visa appointment availability.

Background on U.S. Visa Applications in India

The demand for U.S. visas in India is currently higher than it was prior to the start of the COVID-19 pandemic. The recent spike in the number of U.S. visa applicants in India could be attributable to the status of the Indian economy and the pent-up demand.

During a recent Facebook Live discussion, the Minister Counselor for Consular Affairs in India, Mr. Don Heflin, raised concerns regarding agents misusing the U.S. visa appointment scheduling system in India. Mr. Heflin indicated that many agents had been booking visa appointment dates in bulk, to then sell them to those seeking visa appointment slots. Not only was this unfair to visa applicants, but the appointment slots the agents were unable to sell went unused.

Steps Taken by the U.S. Embassy in India to Prevent Such Misuse

In recent months, the U.S. consulates have introduced a few measures to combat the abuse of the scheduling system for nonimmigrant visa applicants. For instance, the system now includes a CAPTCHA test to prevent agents from using bots to grab available visa appointment slots. The U.S. consulates in India have also stopped announcing the specific dates that new appointment slots will be made available. Further, in response to user complaints, the U.S. Consulate in Mumbai has requested that any individual with information about U.S. visa fraud or consular fraud of any kind, should report the fraud to the consulate via eMail.

Visa applicants should log into their respective profiles on the CGI Federal website on a regular basis to monitor the availability of NIV appointments.

Conclusion

These measures introduced by the U.S. Embassy in India should help reduce unfair manipulation of the online visa appointment scheduling system. This should lead to greater availability of visa appointments and shorter wait times for U.S. visas.

 

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The post Changes to the NIV Appointments in India to Prevent Misuse by Certain Agents appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, there normally would be no need to file an application with the USCIS to move in F-1 status from a bachelor’s program to a master’s program.  (20.Jul.2022)

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 moving from a bachelor’s program to a master’s program. Do I need to file an F-1 extension or amendment? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Typically, a person in L-1 status cannot move to a new position based on a pending amendment. (20.Jul.2022)

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The post I am in L1B status and have been offered a promotion to a managerial position. My employer is filing an amendment to move me to L1A status. Can I start working in the L1A position based on the receipt, or do I have to wait for the petition to be approved? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, unfortunately, it typically is not possible to update a pending F-1 change-of-status application based on a new program of study. Assuming you have already turned 21 (and therefore are no longer eligible for H-4 status through a parent), filing a new application to change to F-1 status also may not be a viable option. I recommend you schedule a consultation with an attorney who can review your situation in greater detail and determine what options may be available. (20.Jul.2022)

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 was in H-4 status based on my father’s H1B. I have been studying in university and, shortly before I turned 21, I filed an application to change to F-1 status. That application is still pending, and it appears I may graduate before my F-1 is approved. Can I transfer to a master’s program based on the pending F-1 change of status application? appeared first on Murthy Law Firm | U.S Immigration Law.

The use of domestic workers, such as live-in maids or nannies, tends to be less common in the United States than it is in many other parts of the world. Foreign nationals planning to come to the United States, in addition to U.S. citizens living abroad, may seek to be accompanied by their domestic attendants or household help, under certain limited circumstances. Many may be surprised to learn that this is possible, provided certain conditions are met.

B-1 Status and EAD for Domestic Attendants

Those familiar with the B-1 category generally associate this nonimmigrant category as being suited for business visitors, and not as a means for securing work authorization. In most situations, this is correct. However, qualified candidates may apply for a specially annotated B-1 visa as a domestic attendant for purposes of working as a personal or domestic attendant (sometimes referred to as a “domestic servant”) of the sponsoring individual.

Separate Requirements for Diplomats, Others

There are separate provisions allowing certain foreign nationals, such as diplomats, employees of foreign governments, and employees of NATO, to sponsor domestic attendants. However, these types of applications are governed by a different set of laws and regulations that is beyond the scope of this article.

Domestic Attendants for Nonimmigrants

A foreign national may be eligible to be sponsored for a B-1 visa as a personal attendant if the individual’s employer is in the United States, or will be entering the U.S., in one of the following nonimmigrant visa categories: B, E, F, H, I, J, L, O, P, Q, R, or TN. In addition, the following criteria must be met:

• The applicant has a residence abroad that s/he has no intention of abandoning.
• The applicant has at least one year of experience as a personal or domestic employee.
• The applicant has been employed abroad by the qualifying nonimmigrant employer as a domestic attendant for at least one year prior to the date of the employer’s admission to the United States; or, in the alternative, the employer can demonstrate that s/he has regularly employed personal or domestic employees.
• The employer and the applicant have signed an employment contract which states that the employee is guaranteed the minimum or prevailing wage, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee.
• The employer must pay the domestic’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the employee’s country of normal residence upon termination of the assignment.

Domestic Attendants for U.S. Citizens

Not all U.S. citizens can sponsor a foreign national for a domestic attendant position. Rather, only those U.S. citizens who are permanently residing abroad or who frequently are stationed abroad for long-term assignments are potentially eligible to sponsor B-1 attendants. The requirements for applying as the domestic attendant of a U.S. citizen are similar although not identical to the requirements for a B-1 attendant of a nonimmigrant. Lawful permanent residents (i.e. “green card” holders), on the other hand, are not permitted to sponsor B-1 attendant workers.

B-1 Domestic May Apply for EAD

Historically, the U.S. Citizenship and Immigration Services (USCIS) took the position that the B-1 attendant must obtain an EAD prior to commencing employment. This had long been a problem for B-1 attendants because of USCIS processing times for EAD applications. In 2021, however, the USCIS quietly updated its B-1 webpage to state that B-1 attendants may apply for an EAD, but that an EAD is not required.

Procedure at Consulate

The intending B-1 attendant typically first must request the visa from the consulate in a process similar to applying for an ordinary B-1 business visa. However, because the B-1 attendant visa has some specific requirements and is used relatively infrequently at most consulates, the applicant would be well advised to present the consular officer with a prepared package that clearly establishes the legal basis for the B-1 attendant visa. Applicants are encouraged to consult with a qualified attorney for assistance with preparing such a package.

Duration of B-1 Attendant Status

A B-1 attendant may be initially admitted to the United States for up to one year. Extension requests subsequently can be granted in increments of up to six months.

Conclusion

The B-1 attendant visa may be a viable option for those accustomed to the assistance of trusted domestic attendants / workers. Nonimmigrants and U.S. citizens who wish to sponsor an employee for a B-1 domestic attendant visa are welcome to contact the Murthy Law Firm for assistance in preparing an application package.

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 Nonimmigrants Hiring Foreign Domestic Attendants appeared first on Murthy Law Firm | U.S Immigration Law.