US Immigration News

Answer

No, there is a U.S. civics/history test when applying for U.S. citizenship. But, there is no such test when applying for a green card. (03.Dec.2020).

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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Answer

Yes, we are still waiting for the Department of Labor Office of Foreign Labor Certification (OFLC) to update the prevailing wage data. There is no word yet on when this will happen. (03.Dec.2020).

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 understand that a court recently blocked the DOL rule that increased H1B wages. I have a prospective employer that wants to file an H1B transfer for me, but they told me that when they tried to submit an LCA, it still was showing the old (higher) wages. Is that true? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

It is very hard to say whether the Fairness for High Skilled Immigrants Act has a reasonable chance of being passed in the near future. The House and the Senate each passed different versions of the bill, and they do not have a lot of time left to get together and reach a compromise. The current Congressional session is expected to end within a couple of weeks (likely on December 18, 2020.) If that happens before a compromise is reached, the bill dies and it would be up to the next Congress to potentially reintroduce the bill. (03.Dec.2020).

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 How likely is it that the bill to end the per-country caps gets signed into law? appeared first on Murthy Law Firm | U.S Immigration Law.

Last night, the U.S. Senate passed the Fairness for High Skilled Immigrants Act, which would eliminate the per-country cap on employment-based green cards, and increase the per-country limit for family-based categories. The Senate version is an amended version of the bill previously passed by the House. The House and Senate will need to reach a consensus between the two versions of the bill before it can be sent to the President’s desk for consideration. Assuming the bill makes it to him, President Trump has not yet indicated whether he would sign the bill into law.

If this bill becomes law, it would dramatically change the wait times for employment-based green cards. This bill would be especially beneficial for foreign nationals born in India, who currently face significant backlogs in most of the employment-based categories.

The Murthy Law Firm will continue to closely track this important bill. Subscribe to the MurthyBulletin to receive future updates in your inbox.

 

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The post NewsFlash! Bill to End Employment-Based Per-Country Cap Inches Closer to Becoming Law appeared first on Murthy Law Firm | U.S Immigration Law.

Strategies for employers to consider while hiring H1B workers during the COVID-19 pandemic are discussed by Murthy Law Firm attorneys in the December 2020 teleconference. The discussion includes how to handle on-boarding H1B workers with status issues, a previous H1B denial, and who has been laid off by the last employer based on the cases MLF attorneys have filed since COVID-19 began in March 2020.

Employers and their representatives are invited to participate in the teleconference scheduled for December 02, 2020 – another in this series designed especially for them. Find out how to register here.

The post Teleconference: Hiring H1B Workers During the Pandemic: Status Issues, Denials, and Layoffs appeared first on Murthy Law Firm | U.S Immigration Law.

Today, a federal district court held that the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) violated the Administrative Procedures Act in issuing regulations that failed to go through the normal rulemaking process.

The DOL rule was published on October 8, 2020, and went into effect immediately. It dramatically increased the salary requirements for H1B and PERM labor cases. The DHS rule, which sought to redefine the requirements for H1B positions, was scheduled to go into effect on December 7, 2020. The court has now blocked the DHS and DOL from enforcing either rule.

 

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The post NewsFlash! Federal Court Blocks Enforcement of New H1B Regulations appeared first on Murthy Law Firm | U.S Immigration Law.

When individuals have a brush with criminal law, they are often afraid and, typically, very embarrassed. Such experiences generally are shared, if at all, only with those closest to the individual. Thus, it often feels as if there is no one to turn to for advice. It is important that a foreign national turn to a knowledgeable immigration lawyer for advice at the outset of any criminal charge or soon after an arrest. Criminal lawyers do not typically know all the implications of actions and options in the immigration context, and will often suggest immigration-specific input when defending against a criminal charge.

Potential Serious Immigration Consequences of Criminal Case

Individuals who are not U.S. citizens need to consider both the criminal law consequences of any charges against them as well as potential additional, adverse immigration consequences arising from the charges. Criminal charges can impact one’s current immigration status as well as eligibility for the full range of future immigration benefits.

Why Some Hesitate Speaking with an Immigration Lawyer

Anyone who has been arrested and/or charged with a criminal violation knows the initial period starting with the arrest or the issuance of a criminal citation can be extremely emotional and confusing. Unfortunately, not everyone in this situation seeks professional legal representation. Some believe that the nature of the charge/s is not serious enough to cause long-term problems. Others may have financial difficulties, or may misunderstand the value of such representation, choosing to avoid the expense.

Overview of Benefits from Consulting an Immigration Lawyer

The value of proper advice and representation corresponds directly to the value one places on avoiding or minimizing negative immigration law consequences. With proper counsel, it may be possible to select defense strategies and options that resolve the criminal issue in a manner more favorable from an immigration law perspective.

Essential: Early Analysis of Criminal Charges and Record

Even a seemingly minor criminal offense may result in numerous immigration problems, based on the intricate interplay of criminal law and immigration law. It should never be assumed that offenses, which may even contain the descriptive words “simple” or “petty,” will not create immigration problems. For example, even a petty shoplifting offense can, depending upon a number of factors, make a foreign national inadmissible to the United States.

Such an offense can also make a foreign national removable (deportable) in some cases. As another example, even a simple driving while intoxicated (DWI) offense can cause serious problems, and potential inadmissibility, for those applying for a visa at a U.S. consulate abroad.

Conflicts Between Criminal Law and Immigration Law

Every case depends on the individual circumstances and the state or federal criminal law provisions involved. There is a natural desire to find the fastest route toward making the case go away. Unfortunately, the fastest, simplest route to ending a criminal case is often not the best approach from an immigration viewpoint. Therefore, in addition to retaining criminal defense counsel, it is advisable to consult with a knowledgeable immigration attorney.

The criminal law attorney will focus on the penalties under that state’s criminal laws and generally provide advice and guidance that would be best for most U.S. citizens. Immigration attorneys review each option and assess these from an immigration point of view. A knowledgeable immigration attorney can guide the criminal attorney as to the factors that make for the best immigration options. This allows the criminal attorney to weigh the immigration factors, and potentially seek to negotiate offers favorable from the immigration angle, as well as taking other appropriate actions in challenging the case. In our experience at the Murthy Law Firm, the best possible outcome for the foreign national is far more likely if there is joint strategizing between the criminal defense attorney and the immigration attorney.

Strategies to Minimize Adverse Consequence of Criminality

Avoiding a jail sentence is one typical goal perceived as the best outcome of a criminal proceeding by a criminal lawyer and his/her client. However, the most important goal for a U.S. citizen client is not necessarily the same for a foreign national client.

In some instances, a resolution of a criminal case that results in a short jail sentence may benefit a foreign national more than a resolution with no jail time. This is particularly true when such a sentence is prescribed in exchange for a guilty plea to a less serious offense with favorable immigration implications. While avoiding time in jail seems an obvious preference, that option starts to look better when compared to having to leave the United States for being inadmissible or removable (deportable).

Differences Between Criminal Law and Immigration Law

Another common error regarding the most desired outcome is based on the differences between what is considered a conviction under state criminal laws and how that term is defined for federal immigration law purposes. Some criminal dispositions that are favorable for U.S. citizens and considered irrelevant under state criminal laws, may still be considered a “conviction” under U.S. immigration law. Examples include: certain pretrial agreements; deferred judgments; and many first offender programs that result in dismissal of charges under state law. Any such options, which seem very favorable on the surface, must be reviewed by an immigration lawyer to ensure they will not have unforeseen immigration law consequences.

Immigration lawyers can assess other aspects of criminal cases, including the impact of an extended probation period. We are often involved in decisions regarding admissions that should and should not be made on the record, as well as information that might be helpful if included in the official record of the criminal proceeding.

Confidentiality of Immigration Attorney’s Advice

For many, the need to seek immigration advice after an arrest is complicated by the relationship between the immigration attorney and the employer. If there are concerns about revealing the incident to the employer, it is possible to seek independent immigration legal advice. The attorneys at the Murthy Law Firm are available to assist in these situations, when appropriate. We can provide the type of guidance, assistance, and coordination described above, and can help determine if and when the matter could become important in the individual’s current or future immigration case/s.

Never Too Late for Immigration Advice

It is common for individuals to fail to get immigration advice in their criminal cases. In situations where the foreign national’s criminal case has been disposed of without this input, it is still important to seek immigration guidance. We can analyze the consequences of the outcome of the criminal case in the immigration context. In some cases, favorable decisions were made through luck or chance. In other cases, it may still be possible to avoid additional mistakes and, in limited circumstances, to revisit the criminal case.

Often, it is not possible to change the course of a past criminal proceeding. There may still be ways, however, to minimize its negative effect. It is especially important to obtain such an opinion:

• before filing an application or petition for an immigration benefit
• before travel outside of the United States
• before an application for a visa or admission at a U.S. port of entry

As many criminal records result in one or a combination of problems, a specific strategy can sometimes be devised to avoid the actions or minimize the consequences of an action that would be most problematic. In a very limited number of cases, it may still be possible to reopen a completed criminal proceeding in order to obtain beneficial post-conviction relief such as overturning a conviction based on a substantive or procedural defect, including the lack of immigration input.

Common Mishaps

The best way to avoid negative immigration consequences of criminal charges is, of course, to avoid activities that result in such charges. It is important to understand that, in the United States, common violations, such as shoplifting, drunk or impaired driving, soliciting prostitution, and assault are taken seriously. Immigration laws have particularly serious provisions for domestic violence and controlled substances charges. That trinket at the local mall, extra drink at the bar, or other temptation is far less enticing when it is viewed as a potential one-way airline ticket out of the U.S. But, if and when there is an arrest, one’s future options in the United States likely depend upon the choices made from that point forward. Those choices should be made with the help of a good criminal defense attorney and an experienced, knowledgeable immigration law attorney. The Murthy Law Firm can help guide and advise you in such situations should the need arise.

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, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.

 

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The post Criminal Violations and Arrests in the Immigration Context appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Department of State (DOS) has published a notice of proposed rulemaking that, if finalized, would eliminate the B-1 in lieu of H classification. This category is intended to permit foreign companies to send their employees to the United States temporarily, for the purpose of performing duties related to their foreign employment. While the B-1 in lieu of H classification has provisions for both H1B and H-3 activities, this article focuses on its use in the H1B context.

Background on B-1 in Lieu of H1B Category

The B-1 in lieu of H1B category allows a foreign company to place one or more of their employees at a U.S. location briefly, for the purpose of performing actual productive H1B-type job duties. The worker’s salary, however, must be paid by the foreign company, and the money cannot come from a U.S. source.

The B-1 in lieu of H1B category is intended to provide foreign employers with the flexibility to send employees to the United States to perform H1B-type tasks of short duration, without having to go through the administrative complexities and costs of obtaining the H1B, which might prove prohibitive for a brief trip. This is particularly useful for employers without U.S. affiliates, who would be unable to file H1B petitions for such workers. This can also be a helpful provision when the H1B cap has been exhausted, but appropriate services are needed in the interim. Of course, this category is not a substitute for the H1B category, and it is inappropriate to utilize the services of an employee in B-1 status for an extended period of time. Further, consular officers tend to be very reluctant to approve these visa applications.

Proposal to Eliminate B-1 in Lieu of H1B Category

The B-1 in lieu of H1B classification is a fairly controversial category. Much of this controversy is related to past allegations of abuse in the use of the category. The DOS has now proposed eliminating the B-1 in Lieu of H provision altogether. The public has until December 21, 2020 to submit comments regarding this proposed rule. For the time being, the B-1 in lieu of H1B category remains unchanged.

Conclusion

The B-1 in lieu of H1B classification is limited and strictly scrutinized. But, at least for now, the category remains in place. Employers attempting applications in this category, should review their situations to confirm complete compliance with the requirements, and should explore appropriate alternatives for use, if needed in the future.

 

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The post State Dept. Proposes Eliminating B-1 in Lieu of H1B Classification appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

There have been widespread reports of delays with receipts being issued for I-140s and I-485s filed at USCIS lockboxes. If your filing fee check has been cashed, this is a good indication that the USCIS is processing your case. And, if you get the cancelled check, it is possible that the receipt number will be stamped on the back. But, even if you do not take any action, assuming your case was properly filed, chances are that you will get your receipt notice in the coming weeks. (25.Nov.2020)

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 filed my I-485 in October, but I still do not have a receipt. Should I be worried? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, the 60-day flexibility being provided by the USCIS does not cover H1B extensions. Your employer could make a nunc pro tunc requests (i.e., Request that the USCIS approve the extension request even though you were out of status at the time of filing.) But, that is a discretionary benefit that the USCIS does not have to grant. Your employer should check with their legal team to determine how best to proceed. (25.Nov.2020)

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 employer and I just realized that my H1B expired last week. I previously read that the USCIS is giving an additional 60 days to respond to certain USCIS requests, like RFEs. Does that mean we get an extra 60 days to file my H1B extension? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Ordinarily, if you are travelling on H1B (i.e., will be returning with a valid H1B petition and H1B visa “stamp,”) this will not impact the pending I-485 or the pending EAD application. However, the AP application will normally be denied if you travel before it is issued, unless you have an AP document that is valid for the entire duration of the time abroad. A more detailed discussion of this can be found here. (25.Nov.2020)

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 H1B and I just filed my I-485, along with applications for EAD and AP. Am I allowed to travel now, or do I have to wait for my AP? appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Department of State (DOS) has released the December 2020 Visa Bulletin. Much of the movement is fairly modest, but the most dramatic change is significant retrogression for EB3 India in the dates for filing chart, commonly referred to as Chart B.

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

On the final action chart, otherwise known as Chart A, the EB1 China and India categories advance to an April 1, 2019 cutoff date. On Chart B, the cutoff date moves to November 1, 2020 for both countries. The category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

EB2 India advances to October 1, 2009 on Chart A, while EB2 China moves to May 1, 2016. This category remains current for all other countries of chargeability. On Chart B, EB2 India remains at May 15, 2011, and EB2 China keeps a cutoff date of October 1, 2016.

Employment-Based, Third Preference (EB3) Category

The cutoff date for EB3 India moves to March 15, 2010 on Chart A. On Chart B, however, EB3 India retrogresses by a full year to January 1, 2014. For China, the cutoff date advances to November 1, 2017 on Chart A, and remains unchanged from last month on Chart B. This category remains current for all other countries of chargeability.

EB3 Other Workers

With the exception of China, the cutoff dates for EB3 other workers are the same for each country as its respective EB3 cutoff dates. For China, the cutoff date for EB3 other workers on Chart A moves to February 15, 2009, but remains unchanged on Chart B.

Employment-Based, Fourth Preference (EB4) Category

The cutoff date for EB4 Mexico on Chart A moves to November 22, 2018. The EB4 cutoff date for El Salvador, Guatemala, and Honduras advances to February 1, 2018 on Chart A, and May 1, 2018 on Chart B. This category remains current for all other countries of chargeability.

Employment-Based, Fifth Preference (EB5) Category

For the EB5 category, the only movement is EB5 Vietnam, which advances to September 1, 2017 on Chart A.

Conclusion

The USCIS has not yet indicated whether Chart B may be used for purposes of applying for adjustment of status in December. If the DOS provides updated predictions this month, the details will be posted on MurthyDotCom.

 

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The post December 2020 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

It is possible that the USCIS has lost your case, but the fact that you have not yet been rescheduled for biometrics is not necessarily a cause for alarm. The USCIS has indicated that it is still in the process of rescheduling more than 60,000 appointments that were cancelled in March and April. Still, just to be on the safe side, you may wish to contact the USCIS to ensure your case has not fallen through the cracks. (19.Nov.2020)

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 scheduled for biometrics in March, but it was cancelled due to the pandemic. I am still waiting for my appointment to be rescheduled. Is it possible the USCIS lost my case? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

One option may be to use an alternate wage survey. DOL regulations have long provided employers with the option to use an alternate wage survey, so long as certain requirements are met. (19.Nov.2020)

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 employer is filing my H1B extension, but because of the new DOL rule, the prevailing wage has jumped up by about $30,000! My employer is not able to pay this amount. Are there any other options? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Assuming your grace period has passed, it generally is not permissible to begin working for the employer until the H1B is approved with an I-94. Note that, because the B-2 application is still pending, the USCIS might approve the H1B petition for consular notification. If that happens, you likely would have to depart the U.S. and return with a valid H1B visa “stamp” in order to begin working for the H1B employer. (19.Nov.2020)

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 I was laid off from my H1B job a few months ago, I filed an application to change status to B-2. That application is still pending. A new employer wants to file an H1B for me. Can I start working upon filing? appeared first on Murthy Law Firm | U.S Immigration Law.

The proposed new H1B Regulations regarding specialty occupation, employer-employee relationship, and increased vetting of employers who employ H1B workers are discussed in this podcast, recorded following the 2020 election in November. Murthy Law Firm attorneys also discuss the Interim Final Rule on higher Department of Labor Prevailing Wages, which effect H1B Labor Condition Application wages and Labor Certification wages for green cards.

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

The post MurthyAudio: New H1B Regulations and New Prevailing Wages appeared first on Murthy Law Firm | U.S Immigration Law.

A U.S. district judge in New York has ruled that a U.S. Department of Homeland Security (DHS) July 2020 memorandum that curtails immigration benefits under the Deferred Action for Childhood Arrivals (DACA) program is unenforceable. The federal judge found that Acting Homeland Security Secretary Chad Wolf, who issued the memo, was not properly appointed to his position, and therefore lacked the authority to restrict DACA.

Background on DACA Under the Trump Administration

Beneficiaries of DACA, popularly referred to as “Dreamers,” are undocumented immigrants, who were brought to the United States as children. The Obama Administration implemented the DACA program in 2012 as a means of providing work authorization to qualifying individuals and to shield them from being removed (i.e., deported) from the United States. The Trump Administration has made several attempts to weaken, if not outright terminate, the program. However, federal courts have repeatedly blocked these efforts.

On June 18, 2020, the U.S. Supreme Court held that the Trump Administration violated the Administrative Procedures Act (APA) in attempting to end DACA. The Administration responded on July 28, 2020, when Mr. Wolf released the aforementioned memo, which directed the DHS to reject all pending and future requests for DACA, to reject all pending and future applications for advance parole, barring exceptional circumstances, and to shorten the DACA renewal period to one year.

Lawsuit Challenges Legitimacy of Wolf and Enforceability of Memo

The lawsuit was filed on behalf of all foreign nationals who are or will be eligible for DACA benefits, and argued that Mr. Wolf was not lawfully appointed to his position as Acting Homeland Security Secretary, and therefore he lacked the authority to issue the July 2020 memo. The court agreed, finding that Mr. Wolf was named to his position through an invalid order of succession.

Conclusion

Time is quickly running out for the Trump Administration to undo the DACA program, as President-Elect Biden is scheduled to be inaugurated on January 20, 2021. Still, the possibility remains that President Trump may make a last-ditch attempt to torpedo the program prior to leaving office.

 

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The post Judge Rejects Trump Administration’s Latest Attempt to Limit DACA appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Even without an H1B approval, if a person is not physically in the United States, U.S. immigration law would not normally prevent that person from performing work for  a U.S. company.  (12.Nov.2020)

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 India and my H1B petition was approved, but I have not yet been able to get my visa stamp. Can I start working for the U.S. employer while I am still in India? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Yes, ordinarily, having an H-4 EAD would not prevent a person from being able to also apply for an EAD based on a pending I-485. (12.Nov.2020)

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The post I have an H-4 EAD. Am I allowed to also apply for an EAD based on my pending I-485? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, this service is not yet available. This has to go through the formal rulemaking process, so it may take months (or possibly even longer) before it is implemented. The same holds true for the other categories that should eventually be granted premium processing, including the EB1(c) category.

Given that the USCIS is primarily just expending an existing program (i.e., premium processing service), the hope is that the rulemaking process can be abbreviated. But, we suspect we will not see any progress on this rule until a new Director of the USCIS is appointed by the President and confirmed by the Senate. This will almost certainly not happen until after President-Elect Biden is in sworn in on January 20, 2021. (12.Nov.2020)

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 Is premium processing now available for H-4 and H-4 EADs? If not, do we know when it will be made available? appeared first on Murthy Law Firm | U.S Immigration Law.