MurthyAudio: CBP / Port of Entry Issues
Common issues faced by non-citizens when reentering the U.S. after travel abroad are discussed by Murthy Law Firm attorneys in this May 2025 podcast recommended specifically for employers.
The MP3 is available here and can be found in the archive of our teleconferences and podcasts on iTunes.
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I am a green card holder and will soon be marrying a man who is here in B-2 status. If I sponsor him for a green card before his status expires, can he remain in the U.S. while the case is pending?
While it is possible for a lawful permanent resident to sponsor a spouse for a green card, there currently are backlogs in this category. Filing the I-130 petition does not provide any immediate ability to remain in the U.S., and it is not possible to file the I-485 until the priority date becomes current. (14.May.2025)
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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I have been working in H1B status for nearly six years, but I do not yet have any type of green card case filed for me. If I leave the U.S. for 1 year, can I then return on H1B status?
Generally speaking, if an H1B worker uses all six years of H1B time and has no PERM or I-140 filed on their behalf, they would need to leave the U.S. for one year and then go through the H1B lottery again. (14.May.2025)
Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.
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The post I have been working in H1B status for nearly six years, but I do not yet have any type of green card case filed for me. If I leave the U.S. for 1 year, can I then return on H1B status? appeared first on Murthy Law Firm | U.S Immigration Law.
I work for a company in India that has a contract with a U.S. company. They are our main client, and we do a lot of business with them. Is it possible to qualify for L-1 based on this relationship?
No, this relationship likely would not suffice. You generally must show common ownership and control to have a qualifying relationship. (14.May.2025)
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 work for a company in India that has a contract with a U.S. company. They are our main client, and we do a lot of business with them. Is it possible to qualify for L-1 based on this relationship? appeared first on Murthy Law Firm | U.S Immigration Law.
June 2025 Visa Bulletin
This morning, the U.S. Department of State (DOS) released the June 2025 Visa Bulletin. As with recent months, movement remains limited in the employment-based categories. All cutoff dates listed below refer to the final action chart (i.e., Chart A), unless otherwise specified.
Visa Bulletin Summary Employment-Based, First Preference (EB1) CategoryThere is no change in the EB1 category for June. The EB1 cutoff date for India continues to be set at 15.Feb.2022, and EB1 China remains at 08.Nov.2022. The EB1 category remains current for all other countries of chargeability.
Employment-Based, Second Preference (EB2) CategoryIn the EB2 category, India’s cutoff date holds steady at 01.Jan.2013. EB2 China, on the other hand, advances to 01.Dec.2020. The EB2 cutoff date for all other countries pushes forward to 15.Oct.2023.
Employment-Based, Third Preference (EB3) CategoryIndia sees no relief in the EB3 category, remaining with a cutoff date of 15.Apr.2013. As for China, it’s EB3 cutoff date moves ahead to 22.Nov.2020. All other countries of chargeability advance to a cutoff date of 08.Feb.2023.
EB3 Other WorkersIn the EB3 Other Workers category, India’s cutoff date continues to align with the standard EB3 cutoff at 15.Apr.2013. For China, the cutoff remains at 01.Apr.2017. All other countries of chargeability see some relief, with a cutoff date of 22.Jun.2021.
Employment-Based, Fourth Preference (EB4) CategoryAs with recent months, the EB4 category remains unavailable (U) for all countries of chargeability. The unavailability is expected to persist through the remainder of the fiscal year, which ends 30.Sep.2025, with availability likely resuming in October 2025.
Employment-Based, Fifth Preference (EB5) CategoryThe EB5 unreserved category shows no forward movement. India’s unreserved cutoff date holds at 01.May.2019, and China’s remains at 22.Jan.2014. The EB5 category remains current for all other chargeability areas and for the three EB5 set-aside categories (rural, high unemployment, and infrastructure) across all countries.
ConclusionWe will continue to monitor and report on movement and predictions related to the monthly visa bulletin. Subscribe to the free MurthyBulletin to receive weekly updates.
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Alert! Some USCIS Field Offices May Require a REAL ID
There are reports of some USCIS field offices enforcing the REAL ID requirement for entry, but most continue to accept other types of authentic ID. Applicants should bring REAL ID-compliant ID to their interviews scheduled at USCIS offices to avoid issues.
The post Alert! Some USCIS Field Offices May Require a REAL ID appeared first on Murthy Law Firm | U.S Immigration Law.
Circumstances When an Electronic I-94 is Not Issued
Most foreign nationals who enter the United States receive an electronic I-94 record of their admission from the U.S. Customs and Border Protection (CBP). However, there are certain circumstances when an electronic I‑94 might not be issued. Not receiving an electronic I-94 does not necessarily mean that the foreign national is out of status, but it may complicate an individual’s ability to provide proof of their last lawful entry if or when this is required.
Overview of Electronic I-94 SystemThe CBP electronic I-94 database provides an individual’s most recent I-94 admission record, as well as entry and departure records for the past ten years. This system is a great tool from a recordkeeping perspective and makes it easier for travelers to determine whether any corrections need to be made. However, the online CBP information only contains arrival and departure records, including details of the electronic I-94 issued at the time of entry. It does not necessarily reflect one’s current status because, when a change, extension, or adjustment of status from within the U.S. is done by filing an application or petition with the U.S. Citizenship and Immigration Services (USCIS), CBP does not update its records based on benefit requests with the USCIS.
Common Circumstances When CBP Does Not Issue Electronic I-94While an individual who enters the U.S. with an immigrant or nonimmigrant visa or advance parole document typically will be issued an electronic I-94, below are some common situations in which the CBP does not issue an electronic I-94.
Automatic Visa Revalidation (AVR)The CBP typically will not issue an electronic I-94 when an individual enters the U.S. using the automatic visa revalidation process, better known as the contiguous territory rule. This process applies to certain nonimmigrants (those in temporary status) seeking to reenter the U.S. after a brief trip to Mexico or Canada and who do not have a valid visa. The specific requirements are explained in the MurthyDotCom InfoArticle Contiguous Territory Rule Permits Reentry from Canada or Mexico (13.Dec.2021).
Land Border EntriesThe CBP often will not generate an electronic I-94 when an individual enters the U.S. at a land border from Canada or Mexico. This includes individuals who enter with a valid visa or advance parole, through the visa waiver program (VWP), or, from Canada, with a valid nonimmigrant petition where a visa might not be required.
Closed-Loop CruisesAnother scenario in which the CBP may not issue an electronic I-94 is for entries following a closed-loop cruise. A closed-loop cruise starts and ends its voyage at the same U.S. port and only travels within the Western Hemisphere, as explained in the MurthyDotCom InfoArticle Immigration Tips Before Taking a Cruise (06.Nov.2023).
Additional Options for Foreign Nationals to Document an EntryIn the absence of an electronic I-94 record, a foreign national may use alternative methods to document entries into the U.S., including:
- The I-94 travel history on the I-94 online system: Even where an electronic I-94 record is not generated, the CBP will often update the travel history.
- Requesting an ink passport stamp at the port of entry: CBP officers still are permitted to stamp passports, though officers might not comply with this request.
- Requesting a CBP officer to generate an I-94 record, either at the time of entry or after entry at a deferred inspection site.
Understanding the situations in which the CBP does not issue an electronic I-94 can help a foreign national proactively gather alternative documentation of the individual’s most recent U.S. entry before the need arises. When such documentation is required, the Murthy Law Firm can help ensure that an individual’s process or application is as complete and fully supported as possible.
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DHS Reportedly Freezes the EBE Program for Issuing Social Security Cards
The U.S. Department of Homeland Security (DHS) has reportedly frozen the Enumeration Beyond Entry (EBE) program under which noncitizens could request a social security number on various U.S. Citizenship and Immigration Services (USCIS) forms, including Form I-765, Application for Employment Authorization; Form I-485, Application to Register Permanent Residence or Adjust Status; or Form N-400, Application for Naturalization.
There has not been an official announcement or confirmation regarding the reported freeze. However, if an individual does not receive a social security card within 14 days of receiving a DHS-issued document, such as an employment authorization document (EAD) or green card, the individual should contact the Social Security Administration (SSA) to check the status of the card and for further assistance.
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Employer Responsibility – PERM Audit Compliance File
Under the PERM labor certification process, supporting documentation is not submitted to the U.S. Department of Labor (DOL) with the PERM application. Instead, the employer must retain the required documents and produce them for the DOL in the event of an audit. The requirements for document retention by employers filing PERM labor certifications are summarized here.
Employer Must Retain Audit File for Five YearsThe DOL can audit a PERM labor certification either before adjudication of the application or for up to five years. This means that the employer must keep what is commonly referred to as a compliance file or audit file for five years from the date of filing. It is important to understand the required documentation that the employer must retain within the compliance file. It should be noted that employers can engage in a bit of spring-cleaning by shredding any compliance files created for cases filed more than five years ago.
Prevailing Wage DocumentationThe audit file must contain documentation related to the prevailing wage determination (PWD). It is necessary to obtain a PWD from the DOL as part of the PERM process, and this PWD needs to be retained in the compliance file.
Recruitment DocumentationProof of the recruitment efforts and outcome is an important component of the compliance file. Documentation of the recruitment efforts must include proof of the placement of the State Workforce Agency (SWA) job order and tear sheets from the required newspaper advertisements. Documentation for professional positions must include evidence of engaging in three additional forms of recruitment. The file also must include the required notice of posting, with proof of mailing to the bargaining representative (in cases involving a union).
If a company has experienced recent layoffs, it must be shown that the employer notified the potentially qualified, laid-off U.S. workers, and considered any of these interested, former employees. More information on the requirements for PERM applications, if layoffs have occurred, can be found in the MurthyDotCom InfoArticle, Labor Certifications After Employee Layoffs (20.Mar.2025).
The employer also must have records of the results of the various recruitment efforts. This evidences who applied for the position and why any U.S. applicants were not considered to meet the standards of ability, willingness, and qualification for the offered position. This documentation includes a summary of the results of recruitment and resumes of the applicants for the position. There must be documentation of contact with any potentially qualified applicants (including copies of eMails and telephone logs), notes from any job interviews with the candidates, and documentation of rejections of applicants.
Documentation Pertaining to the CorporationIn certain cases, the compliance file will contain proof of the existence of the sponsoring company, which may include articles of incorporation, personnel and financial records, business license/s, a company brochure, and related documentation. Such documentation may be required in cases where a familial relationship between the sponsored employee and a stockholder, corporate officer, incorporator, or partner of the sponsoring company must be disclosed, as discussed in the MurthyDotCom InfoArticle Reminder: Employers Must Disclose Familial Relationships on PERM Applications (20.Mar.2023)
Sponsored Employee’s DocumentsThe compliance file must hold proof that the sponsored employee met the requirements for the offered position. The file, therefore, must contain documentation of the employee’s relevant education, with a credentials evaluation (if appropriate). In cases where experience is required to qualify for the job, the file must hold proof of this prior experience, typically in the form of detailed experience letters from former employers to outline the nature of the earlier job duties. If licenses, certifications, or a background / drug check are needed for the position, evidence that the sponsored worker held these requirements as of the time the PERM labor certification application (form ETA-9089) was filed also must be included in the file.
Business Necessity Explanation in Certain CircumstancesIn some cases, if the employer’s minimum requirements for the offered position exceed what the DOL believes is standard or “normal,” the company must be prepared to back up its need for the stated level of education and/or experience, as explained in the MurthyDotCom InfoArticle, Determining Normal Position Requirements for PERM (13.May.2024). This is what is known as demonstrating business necessity. In these cases, the compliance file must include a business necessity letter from the employer establishing that the particular level of education and/or experience is required by the company due to its particular business requirements. This need should be backed up by the resumes of other company employees in the specific position (to show consistency in the company’s requirements). Other documentation establishing that the employer’s stated requirements are within the industry norm should be kept in the file. This includes job ads from other employers, alternative wage surveys, and DOL publications, such as the Occupational Outlook Handbook.
Ability to Pay DocumentationThe sponsoring employer must be prepared to document the ability to pay the proffered wage from the time of the labor certification filing. Documentation in support of ability to pay the worker generally includes: company tax returns, audited financial statements, annual reports, and other secondary evidence that establishes the company’s financial capability to pay for the proffered position.
ConclusionWe at the Murthy Law Firm prepare compliance files (audit files) from the beginning of the PERM process and provide the employer with this complete file once the PERM case is filed. The purpose of retaining this documentation is to satisfactorily establish that all DOL requirements were met during the PERM process. It is not enough, therefore, to simply have the advertisements and other documents. It is necessary to be sure the proper procedures were followed in order to satisfy the DOL in the event of an audit.
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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If I own a business, can I have that company sponsor me for an H1B position?
Yes, but there are specific limitations and considerations under the regulations implemented in January 2025. If you own more than 50 percent of the petitioning company or have majority voting rights, the USCIS will limit the initial H1B approval to a maximum of 18 months. A subsequent extension, including an amended petition with an extension request, also will be limited to 18 months. (07.May.2025)
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 © 2025, MURTHY LAW FIRM. All Rights Reserved
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Can my employer file an H1B petition that would allow me to work at two different client sites on two different projects?
Yes, this generally is possible. A single LCA can have multiple worksites. And the H1B petition filed by the employer can indicate that the foreign national will work on two different projects at two different locations. (07.May.2025)
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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Can my employer initiate an EB2 case for me now, even though I am on OPT? If so, can I use that approved I-140 to move to H1B status without having to go through the lottery?
It is possible to be sponsored for an EB2 or EB3 position while still on OPT. But, even if the I-140 is approved, this would not exempt you from having to go through the H1B lottery. (07.May.2025)
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 © 2025, MURTHY LAW FIRM. All Rights Reserved
The post Can my employer initiate an EB2 case for me now, even though I am on OPT? If so, can I use that approved I-140 to move to H1B status without having to go through the lottery? appeared first on Murthy Law Firm | U.S Immigration Law.
SABADC Online Discussion : Recent Immigration Changes Impacting Employers
SPEAKERS
Sheela Murthy, Founder, Murthy Law Firm Aron Finkelstein, Member, Murthy Law Firm Shavari Dalal-Dheini, Sr. Director of Govt Relations, AILA
ONLINE EVENT
Wednesday, MAY 7, 2025 @ 5-6pm EST
Registration & Details at: www.sabadc.org/events
Join SABA-DC for a discussion about changes to US immigration law, specifically the recent H-1B Modernization Rule, USCIS’ audits by Fraud Detection and National Security agents at employer’s work locations, student visa revocations, and enforcement and litigation trends against employers and employees.
Copyright © 2017-20225, MURTHY LAW FIRM. All Rights Reserved
The post SABADC Online Discussion : Recent Immigration Changes Impacting Employers appeared first on Murthy Law Firm | U.S Immigration Law.
How the Feds Targeted F-1 Students
Federal Court hearings revealed rushed and disorganized nature of mass SEVIS record termination that impacted thousands of students. The Murthy Law Firm is proud to support its clients during this difficult and uncertain time.
The post How the Feds Targeted F-1 Students appeared first on Murthy Law Firm | U.S Immigration Law.
Adding a Spouse or Child to a Principal Applicant’s Green Card Process
When an individual applies for lawful permanent resident (LPR) status (commonly, a green card) in the United States, certain family members may also qualify for LPR status as derivative beneficiaries. Such family members typically include the principal applicant’s spouse and any unmarried children under the age of 21. However, eligibility for derivative status depends not only on the qualifying family relationship but also on the timing of when that relationship was legally established in relation to the principal applicant’s green card process.
Green Card Processes that Allow for DerivativesBoth employment-based and family-preference category green card processes allow for derivative beneficiaries to be included in the principal applicant’s process. However, the immediate relative category, such as where a U.S. citizen petitions for a parent or spouse, does not allow for the inclusion of derivative beneficiaries and each dependent family member must be individually petitioned for.
For example, if an LPR files a petition for a spouse in the second-preference family-based category, then the spouse’s eligible child can be included as a derivative on the parent’s petition. However, if a U.S. citizen petitions for a spouse, the spouse’s child cannot be included as a derivative and must be separately petitioned for by the U.S. citizen.
Timing of the Qualifying RelationshipFor employment-based green card cases, it is a common misconception that a spouse or child must be included in the principal’s green card process during the PERM labor certification or I-140 immigrant petition stage. In truth, for both employment-based and family-preference category green card processes, a spouse or child can be included as a derivative beneficiary if the qualifying family relationship existed before the principal applicant obtains permanent residence. This means that as long as the principal and dependent spouse were legally married or a parent-child relationship existed before the principal’s green card is approved or before the principal is admitted to the U.S. as an LPR, the spouse or child may be eligible for derivative status.
If the marriage occurs after the principal obtains a green card, the spouse will not qualify as a derivative and would in turn need to be sponsored by the LPR as a spouse beneficiary. The same may be true for a child born after the principal obtains LPR status (unless the child is born in the U.S. and is thus a U.S. citizen). However, under certain circumstances, a child born to an LPR abroad may be eligible for admission as a lawful permanent resident without sponsorship, as explained in the MurthyDotCom InfoArticle U.S. Entry for Child of a Lawful Permanent Resident Born Abroad (17.Aug.2023)
Accompanying vs. Following to JoinWhere a derivative beneficiary can be added to a principal’s green card process, the derivative can choose whether to “accompany” and apply for a green card or immigrant visa at the same time as or within six months of the principal applicant, or to “follow-to-join” and immigrate at a later date than the principal applicant. There typically is no maximum timeframe within which a derivative can follow to join, provided that the derivative continues to maintain the qualifying relationship with the principal applicant.
Age Considerations for Derivative ChildrenIt is important to keep in mind that even where a child is initially included as a derivative beneficiary in a parent’s green card process, the child may be at risk of aging out of the parent’s petition, unless the child is protected by the Child Status Protection Act (CSPA), as explained in the MurthyDotCom InfoArticle, Child Status Protection Act Basics, Part 1 and Part 2.
ConclusionUnderstanding when a spouse or child can be included in a principal applicant’s green card process is essential to ensure that a family can immigrate to the U.S. as a single unit. Given the complexity of these requirements, individuals are strongly encouraged to schedule a consultation with an experienced immigration attorney to navigate the process effectively.
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MLF Attorney Stepanova Talks to Media on SEVIS
The Murthy Law Firm’s Anna Stepanova shares her insights with KXAN Texas on the new ICE policy for SEVIS terminations.
Read more here.
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Overview of L1A New Office Petitions for Managers and Executives
The L1A intracompany transferee classification is designed to allow a qualifying multinational company to transfer a foreign national executive or manager to a related entity in the United States. For an L1A petition, the employer typically must demonstrate to the U.S. Citizenship and Immigration Services (USCIS) that the foreign national will be working as a manager or executive immediately upon being transferred to the U.S. entity. If the U.S. petitioning employer has established a new office, however, there are special rules in place to account for the fact that the U.S. office likely does not yet have the infrastructure in place to truly support a manager or executive position.
New Office Requirements for L1A PersonnelIf the U.S. office has been doing business for less than one year, there are three criteria that must be met for an L1A new office petition to be approved. (1) The U.S. petitioner must have secured sufficient physical premises to house the new office; (2) the foreign national worker being transferred to the U.S. must have worked for a related entity abroad as a manager or executive for at least one year within the past three years; and (3) the intended U.S. office will support an executive or managerial position within one year of approval of the petition.
There are also special rules for new office petitions filed on behalf of L1B workers who possess specialized knowledge. This, however, goes beyond the scope of this MurthyDotCom article.
Sufficient Physical PremisesThe U.S. company must provide evidence, at the time of filing, that it has secured sufficient space to support its U.S. operations, which includes adequate room to house all employees the company proposes to hire within one year of the L1A petition’s approval. Generally, this requires the submission of a signed lease or ownership documentation that indicates the total square footage of the premises.
Employed in an Executive or Managerial CapacityThe L1A employee must have been employed by the foreign company in a managerial or executive position for one continuous year in the three years preceding the filing of the new office petition. An executive is an employee who is primarily responsible for directing the management of the organization, department, subdivision, or component of the company. A manager is an employee who has supervisory responsibilities over professional or managerial employees or manages an essential function within the organization. A detailed job description, along with pay stubs for the employment abroad, or other similar evidence of the employment abroad, can be submitted as evidence that this requirement has been met.
Support an Executive or Managerial Position Within One YearFor an L1A new office petition to be approvable, the U.S. entity must demonstrate that it will be able to support an executive or managerial position within a year. In other words, the new office must grow to a sufficient size within the first year of operations that the foreign employee will be relieved from performing the hands-on, day-to-day functions of the company and instead will act in primarily a managerial or executive capacity. To meet this requirement, specific information must be submitted. These are:
- The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals
- The size of the U.S. investment and the financial ability of the foreign entity to pay the employee and begin doing business in the United States
- The organizational structure of the foreign entity
A business plan that details the proposed staffing levels, business benchmarks, and timetables over the course of the first year of operations may be submitted to demonstrate how the new office will be able to support the manager or executive within one year. In addition, documentation showing the size of the foreign company’s investment in the U.S. entity, as well as a copy of the foreign company’s organizational chart showing its hierarchy and staffing levels, also may be submitted.
New Office Extension PetitionsA new office L1A may only be approved for one year. Prior to the conclusion of the one-year period, an extension may be filed, which must include evidence that the new office has grown to a size that is sufficient to support a managerial or executive-level position.
Recent Adjudication Trends – Investment in U.S. EntityBased on L-1 new office petitions filed by the Murthy Law Firm in recent months, it seems that the USCIS is paying close attention to investment in the U.S. office by the foreign entity. The USCIS is now routinely requesting evidence that the foreign company has actually wired or transferred its capital contribution to start the U.S. entity’s operations. The investment typically should be consistent with the capital contribution indicated on the business plan.
ConclusionThe L1A new office petition process can be challenging, both logistically and from an immigration law perspective. It is important to thoroughly document the petition, and clearly explain to the USCIS how the U.S. operations will grow to a point where the need for a manager or executive can be justified.
While some aspects of immigration have changed significantly in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.
Copyright © 2017-20225, MURTHY LAW FIRM. All Rights Reserved
The post Overview of L1A New Office Petitions for Managers and Executives appeared first on Murthy Law Firm | U.S Immigration Law.
MurthyAudio: Best Practices for International Travel 2025
Murthy Law Firm attorneys guide nonimmigrants and others on preparation for entering the U.S. at a port of entry (POE) in 2025.
The MP3 is available here and can be found in the archive of our teleconferences and podcasts on iTunes.
The post MurthyAudio: Best Practices for International Travel 2025 appeared first on Murthy Law Firm | U.S Immigration Law.
ICE Reportedly Calling Students
Foreign students have reported receiving calls from individuals identifying as ICE & asking personal questions. Students should be wary of scams. If it seems legitimate, consult with an attorney before answering questions.
The post ICE Reportedly Calling Students appeared first on Murthy Law Firm | U.S Immigration Law.
Can I apply for L1A if all of my reports will be my team in India?
There is no specific requirement that an L1A manager or executive have reports in the United States. In practice, however, it tends to be much more challenging to achieve approval for a case where the L1A beneficiary does not have anyone in the U.S. to relieve them from performing non-qualifying duties. (30.Apr.2025)
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 © 2025, MURTHY LAW FIRM. All Rights Reserved
The post Can I apply for L1A if all of my reports will be my team in India? appeared first on Murthy Law Firm | U.S Immigration Law.
