L2S Has Automatic Work Authorization
L-2 dependents of L-1 workers who have been issued L2S I-94s, are automatically authorized to work in the U.S. No need to apply for EAD!
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Overview of H2A Temporary Agricultural Worker Program
The H2A program was created in response to the shortage of agricultural workers in the United States. This program allows U.S. farms and agricultural businesses to bring foreign nationals to the U.S. to fill positions that are of a temporary or seasonal nature if certain requirements are met. The program is extremely useful, but also complex, so employers utilizing the H2A program must pay special attention to the program’s steps and requirements.
Logistical Steps in the ProcessIn order to sponsor one or more H2A workers, an employer or agent first must obtain a prevailing wage determination from the U.S. Department of Labor (DOL). This helps to ensure that the employment of H2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Once obtained, the employer will file a job order with the State Workforce Agency, and file the H2A application (ETA 9142) with the DOL. The ETA 9142 includes the information contained in the prevailing wage determination and the employer attests to certain protections for the H2A workers.
The DOL will review the ETA 9142 and, if the position and requirements are acceptable, will issue recruitment instructions. These instructions will include information on where to advertise and for how long, and will request the employer to contact any U.S. workers they previously employed in the occupation the previous year. The employer must conduct the necessary recruitment and submit a recruitment report to the DOL as specified in the recruitment instructions. After reviewing the recruitment report and any other supplemental documentation, the DOL will issue a Final Determination Notice. The employer will use this Final Determination Notice as an exhibit in the H2A petition filed with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign worker/s being sponsored.
ConclusionThe H2A process can be confusing and requires proper planning in order to better ensure a successful outcome. U.S. employers interested in bringing in H2A workers are encouraged to schedule a consultation with a Murthy Law Firm attorney, who can provide information and guidance, as well as representation in all aspects of the H2A process.
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Promotions & PERM
Recently promoted? Even if you have an approved I-140, a new PERM & I-140 may be required if there is a material change to your initial PERM position. Contact us if you think this rule impacts your recent career progression.
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MurthyAudio: Employment Options for F-1 Students
Employment options available to F-1 students are the topic discussed by Murthy Law Firm attorneys in the March 2024 podcast in our series 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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H1B Registration Update
We have received reports that signatures are missing on the PDF version of G-28 submitted with some cap registrations. USCIS is working to fix this glitch and will provide instructions for affected registrations already submitted.
The post H1B Registration Update appeared first on Murthy Law Firm | U.S Immigration Law.
I got a green card through my employer, and I have a son who is a U.S. citizen by birth. We have decided to move back to India for a few years due to family reasons, which will mean giving up my green card. When my son turns 21, can he sponsor me for...
The fact that you had a green card and then abandoned it typically would not prevent you from being sponsored by your U.S. citizen child for another green card (once the child reaches the age of 21). (13.Mar.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 got a green card through my employer, and I have a son who is a U.S. citizen by birth. We have decided to move back to India for a few years due to family reasons, which will mean giving up my green card. When my son turns 21, can he sponsor me for another green card? appeared first on Murthy Law Firm | U.S Immigration Law.
My employer says they submitted an H1B registration for me online, but they said they were not issued a receipt. Is this accurate?
There is no receipt issued by the USCIS after an H1B registration is submitted. The closest thing to a receipt is an online confirmation message, which includes a registration number. But this is not the same thing as a traditional I-797 receipt notice. (13.Mar.2024)
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If my registration is selected in the lottery, can I travel after the H1B petition is filed?
If you are in the U.S. when the H1B petition is filed, the petition generally will be filed requesting a change of status. If you travel before the petition is approved, the status request will be abandoned, and the petition typically can be approved only for consular notification. (i.e., You generally would need to take the approved petition to a consular post, get an H1B visa “stamp,” and then return with the visa and the approved petition to be admitted in H1B status.) (13.Mar.2024)
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April 2024 Visa Bulletin
Today, the U.S. Department of State (DOS) released the April 2024 Visa Bulletin. This month’s visa bulletin also provides some predictions for movement in the coming months. All cutoff dates listed refer to those in the final action chart (i.e., Chart A), unless otherwise specified.
Visa Bulletin Summary Employment-Based, First Preference (EB1) CategoryEB1 India’s cutoff date advances to March 1, 2021. Meanwhile, the cutoff date for EB1 China moves up to September 1, 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 moves ahead to April 15, 2012. China’s EB2 cutoff date advances to February 1, 2020. The EB2 cutoff date for all other countries moves ahead to January 15, 2023.
Employment-Based, Third Preference (EB3) CategoryFor EB3 India, the cutoff date moves ahead to August 15, 2012. For China, the EB3 cutoff date remains stuck at September 1, 2020. The EB3 cutoff date for all other countries of chargeability moves ahead to November 22, 2022.
EB3 Other WorkersIn the EB3 other workers category, India’s cutoff date moves forward to August 15, 2012. For China, the cutoff date remains unchanged at January 1, 2017. The EB3 other workers cutoff date for Philippines is still locked at May 1, 2020. For all other countries of chargeability, the cutoff date moves forward to October 8, 2020.
Employment-Based, Fourth Preference (EB4) CategoryIn the EB4 category, the cutoff dates for all countries advance to November 1, 2020.
The EB4 program for certain religious workers is currently scheduled to expire as of March 22, 2024. If Congress does not extend the program by that date, the EB4 category for certain religious workers will become unavailable after that date.
Employment-Based, Fifth Preference (EB5) CategoryIn the EB5 category, China’s unreserved (i.e., EB5 immigrant visa numbers not set aside for rural, high unemployment, and infrastructure projects) cutoff date remains set at December 15, 2015. India’s unreserved cutoff also remains unchanged at December 1, 2020. EB5 remains current for all other EB5 categories and countries of chargeability.
Predictions for Future MovementThe April Visa Bulletin includes predictions for movement in the coming months. The predictions provided are as follows:
Family-Based Categories
Rest of the World (including India and China) dates:
First Preference: Up to three months
Second Preference “A”: Up to six months
Second Preference “B”: Up to ten weeks
Third Preference: Several months
Fourth Preference: Up to four weeks
Mexico:
First Preference: Up to four months
Second Preference “A”: Up to three months
Second Preference “B”: Several months
Third Preference: Up to six months
Fourth Preference: Up to three months
Philippines:
First Preference: Up to three months
Second Preference “A”: Up to six months
Second Preference “B”: Up to ten weeks
Third Preference: Several months
Fourth Preference: Several months
Very little to no forward movement is expected in the coming months since the final action dates for many categories advanced for April 2024.
ConclusionMurthyDotCom will continue to closely monitor and report on movement and predictions related to the monthly visa bulletin. Subscribe to the free MurthyBulletin to have weekly updates delivered to your inbox.
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Cap-Gap Extensions of F-1 Status and OPT
The typical H1B cap-filing season raises questions about extensions of F-1 student status and optional practical training (OPT) before the beginning of H1B status. Many foreign national students tend to have questions about coordinating H1B filings with the expiration of their F-1 status and OPT employment authorization. Important information about the operation of the so-called “cap-gap” extension of F-1 status and OPT follows.
Background: The Cap-Gap RuleThe cap-gap rule comes from a 2008 regulation issued by the U.S. Department of Homeland Security (DHS). It provides for automatic extensions of status for certain students to bridge the gap between the end of their student status, typically OPT, and the start of the next government fiscal year, on October 1st. Due to annual quotas on the number of H1B petitions, October 1st is the earliest date a cap-subject H1B worker may begin employment in H1B status. Many students’ F-1 status and OPT authorization, however, expire earlier in the summer due to the typical academic calendar. Under specific circumstances, the cap-gap rule extends student status and/or employment authorization. The rule and general considerations are summarized below.
Eligibility Under the Cap-Gap RuleAn F-1 student whose status expires (1) after the filing of an H1B petition requesting a change of status effective October 1st of the same year, and (2) before the requested start date of October 1st, receives an automatic extension of F-1 status. This extension is until September 30th if the H1B petition is accepted and remains pending or is approved.
If authorized for OPT as of the date of filing the H1B petition, the student beneficiary’s employment authorization is eligible for automatic extension through the entire cap-gap period. If the petition is denied, withdrawn, revoked, or rejected, however, the F-1 status and work authorization end. The student should be eligible for the standard 60-day grace period from the date of the triggering event or the academic program end date, whichever is later. If, however, the USCIS denies the change-of-status request based on a violation of student status, or denies or revokes the petition based on a discovery of fraud or misrepresentation, there is no grace period.
Actions Required of DSOs and F-1 StudentsIf the student’s H1B registration application submitted by the intended employer is selected in the cap lottery, the employer may then file the H1B petition on behalf of the student within the 90-day filing window. While the cap gap benefit applies automatically and does not require authorization, students may obtain a new I-20 for the full cap-gap period with evidence of filing. The full cap-gap authorization should be valid until September 30th. The cap-gap I-20s may be used as evidence of status and employment authorization, if applicable.
Requested Start DateHistorically, H1B employers filing cap cases were generally required to request a start date of October 1st. In 2024, a regulatory change was made, providing greater flexibility for H1B employers with regard to the start date requested on a cap case. This change, however, does not apply to cases involving cap-gap. For cap-gap cases, the requested start date still must be October 1st.
Students May File for STEM Extension During Cap GapDuring the cap-gap period, the student beneficiary may also apply for the 24-month STEM extension, if otherwise eligible. If the H1B petition is withdrawn, revoked, or denied, and the student has entered the 60-day grace period, s/he is no longer eligible to apply for a STEM extension.
When a SEVIS Data Fix is Required“Data fix” is a term used to describe a request made by a DSO to the ICE/SEVP to correct a student’s SEVIS record. In some situations, it may be a useful tool to correct an action that otherwise could result in termination of student status. The USCIS provides cap-gap guidance with several examples of instances in which a student may want to consider contacting the DSO to request a data fix.
One common scenario is when an H1B petition is approved for change of status, effective October 1st, but the student no longer desires a status change on that date or the employer withdraws their offer of employment. Instead, the student wants to continue to use the unexpired OPT. In such a case, the petitioning employer should request to withdraw the approved petition before October 1st. Once the USCIS acknowledges withdrawal, the student should take the acknowledgement letter to the DSO and request that the SEVIS record be changed back to active status. A data fix is no longer possible in this scenario, if the employer does not withdraw the approved petition until after October 1st, when the student’s status automatically changes to H1B.
International Travel During Cap GapMany students inquire as to whether they may travel outside the United States during the cap-gap period between the academic program and the new H1B job. Students generally should not travel while the H1B petition and change-of-status request is still pending. The request will be considered abandoned and the student may have to remain outside the United States while the petition is adjudicated, and then apply for an H1B visa after approval.
Students whose H1B petitions and change-of-status requests are approved, however, may travel abroad and reenter the United States in F-1 status prior to October 1st. The student must also have an unexpired F-1 visa, along with proper I-20s showing approved cap-gap and endorsement for travel. More information regarding travel during cap-gap can be found in the MurthyDotCom NewsBrief, Students Should Not Travel during Cap-Gap Period (30.Jun.2016).
ConclusionWhile the cap-gap rule may be deceptively simple, H1B petitioners and beneficiaries are encouraged to examine their specific circumstances to make sure that they achieve their desired objective of maintaining status and possibly employment authorization during the period prior to October 1st. When in doubt, it is recommended that any petitioning employer and individual beneficiary consult with a knowledgeable immigration attorney to develop the best possible course of action for the specific situation.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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I am on H1B and, when I joined my current employer, I agreed to provide 4-weeks’ notice if I was going to move to a new employer. I get a job offer that wants me to start in 2 weeks. If I do not give the full 4-weeks’ notice, would that be a violation...
There is no requirement under immigration law to provide notice before moving to a new H1B employer. If there is a contract between the employer and the H1B worker, a breach of contract generally would be a civil matter – not viewed as a violation of H1B status. (06.Mar.2024)
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The post I am on H1B and, when I joined my current employer, I agreed to provide 4-weeks’ notice if I was going to move to a new employer. I get a job offer that wants me to start in 2 weeks. If I do not give the full 4-weeks’ notice, would that be a violation of my H1B status? appeared first on Murthy Law Firm | U.S Immigration Law.
I have about 11 months of H1B time remaining before I max out. If I leave the U.S. for 1 year, and then return in H1B status, would I be eligible for another 6 years of H1B time?
If you have H1B time remaining, it generally is possible for an employer to file an H1B petition on your behalf requesting the remaining period of H1B time. To be eligible for a new 6-year period of H1B time, however, one would have to be outside the U.S. for one year, and then go through the H1B lottery again. (06.Mar.2024)
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My employer has asked me to travel to the U.S. on my B-1 visa to meet with a client. The client has provided me with an invitation letter. Is it necessary to get the letter notarized?
Ordinarily, there is no requirement that an invitation letter be presented at all when requesting admission on a B-1 visa. However, they can be useful to present as evidence of the purpose of one’s visit. If such a letter is presented, there normally is no need to first get it notarized. (06.Mar.2024)
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Gaining and Losing a Priority Date in Employment-Based Green Card Cases
A foreign national seeking to become a lawful permanent resident of the United States (i.e., a “green card holder”) typically should be familiar with the concept of a priority date. For all employment-based (EB) preference categories, a foreign national’s priority date is critical, as it determines when the individual can file an adjustment of status application (form I-485) and when it can be approved; or, if the case is filed for consular processing, it determines when the immigrant visa may be issued. So, it is helpful to understand how a priority date is established and in what situations that priority date may be retained or lost. Note that this MurthyDotCom article focuses solely on the employment-based first, second, and third preference (EB1, EB2, and EB3) categories.
Establishing the Priority Date and Determining What Date is AssignedThe employment-based priority date is established when the immigrant petition (form I-140) is approved. The priority date assigned depends on the type of case. For PERM labor certification (LC) cases, the priority date is based on the date the case was filed with the U.S. Department of Labor (DOL). If the EB case was filed in a category that does not require a PERM LC, then the priority date assigned is the date the I-140 was filed with the U.S. Citizenship and Immigration Services (USCIS).
Keeping and Losing the Priority DatePer the regulation that has been in effect since 17.Jan.2017, once an I-140 is approved, not only is the priority date established, but the beneficiary gets to keep that priority date and use it for any other approved I-140. This applies, even if the sponsoring employer later withdraws the I-140.
Still, the regulation does list several ways a priority date can be lost. Broadly speaking, these fall into two categories – problems that relate directly to the approved I-140 and problems with the underlying PERM LC, where applicable.
More specifically, a priority date can be lost if the I-140 is revoked due to fraud, willful misrepresentation, or a material error by the USCIS. In other words, if the USCIS can establish that the I-140 petition should not have been approved, then the foreign national can lose the priority date of that approved I-140.
As for issues related to the underlying PERM, the DOL can revoke an approved LC if the certification was not justified. Fortunately, this practice is relatively rare in cases where the I-140 has already been approved. The LC can also be invalidated by the USCIS or the U.S. Department of State based on fraud or a willful misrepresentation of a material fact.
ConclusionBy listing ways that priority dates can be taken away, there are other situations that may arise when the USCIS incorrectly says that an immigrant loses their priority date. The Murthy Law Firm has encountered situations where the USCIS has claimed a foreign national has forfeited a priority date, contrary to what is stated in the regulation. As a critical benefit for foreign nationals seeking to secure a green card, losing a priority date should not be accepted without at least consulting an attorney first to determine any options that may be available.
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Alternate Sources for PERM Prevailing Wage Determinations
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 WageThe 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 SystemA 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 SourcesA 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 SurveysIn 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 AgreementsWhen 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 AthletesIf 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 ActsAn 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.
ConclusionWhile 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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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...
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)
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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...
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)
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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?
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)
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Murthy Snapshot: Ukrainian Re-Parole
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).
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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AOS for G4 Retirees
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.
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