US Immigration News

This morning, the U.S. Department of State (DOS) released the October 2024 Visa Bulletin. Unfortunately, there is less forward movement than hoped for in this first visa bulletin of fiscal year 2025 (FY25). 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) Category

EB1 China’s cutoff date inches forward to November 8, 2022. Meanwhile, EB1 India’s cutoff date remains set at February 1, 2022. The EB1 category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

In the EB2 category, China’s cutoff date moves ahead to March 22, 2020. India’s cutoff date for EB2, however, remains unchanged at July 15, 2012. The EB2 cutoff date for all other countries remains set at March 15, 2023.

Employment-Based, Third Preference (EB3) Category

EB3 India’s cutoff date advances to November 1, 2012. For China, the EB3 cutoff date actually retrogresses to April 1, 2020. The EB3 cutoff dates for all other countries of chargeability race ahead to November 15, 2022.

EB3 Other Workers

In the EB3 other workers category, India’s cutoff date matches its EB3 counterpart at November 1, 2012. For China, the cutoff date is still locked at January 1, 2017. The EB3 other workers cutoff date for all other countries of chargeability is set at December 1, 2020.

Employment-Based, Fourth Preference (EB4) Category

In the EB4 category, the cutoff date for all countries remains set at January 1, 2021.

Note that the EB4 program for certain religious workers is currently scheduled to expire on September 30, 2024. If Congress does not extend the program by that date, the EB4 category for certain religious workers will be unavailable.

Employment-Based, Fifth Preference (EB5) Category

In the EB5 category, China’s unreserved (i.e., EB5 immigrant visa numbers not set aside for rural, high unemployment, and infrastructure projects) cutoff date advances to July 15, 2016. India’s unreserved cutoff also surges ahead to January 1, 2022. EB5 remains current for all other EB5 categories and countries of chargeability.

Conclusion

MurthyDotCom 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 sent to your inbox.

 

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The post October 2024 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

Have you filed your H1B Cap Case yet? If USCIS picked you in the 2nd round of H1B selections, then you have less than two months until 07.Nov.2024, when the filing period ends. Read more.

The post H1B Cap Cases Due 07.Nov.2024 appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

In general, yes, this is permissible. There is a USCIS memo that says, as long as one I-140 petition was filed within the validity period of the labor certification, another I-140 petition can be filed. (11.Sep.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 If I have a PERM case with an I-140 approved in EB2, can I then use that case to file an I-140 in EB3 even if the labor certification has expired? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

A person subject to a J-1 home residency requirement typically is not eligible to be granted a change of status to H1B or an H1B visa “stamp” from a consular post unless the individual first either completes the home residency requirement or obtains a waiver. Citizens of Canada, however, generally are exempt from applying for a visa. Therefore, you normally would be allowed to leave the U.S. and re-enter in H1B status based on an approved H1B petition, without having to obtain an H1B visa. This can be done, even though you haven’t met the home residency requirement or obtained a waiver. (11.Sep.2024)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I am a citizen of Canada and I am in the U.S. as a J-1 scholar subject to the 2-year home residency requirement. I have received a job offer from a university to sponsor me for cap-exempt H1B position. But I heard that I must first obtain a J-1 waiver or remain in my home country for two years to come back to the U.S. in H1B status. Do I have any options? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Yes, at least for now, the USCIS should adjudicate these cases at around the same time. This is based on a settlement agreement that the USCIS entered into on January 25, 2023. The USCIS is only bound by this agreement for a few more months, so we will have to wait and see whether the USCIS continues this practice once it is no longer legally obligated to do so. (11.Sep.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 If I file my wife’s H-4 and H-4 EAD applications together with my H1B petition that is filed for premium processing, is it true that the USCIS will provide premium service to all the cases? appeared first on Murthy Law Firm | U.S Immigration Law.

What are the potential issues for businesses in the area of U.S. immigration law if Trump is elected in 2024?These are discussed by Murthy Law Firm attorneys in this podcast that is a continuation of our series for U.S. employers.

 

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

 

         

The post MurthyAudio: Business Issues if Trump is Elected in 2024 appeared first on Murthy Law Firm | U.S Immigration Law.

The majority of immigration cases are adjudicated correctly by the U.S. Citizenship and Immigration Services (USCIS) and other relevant U.S. government agencies. But there are situations in which a government agency makes an adverse decision on a case that is contrary to the law. In such a case, the individual or the employer may feel the need to take additional action and file a federal lawsuit under the Administrative Procedure Act (APA) against the U.S. government and challenge the erroneous decision.

Overview of the APA

The APA is a federal statute that governs how government agencies are required to operate. In addition to dictating how an agency must develop rules and regulations, the APA also provides for when an individual can seek judicial review of an agency decision. Namely, an individual who suffered a legal wrong from, or was adversely affected by, a final agency action, generally can file a lawsuit under the APA to challenge the decision in court.

Types of Agency Actions that can be Challenged Under the APA

In the immigration context, an APA lawsuit can be used in a variety of situations, such as to challenge an erroneous denial, revocation, or fraud finding on an application or petition made by the USCIS or some other government entity. An APA lawsuit also can be used to challenge an unreasonable delay in a case. Normally, this is included with the filing of a writ of mandamus, which is explained in the MurthyDotCom InfoArticle Writ of Mandamus Lawsuits for Unreasonably Delayed Cases (19.Jun.2023).

Limits of an APA Lawsuit

An individual may be able to file an APA lawsuit to challenge different aspects of an otherwise non-reviewable adverse agency decision to seek a favorable outcome. The ability to file an APA lawsuit after receiving an adverse discretionary agency decision depends upon the specific legal issue in the case. Certain discretionary agency actions cannot be challenged under the APA.

Federal Lawsuits Against Government Agencies may be More Successful Now

A federal lawsuit challenging an agency decision may be more successful now than in the past due to the recent U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo, which reduced the level of deference a federal court must give to an agency decision. Before Loper Bright, a federal court typically was bound by the agency’s reasonable interpretation of the law underlying the agency’s decision. Now, a federal court can interpret the law with significantly less regard to the agency’s interpretation and has more authority to overturn the agency’s decision.

No Need to Fear Retribution for Filing an APA Lawsuit

Foreign nationals unfamiliar with the U.S. justice system may worry that filing an APA lawsuit will incur governmental retribution. In reality, however, this is not a cause for concern. U.S. federal courts impartially review and adjudicate cases, ensuring that the government is held accountable for unreasonable delays or violations of the law. Given that APA lawsuits are filed routinely against U.S. immigration agencies, retribution by the USCIS or other government entity for exercising one’s legal rights is highly unlikely.

Conclusion

When an individual receives an unlawful denial on an application or petition, the individual may choose to appeal the decision within the agency or use other traditional means of resolving the matter. After an individual exhausts traditional options to challenge an agency decision unsuccessfully, filing a federal lawsuit may be a necessary step to seek a favorable decision. Individuals interested in discussing filing an APA lawsuit are encouraged to schedule a consultation with a Murthy Law Firm attorney.

 

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The post APA Lawsuits for Unlawful Agency Actions appeared first on Murthy Law Firm | U.S Immigration Law.

Did you know that, if you have earned 40 quarters (typically 10 years) of employment in the U.S., then you are exempt from needing to include a standard I-864 in a family-based immigrant petition?

The post Exemption from I-864 Affidavit of Support appeared first on Murthy Law Firm | U.S Immigration Law.

On August 27, 2024, the U.S. Citizenship and Immigration Services (USCIS) issued updated guidance in the USCIS Policy Manual related to optional practical training (OPT) for F-1 students. Below are the key points you need to know:

• A student may apply for a STEM OPT extension no earlier than 90 days before the current OPT expires, and must apply within 30 days of the designated school official (DSO) making the STEM OPT recommendation in SEVIS. Prior to this, F-1 students had 60 days from the date the recommendation was made in SEVIS.
• If a STEM OPT extension is denied on a basis other than failure to maintain F-1 status, the student is granted a 60-day grace period. During the 60-day grace period, the individual may apply for a change of status or education level, or transfer to a different school. If the STEM application is denied for failure to maintain F-1 status, the student must depart immediately.

Your Takeaway:

The only change of any significance is the modification of when the STEM OPT extension must be filed. This change could result in an increase in the number of STEM OPT denials, solely based on F-1 students who fail to timely file the applications. Accordingly, F-1 students, as will all foreign nationals, must be remain aware of changes in U.S. immigration law, and be proactive, as necessary.

 

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The post Murthy Snapshot: USCIS Updates Guidance on F-1 OPT appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

There is no statute or regulation that specifically addresses this issue. Over the years, however, there has been some guidance indicating (or, at least, implying) that traveling while an H1B extension of stay is permissible, and that the beneficiary’s new I-94 will go into effect once it is approved. (03.Sep.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 If I travel while my H1B extension is pending and return while my existing petition is still valid, but before the extension is approved, what happens once the extension is approved? Can I rely on the extended I-94 in that situation? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No. Ordinarily, one’s wife in this situation would not need an affidavit of support, because she can be credited with your 40 quarters of employment. (03.Sep.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 lived in the U.S. for 12 years while on H1B and now my daughter wants to sponsor my wife and me for a green card. I know I am eligible for a waiver of an affidavit of support because I have earned 40 quarters of employment in the U.S., but does my wife need an affidavit of support? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Unfortunately, no. Normally, an H-4 dependent spouse cannot work past the I-94 expiration date. (03.Sep.2024)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post My H-4 I-94 duration was shortened because my passport was expiring, but my EAD is valid for another 2 years. Can I continue to work after I file my H-4 extension? appeared first on Murthy Law Firm | U.S Immigration Law.

The U.S. Department of State (DOS) has announced that several employment-based (EB) immigrant visa categories will remain unavailable for the remainder of fiscal year 2024 (FY24). A category that is unavailable is one for which all the immigrant visa numbers have been exhausted for the fiscal year, so no adjustment-of-status application (form I-485) can be approved, nor immigrant visa issued, that is filed under that category until the new fiscal year, which begins 01.Oct.2024. The categories that are now unavailable include:

• EB1
• EB3
• EB3 other workers
• EB5 unreserved (i.e., (i.e., EB5 immigrant visa numbers not set aside for rural, high unemployment, and infrastructure projects)

It is possible that other categories, including EB2, could become unavailable before the end of the fiscal year. Nevertheless, this will be temporary, with new immigrant visa numbers available in a month – at the start of fiscal year 2025.

 

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The post EB1, EB3 Categories, Among Others, Unavailable for Remainder of FY24 appeared first on Murthy Law Firm | U.S Immigration Law.

Immigration Pro Tip: If you are in valid nonimmigrant status, but the visa stamp with which you entered the U.S. is expired, you might still be able to travel to Canada or Mexico and back to the U.S. using Automatic Visa Revalidation (AVR)! Learn more in this MurthyDotCom article.

The post When Entering the U.S. on an Expired Visa appeared first on Murthy Law Firm | U.S Immigration Law.

Most family-based immigrant visa cases require the petitioner to serve also as a financial sponsor for the intending immigrant. To qualify as a sponsor, a petitioner must complete an affidavit of support (form I-864) demonstrating that the sponsor has sufficient means to ensure that the beneficiary family member will not become a public charge, in need of government support. An overview of a sponsor’s eligibility requirements and obligations is provided here for the benefit of MurthyDotCom readers.

Cases Requiring an I-864

The I-864 form is required, with limited exceptions, in family-based immigration cases. It also is required in some employment-based cases where the petitioner is a relative or an entity in which a relative has an ownership interest of five percent or more. An I-864 is required both when a beneficiary applies for lawful permanent resident status (commonly, a green card) through adjustment of status in the United States or by obtaining an immigrant visa at a U.S. consulate abroad.

Responsibility of a Sponsor

The purpose of the I-864 is to protect U.S. taxpayers financially. The sponsor must establish the presence of sufficient means to ensure that the beneficiary family member will not become a public charge, in need of government support. Specifically, a sponsor must ensure that the beneficiary will maintain a household income of 125 percent of the federal poverty guideline applicable to the beneficiary’s household size. By signing the I-864, the petitioner also contracts to be financially liable to the beneficiary if sufficient support is not provided and to the government if the sponsored family member collects certain types of means-tested public benefits (e.g., food stamps).

General Eligibility Criteria for a Sponsor

In addition to the income requirements described below, a qualifying sponsor must be either a U.S. citizen or lawful permanent resident and at least 18 years old. The sponsor also must have a U.S. domicile, as explained in the MurthyDotCom InfoArticle, U.S. Domicile Requirement for Family-Based Green Card Sponsorship (27.Nov.2023).

Required Income Threshold for the Sponsor

An individual who wishes to sponsor a family member for permanent residence must demonstrate income equal to or above 125 percent of the applicable federal poverty guideline level. The exact income required on the I-864 varies based on the number of sponsored family members, the number of other dependents, and ongoing obligations under any previously filed I-864s. The poverty guidelines are modified annually, based on the Consumer Price Index for All Urban Consumers (CPI-U).

Options if Sponsoring Relative Cannot Meet the Income Requirement

If the sponsor does not have a sufficient annual income, there are alternatives for meeting the I-864 requirements. For example, when sponsoring one’s spouse or parent, it may be possible to include the income of the sponsored family member to evidence that the income criteria has been met, assuming this income will continue after the beneficiary becomes a permanent resident. Another common option is using one or two joint financial sponsors who are U.S. citizens or lawful permanent residents and have sufficient income levels. It also is potentially possible to rely upon certain assets in lieu of income, as explained in the MurthyDotCom InfoArticle, Using Assets for a Form I-864 Affidavit of Support (11.Dec.2023)

Termination of a Sponsor’s Financial Obligation

Certain events terminate a sponsor’s financial commitment and obligation to the beneficiary. Such events include, when the beneficiary becomes a U.S. citizen, has earned 40 credits (typically 10 years) of coverage under the Social Security Act, permanently leaves the U.S., obtains a new sponsor during removal proceedings, or dies. A sponsor’s obligations typically cannot be terminated by way of divorce, pre- or post-marital agreements, or bankruptcy. If the sponsor dies, the obligation of future support is not assigned to the sponsor’s estate.

Exemptions to the Affidavit of Support Requirement

A green card applicant may be exempt from a financial sponsor if certain criteria are met or if the applicant is in a specific eligibility category. An individual who has earned or can be credited with 40 quarters of employment in the U.S., and therefore has earned 40 credits of coverage under the Social Security Act, is not required to have a financial sponsor. An exemption is also available for a child of a U.S. citizen eligible for derivative citizenship upon admission to the U.S.; an Amerasian, widow/er, or special immigrant; and a self-petitioned battered spouse or child.

Conclusion

While a petitioner may easily qualify as a sponsor, the matter is not always straightforward. If a petitioner does not cleanly meet the eligibility criteria, there often are a variety of alternatives and solutions available to meet the I-864 requirements. The Murthy Law Firm can advise on questions regarding this important aspect of the green card process, and any individual who is facing uncertainties is encouraged to schedule a consultation with an experienced immigration attorney.

 

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The post Overview of Affidavit of Support for Family-Based Green Card Cases appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Typically, yes, it is possible to use work experience gained abroad, assuming the experience was related to the position. (28.Aug.2024)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post My employer is sponsoring me for a PERM position that requires prior work experience. Can I use experience gained with a foreign employer to qualify for the position? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

You should be eligible for the 60-day grace period in F-1 status as long as your STEM OPT was not denied due to an F-1 status violation. While you are in your grace period, you may transfer your SEVIS to another program of study or apply for a change of status from F-1 to another nonimmigrant category. You should check with your DSO right away to make sure your SEVIS record has not been completed upon the issuance of the denial decision. If completed, your DSO may be able to submit a datafix request to reactivate your SEVIS record. (28.Aug.2024)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post My STEM OPT application was just denied by the USCIS because my employer was not registered with E-Verify. Am I out of status? What are my options? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

Unfortunately, one generally must be physically in the United States to apply for an H-4 EAD. In many situations, however, it is possible to leave the U.S. while the H-4 EAD application is still pending. (28.Aug.2024)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The post I am in India and my husband is working in the U.S. in H1B status. I plan to arrive in the U.S. in December. Can I apply for an H-4 EAD now, so that it might be approved by the time I arrive in the U.S.? appeared first on Murthy Law Firm | U.S Immigration Law.

Immigration Pro Tip: It’s best to include your I-693 medical exam with your I-485 filing since medicals do not expire. But if you can’t, you still can supplement your filing once the USCIS issues a receipt notice for it or respond to an RFE asking for medicals later.

The post Medical Exams Don’t Expire! appeared first on Murthy Law Firm | U.S Immigration Law.

A federal judge in Texas has temporarily blocked the Biden Administration from continuing to grant parole in place under its Keeping Families Together program. As noted in the MurthyDotCom NewsBrief, USCIS Starts Accepting Applications for Keeping Families Together Program (22.Aug.2024),  this program is designed to allow certain undocumented spouses and stepchildren of U.S. citizens to apply for parole in place. The order to halt the program was issued by District Court Judge J. Campbell Barker, an appointee of former President Donald Trump.

 

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The post NewsFlash! Federal Judge Orders Temporary Halt to Parole-in-Place Program appeared first on Murthy Law Firm | U.S Immigration Law.