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Updated: 36 min 56 sec ago

DOL Retracts Certain PERM Labor Certification Approvals

Thu, 06/13/2024 - 13:50

The Office of Foreign Labor Certification (OFLC), which is responsible for adjudicating PERM labor certification applications for the U.S. Department of Labor (DOL), has retracted the approvals issued on an unknown number of labor certifications. The OFLC claims these approvals were issued in error.

Background on Adjudication Process

The latest scandal that is slowly leaking out to the public stems from a series of approvals issued by the OFLC that subsequently were taken back. Under normal circumstances, after an employer files a labor certification application with the DOL using an ETA form 9089, the employer is notified via eMail once the application is approved. In a still-unknown number of cases, however, an eMail was sent out to employers telling them that their approved labor certification was issued by mistake. The notifications from the DOL read as follows:

The Atlanta National Processing Center (ANPC) is sending this email concerning your application filed under the Permanent Labor Certification Program. The certification letter and certified ETA Form 9089 was sent in error, which was emailed on DATE to the employer’s contact and authorized attorney / agent (if applicable) listed on case A-#####-#####. You will be informed when a final determination is issued or if there is a request for information. Thank you.

OFLC Known for Having No-Modification Policy

Ironically, the OFLC is notorious among immigration practitioners for being inflexible when it comes to applying regulations, and for implementing a no-modification policy. Even a small error or minor typo on a PERM labor certification can result in the denial of a case, and the OFLC generally prohibits any changes from being made to an application once it has been submitted. This can result in the loss of time and money, plus the potential of serious immigration problems for the beneficiary, all due to a very minor error by the employer.

Moreover, the revocation of approved labor certifications is governed by 20 CFR §656.32, and requires the certifying officer to issue notice of intent to revoke, among other steps, before the DOL may revoke an approved labor certification. Here, however, the OFLC seems comfortable with ignoring the standard regulatory requirement, as these approvals were made in error.

Conclusion

Perhaps it is understandable that an error like this could be made. However, the OFLC cannot have it both ways, being entirely rigid when it comes to the slightest error made by an employer, and yet ready to forgive itself when it commits a blunder such as this. We urge the OFLC to take this opportunity for some self-reflection as to how PERM labor certification cases are adjudicated, and to at least implement avenues of reprieve for employers for minor errors. Or, if not, it must hold itself to the same standard of perfection that it does employers.

 

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The post DOL Retracts Certain PERM Labor Certification Approvals appeared first on Murthy Law Firm | U.S Immigration Law.

I was laid off from my H1B position. I got an offer, but the company says their only education requirement is a bachelor’s degree in any field. Is this sufficient for an H1B filing?

Wed, 06/12/2024 - 23:01
Answer

In order to qualify for an H1B position, the minimum requirements generally must include at least a minimum of a bachelor’s degree in a particular field. If a position will accept a bachelor’s degree in any field, it normally will not qualify as an H1B position. (12.Jun.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 was laid off from my H1B position. I got an offer, but the company says their only education requirement is a bachelor’s degree in any field. Is this sufficient for an H1B filing? appeared first on Murthy Law Firm | U.S Immigration Law.

I am a Mexican citizen working as a mechanical engineer on a TN visa. My current job is coming to an end next month, but I received an offer for another mechanical engineer position. Do I have to go back to a consular post in Mexico to apply?

Wed, 06/12/2024 - 22:59
Answer

No. In order to apply for a change in employer as a TN worker, the employer may file a petition with the USCIS, or, if the TN visa in your passport is still valid, it typically is possible to apply in person at a U.S. port of entry. (12.Jun.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 Mexican citizen working as a mechanical engineer on a TN visa. My current job is coming to an end next month, but I received an offer for another mechanical engineer position. Do I have to go back to a consular post in Mexico to apply? appeared first on Murthy Law Firm | U.S Immigration Law.

Priority Dates: How Does the Visa Bulletin Work?

Wed, 06/12/2024 - 01:25

What is a priority date? What role does it play in a green card application process? This helpful MurthyDotCom article gives you a basic understanding so you can confidently make important decisions.

The post Priority Dates: How Does the Visa Bulletin Work? appeared first on Murthy Law Firm | U.S Immigration Law.

MurthyAudio: Self-Petition Filings – NIWs/EB1 Extraordinary Ability

Tue, 06/11/2024 - 15:08

Self-petition filings as an alternative to labor-certification based I-140 filings is the topic Murthy Law Firm attorneys address in this June 2024 podcast. Examples discussed include National Interest Waivers and EB1 Extraordinary Ability filings.

 

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

 

         

The post MurthyAudio: Self-Petition Filings – NIWs/EB1 Extraordinary Ability appeared first on Murthy Law Firm | U.S Immigration Law.

I-485 Approved When Outside U.S.

Tue, 06/11/2024 - 13:46

“What happens if my I-485 application is approved when I am traveling outside of the United States?” Here’s a short and helpful article that answers this common question.

The post I-485 Approved When Outside U.S. appeared first on Murthy Law Firm | U.S Immigration Law.

July 2024 Visa Bulletin

Tue, 06/11/2024 - 00:53

This afternoon, the U.S. Department of State (DOS) released the July 2024 Visa Bulletin. 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

The cutoff date for EB1 India advances significantly, to February 1, 2022, while EB1 China’s cutoff date moves to November 1, 2022. The EB1 category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

In the EB2 category, India’s cutoff date moves ahead to June 15, 2012, and China’s cutoff date advances to March 1, 2020. The EB2 cutoff date for all other countries moves up to March 15, 2023.

Employment-Based, Third Preference (EB3) Category

For EB3 India, the cutoff date advances to September 22, 2012, while EB3 China’s cutoff date is still set at September 1, 2020. The EB3 cutoff date for all other countries of chargeability retrogresses to December 1, 2021.

EB3 Other Workers

In the EB3 other workers category, India’s cutoff date moves ahead to September 22, 2012. For China, the cutoff date is still locked at January 1, 2017. The EB3 other workers cutoff date for Philippines remains unchanged at May 1, 2020. For all other countries of chargeability, the cutoff date advances to January 1, 2021.

Employment-Based, Fourth Preference (EB4) Category

In the EB4 category, the cutoff dates for all countries advance to January 1, 2020.

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 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.

Clarification on Retrogression

In summarizing the June 2024 Visa Bulletin, we reported that the DOS warned of looming retrogression in the EB2 and EB3 categories. It now appears that the DOS meant that retrogression would be necessary for all countries other than India and China. Now, the DOS is cautioning that “given continued high demand and number use in this category, it will likely be necessary to either further retrogress the final action date or make the category unavailable in August.” Again, this does not appear to include either India or China. Further, no mention is made of the EB2 category.

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 July 2024 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

H-4 EAD Program

Sun, 06/09/2024 - 22:25

The H-4 EAD program has transformed the lives of countless H-4 dependent spouses, especially those who have waited years to put their education and skills to use. Our new article explains the requirements to qualify.

The post H-4 EAD Program appeared first on Murthy Law Firm | U.S Immigration Law.

Presidential Proclamation Limits Southern Border Entries without Documentation

Thu, 06/06/2024 - 13:39

On June 4, 2024, the White House issued a presidential proclamation to temporarily limit the entry of foreign nationals across the southern border of the United States without valid documentation. Effective June 5, 2024, the Biden Administration is prohibiting the entry into the U.S. of any noncitizens attempting to cross any portion of the southern border without going through a designated port of entry. In the proclamation, President Biden explains that the federal government does not have enough resources from Congress to manage the flow of people into the country across the southern border.

Background on Issuance of Proclamation

The U.S. Department of Homeland Security (DHS) issued a regulation in May 2023, named the circumvention of lawful pathways final rule, that states if a foreign national fails to use an existing lawful pathway to enter the United States, even if the person wishes to claim asylum, then the person is presumed to be ineligible. This rule was intended to stem to flow of individuals streaming across the southern border. As noted in the presidential proclamation, however, the number of encounters with undocumented immigrants at the southern U.S. border continues to far exceed the capacity of CBP officers to process them in a timely manner. President Biden also blames Congress for failing to pass legislation that would have provided additional resources to secure the border and argues that this has forced him to take this executive action.

U.S. Citizens and Noncitizens with Entry Documents Exempt from Proclamation

U.S. citizens and lawful permanent residents (i.e., green card holders) are not subject to this proclamation. Similarly, foreign nationals who have a valid entry document, such as a visa “stamp,” or an advance parole document, or visa waiver applicants with ESTA authorization, can request admission per usual. The presidential proclamation also authorizes the DHS and CBP the use their discretion to permit entry into the U.S. to a foreign national who otherwise might be excluded by this proclamation.

Restrictions in Effect Until DHS Decision or Court Order

The presidential proclamation is supposed to remain in effect until 14 calendar days after the DHS makes a determination that there has been a seven-consecutive-calendar-day average of fewer than 1,500 attempts to enter the U.S. without valid documentation through a designated port of entry. However, there almost certainly will be multiple lawsuits filed against the administration in response to the proclamation, so it is possible that a federal court may put a halt to it. The assumption is that the fate of this proclamation ultimately will be decided by the U.S. Supreme Court.

 

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The post Presidential Proclamation Limits Southern Border Entries without Documentation appeared first on Murthy Law Firm | U.S Immigration Law.

LPR Birth Abroad

Wed, 06/05/2024 - 23:44

Pro-tip! A child born abroad to an LPR parent can become an LPR by entering the U.S. with the LPR mom or dad on their 1st trip back within two years of the birth! No visa for the child needed, only a birth certificate and passport! Learn more.

The post LPR Birth Abroad appeared first on Murthy Law Firm | U.S Immigration Law.

When I was a green card holder, I sponsored my adult, unmarried daughter for a green card. I have since become a U.S. citizen. If my daughter marries, can her pending case be converted to the married daughter category?

Wed, 06/05/2024 - 19:37
Answer

Unfortunately, no. If your daughter marries now, the family-based, second preference “B” (FB2B) case you filed for her would no longer be approvable. Instead, generally, you would have to start from scratch with a family-based, third preference (FB3) case. (05.Jun.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 When I was a green card holder, I sponsored my adult, unmarried daughter for a green card. I have since become a U.S. citizen. If my daughter marries, can her pending case be converted to the married daughter category? appeared first on Murthy Law Firm | U.S Immigration Law.

A couple of years ago, I ported the priority date from my previous employer’s I-140 to the I-140 filed by my new employer. My old employer recently contacted me, and I am considering a move back to them. Would they have to re-file my PERM and I-140...

Wed, 06/05/2024 - 19:32
Answer

Requesting retention of a priority date does not void or otherwise invalidate the original I-140. If the previous employer did not withdraw the I-140, and if the position being offered to you is the same, it is possible that the same I-140 still could be used. (05.Jun.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 A couple of years ago, I ported the priority date from my previous employer’s I-140 to the I-140 filed by my new employer. My old employer recently contacted me, and I am considering a move back to them. Would they have to re-file my PERM and I-140 because I ported the priority date? appeared first on Murthy Law Firm | U.S Immigration Law.

My L1A petition expires in December 2024. When I last entered the U.S., however, I was granted an I-94 valid through September 2025. Can I continue working through that expiration date?

Wed, 06/05/2024 - 19:29
Answer

It appears that this I-94 was issued in error. If you discover a CBP error – even one that appears to be in your favor – you generally should contact CBP to get it corrected.

Note that CBP has the discretion to admit an L-1 worker for up to 10 days beyond the petition expiration date; but, even then, the person cannot work during the 10-day grace period. (05.Jun.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 L1A petition expires in December 2024. When I last entered the U.S., however, I was granted an I-94 valid through September 2025. Can I continue working through that expiration date? appeared first on Murthy Law Firm | U.S Immigration Law.

<p>Will your travel abroad affect your

Tue, 06/04/2024 - 18:33
Will your travel abroad affect your pending application or petition for an immigration benefit? Contact us to learn the travel rules for each step of your immigration journey!   

The post appeared first on Murthy Law Firm | U.S Immigration Law.

PERM Denied? What’s Next?

Tue, 06/04/2024 - 00:14

The PERM process is long. Approvals are great, but what do you do when the PERM is denied? Refile? Appeal? Start from scratch? People and employers have lots of questions. Read our analysis and call us for advice.

The post PERM Denied? What’s Next? appeared first on Murthy Law Firm | U.S Immigration Law.

Basic Eligibility Requirement for H-4 EAD

Mon, 06/03/2024 - 22:12

In May 2015, a regulation was implemented to finally allow at least some H-4 dependent spouses to obtain work authorization. Given that the program has been in place for nearly a decade, seasoned H1B workers and H-4 dependents are typically aware of the requirements to qualify for an employment authorization document (EAD) as an H-4 dependent spouse. However, for foreign nationals who are not familiar with the H-4 EAD rule, this article serves to provide a basic overview of the requirements to qualify for this important benefit.

Two Categories of H-4 Spouses Eligible for EADs

For an H-4 spouse to qualify, the principal H1B worker must either (1) be the beneficiary of an approved I-140, or (2) have extended H1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21).

Eligibility Based on I-140 Approval

The first category of H-4s who are eligible to request EADs is fairly straightforward. All that is required is that the H1B spouse be the beneficiary of an approved immigrant petition (I-140 form). There are no other requirements or restrictions. With an approved I-140, it does not matter how much time the H1B worker or H-4 spouse have spent in the United States. It is also not necessary for the H1B spouse to work for the employer that filed the I-140 petition. The I-140 does not have to have been approved for any minimum length of time.

Eligibility Based on H1B Spouse’s Extension Beyond Six Years

Under the second category of EAD eligibility, the H-4 spouse is only eligible to apply for an EAD under the H-4 EAD rule if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant to specific provisions of AC21. The provisions in question are contained in sections 106(a) and (b) of AC21. These sections of the law allow an H1B nonimmigrant to extend status beyond the six-year standard limit in one-year increments.

Eligibility for these one-year extensions is based on the H1B spouse being the beneficiary of either a PERM labor certification (PERM LC) application or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H1B status. It is not necessary for the PERM LC or the I-140 to have been approved for the H-4 spouse to be eligible under this rule. However, it is necessary for either the PERM LC or I-140 to still be “alive,” meaning not having received a final denial or revocation decision. A more detailed analysis of how the H1B spouse can obtain a one-year extension pursuant to AC21 is discussed in depth in the MurthyDotCom NewsBrief, Limitations on H1B Extensions Beyond the Standard Six-Year Limit (15.Aug.2022).

Documentary Requirements to File the H-4 EAD Application

To obtain permission to work, an H-4 spouse is required to file an application for employment authorization (form I-765), along with the proper filing fee. This must be accompanied by proof that the applicant holds H-4 status and that the H1B spouse has maintained valid status and falls within one of the two qualifying categories, as explained above.

If eligibility is based on the H1B spouse being the beneficiary of an approved I-140, a copy of the I-140 approval notice should be sufficient as primary evidence of fulfilling this requirement. If this is not available, the U.S. Citizenship and Immigration Services (USCIS) may consider secondary evidence, such as the receipt number for the approved I-140 and/or evidence that the H1B worker has been granted an extension of status beyond the six-year limit.

If the H-4 spouse is eligible based on the principal spouse’s extension of H1B status under AC21, the primary documentary evidence of eligibility is somewhat more flexible. Evidence such as a copy of the H1B spouse’s passport, prior I-94 cards, prior H1B approval notices, and/or copies of pay stubs that would tend to establish that the H1B spouse has been granted an extension of status beyond six years may be used as primary evidence. The proof of the basis for the extension (i.e., pending PERM and/or pending I-140) is also necessary.

Additional Details About H-4 EAD

The H-4 EAD provides unrestricted employment authorization. It can be used to work full time or part time for any employer in any field or position. Children who hold H-4 status, even those who are old enough to work, are not eligible to apply for employment authorization under the rule.

Conclusion

The H-4 EAD program is far from perfect. But since it was implemented nearly a decade ago, the program has transformed the lives of countless H-4 dependent spouses, the majority of whom are Indian women who waited years for the opportunity to put their education and skills to use. These taxpayers and job creators are helping to make the U.S. economy, while working toward their own American dream.

 

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The post Basic Eligibility Requirement for H-4 EAD appeared first on Murthy Law Firm | U.S Immigration Law.

TSC Mail Intake Suspension

Fri, 05/31/2024 - 20:06

Have you recently sent mail to the USCIS Texas Service Center? Due to temporary mail intake suspension, your filing may have been delayed. If you missed an important deadline, you may qualify for an exception under Immigration Relief in Emergencies or Unforeseen Circumstances | USCIS.

The post TSC Mail Intake Suspension appeared first on Murthy Law Firm | U.S Immigration Law.

Murthy Snapshot: USCIS Updates Guidance for Family-Based Immigrant Petitions

Thu, 05/30/2024 - 18:53

On May 22, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated guidance in the USCIS Policy Manual on the processing and adjudication of form I-130, petition for alien relative, which is filed in family-based immigration cases. Here are the key points you need to know:

  • An I-130 petition should clearly indicate whether the beneficiary intends to immigrate through adjustment of status in the United States or through consular processing abroad, both of which are explained in the MurthyDotCom NewsBrief, Revisiting the Debate: Adjustment of Status vs. Consular Processing (09.Nov.2023). If the beneficiary’s intention is unclear, this may cause processing delays, and the USCIS has discretion to determine whether to keep the petition for adjustment of status or send the petition to the U.S. Department of State (DOS) for consular processing.
  • If an I-130 approval notice contains an error or is missing information, the petitioner may request a corrected notice from the USCIS. The best way to prevent errors and delays is to complete the I-130 petition properly and take any necessary corrective action as soon as possible.
  • If an I-130 petition meets all the requirements, the USCIS generally does not have the discretion to deny the petition. The beneficiary’s history and character generally are not considered in the adjudication of an I-130 petition.
  • An I-130 petition merits approval if it is established that the petitioner is a U.S. citizen, U.S. national, or lawful permanent resident, as applicable to the particular family-based category, and that a qualifying relationship exists between the petitioner and the beneficiary.
Your Takeaway:

An I-130 petition serves as the basis for an individual’s family-based immigration process. Therefore, it is critical that the petition is properly completed to ensure a smooth path towards lawful permanent residency for one’s relative. The Murthy Law Firm has assisted countless clients successfully petition for family members and is available to assist in this process or any other immigration needs.

 

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The post Murthy Snapshot: USCIS Updates Guidance for Family-Based Immigrant Petitions appeared first on Murthy Law Firm | U.S Immigration Law.

I got married to a green card holder last year, and he sponsored me for a green card. The petition is still pending, but our marriage has been a very poor match, and we have already separated. When he withdraws the petition, will this prevent me from...

Wed, 05/29/2024 - 20:16
Answer

Generally speaking, having an I-130 petition filed and then withdrawn would not prevent a person from applying for a visa or green card in the future. This information would have to be disclosed, as appropriate, however, such as on the DS-160, where it asks if anyone has ever filed an immigrant petition on your behalf. (29.May.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.

 

 

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved

The post I got married to a green card holder last year, and he sponsored me for a green card. The petition is still pending, but our marriage has been a very poor match, and we have already separated. When he withdraws the petition, will this prevent me from applying for a visa or green card in the future? appeared first on Murthy Law Firm | U.S Immigration Law.

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