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Murthy Snapshot: AILA Urges Expansion and Improvements to Domestic Visa Renewal Program

Thu, 05/16/2024 - 23:21

The American Immigration Lawyers Association (AILA) recently sent a comment to the U.S. Department of State (DOS) regarding the pilot domestic visa renewal program, which ran from January 29, 2024, through April 1, 2024. In its comment, AILA offers numerous suggestions on ways to improve the program and requests that the DOS expand the program and make it permanent. More details on the pilot program are available in the MurthyDotCom NewsBrief, NewsFlash! Details of Domestic Visa Renewal Program Released (20.Dec.2023).

A summary of the key suggestions AILA made to the DOS are provided below:

  • Update the instructions and clarify the necessary steps for scheduling a domestic visa renewal appointment, as many applicants were confused about how to navigate the program’s scheduling system after completing form DS-160.
  • Create a dedicated email address for inquiries and assistance regarding the domestic visa renewal process.
  • Create a universal payment mechanism for the program, or otherwise clarify the instructions regarding acceptable payment methods.
  • Announce when domestic renewal spots are available and when all spots are taken so an applicant can plan accordingly.
  • Extend the timeline for an applicant to provide the required documents and provide realistic processing times for document processing so an applicant can better plan for when they do not have their passport available.
  • Clarify the eligibility of third country nationals to participate in the program.
  • Make the domestic visa renewal process permanent and expand it to other nonimmigrant categories, including E, F, J, L, and O, applicants, and their dependent family members.
Your Takeaway:

Despite certain issues with the initial roll out, the domestic visa renewal pilot program was successful overall and has the potential to expand and ease the visa process for many foreign nationals. In the meantime, the DOS will hopefully incorporate AILA and other stakeholders comments to improve and greatly expand the program.

 

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The post Murthy Snapshot: AILA Urges Expansion and Improvements to Domestic Visa Renewal Program appeared first on Murthy Law Firm | U.S Immigration Law.

My PERM case is under audit. Is there any way to expedite the PERM review process?

Thu, 05/16/2024 - 00:21
Answer

There is no way to expedite the PERM process. The DOL has a very clear, absolute, no-expedite rule. You can look here on the DOL website to see the priority dates of the PERM cases under process. That information is typically pretty reliable.  (15.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.

 

 

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Can my wife continue to extend her H-4 EAD after the sponsoring employer withdraws the approved I-140?

Thu, 05/16/2024 - 00:18
Answer

If at least 180 days have passed since the I-140 was approved, the USCIS will not revoke an I-140 based solely on it being withdrawn by the employer. Therefore, it typically can still be used by one’s spouse for purposes of applying for an H-4 EAD.  (15.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.

 

 

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Does it raise any red flags to USCIS if an H1B worker moves through multiple employers? I was laid off, and am considering a job offer now, even though I do not think it will last very long. If USCIS sees that I kept moving from one employer to the...

Thu, 05/16/2024 - 00:15
Answer

No, this typically is not a problem from the USCIS perspective. Over the years, the USCIS has enacted various measures to make it easier for H1B workers to move from employer to employer, when desired. And, USCIS officers are not generally interested in punishing employees for taking advantage of these measures. (15.May.2024)

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The post Does it raise any red flags to USCIS if an H1B worker moves through multiple employers? I was laid off, and am considering a job offer now, even though I do not think it will last very long. If USCIS sees that I kept moving from one employer to the next, will this job-hopping make me look bad? appeared first on Murthy Law Firm | U.S Immigration Law.

Determining Normal Position Requirements for PERM

Mon, 05/13/2024 - 22:47

When a PERM labor certification case is filed, the employer must state the minimum education and/or experience requirements for the sponsored position. If the employer requires a higher level of education and/or experience than what the U.S. Department of Labor (DOL) considers normal for the position, the DOL may audit the case and the employer will need to establish the business necessity for the stated job requirements. Although higher job requirements may often be defensible, it is important for an employer to understand how the DOL determines the normal requirements for a particular occupation and how business necessity may need to be established.

Special Vocational Preparation

PERM regulations require use of the O*NET classification system to determine the industry-norm for education, training, and experience, or special vocational preparation (SVP) classification, for particular occupations. The O*NET collects real-world data for hundreds of occupations and divides occupations into five job zones. Each job zone has a specific SVP range, and an occupation is assigned a job zone based on its particular SVP, with occupations requiring the lowest amount of preparation placed in job zone one and occupations requiring the highest amount of preparation in job zone five.

Determining an Occupation’s Normal Requirements

An occupation’s SVP level is graded on a scale of one to nine based on the amount of preparation needed for the occupation. A level one means the occupation requires only a short demonstration to be prepared, while a level nine means the occupation requires over ten years of experience. An occupation’s SVP calculation includes not only work experience, but also certain levels of education. That is, a bachelor’s degree is considered equivalent to two years of preparation, a master’s degree is equivalent to four years, and a doctorate is equivalent to seven years. If an employer’s minimum requirements for a PERM position exceed the occupation’s assigned SVP range, the DOL considers the requirements to be higher than normal.

For example, a software developer is placed in job zone four, for which the DOL considers two to four years of preparation to be normal. If an employer requires a bachelor’s degree and two years of experience for a software developer PERM position, which are together equivalent to four years of SVP, the DOL considers these requirements normal. If the employer requires a bachelor’s degree and three years of experience for the same position, which together exceed four years of SVP, the DOL considers the requirements higher than normal.

Establishing Business Necessity for Higher-than-Normal Requirements

The PERM process requires an employer to test the U.S. labor market for qualified U.S. workers. When an employer sets forth the minimum requirements for a PERM position, the DOL will evaluate whether the requirements are normal for the position and if the employer is fairly testing the U.S. labor market, or whether the employer is requiring higher than normal requirements and disadvantaging potentially qualified U.S. workers.

If the employer’s requirements are higher than normal, the employer must disclose this on the ETA form 9089, application for labor certification, and explain the business necessity for the high requirements. In event of an audit on the PERM application, an employer may need to further establish business necessity by providing documentation to show that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business, and are generally essential to perform the job in a reasonable manner within the industry. Cases filed in the employment-based, second preference (EB2) category for positions requiring a bachelor’s degree and five years of experience may receive this type of audit request.

Conclusion

Preparing a strong PERM case from the start of the process and through the filing is a key to success in this highly regimented area of employment-based immigration law. The Murthy Law Firm has extensive experience in all aspects of the PERM process, including audits. Our skillful team is available to provide assistance and representation with these matters.

 

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The post Determining Normal Position Requirements for PERM appeared first on Murthy Law Firm | U.S Immigration Law.

I am on L1A and have an approved EB1(c) petition. Business is a bit slow in the U.S. right now, so I am planning on working in India for a while and returning to the U.S. when my priority date is current so I can file my I-485. Is that permissible?

Wed, 05/08/2024 - 23:47
Answer

There is no requirement for the beneficiary of an approved EB1(c) petition to work in the U.S. until the green card is issued. So, this generally would be allowed.

Note, however, that the “ability to pay” requirement that had to be overcome to get the I-140 approved continues through the issuance of the green card. The USCIS is far less likely to look at the issue of ability to pay after the I-140 has already been approved. But, if the issue is raised, one way a petitioner may evidence ability to pay is by showing it has actually been paying the offered salary since the date the case was initially filed. (08.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.

 

 

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The post I am on L1A and have an approved EB1(c) petition. Business is a bit slow in the U.S. right now, so I am planning on working in India for a while and returning to the U.S. when my priority date is current so I can file my I-485. Is that permissible? appeared first on Murthy Law Firm | U.S Immigration Law.

After working in H1B status for 6 years, I moved to H-4 status, and have been working on H-4 EAD. My current employer filed a PERM for me last year, and now my I-140 has been approved. Can I use the approved I-140 to move back to H1B status, even...

Wed, 05/08/2024 - 23:42
Answer

Yes, even if the I-140 is approved after using up the full 6 years of H1B time, the USCIS will typically still allow that I-140 to be used to “extend” H1B status beyond the standard 6-year max. (08.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.

 

 

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The post After working in H1B status for 6 years, I moved to H-4 status, and have been working on H-4 EAD. My current employer filed a PERM for me last year, and now my I-140 has been approved. Can I use the approved I-140 to move back to H1B status, even though I have already completed 6 years of H1B time? appeared first on Murthy Law Firm | U.S Immigration Law.

June 2024 Visa Bulletin

Tue, 05/07/2024 - 23:10

This afternoon, the U.S. Department of State (DOS) released the June 2024 Visa Bulletin. There is little-to-no forward movement in any of the employment-based categories from the previous month. Worse still, the DOS warns of retrogression coming in the near future. 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

There is no change in the EB1 category. EB1 India’s cutoff date remains set at March 1, 2021, while EB1 China keeps a September 1, 2022 cutoff date. The EB1 category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

There is no movement in the EB2 category, either. India’s cutoff date is stuck at April 15, 2012. China’s EB2 cutoff date holds firm at February 1, 2020. The EB2 cutoff date for all other countries remains unchanged at January 15, 2023.

Employment-Based, Third Preference (EB3) Category

For EB3 India, the cutoff date inches forward to August 22, 2012. For China, the EB3 cutoff date is still set at September 1, 2020. The EB3 cutoff date for all other countries of chargeability remains set at November 22, 2022.

EB3 Other Workers

In the EB3 other workers category, India’s cutoff date moves ahead to August 22, 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 is still October 8, 2020.

Employment-Based, Fourth Preference (EB4) Category

In the EB4 category, the cutoff dates for all countries remains set at November 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.

Retrogression Likely for EB2 and EB3

The DOS notes that there has been high demand in both the EB2 and EB3 categories. Next month, in order to hold visa number use to within the maximum allowed under the law for the fiscal year, the DOS will likely retrogress cutoff dates for both EB2 and EB3 for all 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 June 2024 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

USCIS Opens Two New International Field Offices

Mon, 05/06/2024 - 22:12

Although the U.S. Citizenship and Immigration Services (USCIS) primarily operates inside the United States, the agency has field offices abroad that provide limited services. At one time, the USCIS had as many as 24 overseas offices, until the Trump Administration began shutting them down, as reported in the MurthyDotCom NewsBrief, USCIS to Close all International Office Locations (11.Apr.2019). The Biden Administration, however, has been reopening them. On April 23, 2024, the USCIS announced two new international field offices will be opened, including one in Doha, Qatar on May 7, 2024 and the other in Ankara, Turkey on May 9, 2024. With these two new locations, the USCIS will be responsible for operating a total of eleven (11) international field offices around the world.

International Field Offices Primarily for Refugee Processing and Resettlement

The addition of two new international field offices is motivated by the need to process refugees outside the United States. The U.S. Refugee Admissions Program (USRAP) is operated by the U.S. Department of State and U.S. Department of Homeland Security processing refugee applications abroad. U.S. immigration law lists different categories through which a person may qualify as a refugee. The USRAP takes referrals of people for consideration as refugees from international organizations like the U.N. High Commissioner for Refugees. Qatar and Turkey are regional refugee processing hubs where various U.S. government officials from different agencies are located to handle the processing of refugees.

International Field Offices Also Provide Non-Refugee Related Services

USCIS international field offices also handle multiple services that have nothing to do with refugee processing. The USCIS now operates two offices in China, one office in Cuba, four in the Western Hemisphere: Mexico, El Salvador, Guatemala, and Honduras, one in Kenya, and one in India. The International Field Office in New Delhi, India does process refugee applications, but it also serves as the location to pick up re-entry permits. Although an applicant must be in the U.S. to apply for a re-entry permit, the individual can request the USCIS to send it to this USCIS office in New Delhi so it can be safely picked up without having to return to the U.S.

Exceptional Exception to USCIS Domestic Filing Requirements

Normally, an application for waiver of grounds of inadmissibility (form I-601) must be submitted to the USCIS in the U.S. If the applicant wishes to expedite the I-601, the applicant must submit a request to the USCIS explaining what the compelling reason is for the request.

In exceptional circumstances, where the individual lives in India, the applicant may submit a request to the USCIS explaining why there are exceptional and compelling circumstances that demand immediate filing and processing, and why even expedited processing would be too slow. If the request is granted, the applicant may be allowed to file the I-601 with the international field office.

Conclusion

Although the USCIS processes the overwhelming majority of requests for immigration benefits in the United States, there are important duties that the USCIS still conducts from its offices around the world. The main focus of USCIS international field offices is refugee processing, but those living abroad may be able to access certain services in appropriate situations. The attorneys at the Murthy Law Firm are available to consult on whether any of these options apply to you.

 

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The post USCIS Opens Two New International Field Offices appeared first on Murthy Law Firm | U.S Immigration Law.

USCIS Statistics Demonstrate Integrity Measures Resulted in Improved H1B Lottery System

Thu, 05/02/2024 - 20:59

The U.S. Citizenship and Immigration Services (USCIS) recently highlighted various key statistics related to the registrations submitted in this year’s H1B lottery, arguing that the changes made to the program have succeeded in bringing greater integrity to the H1B program. As explained by the USCIS, for fiscal year 2025, there was a significant decrease in the total number of registrations submitted in the H1B lottery from the prior fiscal year, including a decrease in the number of registrations submitted on behalf of beneficiaries with multiple registrations. Despite this, the total number of unique beneficiaries and employers this year was nearly unchanged from last fiscal year’s totals.

Decrease in Total Registrations Caused Largely by Decrease in Multiple Registrations

Under the new H1B lottery system implemented this fiscal year, a foreign national was only able to receive a single entry in the lottery, even if more than one employer submitted a registration on that individual’s behalf. This resulted in submissions for 470,342 registrations – a whopping 38.6 percent decrease from last year’s total. But, as previously indicated, the total number of unique individuals who submitted registrations remained almost unchanged, with about 442,000 candidates this year, compared to 446,000 last year. The big change came in the average number of registrations per beneficiary, with the total decreasing from 1.70 for last fiscal year to 1.06 for this fiscal year.

Creating a Fair System

The USCIS notes that it will continue to review attempts to unfairly game the H1B lottery system and ensure that a level playing field is provided for all employers and foreign nationals. Moreover, if cases of fraud are uncovered, the USCIS will continue to deny or revoke those petitions, and even refer individuals to law enforcement for possible prosecution, as appropriate.

Conclusion

USCIS efforts to ensure the integrity of the H1B registration process are helpful if they maintain the program’s effectiveness and fairness. The H1B program plays a crucial role in addressing the skilled labor needs of the United States, benefiting both employers seeking specialized talent and foreign workers pursuing professional opportunities.

 

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The post USCIS Statistics Demonstrate Integrity Measures Resulted in Improved H1B Lottery System appeared first on Murthy Law Firm | U.S Immigration Law.

Marijuana Reclassification

Thu, 05/02/2024 - 00:36

Although the U.S. Drug Enforcement Administration may reclassify marijuana as a Schedule 3 controlled substance, until a final rule is published, marijuana can still cause serious immigration consequences! Read more.

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

My STEM OPT extension currently is pending. I recently received a new job offer and would like to change employers. What do I have to do to move to the new employer?

Wed, 05/01/2024 - 19:08
Answer

If a student wishes to change employers when the STEM OPT application is pending, the student must report the change of employers to the DSO and provide the DSO with a new training plan (I-983 form) completed and signed by both the employer and the student. In the past, the student was required to file a new I-765 the USCIS. Fortunately, this is no longer required. (01.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.

 

 

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The post My STEM OPT extension currently is pending. I recently received a new job offer and would like to change employers. What do I have to do to move to the new employer? appeared first on Murthy Law Firm | U.S Immigration Law.

A few months ago, my husband’s employer filed his H1B extension, which was approved through 2027. They did not apply for my H-4 extension. After his case was approved, we both travelled to India and then returned to the U.S. I just noticed that, upon...

Wed, 05/01/2024 - 19:05
Answer

This was not an error, and there is no need for you to file an extension. Normally, as long as the H-4 dependent has a valid visa “stamp” at the time of admission, the dependent may be admitted through the validity period of the principal spouse’s H1B petition. (01.May.2024)

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The post A few months ago, my husband’s employer filed his H1B extension, which was approved through 2027. They did not apply for my H-4 extension. After his case was approved, we both travelled to India and then returned to the U.S. I just noticed that, upon our return, the officers granted me an I-94 through 2027, even though my visa stamp is only valid through July 2024. Was this an error? Do I need to file an extension? appeared first on Murthy Law Firm | U.S Immigration Law.

USCIS Adopts DOL’s Definition of “Science or Art” for Schedule A Cases

Mon, 04/29/2024 - 23:56

The U.S. Citizenship and Immigration Services (USCIS) recently announced the incorporation of the U.S. Department of Labor’s (DOL) definition of “science or art” into its policy manual for Schedule A, Group II cases. The policy change goes into effect immediately.

Background

An employer sponsoring a foreign national in the employment-based second or third preference (EB2/EB3) usually must first file a PERM labor certification with the U.S. Department of Labor (DOL). For Schedule A occupations, however, where the DOL already has determined that a shortage of qualified U.S. workers exists, employers can bypass DOL review and directly submit the labor certification to the USCIS. Schedule A is comprised of two groups. Group I includes registered nurses and physical therapists, while Group II is made up of individuals with exceptional abilities in sciences or arts, excluding performing arts.

Definition of “Science or Art” Updated

As noted above, the recent update serves to align the USCIS definition of “science or art” for Schedule A, Group II cases to that of the one used by the DOL. According to the definition, “science or art” refers to “any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.” By adopting the DOL’s definition of science or art, the USCIS aims to ensure a more standardized approach to evaluating these Schedule A petitions. In making this update, the USCIS emphasizes that all adjudications will continue to assess both the quantity and quality of evidence presented, maintaining rigorous standards for immigration petitions.

Conclusion

This update does not introduce any changes to existing policies or operations, but rather serves to formalize the incorporation of the DOL’s definition into USCIS procedures. Employers involved in Schedule A, Group II cases who have questions about these changes, or the process in general, are encouraged to schedule a consultation with a knowledgeable attorney.

 

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Murthy Success Story: NIW Approval for Expert in Public Safety Technology

Thu, 04/25/2024 - 12:39

The Murthy Law Firm regularly assists foreign nationals in filing self-sponsored immigrant petitions under the EB2 national interest waiver (NIW) category. In one such case, the immigrant petition (form I-140) was filed for a public safety technology researcher focused in the areas of machine learning, artificial intelligence (AI), data analytics, and data management. Our client graciously granted permission to the Murthy Law Firm to share her story to help others who may be considering applying for an NIW.

Qualifying for a National Interest Waiver (NIW)

The NIW is an avenue under U.S. immigration law to attract foreign nationals with an advanced degree or of exceptional ability in the sciences, arts, or business whose work has substantial merit and is of national importance, as explained in the MurthyDotCom InfoArticle, Overview of the EB2 National Interest Waiver (08.Jan.2024). Unlike most employment-based categories, there is no requirement for an employer to provide sponsorship under the NIW category. Rather, the I-140 normally is filed directly by the foreign national on their own behalf. If approved, the NIW waives the standard requirement of obtaining a PERM labor certification.

Presenting Petitioner’s Work to USCIS

The individual in this case held an advanced degree, but we still needed to demonstrate that our client’s proposed endeavor had both substantial merit and national importance, and that she was well-positioned to advance the endeavor. Plus, we had to evidence that, on balance, it would be beneficial to the U.S. to waive the labor certification requirement.

We helped to evidence the substantial merit of our client’s work with expert opinion letters attesting that her research improved the safety and well-being of first responders across the U.S. and advanced the technology in her field. We further demonstrated that her work is of national importance, as her work in the field of public safety applied nationally, rather than just locally or regionally.

We also presented evidence on how our client was well positioned to advance her proposed endeavors in the U.S. She has made a name for herself in the field of public safety technology and has received multiple awards for her research and innovations in the field. She has authored several publications and presented her research at leading international conferences and meetings. Her demonstrated track record of technological innovations and contributions to public safety technology further supported that she could continue her work in the U.S.

Ultimately, we were able to persuade the USCIS that, based on our client’s background and contributions to public safety technology, it would be beneficial to the U.S. to waive the PERM labor certification requirement for her, and the USCIS approved the EB2 NIW petition.

Conclusion

The EB2 NIW category allows the U.S. to benefit from the creativity and innovation of highly accomplished foreign nationals. Given the opportunity, accomplished individuals help transform the nation and ensure that the U.S. remains a global leader in technology and innovation. The Murthy Law Firm has close to 30 years of experience in filing NIWs for our clients. Anyone interested in exploring the possibility of filing an NIW case is encouraged to schedule a consultation with an experienced attorney at the Murthy Law Firm.

 

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I own a company in the U.S. and one in India. In India, there is someone who has worked for the Indian entity as a contractor for a couple of years, developing a proprietary tool for us. Is it possible for him to now work for the U.S. company in L1B...

Wed, 04/24/2024 - 20:20
Answer

One of the requirements to qualify for L-1 is that the foreign national must be employed by the related entity abroad for at least one year. Serving as a contractor, rather than an employee, typically would not be sufficient to meet this requirement. (24.Apr.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 own a company in the U.S. and one in India. In India, there is someone who has worked for the Indian entity as a contractor for a couple of years, developing a proprietary tool for us. Is it possible for him to now work for the U.S. company in L1B status? appeared first on Murthy Law Firm | U.S Immigration Law.

My H1B registration was selected in the lottery. I have two different job offers. If Company A and Company B both file change-of-status petitions for me, when do I have to choose which company I am going to join?

Wed, 04/24/2024 - 20:18
Answer

Assuming that both petitions are approved with start dates of October 1st, you technically could wait until that date to join either Employer A or B. (24.Apr.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 H1B registration was selected in the lottery. I have two different job offers. If Company A and Company B both file change-of-status petitions for me, when do I have to choose which company I am going to join? appeared first on Murthy Law Firm | U.S Immigration Law.

An RFE was issued on my H1B petition. Can my employer upgrade my case to premium processing when they respond to my RFE?

Wed, 04/24/2024 - 20:15
Answer

Yes, it generally is possible to upgrade to premium processing at any time while an H1B petition is pending. (24.Apr.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 An RFE was issued on my H1B petition. Can my employer upgrade my case to premium processing when they respond to my RFE? appeared first on Murthy Law Firm | U.S Immigration Law.

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