US Immigration News

The Department of Homeland Security (DHS) announced creation of a new office to produce all its statistical reporting from all its agencies including immigration data.

The post New DHS Data Office appeared first on Murthy Law Firm | U.S Immigration Law.

As of 15.Nov.2023, if you submit an incomplete DS-160 visa application form, you will not be allowed to proceed with your visa appointment. More information here.

The post Incomplete DS-160? No Visa Interview! appeared first on Murthy Law Firm | U.S Immigration Law.

Ever lose a Priority Date when USCIS revoked a prior I-140 petition? Murthy Law Firm successfully challenged PD loss when I-140 revoked because of USCIS policy change. Listen to our Oct.2023 podcast for more information.

The post Litigation Success: PD Retention appeared first on Murthy Law Firm | U.S Immigration Law.

The Child Status Protection Act and its significance for dependent children obtaining their green cards are the topics discussed by Murthy Law Firm Attorneys in November 2023.

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

The post MurthyAudio: The Child Status Protection Act appeared first on Murthy Law Firm | U.S Immigration Law.

On October 24, 2023, the U.S. Citizenship and Immigration Services (USCIS) released guidance clarifying aspects of the two-year foreign residency requirement for certain J-1 visa holders. The policy update provides guidance on how the USCIS determines whether an individual has met the foreign residency requirement and whether, in certain cases, the requirement can be excused if an individual cannot meet the requirement.

Overview of J-1 Nonimmigrant Status

The J-1 visa is a nonimmigrant status for an exchange visitor wishing to stay temporarily in the United States. Within the J-1 category, there are a number of different programs. These include: trainee, student, professor or research scholar, non-academic specialist, foreign physician, international visitor, teacher, governmental visitor, camp counselor, au pair, and summer student in a travel / work program, as explained in the MurthyDotCom NewsBrief, Overview of the J-1 Visa Process (07.Sep.2023).

Certain J-1 holders are subject to a two-year foreign residency requirement. If a J-1 visa holder is subject to the foreign residency requirement, the individual must reside and be physically present in the individual’s country of nationality or last legal residence abroad for an aggregate of at least two years after leaving the United States before the individual is eligible for an immigrant visa (lawful permanent residence) or as a nonimmigrant in H or L status.

Preponderance Standard and Documentary Evidence

The updated policy guidance clarifies that the USCIS determines whether a J-1 visa holder has met the foreign residency requirement using a preponderance of the evidence standard, which means showing that it is “probably true” or “more likely than not” that the requirement has been met. Acceptable evidence for showing that the foreign residency requirement has been met includes a chart of days spent in the home country, passport stamps, travel receipts, employment records, school transcripts, leases, or affidavits. Additionally, any day where even a fraction of a day is spent in the home country is counted toward the foreign residency requirement.

Circumstances Justifying Discretionary Waiver

The new guidance also explains when the USCIS may determine that the foreign residency requirement is impossible for an individual to meet and therefore can be excused or waived. Circumstances in an individual’s home country, such as war or civil unrest, a periodic ban on travel by the home country, shifting borders, or other political changes may make it impossible to satisfy the foreign residency requirement. In such cases, the USCIS will make a case-by-case determination, in consultation with the U.S. Department of State (DOS), on whether the requirement can be excused, and the waiver granted of the home residency requirement.

Waiver for Working in a MUA or HPSA

In certain cases, a J-1 visa holder who is a foreign medical graduate may apply for a waiver of the foreign residency requirement through a recommendation of a state or federal agency interested in facilitating the individual’s employment as an H1B nonimmigrant in a federally designated medically underserved area (MUA). This is sometimes referred to as the Conrad 30 waiver. Among other requirements for this type of MUA waiver, the J-1 visa holder must obtain a contract from a health care facility located in a health professional shortage area (HPSA) or other designated area in the state.

The updated policy guidance clarifies three exceptions to the requirement to obtain such a contract. The three exceptions include when a waiver is requested for the foreign medical graduate by the U.S. Department of Veteran’s Affairs (VA) for the individual to practice medicine at a VA facility, when a waiver is requested by a federal agency to employ the foreign medical graduate as a full-time clinical practitioner, and when a waiver is requested by either a federal or state agency for a foreign medical graduate to practice specialty medicine in a geographic area designated by U.S. Department of Health and Human Services (HHS).

Conclusion

The updated USCIS guidance regarding the J-1 foreign residence requirement provides foreign nationals and immigration law practitioners with a better understanding of how the USCIS will evaluate a case. As every case is different, a J-1 visa holder should consult with an experienced U.S. immigration attorney to discuss how this USCIS guidance may apply to an individual’s particular circumstances.

 

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The post USCIS Clarification on Discretionary Waivers of the J-1 Foreign Residency Requirement appeared first on Murthy Law Firm | U.S Immigration Law.

The CBP will shorten your I-94 if your passport expires sooner. Don’t assume the end date – check it by logging into the CBP website!

The post Always Check Your I-94 Upon Admission! appeared first on Murthy Law Firm | U.S Immigration Law.

Priority Dates are a lifeline to an immigrant waiting for a Green Card, but it can be lost. The law has four ways: fraud / misrepresentation, a Labor Certification’s revocation, USCIS/DOS invalidates the labor certification, or the USCIS decides petition approval was material error. Read more.

The post Can You Lose a Priority Date? appeared first on Murthy Law Firm | U.S Immigration Law.

This afternoon, the U.S. Department of State (DOS) released the December 2023 Visa Bulletin. The last visa bulletin of the calendar year sees almost no movement from the previous month. 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. The cutoff date for China remains set at February 15, 2022, while India keeps a cutoff date of January 1, 2017. The EB1 category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

The only change in the EB2 category is that China’s cutoff date advances to October 22, 2019. EB2 India’s cutoff date remains set at January 1, 2012. The EB2 cutoff date for all other countries stays put at July 15, 2022.

Employment-Based, Third Preference (EB3) Category

Similar to the EB3 category, only China’s cutoff date moves at all, advancing to January 22, 2020. EB3 India’s cutoff date stands still at May 1, 2012. The EB3 category for all other countries of chargeability remains unchanged at December 1, 2021.

EB3 Other Workers

There is no movement whatsoever in the EB3 other workers category. The cutoff date for China stays set at January 1, 2016. India keeps a cutoff date of May 1, 2012. For Philippines, the cutoff date remains at May 1, 2020. For all other countries of chargeability, the EB3 other workers cutoff date is stuck at August 1, 2020.

Employment-Based, Fourth Preference (EB4) Category

The cutoff dates in the EB4 category for all countries stays set at January 1, 2019.

The EB4 program for certain religious workers is currently scheduled to expire as of November 17, 2023. If Congress does not extend the program by that date, the EB4 category for certain religious workers will be unavailable after that date.

Employment-Based, Fifth Preference (EB5) Category

There is no movement in the EB5 category. China’s EB5 unreserved (i.e., EB5 immigrant visa numbers not set aside for rural, high unemployment, and infrastructure projects) cutoff date remains set at October 1, 2015. India’s unreserved cutoff date stays set at December 15, 2018. EB5 remains current for all other EB5 categories and countries of chargeability.

Conclusion

Additional immigrant visa numbers will be released next month, as that is the start of a new quarter of the fiscal year. Therefore, we expect at least some movement in the January 2024 Visa Bulletin. 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.

 

Copyright © 2023, MURTHY LAW FIRM. All Rights Reserved

The post December 2023 Visa Bulletin appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, for an EB1(c) petition filed using premium processing, the USCIS has 45 calendar days to take action on one’s case. When the RFE was issued, an action was taken. When you responded to the RFE, the clock was restarted, and the USCIS now has 45 days from receipt of the RFE response to take an additional action on your case. (08.Nov.2023)

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 filed my I-140 in the EB1(c) category using premium processing, and an RFE was issued within 20 days of filing. The RFE was very simple, so I responded almost immediately. Does that mean the USCIS has to issue a decision within 45 days of the date I filed the I-140? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, ordinarily, there is no required period an H1B worker must wait before moving to a new employer. (08.Nov.2023)

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 Is there a period of time that an H1B worker must wait before moving to a new employer? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

The H1B prevailing wage requirements generally do not go into effect until the H1B petition is approved. So, this typically would not create any issues. (08.Nov.2023)

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 currently on STEM OPT, and my H1B cap case was just approved through the same employer. While on STEM OPT, I was paid a lower wage than the prevailing H1B wage, but now that the H1B has been approved, I am being paid the correct amount. Will this be a problem in the future? appeared first on Murthy Law Firm | U.S Immigration Law.

In each permanent resident (“green card”) case, one must decide whether to request consular processing (CP) or adjustment of status (AOS). There are two possibilities for this last step in the green card process: adjustment of status within the United States or processing for an immigrant visa at the consulate and then entering the U.S. It is generally necessary to make a choice between the two procedures. This choice often involves various strategy considerations.

The issues related to this decision have been discussed for years within the immigration community. However, over time some of the considerations have changed. These changes, which have occurred over the past decade, generally tend to make adjustment of status more attractive and eliminate some of the benefits that were historically associated with CP.

Safest Not to Exercise CP/AOS Option in Some Cases

Due to procedural and legal restrictions, some people are not eligible for both AOS and CP. That is, they may not have the option to choose between the two. One should discuss the matter with a qualified, experienced immigration attorney to make this determination. An instance in which there would be no choice is in the case of an individual who is processing a green card case from abroad. One who is living abroad and will not enter the U.S. prior to the completion of her/his/their green card case must use CP to obtain the immigrant visa from the U.S. consulate abroad. Some individuals who have not maintained status in the U.S. may only be eligible for CP. On the other hand, some who have not maintained status may be eligible for AOS under special provisions, but they would face bars to reentry if they departed the U.S. in an attempt to consular process. Therefore, the first step to be figured out with the help of an attorney is whether one has both options.

Choice of AOS/CP Arises in the I-140 Petition

With the current, widespread retrogression of priority dates, many employment-based applicants must wait to file their I-485s or proceed to consular processing. With retrogression, once the labor certification is approved, the applicant can only file the I-140, rather than being able to concurrently file the I-140 and I-485 concurrently. This is particularly true of those individuals who are in EB3 or EB2 applicants from India and China. It should be noted, also, that CP in no way avoids the retrogression problem. In order for an immigrant visa to be issued at the consulate there must be an immigrant visa number available.

In an employment-based case the question of whether to select CP or AOS arises at the I-140 employer petition stage, even when concurrent filing is not available. The employer must indicate on the I-140 form itself which way the case will proceed. As explained below, it potentially is possible to change one’s mind later. It is much easier to switch if CP is selected on the I-140 than if AOS is selected, however.

It is our intent to help MurthyDotCom readers decide which is the better option for them, when they reach this stage. What follows is general guidance only, and applicants are encouraged to speak with their immigration attorneys for case-specific advice as to which is the best course of action in their unique circumstances.

Advantages of Adjustment of Status EAD and AP

For many years, in the majority of employment-based green card cases filed by our firm, applicants have chosen AOS rather than CP. The primary reason for this is that AOS provides an applicant with several benefits and safeguards that do not exist with consular processing. For example, when one files the I-485 s/he/they is also eligible to file an application for an employment authorization document (EAD) and an application for an advance parole (AP) travel document. This means that it is not absolutely necessary for the applicant to continue maintaining a nonimmigrant status, such as H or L. It is important to note, however, that the safest course of action is for the I-485 applicant to continue maintaining a nonimmigrant status such as H1B when possible. For a number of reasons beyond the scope of this article, we at the Murthy Law Firm most often advise that a client maintain H1B or L-1 status, even though an I-485 is pending and s/he/they could work on the EAD. In some circumstances, however, either by choice or otherwise, foreign nationals rely solely upon the I-485 and EAD.

An applicant who selects CP, on the other hand, is not eligible to apply for the EAD and AP and must continue maintaining a status such as H1B, or L1A or L1B, etc, otherwise s/he/they will fall out of status. This means that, in the event that the job is lost, one potentially could be in a much worse situation than that of a person with an I-485 pending.

Potential for Earlier Filing with Dates for Filing Chart and CSPA Benefits

Another critical benefit available to only I-485 applicants is the advantage of using the dates for filing chart (Chart B), which generally has more favorable cutoff dates, rather than the final action chart (Chart A). As discussed in the MurthyDotCom InfoArticle, Priority Dates: How Does the Visa Bulletin Work? (03.May.2023), this is a benefit only available if the individual is filing an I-485 application.

Moreover, as discussed in the MurthyDotCom NewsBrief, USCIS Expands Eligibility Under the Child Status Protection Act (27.Feb.2023), the USCIS issued a memorandum on February 14, 2023, that changed USCIS policy to allow, in certain circumstances, Child Status Protection Act (CSPA) age determinations to be based on Chart B. As of the writing of this article, the Department of State has not issued similar policy for individuals pursuing CP.

AC21 Portability Benefits

Another very important and valuable safeguard that potentially is available to an I-485 applicant is that, under certain circumstances, s/he/they may be able to continue with the green card case even without the job offer from the sponsoring employer. The American Competitiveness in the 21st Century Act (AC21) generally allows an I-485 applicant to change employment to a job that is in the “same or similar” occupational classification, provided the I-485 has been pending for at least 180 days. Therefore, should an I-485 applicant’s sponsoring employer go out of business after the I-485 has been pending for 180 days, for example, the applicant may be able to continue with the green card case. The AC21 law also has advantages in terms of allowing one to change jobs, either with the original sponsoring employer or with a new employer. Given the length of time green card cases often take, particularly when retrogression causes visa cutoff dates to move backwards and forwards, availability of AC21 for job flexibility can often be quite advantageous. This is one of the main reasons that people chose AOS, rather than CP.

In order to take advantage of AC21 portability, an applicant must have filed an I-485. Therefore, AC21 portability is not available to one who selects CP on the I-140 and never files the I-485. In the scenario described above, if a CP applicant’s sponsoring employer were to go out of business, the green card case would end at that time. The case is based upon a specific job offer from a specific employer. Without AC21, once that job offer ends, the case ends.

The same problem exists if a change of job is desired, either with the same employer or a new employer. Since the case is based upon a specific job offer, this limits the employer’s flexibility to promote the individual within the company, as well as limiting the individual’s ability to accept alternative job offers. Selecting CP essentially places the individual back into the situation that existed before the AC21 law. Prior to the passage of AC21, many saw their cases fall apart after years of waiting, because companies went out of business or employers terminated employment offers before the green cards were approved.

Advantages of Consular Processing – Potentially Faster, but Not Necessarily

Years ago, many applicants were selecting CP because, in most cases, it was faster than AOS. Before the advent of concurrent filing, many people chose CP in an effort to obtain their immigrant visas while the visa numbers were available, as they had no way of knowing how long visa numbers would remain available. As of this writing, the timing advantage of CP has disappeared. Moreover, as mentioned above, CP does not provide a short-cut to avoid retrogression.

Retrogression aside, CP is generally no faster than AOS. The USCIS has greatly improved processing times in AOS cases in the past few years. Of course, case processing depends upon availability of visa numbers, which is a matter that is out of the USCIS’s control. Any individual case may take much longer, depending upon a variety of factors, or may be processed faster. There are in-person interviews required in some cases, which can cause further delays because of scheduling limitations. USCIS processing times may fluctuate dramatically from time to time.

A very rough estimate of the processing time for a CP case, without retrogression, is approximately six to twelve months. Of course, this is measured from the time when the I-140 is approved. With AOS, if the visa number is available and the I-485 can be filed concurrently, it may not be necessary to wait for the I-140 approval to start the I-485 processing. Thus, consular processing timeframes can vary greatly depending upon factors such as processing times at the National Visa Center and interview backlogs at the relevant consulate.

While it is impossible to pinpoint precise processing times for AOS and CP cases, using these very rough estimates it is evident that, in most cases, there is not much difference. CP may prove faster in some instances, and AOS may prove faster in others. In most situations, therefore, the uncertain hope of possibly faster processing times does not justify giving up the safeguards of AOS in favor of CP.

Applicant May Change from CP to AOS – or Vice Versa

It is important to note that selecting AOS or CP on the I-140 form does not lock an applicant to that process. One who selects CP may later decide to file the I-485 and may do so without filing any extra form, other than the I-485 itself. Generally, these go fairly smoothly and there have been times when changes in the law have resulted in large numbers of people changing from consular processing to AOS. There is some risk of problems in these cases, particularly in certain very old cases, but these are very limited.

The process of changing from AOS to CP is more difficult, but it is possible, if needed. In such cases, it is necessary to file the application for action on approved petition (I-824), after the I-140 is approved. This notifies the USCIS to transfer the file to the consulate. I-824 processing times vary considerably. Historically there have been periods when I-824s have taken a very long time for approval.

Conclusion

We at the Murthy Law Firm hope that this analysis is helpful in the decision between AOS and CP on the I-140 form. Readers in need of case-specific advice, or with further questions, are encouraged to consult with an experienced immigration attorney.

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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The post Revisiting the Debate: Adjustment of Status vs. Consular Processing appeared first on Murthy Law Firm | U.S Immigration Law.

A child of a U.S. citizen living outside of the U.S. may qualify for derivative citizenship with a grandparent meeting physical-presence-in-U.S. requirement if a parent cannot. It all depends on when you were born.

The post Ever Wonder if You’re a U.S. Citizen? appeared first on Murthy Law Firm | U.S Immigration Law.

Did you know that the DOL processes 150,000 PERM cases each year with 68% STEM-related jobs? Murthy Law Firm does! Our attorneys & paralegals represent clients throughout STEM (& other!) fields.

The post DOL Reports PERM Data appeared first on Murthy Law Firm | U.S Immigration Law.

With all the USCIS chatter about stopping H1B registration fraud, the Murthy Law Firm wants to remind you it is not H1B beneficiaries who file registrations or petitions. If you have a fraud finding because of a petitioner, you can fight that on your own in federal court. Contact us.

The post Beneficiaries Can Challenge Fraud Finding Due to Multiple H1B Registrations appeared first on Murthy Law Firm | U.S Immigration Law.

President Biden directs U.S. agencies to increase immigration opportunities for highly skilled foreign nationals with expertise in AI or other critical and emerging technologies.

The post Biden EO Wants More Immigrants Working in AI appeared first on Murthy Law Firm | U.S Immigration Law.

While foreign nationals are typically mindful about confirming the permissibility of international travel prior to boarding a plane, an individual may be less mindful about another, less common form of travel – international cruises. However, like air travel, a foreign national should understand the nature of sea travel to avoid unwanted immigration consequences.

International Travel for Nonimmigrants

International travel considerations vary depending upon an individual’s immigration circumstances. In addition to a valid passport, a foreign national generally requires a certain travel document to be granted entry into the United States. A nonimmigrant typically requires a valid visa foil (commonly referred to as a visa “stamp”), while an individual with a pending form I-485, application for adjustment of status, with the U.S. Citizenship and Immigration Services (USCIS) must have an advance parole document, or valid nonimmigrant visa in certain cases, to leave the United States without abandoning the pending I-485 application.

Open Loop vs. Closed Loop Cruises

An international cruise is distinguished between closed loop and open loop cruises for travel document purposes. A closed-loop cruise starts and ends its voyage at the same U.S. port and only travels within the Western Hemisphere. By contrast, an open-loop cruise starts its voyage from one U.S. port but ends at a different U.S. port and/or travels outside of the Western Hemisphere.

For a closed-loop cruise, neither a U.S. citizen nor a lawful permanent resident (LPR) is required to have a passport to reenter the United States. A U.S. citizen can provide certain other proof of U.S. citizenship and an LPR can travel with only a green card. However, a nonimmigrant must show a valid passport and other appropriate travel documentation to reenter the United States whether the international cruise is closed or open-loop.

Cruises for Visa Waiver Program Travelers

If a foreign national entered the United States under the visa waiver program (VWP), the individual’s I-94W typically can be used for reentering the U.S. at the end of the cruise, provided that the person’s 90-day admission period has not expired, the cruise did not travel beyond adjacent islands or contiguous territory, and the individual was not outside the United States for more than 30 days. Additionally, a VWP traveler entering the U.S. by sea must receive an Electronic System for Travel Authorization (ESTA) approval from the U.S. Customs and Border Protection (CBP) before boarding the ship. An approved ESTA will be required for reentering the United States as a cruise ship passenger.

Documenting Reentry into the United States

A foreign national nonimmigrant or LPR should always document entries into the United States. Ink stamps in passports have been the best method for doing so, but the CBP generally has been expanding its stampless entry program and passport stamps are often not provided to an individual who disembarks from a cruise. Alternative options for documenting entries into the United States are explained in the MurthyDotCom NewsBrief, Expansion of CBP Stampless Entry Program (15.May.2023).

Conclusion

A cruise vacation may be possible for a foreign national; however, there are immigration concerns and document requirements that should be reviewed well in advance of travel to avoid unwanted consequences. Attorneys at the Murthy Law Firm regularly advise clients on immigration matters related to travel and are available to help ensure that a foreign national’s cruise is smooth sailing.

 

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The post Immigration Tips Before Taking a Cruise appeared first on Murthy Law Firm | U.S Immigration Law.

Are you stateless? The USCIS released new policies for you if you think you’re stateless.

The post New USCIS Policy on Statelessness appeared first on Murthy Law Firm | U.S Immigration Law.

Does your spouse still have to file their I-485 after your green card was already approved? Is your spouse out of status? If you’re an employment-based immigrant, INA Sec. 245(k) may let your spouse still file. Read more and talk to us!

The post What About My Spouse’s I-485? appeared first on Murthy Law Firm | U.S Immigration Law.

Answer

No, you can use premium processing to get the result of the I-140 petition relatively quickly. If it is approved, you just will not be able to use it for purposes of applying a form I-485 adjustment of status application (or an immigrant vias application at the consulate) until the priority date is current. (02.Nov.2023)

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 would like to self-sponsor my I-140 in EB2 based on an NIW, and am willing to pay for premium processing. Do I need to wait 12 years to get the result due to backlogs in EB2 India category? appeared first on Murthy Law Firm | U.S Immigration Law.