Your Suggestions for Murthy Law Firm's Comments on Proposed Rule for Changes Affecting EB1, EB2, & EB3


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The Murthy Law Firm is in the process of preparing comments to submit to the DHS in response to the proposed rule, entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. This week, we are requesting that MurthyForum users provide their suggestions for proposed changes or additions that should be included in our comments to the government.

 

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It is unclear if the USCIS will re-invoke the I140 (that is currently in the withdrawn status) which were in approved status for more that 180 days and the employer withdrew the I140 because the employee left the employer. Or atleast will USCIS consider those withdrawn I140s as active and approved ?

 

Can you please comment on this. I think a lot of people will be in this bucket.

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It is unclear if the USCIS will re-invoke the I140 (that is currently in the withdrawn status) which were in approved status for more that 180 days and the employer withdrew the I140 because the employee left the employer. Or atleast will USCIS consider those withdrawn I140s as active and approved ?

 

Can you please comment on this. I think a lot of people will be in this bucket.

Yes, there are lot of people like this. Clarification is needed, whether this rule will be applied retroactively. For example...employee I-140 approved mar'2010. He left employer jun'2014. i-140 revoked in jul'2014 by employer  ( not fraud reasons). assume this rule goes effective as it is, can that i-140 (which was in approved status for 180 days or more) be used for further indefinite H1B extension ? what if the same thing happend 10 years back ?  

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My suggestion is to bring a bit more flexibility with this rule as is proposed to give flexibility to H1B Employees.

If they can make I-140 portable rather than filing (Labor/140) every time you move to a new employer will help a lot since they made I140-EAD almost an impossible scenario. 

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Thank You Team Murthy for helping in preparing comments that will have a bearing on the rules being made / changed for EB1, EB2 and EB3 applicants.

 

If havent already covered, below are my suggestions:

 

A. Allow employees with an approved immigrant petition (approved i140) that has been approved for over 1 year with the same employer to:

 

A.1) Change Jobs without having to file the i140 yet again with the new employer, while retaining the same PD, while the Visa numbers are being awaited

 

A.2) Remove the mandatory requirement to have to go back to the original i140 petitioner at the time of GC approval or i485 status adjustment

 

B. Allow people that have an approved i140 (approved for above 1 year) to pursue their passions / hobbies outside of their H1 B employer specified work (other than the specialty skill set or H1 employer office work) that can allow them to do the following:

 

B.1) Pursue and bring to life creative ideas such as writing a Home Made Recipe or a Cook Book to be sold locally within the US using traditional publishing or Amazon

 

B.2) Allow one to build a personal brand where the brand is the person himself / herself, where in he / she can use his / her expertise in say relationship or book writing or modeling or acting independently with an intent to get monitarily compensated for work done IN the US (during spare time) while still working for the original H1 B employer full time (at the same time).

 

B.3) Allow direct self marketing / self promotion of himself / herself by means of making paid video appearances within the US (as long as taxes are paid)

 

B.4) Allow a path to enable such creative and talented individuals to file their own GC with a higher filing fees and an interim EAD or identify a path to file for their GC (on their own) under Unique talents or Unique entertainer category.  

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Its surprising that murthy law firm haven't submitted its comment on the purposed rule(expecting they will oppose the rule) which benefits very few people.

 

We do not 'oppose' the rule, per se. But, we are greatly disappointed with many of the 'benefits' offered. We had hope it would provide far more flexibility for employees. There are some positive portions of the rule (e.g., Once an I-140 has been approved for 180 days, the ability to then use that I-140 to extend status and apply for H-4 EADs, even if the employer withdraws - We'll have an article on this portion of the rule posted on MurthyDotCom by Monday); but, a number of major changes/additions must be made to the proposed rule if the goal is truly to provide workers with more stability/flexibility.

 

I'm not sure why you are surprised that we have not yet submitted our comments. The comments period is open through Feb. 29. It makes no difference whether you submit comments on the first day or the last day - by law, all must be reviewed and considered. And, given that the proposed rule is close to 200-pages in length, we are spending our time carefully reviewing and drafting our response.

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My suggestion is to bring a bit more flexibility with this rule as is proposed to give flexibility to H1B Employees.

If they can make I-140 portable rather than filing (Labor/140) every time you move to a new employer will help a lot since they made I140-EAD almost an impossible scenario. 

 

Unfortunately, this likely would only be possible through legislation (i.e. Having Congress pass a bill that is then signed into law by the President.) There are severe limits to what can be done merely through executive action (e.g., Enacting a regulation.)

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It is unclear if the USCIS will re-invoke the I140 (that is currently in the withdrawn status) which were in approved status for more that 180 days and the employer withdrew the I140 because the employee left the employer. Or atleast will USCIS consider those withdrawn I140s as active and approved ?

 

Can you please comment on this. I think a lot of people will be in this bucket.

 

You are correct - this is unclear. We already plan on bringing this issue up in our comments to the DHS.

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I'm not sure why you are surprised that we have not yet submitted our comments. The comments period is open through Feb. 29. It makes no difference whether you submit comments on the first day or the last day - by law, all must be reviewed and considered. And, given that the proposed rule is close to 200-pages in length, we are spending our time carefully reviewing and drafting our response.

Great, I will wait for your comment. Of course, law firms will not oppose this rule, why on the earth they will loose their major source of the income if every I140 approved applicant gets EAD/AP?

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My suggestion is to bring a bit more flexibility with this rule as is proposed to give flexibility to H1B Employees.

If they can make I-140 portable rather than filing (Labor/140) every time you move to a new employer will help a lot since they made I140-EAD almost an impossible scenario. 

Since most of the employers won't file GC the above useless rule will help

1. Employers - bcos you can't move to another job easily and struck at one job

2. Attorney's- bcos you need to ext your non immigrant status and you take help from law firm for paper work.

 

Even if you move to another job, your new employer has to file another H1 and again it can't be done without law firm's help.

 

It's a win-win for every one, except for employee.

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Ability to add dependents to the GC application with out having to wait till it becomes current, there are many like me that have got married after applying for 485, have to stick with h1b and h4 and cannot move to EAD.

 

not sure if this is correct post, for every 10 people in eb3 category I meet 9 must have moved to Eb2, but still why is the EB3 moving so slow.

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Hi, 

Here is my case/situation,

I have my H1 started on 2007, labor/PD approved 2012 and I140 approved 2013 since then waiting for the priority date..i have already passed my 6 year H1B and currenlty working with the same employer for almost about 4 years...  I have NO rejections or no complications in my case so far.

 

my question is how this proposed rule will help if i change my job with different employer with same role/with same technology?

my new employer need to file labor/I140 again ?

does my new employer need to file the H1B again or need to sponsor every time if i change my job ?

 

thanks 

NG

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Great, I will wait for your comment. Of course, law firms will not oppose this rule, why on the earth they will loose their major source of the income if every I140 approved applicant gets EAD/AP?

 

I have seen forums that claim there's some type of conspiracy among immigration attorneys (and AILA) to stop positive immigration reform. The one thing that seems to nearly always be lacking in these forums is even a shred of evidence supporting these claims.

 

Here at the Murthy Law Firm, we have long supported all manner of immigration reform - including, in many situations, reform that could potentially cost the firm a few cases. And, when we submit our comments on this proposal, we will be pushing for a number of changes designed to help immigrants; we never take into consideration how many cases a rule change may mean. (Please note that ALL comments are part of the public record, including those that we will be submitting.)

I can't speak for AILA or other law firms, but I am highly skeptical of claims that there is a push by any prominent immigration lawyers/firms to water down immigration reform in order to secure more cases.

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When there are loopholes in the system you can't see the evidence. Best example is the way how big corp steals the tax payers money legally, though its clearly visible you can't fight against them due to lack of evidence. Same applies here.

 

 

As per WH fact sheet, EAD and AP was promised for approved LPR applications. But the final rule doesn't mention anything about that. And there are only two organizations that will be benefiting by not providing EAD/AP, everyone in the immigration community knows those two organizations

 

WH link : https://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action

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When there are loopholes in the system you can't see the evidence. Best example is the way how big corp steals the tax payers money legally, though its clearly visible you can't fight against them due to lack of evidence. Same applies here.

 

 

As per WH fact sheet, EAD and AP was promised for approved LPR applications. But the final rule doesn't mention anything about that. And there are only two organizations that will be benefiting by not providing EAD/AP, everyone in the immigration community knows those two organizations

 

WH link : https://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action

 

First of all, if you read the information you linked to, the administration promised to "...make regulatory changes to allow [workers with approved I-140s] to move or change jobs more easily." This was widely misinterpreted to mean "everyone with an approved I-140 is going to get an EAD." I highly doubt this was ever a serious consideration by the administration for the simple reason that, as I mentioned above, it would almost certainly require an act of Congress (i.e. new law to be passed and signed into law by the President.)

 

There are many foreign nationals with pending I-485s who, when asked their current status, say they are in the U.S. on EAD. This is not correct. EAD is not a form of status. It is merely employment authorization. But, the pending I-485 allows the individual to remain in the U.S. based on a period of authorized stay. Even with an EAD, the individual would still need to have some type of status.

 

The proposed rule circumvents this issue by only granting the EAD to one who is in valid status at the time of applying. But, they must lose their status to use the EAD. That is one of the major problems with the proposed rule. It would typically force the person to then leave the U.S. and apply for consular processing.

 

That is why, back in January 2015 when the Murthy Law Firm responded to the Visa Modernization proposal, we asked for a policy change to "...to allow people to file their I-485 applications even when the priority date is not current." With a pending I-485, the foreign national would be permitted to remain in the U.S. and apply for EAD/AP. Would this potentially cost the Firm some cases? Probably. But, it was never even a consideration when we submitted our comments to the DHS. Thankfully, we have no shortage of clients. You can read our comments here:

 

http://www.murthy.com/docs/VisaModernizationLetter.pdf

 

Believe it or not, many of us actually become friends with our clients. Just last month, I went to a football game with a former client. I am scheduled to go to dinner with another former client in a few weeks. Many of us at the Murthy Law Firm (starting with Sheela Murthy, of course) are either immigrants or sons/daughters of immigrants. We absolutely love finding ways to help our clients, even if that sometimes means less work for the firm.

 

Yes, we're a business and we have bills to pay. But, making the U.S. immigration system more appealing to foreign national workers is actually good for business! Rather than having workers go to Europe, Canada, Australia, etc, a more pro-immigrant worker system means more people immigrating to the United States. Rahul, contrary to what you may read in some forums, we are truly in this together.

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Sorry, one thing I neglected to mention. Another recommendation we made in January 2015 (which we plan on reitterating in responding to this latest proposal) is that we I-485 approvals should be changed to count as only one immigrant visa per FAMILY (see recommendation #2, Pg. 3.) This solves the entire problem of EB3 and EB2 backlogs for India and China overnight. Under current rules, if a beneficiary's priority date becomes current and he has a wife and 2 kids, that counts as 4 immigrant visas (out of the 140,000 that are allowed to be issued, by law, for employment-based cases.) If the regulations were changed to have only the principal beneficiary's green card counted, and not the green cards issued to the dependent family members, the backlog would be instantly eliminated.

 

This would be far, far better than any I-140 EAD rule. And, it would NOT require an act of Congress!!

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1. Let's assume that its not a work authorization. Why the title says "Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses"?  What is the difference between work authorization and employment authorization?

 

2. If DHS doesn't have the power to issue EAD's, then how did they proposed the below rule?

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1615-AC05

How did DHS issued EAD's for undocumented aliens?

 

3.Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”).  Why is this not covered in the final rule?

 

It's not surprising that attorney's becomes friends with their clients, reason is simple they don't understand how things work in US and they don't understand the power of lobbying.

 

I do have respect for attorney's and US immigration laws, if not why would I suggest people to follow law and post replies in this forum when there are many other forums available?

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Sorry, one thing I neglected to mention. Another recommendation we made in January 2015 (which we plan on reitterating in responding to this latest proposal) is that we I-485 approvals should be changed to count as only one immigrant visa per FAMILY (see recommendation #2, Pg. 3.) This solves the entire problem of EB3 and EB2 backlogs for India and China overnight. Under current rules, if a beneficiary's priority date becomes current and he has a wife and 2 kids, that counts as 4 immigrant visas (out of the 140,000 that are allowed to be issued, by law, for employment-based cases.) If the regulations were changed to have only the principal beneficiary's green card counted, and not the green cards issued to the dependent family members, the backlog would be instantly eliminated.

 

This would be far, far better than any I-140 EAD rule. And, it would NOT require an act of Congress!!

Yeah, I do remember the time when there was a rumor that this will be implemented.

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Please show me a thread or post or effort where murthy law firm has shown any concern over the EAD backlog or I140 EAD rule and fighting for it?

The current rule is a complete disaster, gives no freedom to the immigrant and let employers and immigration lawyer suck the blood out of the employee by exploitation and compelling the employee to work on low wages by snatching them in the whole immigration drama and hence leading to displacement of American workers, leading to employee frustration

 

If murthy law firm really wants to help, I request them to come forward and show support by doing something  to get EAD for I140 as promised in Executive Action

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Sorry, I'm too busy at the moment to give a detailed response. But, I will briefly respond to some of the comments made:

 

1. An EAD is not status. If a person is granted an EAD, this does not give the individual permission to remain in the United States. By regulation, the DHS created the H-4 EAD program last year. Similarly, regulation was used to allow for EADs under DACA (i.e. for certain foreign nationals who are in the U.S. without lawful status.) The ability of the President (through the DHS) to grant EADs is a bit of a gray area, as evidenced by the fact that these programs are being challenged in federal court. But, putting that aside, these programs are granting employment authorization, not status.

 

If a program were enacted that would allow any I-140 beneficiary to obtain an EAD, this does not address the question of how the person would be permitted to remain in the U.S. For the H-4 EAD program, this is solved by the fact that the person remains in H-4 status. For DACA, this is 'solved' only to the extent that the government agrees to not remove (i.e. deport) the person temporarily. So, for your average H1B worker who wishes to convert to an EAD, under current rules, the person would not be permitted to adjust from within the U.S. (i.e. File an I-485).

 

Briefly, I can say that getting an I-140 EAD program that would also fix the status issue may be very difficult to do without Congress passing a new law through Congress.

 

2. All that being said, the Murthy Law Firm DOES support a broad I-140 EAD rule! And, we will support such a rule to be constructed in a manner that would at least potentially resolve the status problem. But, we recognize the challenges of doing this through regulation alone. Therefore...

 

3. In addition to supporting the I-140 EAD rule, we are also proposing other ways to tackle the same problem. And, that is why we are ALSO supporting the aforementioned 'one immigrant visa per family' change. There is a very strong argument that this could be done solely through regulation.

 

4. My last point - the Murthy Law Firm has NEVER opposed any form of change in immigration law based on the possibility of losing cases. To the contrary, we have consistently sought changes that would improve the lives of immigrants (especially foreign national workers.) And, we will continue to do so.

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