Attorney_15

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  1. Based on the regulation and USCIS policy, if the I-485J Supplement is filed before the withdrawal, the result should be USCIS adjudicating the I-140 Petition based on an approvable when filed standard. We have seen limited success in this happening. Instead what has happened is USCIS forgets about the I-485 and leaves it pending or USCIS denies the I-485 Application. USCIS recently announced new guidance on ability to pay for an I-140 Petition that seems to line up with the approvable when filed standard, but it is not clear that this will change things. Murthy Law Firm successfully sued USCIS on this issue for a client a few years ago and is currently in fighting USCIS on this issue for another client.
  2. Often the waiver processing will take near 6 months but there is not any concrete processing timeframe. As regards a 6C finding based on having been associated with Integra, one can try and remove it with a factual / legal argument submitted to: (1) DHS TRIP at their website, (2) the Consulate by email, and (3) possibly file a lawsuit against USCIS. Murthy Law Firm has experience with all three options, but the success or possibility of any / each of these varies based on the facts and circumstances.
  3. @FingersXssed your scenario is not specifically addressed and is gray area. One might need to litigate that question in federal court though if USCIS denies the request on approving a new I-140.
  4. The 365 day rule applies if one does not have an approved I-140 AND the Priority Date is not current. Just a PERM approval filed less than 180 days earlier provides no benefit. However, one can generally request the additional 12 months in advance of reaching the one year if the original 6 years will take you to the 1 year mark.
  5. If employment is tied to an I-485-based EAD and the I-485 is denied, then the EAD is no longer valid, although under USCIS guidance it appears that the EAD would be valid still if an MTR is filed challenging the denial and while the MTR is pending. However, one would still be unlawfully present. One potential strategy that could be followed here is to file a complaint against the former employer with the US Dept of Labor for whom you worked but were not paid. USCIS will generally consider this to be a sufficient excuse for non-receipt of wages (by showing the violation is by the employer).
  6. Interesting problem. There is an argument one could try and make that since that PD was current for more than 1 consistent year, it is no longer valid for transfer to the more recent I-140, and that based on the non-current PD you qualify for the extension. An argument such as this could be presented with the H1B Petition filing. In a situation such as this, Murthy Law Firm would recommend filing the petition in premium processing to get the question addressed & resolved quickly. If you are interested in hiring Murthy Law Firm to make this argument for you and your proposed employer you should contact us. This is probably the best time of year to try this out because there is enough time to prepare and get a decision on an H1B (with premium processing) before the H1B lottery opens up.
  7. Generally, if USCIS has requested information but they do not provide any specific place that they are telling you to write it down, then you can normally write it on a separate pieces of paper and attach it to the RFE letter from USCIS to return it. Responses to an RFE should be sent by a means to verify the government's receipt, so if someone has an ability and opportunity to reply online or by mail, normally filing one's RFE response online is sufficient.
  8. Generally, someone in this situation would sue for a decision in federal court - a mandamus lawsuit. We've been filing these kinds of lawsuits for years.
  9. Generally, if one falls out of status because of an unexpected action by USCIS and one departs the US within days of that action, one generally remains eligible for an H1B visa. However, in such situations it is usually a good idea to get specific legal advice from an attorney.
  10. Generally, if one is the beneficiary of an approved I-140 Petition, which remains approved for at least 180 days one can continue using that petition to qualify for extensions of H1B status beyond the general 6 year limit. Since "transferring" an I-140 is not possible under the law and one must have the new employer go through the PERM Process all the way through the I-140 process, it may not be worthwhile to do so with an employer one plans to leave soon. However, given the factors upon which such a decision may depend upon one may want to consult directly with an attorney for specific advice,
  11. Generally, to verify approval of an I-140 Petition and obtain documentation of the approval from USCIS, one should ask for a copy of at least page 1 of the Form I-140 because that is generally where actions taken by USCIS are noted.
  12. If someone is maintaining valid nonimmigrant status, particularly H1B status, one is generally permitted to file concurrently an I-140 and I-485. Being on a cap exempt H1B generally would not limit eligibility to concurrently file an I-140 and I-485.
  13. Generally, an EAD's issuance and validity require a pending I-485. It is not unheard of for an I-140 to be denied and appealed with USCIS leaving the I-485 pending throughout. In the facts you describe it seems like something else might be going or needed. Therefore, we recommend that you consult with an experienced attorney who can review your situation and provide you with specific advice.
  14. While the law does not recognize the beneficiary of a visa petition when filings are replied to, the beneficiary of the visa petition could still send a reply to USCIS on their own behalf. However, to get the notice issued by USCIS, if the employer will not give you a copy then you can file a FOIA request with USCIS for a copy of the Notice of Intent to Revoke. You can file a FOIA request online with USCIS or hire a lawyer. While USCIS tends to be slow with FOIA requests if you file it online and ask for just the single document, then USCIS is probably going to get back to you sooner rather than later.
  15. The new guidance from USCIS on the CSPA does not seem to make any exceptions to the requirement of a current priority date at the time of filing. The Visa Bulletin must be current on the Dates for Filing chart at the time of filing the I-485. If the I-485 is sent to USCIS when the priority date is not current on the Dates for Filing chart the mailroom will reject it or USCIS will eventually deny it as failing to meet the legal filing requirements.