Highlights from MurthyChat Session: 10.Sep.2012

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

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Question:  If we apply for H1B premium processing, does it increase the chances of rejection or make processing strict?

Senior Attorney:
The Murthy Law Firm uses premium processing for H1B cases on a regular basis. We do not find that it makes processing more difficult or more likely to lead to a denial. In fact, it can be easier to resolve problems that arise in the case, as there is telephone access to the USCIS premium processing unit staff. It is far easier to reach a USCIS official who can make a decision or otherwise facilitate a resolution in a case filed using premium processing.

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Question:  What is the prediction and analysis for EB2 GC with current dates going back to SEP 2004?

Senior Attorney:
We were expecting visa bulletin questions tonight. For anyone who does not know yet, the October 2012 Visa Bulletin was issued this evening. EB2 India has retrogressed to September 1, 2004. The October Visa Bulletin did not contain any new predictions or explanations. There had been prior EB2 predictions issued by the DOS. Obviously, those predictions were somewhat optimistic. The DOS released some information shortly prior to issuing the visa bulletin, during the time when calculations were underway to determine cutoff dates. Then, they expected that the EB2 cutoff date would be in 2006 and that it would stay there for "some time," and possibly fall back to 2005. So, the 2004 cutoff date is a new development. It appears that there is a lot of uncertainty regarding the expected demand for visa numbers and the potential availability or nonavailability of any excess numbers from EB1 (which drop down to EB2). Thus, the DOS appears to be acting very cautiously and conservatively in setting an extremely retrogressed date for October. Movement is likely to be very slow for a while. Any new information about the visa bulletin will be posted on MurthyDotCom.

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Question:  Is it better to do self-employment while using AC21 or join firm registered under dependant's name as an employee?

Senior Attorney:
It is better to be honest and straightforward in the approach to the case. Trying to create distance between the employee and the company by putting the company in the dependant's name (usually the wife) is pointless. It is possible to use AC21 through a company the primary beneficiary owns in whole or in part. Trying to claim it is the spouse's company just looks like there is something being hidden. The USCIS has confirmed that AC21 allows for porting to self-employment is fine, as long as there is a validly operating company that is able to offer an appropriate position.

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