Whether the result of spreading an erroneous understanding of the law or being caught in media frenzy over an issue which is constantly changing, there are always items needing knowledgeable, clear-headed explanation. MurthyDotCom has established this page as a place for immigrants to find fiction separated from truth and the truth clarified by attorneys at Murthy Law Firm.



Rumor : If a foreign national is working on an H-1 or L-1, but travels abroad and enters on the Advance Parole (AP), s/he has lost the H-1 or L-1 status, as well as all the privileges of that status. Such a person would have to use an Employment Authorization Document (EAD) in order to work after returning on AP.  Posted Mar 26, 2008

Clarification : The law in this area is rather complex, and somewhat contradictory. If a person enters the U.S. on Advance Parole, s/he no longer holds H-1 or L-1 status. However, under Legacy INS memos and USCIS interpretations, if the foreign national enters on AP, and works without an EAD, it is not regarded as unauthorized employment, if the H-1 or L-1 authorization for employment would not have expired, had the individual not traveled on AP. Additionally, if the individual returns to work for the H-1/L-1 employer after AP travel, s/he can resume the H-1/L-1 status if the employer files a request for extension of that status. The approval of the extension will terminate the grant of parole and return the foreign national to the nonimmigrant status.

Because the ability to work after AP travel is based on memos, rather than law or regulation, and because of the language used in the memos, it is safer for a person who has entered on AP to obtain the EAD, in order to have a clearly valid authorization for employment. For more on this topic, see our March 21, 2008 MurthyBulletin article, Effect of Travel while in H-1/L-1 Status and Pending I-485.



Rumor : The USCIS has invalidated older green cards that do not contain expiration dates.  Posted Dec 20, 2007

Clarification : The USCIS issued a proposed regulation on August 22, 2007 to require people with green cards without expiration dates to replace those cards. This regulation has not been enacted as of this writing. It is still under consideration, following a comment period.



Rumor : The U.S. Department of Homeland Security is publishing a new version of the I-9 form very soon.  
Posted Oct 25, 2007 | updated Jan 11, 2008

Clarification : This rumor turned out to be true. While there was some inconsistent information released regarding the progress on the new I-9 form, a new version was issued, valid as of November 7, 2007. More information about the new I-9 is available in our November 30, 2007 article, USCIS Issues Notice on New Form I-9.



Rumor : If the USCIS receives too many I-485 Adjustment of Status applications during the month of July 2007, there will be a lottery to decide whose applications will be accepted for processing. This could happen because almost all EB categories became "current" for the month of July 2007.  Posted Jun 20, 2007

Clarification : There is no lottery expected for the I-485 cases filed in July 2007. This rumor seems to have originated based on the recent crisis with cap-subject H1B petitions. In that case, the USCIS received more than the annual quota of H1B petitions on the first day of filing for Fiscal Year 2008, which begins October 1, 2007. Therefore, the USCIS accepted cases for processing based on a computer-generated, random selection. The system of H1B cap numbers and the EB visa number limits operate differently.



Rumor : The labor substitution process has ended on April 15, 2007. Posted Feb 04, 2007 | updated Jan 11, 2008

Clarification : Labor certification substitution remained possible through July 16, 2007. The regulation eliminating labor certification substitution was published on May 17, 2007 and effective on July 16, 2007. There had been some rumors of the regulation becoming effective earlier, which were related to the regulation's movement from the Department of Labor (DOL) to the Office of Management and Budget (OMB) as part of the regulatory process. All labor substitution cases had to reach the USCIS by July 16, 2007. Cases filed by that time will be processed for decision. Substitution requests filed after July 16, 2007 will be rejected. More information can be found in our July 12, 2007 article, Labor Certifications May Reach USCIS on July 16, 2007.



Rumor : New H1B numbers will be available on October 1, 2006.
Posted Sep 15, 2006

Clarification : While H1B cap numbers become available each year on October 1st, they can be requested up to six months in advance, starting on April 1st of the same year. Thus, for Fiscal Year (FY) 2007, which starts October 1, 2006, all of the cap numbers were allocated several months before the fiscal year even started. This can be thought of like advance ticket sales for a movie or concert. The tickets may be all gone well before the actual event.

More information on this matter, and the efforts of some to market H1B services for non-existent visa numbers, is available in our September 15, 2006 MurthyBulletin article, Rumor Falsely Indicates More FY2007 H1B Numbers.



Rumor : Naturalization is possible after only four years as a permanent resident.  Posted May 18, 2006

Clarification : This is not true. At the Murthy Law Firm, we have received a number of recent inquiries as to whether it is now possible to naturalize to U.S. citizenship after having permanent residence for four years rather than five. The law governing this requirement has not changed, as of this writing. The naturalization requirements remain at five years of permanent residency for most cases. People who are married to U.S. citizens, generally, can apply for naturalization after three years, if the couple has been married for at least three years and the U.S. citizen-spouse has been a U.S. citizen for at least three years.

Information on the source of this rumor can be found in our May 19, 2006 MurthyBulletin article, Immigration Rumor : Is Naturalization Possible after Four Years?



Rumor : The FY2007 H-B cap was reached on the first day - April 3, 2006.
Posted Apr 03, 2006

Clarification : In what turned out to be an April Fools' joke, a reputable publisher was duped into publishing what appeared to be an official USCIS announcement that the H1B cap was reached on April 3, 2006. The announcement included the 20,000 Advanced Degree cap exemptions, as well as the 65,000 regular H1B cap numbers.

The H1B cap was NOT reached on the first business day for the filings in FY2007. For more information, read our April 3, 2006 NewsFlash, April Fools' Joke Regarding H1B Cap - April 3, 2006, available on MurthyDotCom.



Rumor : If I change my status from H-4 to H-1, I can change back to H-4 by just ending my H-1 job.  Posted Jun 16, 2005

Clarification : No, a person does not automatically return to a prior, non-working status just by ending the job held under a work-authorized status. It is necessary to file for and obtain approval of a change of status request in order to make this change in the United States. Otherwise, it could be accomplished by traveling abroad and reentering in the nonworking status using the proper visa. More information on this topic is available in our June 10, 2005 article, Common Mistake When Filing from H-4 to H1B.



Rumor : We have heard that there are rumors that retrogression will end in a few months. Posted Feb 14, 2005 | updated Jan 11, 2008

Clarification : There is no one who can accurately predict these matters. Retrogression is caused by demand for the limited supply of visa numbers. Given that the demand for employment-based visa numbers is expected to continue to be high, the end of retrogression is unlikely without a change in the law. In the past, changes in the law that allowed unused visa numbers from certain countries to be added back into the numbers available to all, ended retrogression problems for several years. Without a similar procedure, or other legislative increase in numbers or change in the manner in which they are counted, retrogression is a likely fact of life.

Any immigration planning should take retrogression and the unavailability of visa numbers into account.



Rumor : When employment-based green card cases are filed under PERM, everyone will receive their green cards in 4 weeks.  Posted Jan 31, 2005

Clarification : This is simply not true. Under PERM, it will likely take a minimum of 45 to 60 days to receive a decision on the labor certification. Even before that, in order to file the PERM application, it may take another 2 to 3 months for the advertisements, etc. Then the I-140 and I-485, or consular processing stages, must also be completed, as under the pre-PERM system. With retrogression in place or looming for certain employment-based applicants from certain countries, it is likely that the ability to file the I-485 or pursue consular processing will be delayed in certain employment-based preference categories. Therefore, there is no guarantee that anyone will obtain the employment-based green card faster by filing under PERM than people did under the traditional labor certification processing. The advantage with PERM is that the labor certification part of the process will likely be faster than with the traditional regular labor certification process but, other than that process, it will not make a difference for the other stages of the "green card" process.



Rumor : I am not concerned about the cap because it was my employer's fault the papers didn't get filed earlier. I can to plead the hardship of my situation to USCIS and they will give me a number.
Posted Oct 15, 2004 | updated Dec 26, 2007

Clarification : No, they won't. The H1B cap is a hard and fast numerical limitation under law. Once it has been reached, there are simply no more cases that can be filed. There are no special exemptions for hardship or any of the other problems caused by the lack of H1B numbers for this fiscal year. A person is allowed to consult an attorney to consider other options like the O-1 or some other classification. New H1Bs will only be available during the next fiscal year, unless Congress increases the quota.



Rumor : I am not concerned about the cap because I will just use premium processing. That way I can still get an H1B, even though the cap has been reached.  Posted Oct 15, 2004

Clarification : No, this is not true. Premium processing is a way to speed a decision in a case. It is not some sort of special program with extra cap numbers or exemptions. A cap-subject H1B case filed after the cap has been reached will be rejected and returned by the USCIS Service Center, whether or not premium processing is requested.



Rumor : I am not concerned about the cap because I am on H-4 and can now switch to H1B regardless of the fact the cap was reached.
Posted Oct 15, 2004 | updated Dec 26, 2007

Clarification : No, this is not the case. Having an H-4 does not exempt a person from the cap. If s/he has not previously held H1B status and is not seeking to work for a cap-exempt employer, an H1B is not possible unless a cap number is available.



Rumor : The USCIS service centers are going to begin conducting interviews in employment-based green card cases.  Posted Sep 27, 2004

Clarification : Service centers do not conduct interviews. If an interview is required in an employment-based green card case, the file is sent to a local USCIS District Office, where an immigration officer will conduct the interview.



Rumor : A new H-1 visa is needed each time a person changes employers. Posted Aug 06, 2004

Clarification : No, a person does not need to travel abroad and obtain a new visa stamp in the passport each time s/he changes H-1 employers. As long as the H1B employee is maintaining status, the change of status can be completed within the United States by filing a new H-1 petition through the new employer, often requesting an extension of status. If one is not maintaining status as an H1B employee, s/he may have to travel abroad and seek to reenter by submitting the original H1B petition approval notice and obtaining a new I-94 card at the airport or other port. If the H1B employee has a valid H1B visa stamp in the passport, issued previously with the name of a different employer, the H1B employee may use that visa stamp with the new employer's H1B petition approval notice to reenter the U.S. That visa stamp is valid until its expiration date, as long as the H1B employee is otherwise eligible to enter on H1B status. Of course, if an individual's visa stamp has expired, a new visa will need to be obtained prior to reentry. More information about this is contained in our August 06, 2004 article, Immigration Rumor: New Visa NOT Required Upon Change of H1B Employer. We note that persons who have not maintained their respective statuses should obtain legal advice prior to traveling, as there are serious immigration consequences for travel after having been unlawfully present for any time beyond 180 days.



Rumor : When the DOS ends revalidation in St. Louis, I must leave the U.S. to extend my H status.  Posted May 20, 2004

Clarification : The U.S. Department of State (DOS) revalidation office in St. Louis has NEVER had the ability to obtain or extend a person's H status, or any other status allowed by the visa revalidation program. To extend H status in the U.S., an H status holder must file an H1B petition (Form I-129) or I-539 for the H-4 status with the U.S. Citizenship and Immigration Services (USCIS). Even if one obtains an H visa from the DOS revalidation office, that person does not have the status unless it is conferred by the USCIS through the approval of an I-129 or I-539, or if the person uses an H visa and the Port of Entry Inspector gives the H visa holder a new I-94 card that states that s/he is in H1B or H-4 status until a certain date in the future.



Rumor : One must use a 10-year visitor's visa within the first 10 months, or it will become invalid.  Posted May 20, 2004

Clarification : This is not true. You may generally use the 10-year visitor's visa for the first time at any point within the 10-year period. There may be other ways that the visa would be invalidated, but failure to travel within a specific timeframe is not one of them for the nonimmigrant B-1/B-2 visa. There are specific time limitations to enter on the immigrant visa, usually within 6 months from the date of issuance.



Rumor : I can rely on the USCIS and CBP to maintain copies of all of my I-94 cards and do not need to keep copies to prove my status later.
Posted Apr 07, 2004

Clarification: It is never advisable for a person to rely on the government to prove an issue on his or her behalf. The USCIS and CBP do not guarantee that they will maintain records of a person's status. Therefore, it is best for all foreign national travelers to make copies of their I-94s that are submitted upon departure from the U.S. to keep in their records and be able to submit with any future immigration filings. The burden of proof under law is for the applicant to show eligibility for a particular immigration benefit. So make your copies and do not expect the government to keep accurate records of your arrivals and departures or any other documents, since it is your life and your responsibility.



Rumor : All persons entering the U.S. from abroad are required to be registered through US-VISIT.  Posted Jan 23, 2004

Clarification: That is not true. A-1, A-2, C-3 who are not attendants, servants or personal employees of accredited officials, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 status holders are not required to register through US-VISIT as long as they maintain an exempt status. Persons under age 14 or over 79 are also not required to register. Persons entering the U.S. without a visa, such as individuals from Canada, Mexico, or Visa Waiver Program participants who maintain their statuses, are also not subject to US-VISIT requirements. Neither are legal permanent residents or U.S. citizens. Note that these exemptions may change, so it is important to check the law and any requirements prior to travel.



Rumor : The legalization plan that President Bush announced on January 7, 2004, went into effect immediately upon his announcement.
Posted Jan 08, 2004

Clarification: This is not true. Until Congress passes a bill or bills that meet his announced policy and the President signs the bill/s into law, his legalization plan will not go into effect. This means that it may be some time before this plan is in place, or it may never be put into place at all.



Rumor : Writing a letter directed to the attention of the Director of a Service Center or Local Office will ensure that a case is processed quickly.
Posted Dec 05, 2003

Clarification : This is not true. In some cases, a letter to a Director is necessary to request an expedite based on an emergency, such as a dying parent, spouse, or child in the home country and it makes sense that the person requires the approval in order to be able to travel, etc. In instances where the case is within processing times and there is no recognized emergency, a letter to the Director will be disregarded, or the response will be that cases are being processed in the order they are received and when security checks are complete.



Rumor : All new H1B cases are counted against the H1B cap of 65,000.
Posted Nov 11, 2003 | updated Dec 26, 2007

Clarification : While most new cases are counted against the cap, H1B petition filed by institutions of higher education and their affiliated nonprofit entities, and cases for nonprofit and government research organizations do not count against the cap. It is important to accurately complete the second page of the Form I-129W when filing the H1B petition so the proper determination about cap exemptions may be made. Additionally, 20,000 cap exemptions are available to foreign nationals with U.S. masters' degrees or higher levels degrees. For additional information about the H1B cap, see our September 12, 2003 article, H1B Cap for Fiscal Year 2004, as well as our Jan 28, 2005 article, Twenty Thousand Additional H1Bs: FAQs and Answers.



Rumor : The BCIS is not issuing EADs and APs for concurrent filing cases until the I-140 is approved.  Posted Sep 11, 2003
 
Clarification : This is not true. The Employment Authorization Documents (EADs) and Advance Paroles (APs) may be issued as long as there is no Request for Evidence (RFE) pending for the I-140 petition, the I-485 application, or the EAD or AP application. Note, however, that the EAD may be issued if there is an RFE on the AP application, or vice versa.



Rumor : One who is in H-4 status cannot attend school.
Posted Aug 29, 2003

Clarification : No, this is not correct. A person who is on H-4 status is permitted to attend school. That person is not, however, eligible for financial aid or tuition waivers and should not engage in any work, even on-campus employment that is related to the program of study, if the employment would result in the person's earning any compensation or wages.



Rumor : Permanent AC21 regulations will be issued in September 2003.   Posted Aug 18, 2003 | updated Dec 26, 2007

Clarification : The Department of Homeland Security (DHS) Semiannual Regulatory Agenda stated that a notice of proposed rulemaking (NPRM) would be issued in the Federal Register in September 2003 regarding the H1B provisions of AC21. Once a NPRM has been issued, the public has a certain period of time to comment on the rule before a final rule or interim final rule is issued. No AC21 regulation was issued as a result of this NPRM. There are not any AC21 regulations, only the law (statute) and memos interpreting the law. The USCIS could issue regulations in the future.



Rumor : A person in H1B status begins to accrue unlawful presence the day after the person is laid off.  Posted Aug 15, 2003

Clarification : This is not true. As discussed in a rumor posted January 21, 2003, a person in H1B status who is laid off is no longer in status as of the day after the layoff. However, in order to accrue unlawful presence, the person's I-94 validity date must have expired, or the BCIS must make a finding that the person has been unlawfully present in the U.S. The distinction is important, because being unlawfully present for more than 180 days will generally result in one's being barred from re-entry to the U.S. for three years, or for 10 years if out of status for over one year. On the other hand, being out of status does not carry the same bar to re-entry, unless the person is found by the BCIS to have violated status, then the time towards the 3-year or 10-year bar will start accruing from the date of the BCIS or CBP determination. While this does not mean that a person who is laid off should remain in the U.S. until the I-94 card expires, it is helpful to understand that one may take a risk and stay back when one is trying to wrap up affairs in the U.S. immediately following a layoff.

On a separate note, a person who is out of status (but who may not yet be unlawfully present) will not be able to obtain a change of status or an extension of status from the BCIS from within the U.S. Such a person should generally file for a consular notification to avoid obtaining a BCIS determination of "unlawful presence."



Rumor : All of the Service Centers are issuing Requests for Evidence (RFEs) for all I-485 employment-based cases.  Posted Aug 10, 2003

Clarification : Though it may seem to be the case, this is not true. All Service Centers are moving slowly on cases and, in many instances, fingerprints have to be redone and RFEs are sent requesting recent employer letters confirming either continued employment or eligibility under AC21. However, we recently received approvals of I-485s in cases where RFEs have never been issued.



Rumor : Anyone who was laid off after September 11, 2001, as a result of that day's events is now eligible for a green card on that basis alone.
Posted Aug 06, 2003

Clarification : Not everyone who was laid off due to the events of September 11, 2001 is eligible for a green card. Under the USA Patriot Act of 2001, however, a new category for eligibility to apply for permanent resident status was created for persons who were the beneficiaries of labor certifications, I-140s, I-130s, or K-1 or K-3 petitions that were filed prior to September 11, 2001, and if the petition or labor certification was revoked, terminated, or nullified as a direct consequence of the events of September 11th. These persons remain eligible for a special immigrant petition filing as long as they can demonstrate eligibility under this law. For more information on how to assert eligibility under this category, see our June 06, 2003 MurthyBulletin article, Green Card Approval under USA PATRIOT Act, available on MurthyDotCom.



Rumor : A person who is on a TN visa can apply for adjustment of status because the TN has dual intent just like the H1B and L-1 visas.
Posted Jul 30, 2003

Clarification : Though some may believe this is true, and some BCIS employees will offer this opinion, there is no written law, regulation, or policy that allows or recognizes dual intent for those on TN status. Dual intent is only recognized clearly for those on H1B and L-1 status. If a person files for adjustment of status while on TN status, we recommend that the applicant file for the Employment Authorization Document, in order to work legally, and the Advance Parole, to be able to reenter the U.S. after foreign travel.



Rumor : The H1B program is going to be eliminated entirely in the near future. Posted Jul 16, 2003 | updated Dec 26, 2007

Clarification : While this rumor may have started with Representative Thomas Tancredo's bill, H.R. 2688, which seeks to eliminate the H1B program, it is unlikely such a bill will ever pass. The H1B cap reverted to 65,000 on October 1, 2003. Efforts to increase the cap have not been successful.



Rumor : BCIS filing fees will increase on August 1, 2003.
Posted Jul 08, 2003 | updated Dec 26, 2007

Clarification : While filing fees may increase at any time, the USCIS usually issues a notice in the Federal Register and then posts that information in condensed form on their website if they know the fees will increase on a certain date. As of the date of this writing, no such posting has been issued. Therefore, it is unlikely that BCIS fees will increase August first. The USCIS did issue a NPRM in February 2007. This resulted in significant fee increases, effective July 30, 2007.



Rumor : If one uses concurrent filing for the I-140 and I-485, s/he cannot use AC21 until 180 days after the I-140 is approved.  Posted Jul 03, 2003

Clarification : Though there are no regulations on this issue, we do not believe that the above is accurate. Rather, if one concurrently files that I-140 and I-485, the person is best advised to use AC21 only if the I-140 is approved and 180 days have passed since the filing of the I-485. In other words, if the I-140 is approved 190 days after the I-485 is filed, it is a reasonable assertion that the person meets the requirements to enjoy the portability benefits under AC21. For a more detailed analysis of this issue, see our article, Portability and Concurrent Filing Issues.



Rumor : A person who is proving his/her qualifications for a job at the I-140 stage of green card processing may not list any experience to show s/he is qualified for the job.  Posted Jun 25, 2003

Clarification : This is untrue, though whether any experience can be used usually is determined by the minimum requirements for the position for performing the job as listed on the labor certification. If a person is in doubt regarding whether certain experience may be used to show that s/he qualifies for a particular job, s/he should consult an immigration attorney.



Rumor : Only a blood relative is permitted to provide financial support for someone seeking to enter the U.S. on a B visa.  Posted Jun 17, 2003

Clarification : There is no requirement that a person who is providing financial support to a foreign national seeking to enter the U.S. on a B visa actually be a blood relative. However, the person will need to show "forceful and compelling ties" between the sponsor and the person seeking admission as a B status holder for the Consular officer to believe the sponsor's intent to financially support the visitor and grant the B tourist visa.



Rumor : For the I-765, eFiling is definitely a faster way to obtain the EAD than paper filing.  Posted Jun 17, 2003

Clarification : We have not seen any proof of this to date. The eFiling process is still in its early stages and therefore may not be any quicker than regular, paper filing. It appears at this point that eFiling actually requires extra steps, which suggests it may be slower, at least for new applications. We will monitor this issue and provide additional information as it becomes available.



Rumor : One who is about to go for the consular processing interview to obtain the green card through being the unmarried son/daughter of a U.S. citizen or Lawful Permanent Resident may get married with no effect on his/her green card process.  Posted Jun 06, 2003

Clarification : This is not correct. Though most employment-based applicants seeking a green card may marry and "add" the spouse and any other dependents to their green card application prior to its approval, unmarried children, in a family-based immigration context, who get married before the green card is granted, either completely lose their status or may have to wait longer since they are no longer "unmarried children". In the case of an unmarried son/daughter of a U.S. citizen, s/he will be dropped to a different family-based preference category and may have to wait a few more years to obtain a green card, while an unmarried son/daughter of a Lawful Permanent Resident will lose the ability to adjust altogether.



Rumor : A person who loses his/her job is unable to obtain an EAD extension since an employment letter is needed to support the EAD extension application.  Posted May 23, 2003

Clarification : Though many believe this is true, there is actually no need to provide an employment letter to renew the EAD. As long as the I-485 remains pending, a person may file for the EAD extension up to 6 months prior to its expiration. It is generally recommended that the EAD extension be filed no later than 4 months prior to expiration to take advantage of interim EAD provisions.



Rumor : K and V Visa applicants benefit from the Child Status Protection Act.  Posted May 14, 2003

Clarification : This is not true. K and V Visas are nonimmigrant visas. The Child Status Protection Act only benefits certain foreign national children who are immigrant visa applicants.



Rumor : An unmarried woman cannot obtain a tourist visa.
Posted May 06, 2003

Clarification :  It is much more difficult for an unmarried woman to obtain a B-2 tourist visa -- especially from a third-world country. To overcome this hurdle, the woman must submit evidence of strong ties to the home country beyond the ordinary evidence generally required that exhibit strong family and financial ties. Consulates tend to believe that a woman with no husband and/or children is not likely to return to the home country even if she has expressly stated her intention to do so.



Rumor : All BCIS cases will be expedited on or after April 25, 2003.
Posted Apr 28, 2003

Clarification : We have not received any information that this is true. The Service Centers do not have the resources to begin expediting all cases. Occasionally, some types of cases are targeted for expedited processing. The Law Office of Sheela Murthy provides information on this and all other important developments at MurthyDotCom and in the MurthyBulletin.



Rumor : Age-out cases will no longer be expedited at the Service Centers.
Posted Apr 21, 2003

Clarification : This is generally true. The Service Centers will no longer expedite cases where the Child Status Protection Act (CSPA) will protect the child and solve the age out issue. However, if the CSPA will not protect the child from aging out, the Service Center would be willing to continue to expedite those cases if brought to their attention in a timely and appropriate fashion. It is advisable to demonstrate to the Service Center that the CSPA does not apply in a particular case and continue using the highlight procedures previously used, to ensure that a file stands out and is expedited to avoid any accidental age-out cases not protected by CSPA.



Rumor : If I marry a foreign national abroad after I obtain my green card, I can bring him/her here on a B or F visa and begin processing his/her green card application immediately.  Posted Apr 16, 2003

Clarification : This is not correct. The B and F visas carry nonimmigrant intent. This means that a person who seeks to enter the U.S. on a B or F visa is indicating to the consulate and port of entry that s/he is seeking to enter the U.S. temporarily and is not attempting to remain in the U.S. A person who applies for a green card soon after entering the U.S. on a nonimmigrant intent visa may be considered to have entered the U.S. fraudulently. Once the BCIS or another immigration-related agency has found that a person has entered the U.S. fraudulently, that person is removable and subject to a permanent bar to re-entry.



Rumor : If I apply for an outstanding researcher I-140 and avoid the Labor Certification process, my I-140 is less likely to be approved.
Posted Apr 08, 2003 | updated Feb 07, 2007

Clarification : This is not necessarily true. Our firm can review materials for those considering Outstanding Researcher, Extraordinary Ability, or National Interest Waiver I-140 petitions to determine whether there is a good chance of success. While not everyone will qualify for one of these expedited categories to obtain the "green card," those who satisfy the regulations may have a strong chance of approval.



Rumor : The BCIS is no longer approving most 245(i) cases.
Posted Apr 02, 2003

Clarification : As long as the applicant meets the criteria for 245(i), the BCIS may not ignore Congress' mandate to approve these cases. As of the time of this writing, Congress has not changed the law on these cases. Therefore, most of these cases should be approved unless there is any other reason for denial; a person not meeting other required criteria, for example.



Rumor : A U.S. citizen over the age of 21 can sponsor his/her parents and siblings for green cards and they will all be processed quickly. 
Posted Mar 31, 2003

Clarification : This is only partially true. The parents' green card applications can be processed as immediate relatives, so they will be processed more quickly than other family-based green card cases. However, siblings are categorized in the fourth family-based preference category, and it may take more than 10 years to obtain a green card for them. (See Immediate Relatives and Family for more information on family-based preferences.)



Rumor : PERM will be implemented in the spring or summer of this year.
Posted Mar 23, 2003 | updated Dec 26, 2007

Clarification : This is unlikely. The Department of Labor has recently indicated that the regulation for PERM may be ready between April to July 2003, but the automated system required to implement PERM is not expected to be functional until the fall. Even if the regulation is published in the spring or summer, PERM will not be implemented until the technology to implement it is sufficiently functional. (See our March 21, 2003 article, PERM Delayed to Fall 2003.) The PERM resolution was published on December 27, 2004 and became effective on March 28, 2005.



Rumor : The BCIS (formerly INS) is not processing any of the cases that were submitted with the reduced fees.  Posted Mar 15, 2003

Clarification : The BCIS is processing all timely filed cases that were sent in with the reduced fees while that fee structure was in effect till Friday, February 28, 2003 (so mail stamped at post office with this date is sufficient), or if the properly filed case (signed and with correct checks) reached the INS (now BCIS) on or before Monday, March 3, 2003. There is no provision in the law that reinstated the higher fees that requires the BCIS to charge the additional fees for these cases.



Rumor : All cases are on hold during the transition of the INS into the DHS is complete?  Posted Mar 04, 2003

Clarification : We are unaware of any such hold.  The new Bureau of Citizenship and Immigration Services (BCIS) has pledged to continue all immigration services and is maintaining all forms, mailing addresses, and service numbers into the near future to ensure that no delays will occur.  Should we receive any news of a hold, we will notify our readers both in the MurthyBulletin and on MurthyDotCom. We expect all case processing to continue as before.



Rumor : If one is on an EAD, granted due to one's having an employment-based green card application pending, s/he must work in the same field for any additional employer.  Posted Feb 25, 2003

Clarification : No, this is not correct. It is possible to work for any other employer on an EAD even if not connected with the field of one's current employer. A possible catch in such a case is that, if one travels abroad and reenters the U.S., one has to reenter on the AP and may no longer enter on the H1B even if one continues to work full time for the H1B-sponsoring employer. Further, if that person is using the EAD to switch employers and use AC21, the new job should be the same or similar to the job listed in the labor certification.



Chat User : If someone uses advance parole (AP) during the I-485 stage INS may respond with an RFE or transfer the case to a local INS office. INS does not like people at this stage to use AP.  Posted Feb 25, 2003

Attorney Murthy : We have never heard that before. One is legally allowed to enter on the AP or the H1B. If one entered on the AP, then that person is considered to have been paroled into the U.S. and not legally "admitted," which has its own legal consequences. If the I-485 is rejected, for any reason, then the person is no longer in status, but if one entered on the H1B, then one has the backup H1B status. Each status has its own advantages and disadvantages, but INS does not issue an RFE or transfer the case merely by virtue of having traveled on AP.



Rumor : Once the INS moves into the DHS, everything about the immigration process is going to change immediately.
Posted Feb 22, 2003

Clarification : Government officials have indicated this is not true.  For the near future, addresses and forms are not scheduled to change.  There has been no verification, however, that these will not change gradually as the implications of the transition have time to be processed by the bureaucracy. (See our February 21, 2003 article, DHS Watch : Stability Promised for Now.)



Rumor : I heard that INS is going to make a new list of countries whose nationals will need to register under the Special Registration laws sometime in the month of June or July 2003 and that list includes India.
Posted Feb 10, 2003

Clarification : At this point in time, INS, the Department of Homeland Security, nor our sources at AILA is reporting that nationals from India will be required to go through Special Registration. It is true that other countries will likely be added to this list since the government wants to include many countries with connections with terrorist connections. New developments will be posted on MurthyDotCom and included in the MurthyBulletin.



Rumor : I read a news article that says one can get an H1 extension beyond the 6-year limit IRRESPECTIVE of the immigrant visa (GC) petition. Is this true?  Posted Feb 10, 2003 | updated Dec 26, 2007

Clarification : The law provides that a person can file for an H1B extension beyond the six-year limit if s/he has either had a labor certification or an I-140 immigrant petition pending for 365 days or longer. The change including labor certification was included in the law passed on November 2, 2002.



Rumor : One who has traveled in and out of the U.S. on his/her green card for a number of years and would like to apply for citizenship needs to first have 30 months of continuous stay in the U.S.  Posted Feb 03, 2003

Clarification : A person does not need to be continuously present for the entire 30 months, but there is a physical presence requirement. A person has to be physically present in the United States for at least half of the time during the last 5 years and no absence from the U.S. should exceed 180 days in any one trip in order to avoid the presumption of having abandoned the intention to reside as a permanent resident. Further details on the criteria for citizenship are available in our Citizenship FAQs and in articles in the Citizenship section on MurthyDotCom, which we encourage our readers to review. The INS Website also has some useful information.



Rumor : If one has a valid H1B visa from the employer, and is waiting for approval of I -485, s/he must use Advance Parole to travel abroad and reenter.  Posted Feb 03, 2003

Clarification : If a person has an H1B petition approval and the H1B visa stamp in the passport which has not yet expired, the advance parole (AP) is not required. There is a potential risk that the employer may withdraw the job offer when the person is traveling abroad. If this occurs, s/he will be stuck abroad and will need to have a new employer file a new H1B petition. There is also a risk that the green card will be approved while the person is out of the country. In this situation, the H1B becomes invalid and generally cannot be used to reenter the U.S. Filing and obtaining the AP enables one to return even if the sponsoring employer decides to revoke or withdraw the H1B petition or the green card is approved while the person is abroad.



Rumor : The H1B cap has increased from 6 years to 7 years.
Posted Jan 29, 2003

Clarification : The H1B cap has not changed but remains at 6 years. However, some individuals may qualify for extensions beyond the initial term of a total of 6 years for H1Bs, if they meet certain criteria of having filed a labor certification or green card a minimum of one year before requesting the H1B extension or if they live and work only part of the year on H1B status in the U.S.



Rumor : Ethnic Minorities will lose the right to vote in 2007.
Posted Jan 29, 2003

Clarification : All U.S. citizens are given the right to vote under the Fifteenth Amendment to the U.S. Constitution. Some sections of the Voting Rights Act of 1965 will expire in 2007. These provisions do not give anyone the right to vote and Congress cannot take away rights given in the Constitution without an amendment to the Constitution. An amendment that deprives any citizen of voting rights is not likely to be approved by the U.S. Congress.



Rumor : If one is laid off, but the company is not going to cancel the H1B, one can stay in the U.S. for sixty days.  Posted Jan 21, 2003

Clarification : Actually, there is no legal timeframe or grace period available under law merely because the employer does not cancel the H1B petition. The person is no longer considered to be in valid legal status even if the H1B-sponsoring employer has decided not to withdraw or revoke the underlying H1B petition. The INS has the discretion in approving changes of status (COS) or extensions of status (EOS) for those who have been laid off or terminated. Generally, the INS appears to be flexible if the gap is about 2 weeks, meaning that the most current pay stub shows that the individual has been employed with the H1B-sponsoring employer until nearly the time of filing the COS or EOS. After that, the INS is not likely to approve the COS or EOS from within the U.S. When weighing risks and determining timeframes, individuals should also be mindful of the 3- / 10-year bars, if their I-94s have already expired or would have expired by the time the INS makes its decision.



Rumor : INS is going to issue green card approvals only after July 2003. Posted Jan 21, 2003

Clarification : This is incorrect. INS did have a temporary freeze in order to upgrade their computer systems but, effective January 13, 2003, they announced they will continue to issue I-485 approvals for adjustment of status applicants for the green card. Though only a trickle of approvals has come into our Office between the end of 2002 and early 2003, we expect this number to increase over the next month, in February 2003, and onwards.



Rumor : The Employment Authorization Document (EAD) can only be used after approval of the I-140.  Posted Dec 06, 2002

Clarification : This is not true. The EAD is valid when issued. The filing of the I-485 serves as a basis for the EAD. With concurrent I-140/I-485 filing, the EAD may often be issued prior to I-140 approval. What the INS has stated is that they will do an initial review of the I-140 prior to issuing the EAD to determine if the I-140 has a proper basis. If the case is clearly frivolous, the EAD will not be approved.



Rumor : INS has halted adjudications of cases "until further notice" due to new security procedures.  Posted Nov 29, 2002

Clarification : No, some computer enhancements are needed to implement the new procedures. However, during the one to two week period while the computers are being upgraded, adjustments of status and naturalizations will be processed, but "held" for final decision until the upgrades are complete. This is discussed in our article, No General Processing Freeze.



Rumor : There is legislation which is expected to become law soon which will reinstate and extend Section 245(i) until April 2003. This provision provides benefits to out-of-status individuals who are otherwise eligible to adjust to permanent residency.  Posted Oct 18, 2002

Clarification : Although we would welcome such legislation, there is no expectation that 245(i) will be reinstated any time in the immediate future. At this time, such pro-immigration legislation is given little priority and support in light of the focus on security issues.

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Rumor : There is a moratorium on L visa issuance in India.
Posted Oct 18, 2002

Clarification : No, the consulates in Mumbai and New Delhi had temporarily suspended processing of L visas due to some concerns raised by the INS Port of Entry inspectors. This matter has been resolved. We addressed this issue in our October 11, 2002 article, Update on L and H Visa Issuance in India.



Rumor : All action on cases has stopped because of an INS file audit.
Posted Sep 27, 2002

Clarification : No. While the INS is conducting a file audit, which started on Monday, September 23, 2002 and is supposed to end sometime in early October, depending on the time allotted by the particular INS Service Center, arrangements were made to provide work to the INS examiners / officers in advance of the audit. So, cases are being reviewed and notices are still being issued. (See our September 27, 2002 article, INS File Audit Starts September 23, 2002.)



Rumor : The PERM process for labor certification is going into effect soon, so there is no point in starting my labor certification now.
Posted Sep 20, 2002

Clarification : There has been no recent news regarding the start of the PERM program. The latest information, issued in the summer of 2002, was that the program would start no sooner than January 2003. It is impossible to know the starting date at this point. Given the length of time it takes to process a labor certification in some jurisdictions, valuable time could be lost waiting for PERM.



Rumor : None of the states is accepting labor certifications filed under the reduction in recruitment (RIR) procedure.  Posted Sep 13, 2002

Clarification : No, the RIR procedure is still possible, depending upon the nature of the position and the geographic location. While it has become far more difficult to have cases accepted via RIR, it continues to be a case-by-case decision, based upon the availability of U.S. workers.



Rumor : An advertisement appeared in an Indian newspaper about the availability of about 200,000 new H1B visas, with doctors from India eligible to apply.  Posted Sep 08, 2002

Clarification : The total yearly quota of new H-1s is 195,000. This annual limitation will continue through fiscal year 2003 (which ends September 30, 2003). After that point, it is slated to return to an annual "cap" of 65,000 per year. Cases filed for persons already in H-1 status do not count against the cap. Additionally, certain very limited types of employers (like certain educational institutions) are also exempt from the cap. Although medical doctors are eligible to obtain the H-1 status or visa approval, medical doctors have to pass certain medical examinations and licensing requirements before they qualify to obtain H1B classification.



Rumor : INS has stopped issuing interim Employment Authorization Documents (EADs).  Posted Aug 29, 2002

Clarification : No, the INS still issues interim EADs. Interim EADs are issued by the INS District Offices if the EAD application has been pending more than 90 days. However, the District Offices will not issue an interim EAD if the EAD was already issued but has not been received due to mail delays. Also, District Offices have differing procedures for interim EAD issuance. Some District Offices require appointments or only produce interim EADs on certain days of the week.



Rumor : There is a "special" H-4 petition that a person with H-1 status can obtain for their dependent parents, so that the family can all live together in the U.S.  Posted Aug 24, 2002

Clarification : No, there is no special H-4 visa or status for parents of an H-1 principal beneficiary. The H-4 status is limited to the spouse and minor children of persons with H-1 status. There is a dependent B-1/B-2 that is sometimes granted for relatives like parents, etc. in certain cases. However, the consulates and INS rarely approve these B2 requests for parents, because they do not generally consider parents as dependants.



Rumor : If I am married, but the marriage was not registered, should I put "single" on my documents?  Posted Aug 15, 2002

Clarification : Generally, the religious marriage is a valid marriage in countries like India since, under the Hindu Marriage Act, registration is not mandatory for the marriage to be legally binding on the parties. Many people assume incorrectly that if they are not "officially" registered, then they are not really married so they can claim to be single. The issue really is whether it is a valid marriage under Indian law since the doctrine of comity or "full faith and credit" among states allows the U.S. to recognize the marriage as valid if it is valid in India. If there is merely an Agreement to Marriage, then it is not binding even under Indian law. Failing to disclose a fact or concealing a fact can have major consequences if and when the spouse tries to immigrate based on the very same "marriage." It can also create issues of fraud and misrepresentation for the person who provided the wrong marital status information to the INS or the consulate.



Rumor : If I obtain a new H1B petition through my new employer, my old visa in my passport is no longer valid, even if it is not expired, because it carries the name of the former employer.  Posted Aug 08, 2002

Clarification : No, this is incorrect. The H1B visa stamp in the passport actually remains valid through the expiration date, as long as the holder of the H1B visa is eligible to enter the U.S. on H1B status. This means that the H1B employee has obtained a new H1B petition approval from the INS to work with the new employer and must submit this for review to the INS officer at the Port of Entry to obtain H1B status valid until the date of the new H1B approval notice and not merely until the date mentioned on the visa stamp in the passport.



Rumor : RIR processing for labor certification cases is no longer allowed. Posted Jul 30, 2002

Clarification : This is untrue. There is no ban on RIR cases. In certain regions of the U.S., where there is significant unemployment in particular sectors of the economy, it may not be possible to get an RIR case approved. In such cases it is not advisable to file RIR for effected jobs within particular regions of the country. The ability to obtain approval of an RIR request varies depending upon the area of the country and the nature of the job.



Rumor : The processing of labor certifications has stopped in New Jersey and various other parts of the U.S.  Posted Jul 25, 2002

Clarification : The processing of labor certifications has not stopped in New Jersey, New York, California or anywhere else in the U.S. For a number of reasons the processing has been slowed to a point where it feels as if it has stopped. This is largely due to the enormous glut of cases that were filed in March and April 2001 due to the 245(i) deadline. As a result, a number of jurisdictions have been processing March / April 2001 cases for over a year, and will continue to do so. This does not mean that they are not processing any cases, just that they have extraordinary numbers of cases that were filed within that timeframe. Adding to this delay is the soft economy, layoffs etc., which mean that the Department of Labor is issuing more Notices of Findings with questions regarding the cases. This also slows the process.



Rumor : The INS has stopped issuing F-1 status.  Posted Jul 18, 2002

Clarification : Not true. The INS issued regulations that prohibit attending school while a request for change of status from B-1/B-2 (visitor) to F-1 (student) is pending. They also issued a proposed regulation that prohibits changing from B-1/B-2 to F-1 if the intention to change status to that of student is not clearly stated at the time of entry to the U.S.



Rumor : The INS announced an official AC21 I-485 portability rule requiring employment with the labor certification sponsor during the initial 180 days after filing the I-485.  Posted Jun 19, 2002

Clarification : No, the INS did not make an official pronouncement on this issue. There remain two different schools of thought among lawyers as to whether employment is required during the 180 days post filing. While this matter is likely to be clarified when regulations are issued, there is no such clarification at this time. Given the uncertainty, it is wise not to quit working with the sponsoring employer during the 180 days post filing of the I-485. However, as is frequently the case, if one loses one's job before the 180 days expires, there may not be a choice in the matter. In this event, unless and until there are regulations which specify a prohibition, it is possible to assert AC21 portability and attempt to gain case approval. We at The Law Office of Sheela Murthy continue to receive approvals of cases where the applicant has not worked for the labor certification sponsoring employer for 180 days after filing the I-485.



Rumor : A Canadian citizen on H-1 in the U.S. will have her/his green card (GC) processed more quickly than other nationals with similar qualifications.  Posted Jun 14, 2002

Clarification : No. There is no difference in the processing for the GC based on one's being a Canadian citizen. The only benefits are (1) for the TN visa to work temporarily in the U.S., and (2) not needing a visa stamp for nonimmigrant categories such as the H1B. Since nationality is determined by country of birth in most cases, even a Canadian citizen born, for example, in India will likely be subject to the India backlogs for Priority dates.



Rumor : Persons with H-1 visas need to get new visas in order to travel when they change employers because the visa contains the name of the old employer.  Posted Jun 05, 2002

Clarification : No, the H-1 visa can be used for the entire validity date, as long as the individual is maintaining H-1 status. The same is true of the H-4 visa, which contains notations indicating the principal applicant and the petitioning company.



Rumor : Persons with H-4 status (spouses of H-1s) will be eligible for work authorization in the near future.  Posted Jun 03, 2002

Clarification : There is no such change expected any time in the near future. There was a recent change in the law which allows spouses of persons in E or L status to obtain authorization for employment.



Rumor : Having U.S. citizen children will help your immigration case. Posted May 22, 2002

Clarification : Minor U.S. citizen children can not petition for permanent residence (green cards) for their parents. Only adult children (over 21) who are U.S. citizens (not permanent residents) can petition for their parents. Hardship to U.S. citizen or permanent resident children can, in limited circumstances, form a basis for waivers of certain bars to entry to the U.S. or to adjustment of status to permanent residence. Hardship to these children can, in certain instances involving long-term residents of the U.S., form the basis for relief from removal (deportation). (See also, Immigration Rumor : The Benefits of Parenthood.)



Rumor :  I heard that Labor Clearance is now switched to the old mode and discontinued the RIR processing. How true is this?  Posted May 17, 2002

Clarification : This is not true. The RIR process is still available. The ability to utilize the process and the likelihood of success is diminished in those regions where there have been significant downturns in the economy and/or layoffs of workers within particular industries or fields of specialization.



Rumor :  Do you have any updates on the Labor Certification for Virginia? There are many rumors that it might take couple of years to come out of April 2001.  Posted May 17, 2002

Clarification : The timeframe appears to be closer to several months than years. According to the most recent information available, the VEC offices in Richmond are currently processing cases received on April 30, 2001.