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Rumors

 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. has established this page as a place for immigrants to find fiction separated from truth and the truth clarified by attorneys at Law Firm. 
 


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.
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: The U.S. Department of Homeland Security is publishing a new version of the I-9 form very soon
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,
 

Rumor: When employment-based green card cases are filed under PERM, everyone will receive their green cards in 4 weeks
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: 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.
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: 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
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 Bulletin article, Effect of Travel while in H-1/L-1 Status and Pending I-485.

 

 
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