VOL. XVI, no. 36; Sep 2010, week 1
Posted : 03.Sep.2010

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We know your immigration matters! ^SM

The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin

1. I-485 Approvals Possible: Impact on Spouse / Children

2. Immigration Basics: Priority Date and Its Importance

3. Will Immigration Make Up for Falling Birthrate?
Posted on the MurthyBlog 02.Sep.2010

4. Events @ Murthy : Mark Your Calendars

5. MurthyDotCom : Did You Know about Our Investigations Section?

6. Important Processing Times and Dates

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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.

Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.

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1. I-485 Approvals Possible: Impact on Spouse / Children

The possibility of permanent residence (or "green card") approval is very real for many MurthyDotCom and MurthyBulletin readers. This is due to the significant forward movement of cutoff dates in the category for EB2 India and China in the U.S. Department of State (DOS) visa bulletin during the months of August and September 2010. There is an important matter related to the prospect of approval of the application for adjustment of status to permanent residence (Form I-485), commonly referred to as the "green card." This concerns spouses and, to a lesser extent, minor children who have not yet been able to file I-485s, even though the primary applicant made that filing earlier.

Background: I-485s Not Filed with Principal Filing

One's spouse and minor child/ren are known as derivative beneficiaries. The derivative beneficiaries in an employment-based (EB) green card case are eligible for the same EB category and priority date as the primary beneficiary. Each eligible family member must file his/her own I-485 application (or process for an immigrant visa at the consulate), based on the primary family member's case. Generally, if the spouse and/or child/ren are in the United States at the time when the primary applicant can file his/her I-485, the whole family files their I-485s simultaneously.

However, there are any number of reasons that such simultaneous filings do not always occur. The most common is when there is a situation in which the primary applicant is not married at the time of his/her I-485 filing. There are a great many people who filed their I-485s in the 2007 summer rush before they got married. Many of them married later. The spouses of these individuals are eligible as derivatives, as long as the marriage took place before the approval (not the filing) of the primary's I-485.

There are other reasons that a spouse and/or minor child may not have filed the I-485 at the same time as the primary. Another common situation involves family members who were traveling outside of the United States during the limited period in the summer of 2007 when many such filings were possible. There are also spouses who delay filing the I-485 due to procedural barriers, including the J-1 two-year home return requirement, which must be resolved before the I-485 can be filed in most instances.

If PD is Current, I-485 Filing may be Allowed

Once the particular priority date (PD) is "current," the derivative beneficiaries can proceed with their I-485 filings if they are in the United States. They must meet certain procedural and status requirements to be eligible to file their I-485s, in addition to having current priority dates. Questions regarding these requirements should be addressed to a qualified immigration attorney.

Timeframes to File as I-485 Dependent

Eligibility as a derivative continues as long as the individual is still a spouse or child. It does not expire. Of course, marriages can end, and children grow up and can "age out" of eligibility. But, there is no set expiration date for eligibility to process a derivative adjustment.

Most commonly, individuals want to file the I-485 as soon as they are eligible to do so. This would be the first date of the month in which one's priority date becomes current. The visa bulletin for each month generally is valid from the first day of that particular month until the last day of the month. The visa bulletin usually is issued about 15 days in advance, which sometimes causes confusion. Visa bulletins are clearly labeled as to the month for which the cutoff dates apply. [The most recently published visa bulletin is always available via a link on MurthyDotCom.]

Dependent Nonimmigrant Status: File Quickly

Individuals who are in the United States in dependent nonimmigrant statuses, such as H-4 and L-2, absolutely need to file at the earliest possible time. Such dependents could fall out of status if the primary applicant is approved for permanent residence. Once the primary applicant is approved, the dependents no longer hold their dependent nonimmigrant statuses, such as H-4 or L-2. There cannot be an H-4 without an H1B family member; hence filing the I-485 early, when the dates become current, becomes very important.

Example: Dependent Spouse

Ravi filed his I-485 in August 2007. He was single at that time. In 2009 he married Priya. Ravi holds H1B status; Priya holds H-4 status. Ravi's priority date will be current for the month of September 2010. Thus, Priya can file her I-485 at any time in the month of September 2010.

Priya plans to give her lawyer the final signed forms for filing on September 1st. On that date, however, Ravi receives an eMail notification of I-485 approval. Thus, Priya no longer holds H-4 status. Since she has not filed her I-485, she is not lawfully in the United States. She is subject to removal (deportation). It is risky to remain in this situation.

Fortunately, Priya is still able to file her I-485, even with a brief gap in status. The law provides a "forgiveness" of up to 180 days for status violation in EB adjustment-of-status cases. However, this temporarily places Priya in a precarious situation, and makes it absolutely necessary to file her I-485 while the priority date is current. If she fails to do so, and the priority dates retrogress, she will be out of status, subject to removal, and unable to file her I-485 at that time.

Dependent Nonimmigrant Status

At the Murthy Law Firm, we sometimes receive questions regarding whether a spouse must be in a dependent nonimmigrant status in order to be a dependent (derivative) in a green card case. The answer is generally no, the two issues are not connected. It is enough to simply be the spouse and maintain valid legal status in the United States. Therefore, a spouse who holds his/her own independent, nonimmigrant status can still file as a derivative in the green card context.

Conclusion

The movement of the visa bulletin cutoff dates presents the opportunity and, in some cases, the need for family members to file I-485s promptly. For some, this is a limited window of opportunity, as the dates are likely to retrogress or move backward at the start of fiscal year 2011, which begins October 1, 2010. The timing of these I-485 filings can determine whether or not an individual will be able to remain in the United States. Questions and concerns should be discussed with a qualified, knowledgeable immigration attorney. We at the Murthy Law Firm stand ready to assist with I-485 filings or consult on challenging cases.

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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2. Immigration Basics: The Priority Date and Its Importance

Individuals undergoing the immigration process often have a keen and sophisticated grasp of some rather complex aspects of their cases. The priority date is one fundamental, vitally important element in these cases, however, for which an understanding appears to be somewhat illusive. A basic primer of the priority date and its significance is provided here for the benefit of MurthyDotCom and MurthyBulletin readers.

Know Your Priority Date

Anyone going through the permanent residence (green card) process needs to have a basic comprehension of priority dates. We find that those who are new to this process often do not have this information. The same is true of individuals who do not interact directly with their lawyers, either due to company policy or because the spouse or parent is solely or primarily dealing with the family's immigration matters. It is not uncommon at the Murthy Law Firm for us to be contacted for immigration advice by an individual who simply does not know the answer when asked for his/her priority date.

Anyone who is undergoing the green card process, but does not know her/his priority date, should find that important piece of information. That little date can make all the difference in the world in how long the case could take and what options are available.

When Your Priority Date is Established

The term priority date is used in employment-based (EB) as well as family-based (FB) permanent residence (green card) cases. It is the date when the first filing in the case was received by the government, usually the U.S. Department of Labor (DOL) or the U.S. Citizenship and Immigration Services (USCIS). It establishes one's place in the appropriate "line."

In EB green card cases, the priority date is usually set by the date the PERM labor certification is filed. Filed means received by the DOL. It does not mean the date the company or lawyer started working on the case. Typically, months of work precede the filing.

A limited group of EB cases can omit the PERM labor certification process (like NIW or EB1 cases), and usually start with an I-140 employer petition. In these cases, the priority date is set by the I-140 petition filing date. Again, this means the date it was received by the appropriate governmental entity, the USCIS.

In FB cases, the priority date is also the date of the first filing in the case. FB cases are those cases in which the initial filing beginning the case is made by a sponsoring family member. This is usually the relative petition (Form I-130). The date this form is filed with the USCIS (or INS in much older cases) establishes one's (the beneficiary's) priority date.

Why Your Priority Date is Important

As mentioned, the priority date establishes a person's place in "line." The lines are created because the United States government restricts the number of people who can immigrate permanently each year. The restrictions are based on the EB and FB categories, as well as country of origin. The limits translate to visa numbers allocated each year. In order to obtain a green card, there must be a visa number available in the particular category. The availability of a visa number in a category depends upon the priority date.

How to Know if Your Priority Date is Available / Current

The monitoring and control of the visa numbers is complex and beyond the scope of this article. What is important, on a basic level, is knowing where to find out if a visa number is available for one's case. The place to look is the current U.S. Department of State (DOS) visa bulletin, which is always available through MurthyDotCom.

The DOS visa bulletin is issued monthly. There are separate charts for EB cases and FB cases. The data are in a grid, with EB or FB categories down the left side and countries of chargeability across the top. Thus, it is necessary to know one's category. The country of chargeability is generally the country of one's birth.

The date in the box that corresponds to one's category and country indicates whether or not there is an available visa number for a given priority date. The dates are referred to as cutoff dates. There are visa numbers for those cases with priority dates prior to the cutoff dates. The length of time between one's priority date and the cutoff date provides a very rough idea of the expected waiting time for one's case. However, it is not a simple, straight line calculation at all.

What to do if Your Date is Available

If one's priority date is available, or close to available, it may be time to take further action in the case. The appropriate steps depend upon many factors, including what other filings have been made, where the sponsored individual is located (in the U.S. or abroad), whether any immigration violations or other problems are in her/his history, and the like. Such issues should be discussed with a qualified immigration attorney.

It is also important to get information about documents - particularly those needed from outside the United States - that will be needed at some time to move forward with the case. It is often important to get an idea of the expected costs involved in the upcoming steps, in order to plan accordingly. The filing fees alone can represent a significant expense, particularly for those with multiple family members seeking green cards simultaneously.

Conclusion: Where to Learn More

Readers who would like to learn more on this topic can search MurthyDotCom for numerous articles on visa dates and related topics. We follow the movement of priority dates in the visa bulletin each month. We provide reliable, up-to-date predictions about cutoff date movement to our readers as it becomes available.

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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3. Will Immigration Make Up for Falling Birthrate?
Posted on the MurthyBlog 02.Sep.2010

A recent article in the Washington Post cites demographic figures from the National Bureau of Health Statistics, showing a drop in the U.S. birthrate for the second consecutive year, to a record low, after peaking in 2007. (See Why Immigration Could Help America, by Suzy Khimm, Washington Post, 27.Aug.2010.) As the Post article notes, "...there were 13.5 births for every 1,000 people last year, a 2.6 percent drop from the year before, and the lowest birthrate in decades. It looks like the number of babies, like the housing market, peaked in 2007." A Johns Hopkins researcher is quoted in the article, explaining what might seem self-evident to some: that the birthrate tends to tank when the economy does.

The question of birthrates is no idle concern in modern societies that depend on younger workers to sustain the social safety net for retirees. ... Immigration may be the answer to this conundrum, according to Ms. Khimm, ...

[Read the rest of this blog entry, and other interesting topics, on the MurthyBlog.]

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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4. Events @ Murthy : Mark Your Calendars

The main page of MurthyDotCom has a new listing of calendar events. Check it regularly to be sure you are up on the latest goings on at the Murthy Law Firm.

NEXT WEEK! 

MurthyChat : There will be NO CHAT on Monday, 06.Sep.2010 in observance of the Labor Day holiday. Join us for the next session on Monday, 13.Sep.2010 | 9-9:30pm Eastern Time (U.S.), when Attorney Murthy answers your questions in real time! Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 

UPCOMING . . .

Murthy's Corporate Teleconference : Wed, Oct 06, 2010 | 2p.m. (E.T.)
Topic : Life After GC

The topic of this teleconference in our series for employers and their representatives will focus on life after the green card. In this session, attorneys from the Murthy Law firm will discuss issues such as what happens when your employee becomes a permanent resident, updating the Form I-9, and changes in salary. We will also discuss transfer of employees abroad, reentry permits, and the effect of extended time abroad on naturalization eligibility.

Employers and their representatives : register for Oct 06, 2010 here.

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom : Did You Know about Our Investigations Section?

In this post-9/11 world, immigration enforcement has been tied to national security concerns and caused a shift in focus to "enforcement first" as our nation's immigration policy. The result is stepped-up workplace investigations and raids of allegedly noncompliant worksites. These enforcement efforts on the part of U.S. government agencies are not limited to attempts to locate undocumented workers. Employers suspected of no wrongdoing, who have foreign national employees, may be selected for random site visits. The Murthy Law Firm stands ready to help your company avoid expensive fines and interruption to production, through compliance with U.S. government requirements. More on this is available on our Investigations Section of MurthyDotCom (formerly our Compliance Page).

MurthyBlog : Follow the latest musings - professional as well as personal - of Sheela Murthy and the Murthy Law Firm. Whether it is our take on immigration reform, the latest governmental change that could impact the immigration debate, a report from Sheela's recent travels, or the profile of one of our valued employees, you will find the lighter, more reflective side of Sheela and our firm on the MurthyBlog. Check it out today!

MurthyForum : Join this community of immigrants, who have discovered the value of our forum. This message / discussion board is visited daily by at least one of our attorneys.

MurthyDotCom - MurthyBulletin - MurthyChat - MurthyForum - and the MurthyBlog! Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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6. Important Processing Times and Dates

Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.

Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved