Chat : July 16, 2007

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

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Attorney Murthy : It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration matters. Thank you for your interest in our MurthyChat.

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Chat User : Ms. Sheela Murthy, let me thank you for your great service. I feel AILA and AILF should pressure the DOS to come up with cutoff dates, rather than accepting I-485s submitted on July 2nd. Many of us have waited for years to be legal immigrants. Let it be on a first-come / first-served basis.

Attorney Murthy : Actually, if they simply give a cutoff date, most likely the lawsuit will proceed. There appear to be some strong negotiations going on since AILA has had an ongoing relationship with the top officials for years, as most of them attend AILA meetings and speak at our conferences. There are also AILA liaisons with most USCIS and DOS divisions on various aspects. At the end of the day, either the compromise must make sense or the lawsuit may proceed if there is no "meeting of the minds" legally. The USCIS may come back with tentative proposals, but it will have to make sense to see if it will work out. The USCIS may be doing this not just to avoid a lawsuit, but also to avoid having Congressional hearings and possibly other investigations on this issue. There is a lot at stake for all parties concerned.

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Chat Master : The information provided during the Chat session is of a general nature and MAY NOT apply to any specific or particular circumstance. It is NOT to be construed as Legal Advice and does NOT establish an attorney-client relationship.

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Chat User : There are rumors about USCIS holding onto the I-485s filed on July 2nd and after. Is it true?

Attorney Murthy : It is true that they are holding the I-485s, from what we have seen and heard. We have posted the rumors flying around on our website from AILA. But from the very beginning, AILF has been saying that only those who file in July 2007 will likely be protected. Although they did try to include a class of those who did not file in July, since many were not sure, AILF has stated that the possible remedies or legal relief available to those who do not file in July 2007 is likely to be different and lesser than for those who file, as mentioned that in our postings and in eMails to our clients. We offered an opt-in option for filing, and have filed almost every case by this past Friday, of those who opted in and provided us with all their information. So, yes, there is a potential benefit to filing in July 2007, since that is a protected class that was eligible and that filed, based on the USCIS and DOS policy of accepting cases based on the monthly Visa Bulletin.

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Chat User : Good evening, Murthy. Do you have any update in regards to I-485 cases filed on or after July 2nd? From today's update posted on MurthyDotCom, it was indicated that some early applications that were filed in July will be accepted. Do early applications mean it is before USCIS released the revised July bulletin? I would appreciate it if you can shed some light on this.

Attorney Murthy : No one knows anything for sure, since a lot of it is speculation on the possible compromise that the USCIS is going to propose to appease the thousands of people who felt let down in reliance upon the government's Visa Bulletin and policy. At this time, we have not posted anything about those who filed early or late, who may be protected or not. No one can be 100 percent sure of what is going to happen, and even if something is offered, whether it will be acceptable, since most people are not going to be satisfied when many are left out in the cold. Apparently, the USCIS service centers had been told not to reject I-485 filings while a decision is being made on this issue, though a couple of people claim that their I-485 packages were rejected. Since no can be completely sure, we don't want to guess what the government means or doesn't mean, as nothing has officially been told to us directly at this point. I think the safest approach is to follow the rule and file now during July, as has been stated from the beginning.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : In a labor substitution case, can we file the I-140 and I-485 concurrently?

Attorney Murthy : Labor substitutions were eliminated, and today, July 16, 2007, was the last date that the USCIS could accept I-140s and I-485s concurrently in LC sub cases. If you did not file the case to reach the USCIS by today, then you would need to start a new PERM case from scratch with a new priority date, after placing all the advertisements, etc. The I-485s for any labor substitution case that was filed on time would be subject to the same problems as all the other I-485s.

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Chat User : Murthiji, after filing I-485, if the company could not keep their promise to hire because of market conditions (or any other reason), what could happen?

Attorney Murthy : Well, it depends upon whether the employer and employee are being bona fide and credible, since the USCIS could always investigate any case for potential fraud if they believe that the system was scammed to get around the law. If the parties can show evidence in an investigation, that everyone wanted to follow through on the promises based on a good-faith filing and bona fide job offer, then it should work out well. The case could end up being approved based on an alternative job offer under AC21.

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Chat Master : We make a concerted effort to respond to only one question per person. Questions are selected when they are brief and relevant to many people.

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Chat User : Good evening, Ms. Murthy. Is concurrent filing of I-485 and I-140 still available?

Attorney Murthy : Concurrent filing of I-140 is available ONLY if the priority dates are current. If the PDs are not current, then the USCIS has stated that they will retain the I-140 petition for processing, but may return the I-485 if the PD is not current. We know that all EB cases in EB1, EB2, and EB3 are not current during July 2007, so one is filing the I-485 with the possibility that the I-485 may be rejected and returned to the person / law firm, at this time. We are also aware that the USCIS is keeping aside I-485s with the idea that they are waiting for some official guidance on how to proceed since about a week ago.

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Chat User : There is rumor that substitution I-140 petitions filed by small- to medium-sized, Indian-owned IT consulting companies are going to be subject to a very high degree of scrutiny from the USCIS. Is this true?

Attorney Murthy : Well, at this point that is all history, since LC subs have been eliminated altogether by the Department of Labor regulation that became effective from July 16th onwards. It is true that there was fraud in the system, and the DOL was concerned enough to eliminate the process, but it was not targeted at one country, necessarily. It is true that if an employer is perpetuating fraud, then it raises the risk of a raid / investigation of that employer by the DOL, and many investigations are often the result of complaints by those within or outside the organization. So, if there is nothing to hide, then merely being small is not a risk. There is, of course, the possibility that the labor substitution cases that were filed at the last minute will be subject to a high level of scrutiny.

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Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.

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Chat User : If USCIS accepts all applications for July, what happens for people who get their labor cleared in August and beyond? Wouldn't they be stuck for years to come out of dreaded retrogression?

Attorney Murthy : Yes, that is true for sure, but those people would have had to wait anyway. We all knew that the priority dates becoming current was something unexpected and unusual. Since people relied on it, however, and spent time and money, we believe that it is not fair to raise hopes and then dash them to the ground. For everyone else, the dates will move slowly, and even for those who file now in July, it may take years for them to get their I-485s approved, since the I-485s can only be approved when the PDs become current.

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Chat User : Ms. Murthy, the letter you have written to USCIS is the best. We all loved it. Thanks for your time and effort for the community. No other law office did what you have done, and we are proud of you for that.

Attorney Murthy : Thank you for your kind and generous words. I truly believe every word I wrote in the letter. I have been in your shoes, suffered years of waiting and hoping that something would happen. We were excited to help so many people to file their papers for the last stage, and I could not believe what was going on with the games that were being played, possibly with motives of greed for higher fees as a major factor. We are in this together. I understand that no other law firm has so far offered a free second filing, but I believe we are in this fight together. I think that we can fight, or at least die trying and showing them that united we can and will make a difference.

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Chat Master : See Attorney Murthy's "Call to the Community to Sign Petition on Immigrants' List WebSite." Access it from the main page on MurthyDotCom - posted today.

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Chat User : Murthy-ji, thanks for your time. I have not filed for my EAD with my I-485. If after the settlement the USCIS agrees to honor the I-485 filing, can I subsequently file for the EAD?

Attorney Murthy : Yes, both the EAD and AP are better filed later, since many are not sure what is going on, and if the USCIS rejects the I-485 filing, then that is proof of the attempted filing for the lawsuit purposes. If the USCIS decides to accept the I-485 filing and issues a receipt notice, then one can use that receipt notice to file the EAD and AP later. Our law firm is primarily focusing on filing the I-485s for everyone first, and then later, for those who are interested, we can file the EADs and APs even after the priority dates retrogress. We have done that for years. It is quite common.

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Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.

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Chat User : Please let us know why the August Visa Bulletin is that much delayed?

Attorney Murthy : Great question! I wonder if there is a lot going on with the DOS and the USCIS trying to figure out how to deal with the mess that has been created, primarily by their own actions or misdeeds. Maybe they want to address this problem within the August Visa Bulletin and the filing dates for August 2007, and that way, they get the much higher fees, and those who had filed in July 2007 may be allowed to keep their filings. Of course, this is all uncertain. It is strange, but then everything that has been going on for the last few weeks has been strange and unusual with the government. I think they did not expect such a huge backlash.

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Chat Master : Your participation has made this the Internet's most popular chat on U.S. immigration law! MurthyChat is one of the few weekly chats on U.S. immigration law offered and run by a law firm. Another FREE and VALUABLE SERVICE proudly offered by the Murthy Law Firm and MurthyDotCom.

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Chat User : Attorney Murthy, I had changed my travel plans to go to India because the dates had become current. I changed them again because they decided to reject all applications. Now, if they again decide to accept, I will have to change my travel plans AGAIN! I have lost over $1,000 just for changing ticket reservations. Can I still sue the USCIS for this amount no matter what the outcome of this confusion is?

Attorney Murthy : Of course, any person is allowed to sue any other person for anything by law. That is one of the wonderful things about living in a "free" society and a democracy. From a practical point of view, the issue is whether the cost of the lawsuit, hiring lawyers and everything else is worth the $1,000, though. If the government's actions are considered egregious enough, one could recoup attorneys' fees and court costs, etc. But you will need to lay them out now and hope to recoup them after you win the lawsuit, which,  with the flip-flop of the government in this case, may not be too difficult to prove. Yes, it is quite frustrating for many, and everyone is in limbo as far as which way to proceed. The safest route it seems was to file in July 2007, since that class is the one that can show harm directly by filing.

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

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Chat User : Dear Ms. Murthy, how credible is the information that any unused visa numbers for EB categories from previous years will be recaptured and used in the near future? Thanks so much!

Attorney Murthy : Unless there is legislation to allow unused numbers from earlier years to be used, like had happened a few years ago, they will go wasted. Last year, we lost 11,000 visa numbers, since the USCIS did not use them, but kept promising the Department of State that they would use them up. This year, the USCIS claims to have used up 60,000 visa numbers in about 2 to 4 weeks. Most people agree that it is not reasonable or possible that the USCIS actually used up and processed so many I-485 cases, and believe there was either fraud or misuse or both in a desperate attempt to prevent thousands of filings during July 2007. Now, in fairness, those numbers that were requested but could not have been used for an approved case should be released for use during August and September 2007, since the USCIS fiscal year ends on September 30th. But this is all uncertain.

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Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : We look forward to continuing to help you, your family and friends with all of your immigration law needs at the Murthy Law Firm.

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Chat Master : Thank you all for logging in! The schedule will be posted at <http://www.murthy.com/chat.html>.

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Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved