MurthyBulletin
VOL. XIV, no. 02; January 2008, week 2
Posted : January 11, 2008
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"We know your immigration matters!" SM
The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. This bulletin is not sent unsolicited. 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 :
Late-Breaking News! February 2008 Visa Bulletin : EB2 India "Unavailable"
1. Murthy Law Firm Successful in Mandamus Law Suits
2. Non-U.S. Citizens Must File Change of Address with USCIS
3. H2B Cap Is Reached for Second Half of FY2008
4. MurthyDotCom : Did You Know the Value of Our Articles?
5. 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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Late-Breaking News! February 2008 Visa Bulletin : EB2 India "Unavailable"
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The U.S. Department of State (DOS) issued the February 2008 Visa Bulletin on January 9, 2008. The most recent visa dates chart can always be found on MurthyDotCom. The February Visa Bulletin reflects that visa numbers for EB2, India, are completely "unavailable." EB2 refers to the employment-based second preference category. The February Visa Bulletin explains that the annual limit has been reached in this category for India. This means that there simply are no more EB2 immigrant visa numbers remaining for Indian nationals for Fiscal Year (FY) 2008. The FY2009 begins October 1, 2008.
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As many people were clamoring for EB2 classification, a surge in demand was created, resulting in unavailability in this category. The likelihood of EB2 India becoming unavailable was discussed by DOS in the January 2008 Visa Bulletin. The reason for this unavailability is simply that demand for visa numbers in this category far exceeds the annual supply. It is hoped that the October 2008 Visa Bulletin, which will be released in September, will have better news for EB2 nationals of India.
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1. Murthy Law Firm Successful in Mandamus Law Suits
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At the Murthy Law Firm, we have received many inquiries as to what can be done about a long-delayed I-485, Application for Adjustment of Status, filed and pending at the U.S. Citizenship and Immigration Services (USCIS). These are cases that are languishing, sometimes for years, due to delays in FBI name checks or other background checks. (Such cases should not be confused with those that cannot be approved due to the unavailability of immigrant visa numbers.) There is often little that can be done about delays like these to hasten decisions, with the exception of one effective course of action known as a writ of mandamus. It is our pleasure to share with MurthyDotCom and MurthyBulletin readers that our firm recently has obtained several extremely swift case approvals after filing writs of mandamus on behalf of our clients.
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What is a Writ of Mandamus?
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The word "mandamus" comes from the Latin translation of "we command." The writ of mandamus has its historical origins in English common law and was adopted by the U.S. legal system in the late 1700s and early 1800s. A writ of mandamus is a long-established legal remedy in U.S. law and the filing of a writ of mandamus should not result in retaliation by the government. A writ of mandamus may be issued by a court to a lower court or a government officer, ordering that a certain act be performed. A modern writ of mandamus action is a federal lawsuit that seeks to compel the government to perform a mandatory or "purely ministerial duty." In I-485 cases, this means that the U.S. federal court could require the USCIS to make a decision on a case within a reasonable timeframe, instead of delaying the I-485 decision for years and, thereby, effectively denying the individual certain constitutional rights.
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Recent Successful Writs by Murthy Law Firm
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The particular I-485 cases for which the Murthy Law Firm filed Writs of Mandamus varied as to how long they had been delayed at the USCIS from slightly less than two years to more than five years. Most of these clients had filed their I-485s through other legal representatives. In less than two months' time, Murthy Law Firm attorneys prepared and filed the necessary legal documents, negotiated with the appropriate U.S. Attorney's Office, and obtained successful resolutions for more than half of these cases for the benefit of our clients and their families. These actions resulted in prompt approvals of their delayed I-485 applications.
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Use in Delayed Permanent Residence / I-485 Cases
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As regular MurthyDotCom and MurthyBulletin readers will recall from our December 7, 2007 article, DHS Indicates It Will Expedite FBI Name Checks, applicants and petitioners whose immigration cases have been substantially delayed by background checks may benefit from filing a writ of mandamus against the government in a U.S. federal court. As noted in our March 2, 2007 article, Policy on Expediting FBI Name Checks: Very Limited, the USCIS no longer expedites FBI background checks simply because a foreign national has filed a writ of mandamus action. A full discussion of security checks required in permanent residence and naturalization cases was included in our May 12, 2006 article, Security Checks: How and Why. We at the Murthy Law Firm have found, however, that the filing of a writ of mandamus case can result in the resolution of cases for which no further background investigation is required.
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Use in Citizenship and Other Cases
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A writ of mandamus action may also be used to resolve delayed N400, citizenship (naturalization), cases that have been pending for more than six months, as indicated in our September 22, 2006 article, USCIS Announces Elimination of Naturalization Backlog. They can also be used if the USCIS fails to make a decision on a citizenship case within 120 days of the completion of the interview. Writ of mandamus actions are not limited to permanent residency and naturalization cases, but may be successful in correcting delayed government actions that meet the criteria set forth in the law.
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Conclusion
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Even though litigation can often be slow and expensive, these cases were successfully resolved through creative, strategic, and aggressive filings by the Murthy Law Firm that put pressure on the USCIS and the U.S. Attorney's Office to resolve cases speedily. While U.S. District Courts are split on whether a writ of mandamus is an appropriate remedy in immigration cases and U.S. Circuit Courts of Appeal have not yet ruled on these issues, writ of mandamus lawsuits have been successfully used by immigration lawyers to compel government action on delayed immigration benefits cases. In many instances, it may be the only avenue by which a case decision can be obtained more quickly - without waiting for many more years.
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2. Non-U.S. Citizens Must File Change of Address with USCIS
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The National Benefits Center (NBC) of the U.S. Citizenship and Immigration Services (USCIS) confirmed the correct procedures required of all foreign nationals for registering their changes of address. This information was provided at a recent meeting with the American Immigration Lawyers Association (AILA). The NBC reminded all immigration attorneys and their clients that a change of address must be registered by two separate avenues. First, the foreign national must file Form AR-11 with the USCIS in Washington DC. Second, if they have any pending applications or petitions, they must notify the USCIS of the address change for all pending applications or petitions. This can be done by calling the USCIS or by using the online system. Information regarding the USCIS online system for updating addresses was previously provided in our January 19, 2007 article, USCIS Announces Online Address Change Notification System, available on MurthyDotCom.
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Address-Changes Notifications for Pending Applications and Petitions
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The USCIS provides two avenues to change an address on a pending application or petition. An applicant should submit his/her change of address via the USCIS WebSite at http://www.uscis.gov/portal/site/uscis, or by calling the National Customer Service Center (NCSC) at 1.800.375.5283. The USCIS recommends these two methods as the most effective ways to update an address with regard to pending applications and petitions. The requested change will be processed within three days of receipt of website or NCSC referrals. The NBC also recommends not including any additional requests (such as an inquiry on the status of the case) during the telephone call, in order to facilitate the change-of-address process. The NCSC staff records, sorts, and forwards inquiries to the NBC based on the nature of the request. The most efficient way to ensure that the address-change request moves to the NBC is to make it the sole purpose of the call.
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Notifications Using Form AR-11
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Under the current immigration regulations, all foreign nationals (including permanent residents) must complete and file Form AR-11 within ten (10) days of the change of address. This is a separate requirement that does not result in changing the address on applications pending with the USCIS. All foreign nationals must comply with this requirement regardless of whether they have any applications or petitions pending at the time of the change of address. The AR-11 can be filled online, through the address update section of the USCIS WebSite. Whether filing electronically or by U.S. Mail, for one's own protection it is important to maintain proof of compliance with this requirement.
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Notifications for NSEERS Registrants or During Immigration Proceedings
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There are separate and/or additional requirements for individuals subject to special registration or those who are in immigration proceedings when they need to change their addresses. Change-of-address information while in proceedings is court specific. The websites for the immigration courts throughout the U.S. can be found on the Department of Justice WebSite. These websites carry lists of forms used, including a change-of-address form containing the proper address of the particular court. Those subject to special registration need to use Form AR-11SR, available through our forms page on MurthyDotCom.
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Conclusion
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Change-of-address requirements are often overlooked as unimportant, or purely an administrative function. Failure to update this information with the relevant government agencies, however, may result in long delays or even in the denial of certain immigration benefits.
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3. H2B Cap Is Reached for Second Half of FY2008
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The U.S. Citizenship and Immigration Services (USCIS) announced that a sufficient number of H2B filings have been received for the second half of Fiscal Year (FY) 2008. As long-time MurthyDotCom and MurthyBulletin readers may recall from articles including, Overview: H2B Temporary Workers, the H2B visa category allows a U.S. employer in an industry with peak load, seasonal, or intermittent needs to augment her/his existing labor force with temporary workers. In addition, U.S. employers may use H2Bs if there is a one-time occurrence that necessitates a temporary increase in workers. Before filing an H2B petition, however, an employer must obtain a temporary labor certification from the U.S. Department of Labor, which may not be filed more than 120 days in advance of the need for the employee. In extraordinary circumstances, a petitioning employer may request an extension of H2B status for not more than twelve months at a time, with a maximum stay of three years. [Note: The H2B program is entirely separate from, and should not be confused with the H1B program for temporary professionals.]
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Numerical Limitations in H2B Visa Category
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The H2B numerical limitation, often referred to as the "cap," has been set by Congress at 66,000 per year. This number is divided into two halves by the Save Our Small and Seasonal Businesses Act of 2005. Filings for H2B workers can be made up to six months in advance of the proposed start date. If a petition is approved for the purpose of extending a foreign national's H2B status or for a change or addition of employers or a change in the terms of employment, then the foreign worker is not counted against the H2B cap. A worker who changes nonimmigrant status to H2B is generally counted against the H2B numerical limitation.
©MurthyDotCom
The cap of 33,000 H2B visas for the first half of FY2008 was reached on September 27, 2007 with a start date of employment no earlier than October 1, 2007. The second half of the cap was reached on January 3, 2008.
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Conclusion
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The H2B category is a good option for certain seasonal or temporary workers in occupational areas such as construction, healthcare, landscaping, lumber, manufacturing, food service / processing, and resort / hospitality services. Because the cap has already been reached for the second half of FY2008, this opportunity has now closed until FY2009, which begins October 1, 2008.
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4. MurthyDotCom : Did You Know the Value of Our Articles?
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At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite.
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MurthyChat : Attorney Murthy will be attending a meeting on January 14, 2008. The next session MurthyChat will be Monday, Jan 21, 2008, 9:00pm Eastern Time (U.S.). Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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5. Important Processing Times and Dates
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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.
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