MurthyBulletin VOL. XIV, no. 03; January 2008, week 3 Posted : January 18, 2008 . . . . . . . . . . . . . . "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. To receive MurthyBulletin via eMail, follow this link to subscribe. To Unsubscribe, please go to the end of the eMailed MurthyBulletin and click the URL provided. This an Announcement Only list. Subscribers cannot post to the list. . . . . . . . . . . . . . . TOPICS in this Edition of the MurthyBulletin : 1. AC21 Frequently Asked Questions (Part 1 of 2) : January 2008 Update 2. DOS Insights on EB2 India "Unavailability" from Feb 2008 3. USCIS on Processing I-90s with Criminal or Security Issues 4. Suspension of Premium Processing for R-1 Religious Workers Extended 5. Announcement : New Initiative by Immigration Voice Posted on MurthyDotCom Jan 17, 2008 6. MurthyDotCom : Did You Know about MurthyTakesAction? 7. Important Processing Times and Dates . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . 1. AC21 Frequently Asked Questions (Part 1 of 2) : January 2008 Update ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers know, many individuals were able to file the I-485, Application for Adjustment of Status, during the summer of 2007. As a result, the Murthy Law Firm is receiving a great many questions pertaining to use of the portability provisions of The American Competitiveness in the Twenty-First Century Act (AC21). Of course, it is always safest to consult with a knowledgeable, experienced immigration attorney, who will go over the specifics of one's case. The detailed FAQs here and those to follow in next week's MurthyBulletin, however, focus on several of the more commonly asked legal questions and possible solutions that may apply. An earlier set of FAQs on AC21 was published May 14, 2002 on MurthyDotCom. While much of that information remains accurate, the time is ripe for an update, with so many recently having filed their cases. The information contained in this two-part article is based on subsequently issued USCIS guidance memos, as well as almost six years of additional experience working on a variety of complex and varied AC21 cases. All articles referenced are available on MurthyDotCom. ©MurthyDotCom Background on AC21 at MurthyDotCom ©MurthyDotCom Readers previously have been provided with many articles from the Murthy Law Firm regarding matters related to AC21, including explanations of the guidance and various memos that have been issued since AC21 became law in October 2000. The initial guidance was issued in June 2001 and was covered in our June 25, 2001 article, INS Finally Issues its Initial Guidance on AC21 in June 2001. A quick search of MurthyDotCom, using the keyword "AC21," pulls up articles covering developments and issues pertaining to AC21. In light of retrogression, readers may want to review our November 4, 2005 article, AC21 Portability and Retrogression. Those who have received promotions or transfers with their employers / sponsors may wish to read Job Changes with Same Employer and AC21 Portability, from January 31, 2003. ©MurthyDotCom I-485 Receipt Date Governs ©MurthyDotCom Question 1. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21? ©MurthyDotCom It is the receipt date that governs. AC21 speaks in terms of the I-485 pending for 180-days or more. Applications are pending from the time they are filed with the USCIS. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. This makes a significant difference; particularly for many of the summer 2007 filers, since there were substantial delays in issuance of receipt notices. ©MurthyDotCom Loss of Employment after Filing I-485, but before I-140 Approval Risky ©MurthyDotCom Question 2. I lost my job before the I-485 had been pending 180 days. Can I still use portability? ©MurthyDotCom It can be attempted, and we have done so successfully in many cases. This is important for some summer 2007 filers, as some employers tend to conduct layoffs at the end of the year. For some, the layoffs came as they were approaching, but had not yet reached, the 180-day point. ©MurthyDotCom One of the major concerns in a layoff situation is the I-140. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. The I-140 must remain intact until the I-485 reaches the 180-day point. See, our August 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. This issue is addressed in a USCIS memo discussed in our May 27, 2005 article, Yates May 2005 Memo on AC21 and I-140s, as well as our October 6, 2006 article, USCIS reissues AC21 Memo with Clarification. The risks are explained in more detail in the October 6, 2006 memo. ©MurthyDotCom There are some key concerns in this situation. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case. ©MurthyDotCom Never Worked for GC-Sponsoring Employer - Potential Fraud ©MurthyDotCom Question 3. I never worked for my "green card" sponsoring employer. It was a future job offer. Can I use AC21 portability? ©MurthyDotCom Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. Employment-based green card applications are all based on the concept of a future job offer. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. The best proof that a job offer is valid, however, is working for the sponsor. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The safe approach is to avoid this scenario by working for the sponsoring employer. ©MurthyDotCom New Job Can be "Similar" but Differ in Some Respects ©MurthyDotCom Question 4. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work? ©MurthyDotCom In our experience, yes. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The AC21 law uses the terminology "same or similar job classification." The June 2001 guidance refers us to the DOL system of occupational classification as a guideline. The later May 2005 Yates Memo makes the same references. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The DOL categories are generally fairly broad. In many situations, therefore, this does not present a significant problem. It is important to note that the duties generally govern, and not specific technologies, in most cases; though this could be different in a given situation. ©MurthyDotCom Risk if Employer Revokes I-140 Petition before I-485 Pending 180 Days ©MurthyDotCom Question 5. I am afraid that, if I change my job, my employer will try to harm my green card case. What are the risks? ©MurthyDotCom This is, in part, addressed in Question 2. The employer does not control the I-485 application, since this is filed directly by the foreign national. The I-485 is based on the I-140, however, which is the employer's filing. The employer can always withdraw or revoke the I-140 petition. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still revoke the I-140 petition approval. This does not prevent the case from being approved, however. Under the August 4, 2003 Yates memo, an approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If a NOID is issued, a response must be filed demonstrating eligibility under AC21. If the file contains documentation about the new job, the case should just continue being processed. ©MurthyDotCom Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. One of the primary potential problems arises if an RFE is issued. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case. ©MurthyDotCom Sponsoring Employer Has No Obligation to Revoke I-140 after Employee Leaves ©MurthyDotCom Question 6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS? ©MurthyDotCom No. Unlike the H1B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Thus, employers had a valid reason for revocation in some instances. Now, there is often no reason or need to revoke an I-140. ©MurthyDotCom Conclusion ©MurthyDotCom We are happy to provide MurthyDotCom and MurthyBulletin readers with these answers to some of their most pressing questions on AC21. Next week's bulletin will address more on this topic that impacts many in the immigrant community. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. DOS Insights on EB2 India "Unavailability" from Feb 2008 ©MurthyDotCom The February 2008 U.S. Department of State (DOS) Visa Bulletin announced that the employment-based, second preference (EB2) category is unavailable for nationals of India. The Visa Bulletin carries the announcement that the EB2 India annual limit had been reached. The American Immigration Lawyers Association (AILA) has received some insight into this matter, as well as a small glimmer of hope during the latter half of the 2008 Fiscal Year (FY), as there is a chance that some unused EB1 visa numbers could become available for the EB2 category. [The most recent Visa Bulletin chart is always available on MurthyDotCom.] ©MurthyDotCom High Demand Since Nov 2007 Creates EB2 Unavailability ©MurthyDotCom In early November 2007, it became clear to the DOS that the high demand for EB2, from nationals of India, potentially would cause the annual limit to be reached. This is the reason that the dates retrogressed by over two years, to January 1, 2002, under the December 2007 Visa Bulletin. Continuing demand is why the dates were moved back by an additional two years in the January 2008 Visa Bulletin. The USCIS requested almost 300 EB2 India visa numbers in December 2007. With the extreme rollback in January 2008, the USCIS had requested only three immigrant visa numbers for EB2 nationals of India, as very few cases would have priority dates predating the January Visa Bulletin cutoff date of January 1, 2000. ©MurthyDotCom Possible EB2 Availability for Indian Nationals Later in the Fiscal Year ©MurthyDotCom The DOS advises that there is some chance that EB2 India numbers could become available again later in FY2008. This is possible if the demand for EB1 India numbers does not exceed the annual limit. The visa numbers available for EB2 category nationals from India includes a portion of the unused immigrant visa numbers under the EB1 category. However, this decision will not be addressed until later in the FY. Additionally, the potential availability of some immigrant visa numbers does not mean that EB2 will necessarily become "current" later in the FY. It simply means that, once again, there would be some EB2 India numbers available, and, assuming that the demand continues to exceed the available numbers, there would be an appropriate cutoff date, as opposed to the current completely "unavailable" situation.   ©MurthyDotCom Watch for developments on the Visa Bulletin situation and retrogression on MurthyDotCom and in the MurthyBulletin. Readers will be informed as new information becomes available. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. USCIS on Processing I-90s with Criminal or Security Issues ©MurthyDotCom The U.S. Citizenship and Immigration Services (USCIS) recently released a memorandum that explains how Form I-90, Application to Replace Permanent Resident Card, should be processed when criminal or security issues are identified. The identification occurs through what is known as an IDENT (which is a shorthand term for the Automated Biometric Identification System) database response. Such criminal or security issues may result in commencement of removal proceedings, if appropriate. A lawful permanent resident (or "green card" holder) is subject to removal from the U.S. if s/he commits certain crimes. Lawful permanent residents have been issued Notices to Appear (NTAs) based on arrests or convictions found during the I-90 application process. An individual who needs to file an I-90, therefore, should consult with an immigration attorney if s/he has any criminal or other issues that may come to light in the process. ©MurthyDotCom Green Card Renewal Triggers Review of Criminal History ©MurthyDotCom A lawful permanent resident files a Form I-90 when his or her green card is lost, stolen, or the card expires and a new card is required. As long-time MurthyDotCom and MurthyBulletin readers may recall from our December 9, 2005 article, Green Card Renewals Generate Enforcement, the USCIS has used the filing of a Form I-90 as an opportunity to locate a lawful permanent resident who has an outstanding warrant for arrest or who has been arrested or charged with a criminal offense. ©MurthyDotCom Processing under New USCIS Memorandum ©MurthyDotCom USCIS Application Support Centers (ASC) have been instructed to forward to local USCIS field offices any I-90 application for which the Biometric Benefit Support System (BBSS) Check results in an "IDENT" response that cannot be resolved at the ASC level. If an I-90 application results in the identification of a national security or public safety concern, then the USCIS will suspend processing and refer the matter to Immigration and Customs Enforcement (ICE) for investigation and possible removal proceedings. This suspension of processing on the case will continue until ICE responds with its intended action regarding on the applicant, which possibly can result in the issuance of an NTA to start removal proceedings. ©MurthyDotCom Request for Evidence Notices ©MurthyDotCom The USCIS may issue a Request for Evidence (RFE) that requires the I-90 applicant to provide arrest records and/or original court dispositions for any criminal charges found during the I-90 processing. Those individuals filing I-90s, therefore, should obtain these documents, if necessary. ©MurthyDotCom Conclusion ©MurthyDotCom If a lawful permanent resident has any outstanding criminal matter or warrant of any type, s/he should address this prior to filing an I-90. Any convictions should be discussed with a qualified immigration attorney. It should be noted that the definition of conviction for immigration purposes is more expansive than for other purposes. Thus, even those individuals with arrests, who have undergone certain first offender programs and similar resolutions, need to be concerned. Any issues should be discussed with one's attorney in advance and, hopefully, resolved before filing the I-90. Otherwise, one faces the risk of being removed / deported from the United States. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Suspension of Premium Processing for R-1 Religious Workers Extended ©MurthyDotCom The U.S. Citizenship and Immigration Services (USCIS) recently issued an announcement (PDF 40.6KB) that extends the suspension of premium processing services for religious worker (R-1) petitions for another six months, until July 8, 2008. A previous six-month suspension of such premium processing services was announced by the USCIS on June 18, 2007. ©MurthyDotCom R-1 Adjudication Procedure to Become More Stringent ©MurthyDotCom MurthyDotCom and MurthyBulletin readers may recall our May 11, 2007 article USCIS Proposes Revisions for Religious Workers, which reported  significant changes to the process proposed by USCIS for obtaining nonimmigrant visas for religious workers. The USCIS is currently considering public comments and finalizing its new regulations for R-1 visas. As the cited article notes, the USCIS has detected high levels of fraud in religious worker immigration categories. ©MurthyDotCom USCIS Intends to Reduce Rates of Fraud ©MurthyDotCom The proposed R-1 regulation will include new steps to eliminate fraud in the religious worker program. Current USCIS regulations include a number of procedures designed to ensure the legitimacy of the R-1 petitioner and the statements made in an R-1 petition. These procedures may include inspections, evaluations, verifications, and compliance reviews of petitioning religious organizations. ©MurthyDotCom These anti-fraud procedures require more than the fifteen (15) days to complete, which prevents the use of the premium processing procedure for such cases. Long-time readers may recall our June 8, 2001 article, INS Issues Instructions for Premium Processing - June 2001, available on MurthyDotCom. It reported that premium processing requires a petitioner to pay an additional $1,000 but results in a review of the petition within fifteen calendar (15) days, rather than being processed under normal USCIS timelines. ©MurthyDotCom Conclusion ©MurthyDotCom The USCIS has stated that if, in the future, it is able to process R-1 petitions securely within the premium processing time lines, the R-1 nonimmigrant category may once again be authorized for premium processing services. If this occurs, the USCIS may place additional restrictions on the premium processing of R-1 visas. Readers will be updated through MurthyDotCom and the MurthyBulletin as there are new developments in this matter of concern to religious organizations, which often need the services of qualified religious workers. These religious organizations must now plan sufficiently ahead due to expected lengthy processing times in the processing of R-1 petitions. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Announcement : New Initiative by Immigration Voice Posted on MurthyDotCom Jan 17, 2008 ©MurthyDotCom The nonprofit organization, Immigration Voice, is again rallying the immigrant community to action in response to the government's inaction on immigration. Elected officials are still locked in a stalemate on the issue of illegal immigration, all but ignoring the problems faced by foreign nationals who have played by the rules, following confusing and ever-changing laws by paying expensive fees to maintain their legal statuses. Immigration Voice is encouraging immigrants to write letters to President George W. Bush through their Campaign for Administrative Fixes. Read more on MurthyDotCom. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about MurthyTakesAction? ©MurthyDotCom Aside from our excellent legal services and the online resources we provide, Sheela Murthy and our other attorneys at the Murthy Law Firm are also involved in the active pursuit of knowledge and the exchange of ideas. We regularly contribute to and attend meetings and conferences. We take part in initiatives to improve the condition for immigrants and to aid the U.S. companies that would like to employ them. Learn about some of our efforts and involvement by clicking Community in the left-hand margin of any page. ©MurthyDotCom MurthyChat : 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.  ©MurthyDotCom MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys. ©MurthyDotCom MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY! ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 7. Important Processing Times and Dates ©MurthyDotCom 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. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved
	Disclaimer : The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm or establish an attorney-client relationship. Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.