MurthyBulletin VOL. XIV, no. 04; January 2008, week 4 Posted : January 25, 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 2 of 2) : January 2008 Update 2. Criminal "Convictions" with Possible Severe Immigration Consequences 3. Increased PERM Audits: January 2008 Update 4. I-485 MTR Successful with Detailed Records! 5. Announcement : Murthy Teleconference Series - Feb 6, 2008 Topic : H1B Cap Season - Fiscal Year 2009 (Part 2) 6. MurthyDotCom : Did You Know about MurthyToGo? 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 2 of 2) : January 2008 Update [The first half of this list of questions and answers, published January 18, 2008, is available on MurthyDotCom.] ©MurthyDotCom Wage Difference Between Original LC and New Position / Job ©MurthyDotCom Question 7. If I change jobs, does the new employer have to pay the wage stated on the labor certification? ©MurthyDotCom No. This was explained in the June 2001 Interim Guidance Memo and then reaffirmed in the May 2005 memo. The wage is to be reviewed only to the extent that a discrepancy in the wage may reflect upon whether the new job is in a job category that is the same or similar. Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a "public charge." ©MurthyDotCom We note that, at the Murthy Law Firm, we have seen many instances of significant changes in wages that still meet the AC21 requirements. These changes include both raises and salary reductions. Virtually identical jobs may substantially vary in terms of pay. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. The USCIS, however, has mentioned that a great variation in salary or pay could indicate that the job duties are no longer similar and this could pose a potential problem in some cases. ©MurthyDotCom Same Geographic Location Not Required for New Position / Job ©MurthyDotCom Question 8. Does the new job have to be in the same geographic location? ©MurthyDotCom No. This was set out in the June 2001 Interim Guidance, and confirmed in the May 2005 memo. The Murthy Law Firm also received an Administrative Appeals Office (AAO) decision in a case we filed, again confirming this matter. There are no geographic limitations on the new employment position under AC21. ©MurthyDotCom Method of Notifying USCIS on AC21 Change of Employer / Job ©MurthyDotCom Question 9. How do I exercise the portability provisions? What do I have to do? ©MurthyDotCom AC21 is a law that does not have regulations implementing its provisions. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. There are no forms, applications, or petitions to file. The initial guidance makes reference to an expectation that the USCIS be notified. This expectation again was reiterated in an August 4, 2003 memo, reported to readers in our Aug 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation, available on MurthyDotCom. ©MurthyDotCom It has been the practice of the Murthy Law Firm to notify the USCIS regarding the use of AC21and, generally, have not found it to generate automatically higher rates of interviews or requests for evidence (RFEs). We think that this view has been confirmed over time and that it is the safest approach. Our tactic with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Included in work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements. ©MurthyDotCom Promotion / Transfer with Current GC-Sponsoring Employer Generally Allowed ©MurthyDotCom Question 10. Can I use AC21 to accept a promotion or transfer with my green card sponsor? ©MurthyDotCom Yes. AC21 does not require that one leave the sponsoring employer. It gives additional flexibility to the individual and the employer to permit promotions or other job changes within the company. These promotions or job changes can be used to continue the same green card case under AC21, as long as the new job meets the same or similar job classification requirement. ©MurthyDotCom EAD to Use AC21 Portability Not Required ©MurthyDotCom Question 11. Do I have to use an EAD to use AC21? ©MurthyDotCom No. While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. This is often possible even after the expiration of the individual's 6-year H1B period, since, under a USCIS opinion letter, the law permits extensions beyond the 6-year limitation with employer "B" based on a qualifying green card case previously filed with employer "A." ©MurthyDotCom Question 12. Can I change jobs more than once using AC21? ©MurthyDotCom Yes. AC21 does not contain any limitations regarding multiple job changes. Given the extreme retrogression of cutoff dates for nationals of certain countries, it may be many years before certain I-485s are eligible for approval. This is particularly true of individuals with more recent priority dates, and those from backlogged countries, such as India. Thus, the possibility of more than one job change is quite likely, including promotions with existing or new employers. There are also times when the economy is uncertain and layoffs occur. It may be prudent, however, to try to avoid repeated employment changes. ©MurthyDotCom Conclusion ©MurthyDotCom We have all learned a lot about AC21 since it became law in October 2000. There have been USCIS memos clarifying many details, as well as many cases through which we have gained valuable insight into the USCIS's interpretations and applications of AC21. Many are anxiously counting the days from the filing of their I-485s, awaiting AC21 eligibility. Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. Criminal "Convictions" with Possible Severe Immigration Consequences ©MurthyDotCom The immigration consequences of criminal convictions may sometimes be so severe as to completely destroy one's hopes and dreams for life in the United States. The area of law that governs the impact a criminal history has on one's ability to enter or remain in the U.S. is a complex interplay of state, federal, immigration, and administrative laws and regulations combined with case law. Many foreign nationals and, sometimes, their criminal defense attorneys do not realize that some crimes that may be considered fairly minor, with minimal criminal penalties, can result in extremely harsh immigration consequences. Long-time MurthyDotCom and MurthyBulletin readers may recall from past articles, including Beware: Serious Immigration Consequences of Shoplifting (June 21, 2002), that even a "simple" crime, such as shoplifting, may result in one's removal (formerly deportation) from the U.S. This article is in response to questions and inquiries received at the Murthy Law Firm from foreign nationals and their criminal defense attorneys on the particular question of what constitutes a conviction for immigration purposes and how can the effects be minimized, if it is impossible to avoid having a conviction. ©MurthyDotCom The Immigration Context : A Conviction Here May Not be a Conviction Everywhere ©MurthyDotCom The definition of "conviction" under immigration law and for immigration purposes is not the same as the definition under criminal law or for other civil purposes. Under immigration law, as with criminal law, a conviction exists where there has been a formal judgment of guilt entered by a court. Additionally, under immigration law, a conviction can exist in situations where the adjudication of guilt has been withheld. This is often done for first-offenders. If the adjudication of guilt has been withheld, it is still considered a conviction for immigration purposes if two elements are met. The first element is that a judge / jury finds the foreign national guilty, or the foreign national enters a guilty / no-contest plea, or admitted facts sufficient for a finding of guilt. The second element is that the judge has also ordered some form of punishment or restraint on liberty (like probation, community service, alcohol or anger management classes, fine, etc). ©MurthyDotCom Deferred Adjudication : a Conviction for Immigration Purposes ©MurthyDotCom In many cases a deferred adjudication would be a welcomed outcome to a U.S. citizen charged with a crime. In these situations, a common pattern is that the criminal defendant must admit to the crime, then the individual is placed on probation and the judgment of guilt is deferred until some specific date in the future. If the defendant complies with the terms of the probation and avoids any further arrests, the charge/s then are dismissed. For a U.S. citizen, there would not be a conviction. The deferred judgment in this case will still result in a conviction for immigration purposes, however, because there was an admission of guilt and the judge ordered a period of probation (which is a punishment / restraint on liberty) and, thus, both requirements for a conviction under the immigration interpretations are satisfied. As a separate matter, if the defendant has any applications or petitions for immigration benefits pending during the probation period, they are likely to be put on hold until the probation is served and the criminal case is closed. ©MurthyDotCom Dismissal : Even a Possible Conviction for Immigration Law Purposes ©MurthyDotCom Unless a case is dismissed on its merits by the Court, or for failure on the part of the prosecution to prosecute the case, it is fairly common for a dismissal to be regarded as a conviction under immigration law. When there is a dismissal of a criminal case, it is always necessary to look at the procedure that led to that dismissal in order to assess if there is a conviction under immigration law. The exact procedures vary by state and even by locality. There are states where, for instance, a pretrial diversion scheme allows for a case dismissal without one's admitting his or her guilt, and, thus, a criminal case would not result in a conviction for immigration purposes. Examples would be some of the various scenarios in which defendants never appear before a judge, or do not have to admit to guilt in order to participate in first-offender type programs. There may simply be a requirement to take some special classes (such as anger management, alcohol awareness, or parenting) in exchange for the dismissal of a case once an person completes his or her assignment. Such a defendant would not have a conviction because there was no admission of guilt and there was no finding of guilt. ©MurthyDotCom Case-Specific Interplay of Federal Immigration and State Criminal Laws ©MurthyDotCom Since the analysis is case specific and depends on local procedure, it is often necessary for the immigration lawyer and the criminal lawyer to coordinate with one another. To obtain the best possible outcome, it is advisable to do this in advance, following the arrest, rather than after the judgment has been entered. ©MurthyDotCom Expungement of Criminal Record Does Not "Erase" Conviction ©MurthyDotCom It is a very common misconception that an expungement, or sealing of one's criminal record, will result in a clean record. In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought. This will hold true even if the conviction is expunged, sealed, or otherwise deleted from the individual's criminal record. The fact that one's record has been expunged does not erase the arrest or conviction for immigration purposes, except in very limited exceptions. The record still exists and is accessible to law enforcement officials and as part of background checks. It is simply no longer a public record available to everyone. ©MurthyDotCom A criminal record that has been expunged makes it more difficult for a defendant and for the USCIS to verify the disposition information. Because of this, it is a good idea to obtain several certified copies of the disposition information prior to the expungement. Some individuals choose to wait until they are U.S. citizens before completing the expungement process, if the particular charge will not create problems with employment or other matters. ©MurthyDotCom Conclusion ©MurthyDotCom The issue of conviction is only one piece in the sometimes complex analysis with regard to immigration consequences of any criminal history. There may be many other aspects of the criminal history that need to be analyzed in order to make an accurate determination in a particular case. It is important for one in this situation to seek professional advice from an attorney experienced in U.S. immigration law as well as a criminal defense attorney who are both knowledgeable on the issues involved. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Increased PERM Audits : January 2008 ©MurthyDotCom The U.S. Department of Labor (DOL) recently released updated information that is important to those undergoing the labor certification process, whether as petitioning employers or as foreign national beneficiaries. The DOL provides insight and confirmation that audits in PERM cases are on the rise, and that processing times have increased. Also confirmed is the anticipated issuance of a new PERM form. ©MurthyDotCom PERM Form ETA 9089 Expected Summer 2008 ©MurthyDotCom The DOL indicates that it will release a new ETA 9089 form used for PERM labor certification filings. The anticipated release is sometime in the summer of 2008. The current ETA 9089 form expires in March 2008, so the DOL will cover the lapse by extending the validity of the current form. ©MurthyDotCom Rates of Audits Increase by 44 Percent ©MurthyDotCom The DOL confirmed that it is using audit procedures in an increasing number of PERM labor certifications. We at the Murthy Law Firm have noticed this change, and the DOL confirmed an increase in audits over the past few months. The DOL reported that, as of the end of 2007, roughly 44 percent of the pending PERM cases were in "audit review." The stated reason for this increased scrutiny is to "fully implement the regulations and ensure the integrity of the PERM program." ©MurthyDotCom The audit of a PERM labor certification is an audit of the case file. PERM audits have become common in instances where the job requirements exceed what is considered normal by the DOL. Since PERM labor certifications are filed based upon sponsor attestations (without the need to provide supporting documentation unless audited), the DOL is seeking documentation that should be within the audit file prepared by the sponsoring employer as part of the PERM process. It is not to be confused with, for example, DOL audits of H1B Labor Condition Application violations, where investigators are deployed to the company to review records and files. The PERM audit is a letter from the DOL asking for certain documentation. ©MurthyDotCom PERM Processing Times of 60 Days Will Extend in Audit Cases ©MurthyDotCom The DOL has stated that their normal processing times for PERM cases continue to be within a 45-to-60-day timeframe. However, the 44 percent (at the time of this writing) of cases with audits may take longer. It has been our experience that cases with audits can take considerably more time. ©MurthyDotCom Conclusion ©MurthyDotCom Even before the increased audit rates, it was necessary for employers to fully prepare and retain audit files in PERM cases. Employers should expect and plan for audits, and must be able to back up the requirements set forth in the labor certification, as well as the attestations contained in the application. Experienced attorneys can advise employers as to the types of issues likely to generate audits, as well as the best way to prepare for or respond to all such audits. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. I-485 MTR Successful with Detailed Records! ©MurthyDotCom The Murthy Law Firm was recently successful in a Motion to Reopen (MTR) the denial of an I-485 (Application for Adjustment of Status) on behalf of one of our clients. This was thanks, in part, to excellent recordkeeping and follow-up by the client. We take this opportunity to remind foreign nationals applying for immigration benefits to retain copies of all documents, forms, and any other communication records pertaining to their immigration cases. This includes applications and communications with the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), the U.S. Department of State (DOS) or a consular officer abroad, and any other governmental agencies. This becomes extremely important and may sometimes provide crucial evidence if the immigration case is lost, misplaced, or if other problems arise. The importance of retaining documents was explained in our MurthyDotCom article, Keep Those Old Receipts. Our client agreed to allow us to share some of the details of this case, as they may prove beneficial to MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Relocation during the I-485 Stage ©MurthyDotCom This particular client contacted us for a consultation, after the I-485 Application for Adjustment of Status had been denied. The Murthy Law Firm had not represented him in the initial I-485 filing. This was an employment-based case for the applicant and spouse, based upon an approved I-140 (Immigration Petition for an Alien Worker). While the I-485 application was pending, the family moved. Following proper procedures, as described in our January 11, 2008 MurthyBulletin article Non-U.S. Citizens Must File Change of Address with USCIS, available on MurthyDotCom, the applicant promptly filed the AR-11 and other communication to notify the USCIS of the change of address. ©MurthyDotCom I-485 Applicant Submitted Complete Copy of Case Record ©MurthyDotCom Our client retained evidence of the change-of-address notification in his personal records. In addition, both client and spouse kept all documentation that was ever submitted to and received from the USCIS. The couple complied with all requests from the USCIS, such as fingerprinting appointments and requests for evidence. The applicant learned about the denial of his application only after he sent an inquiry to the USCIS regarding case status. In response to the inquiry, the USCIS indicated that "your case was denied and the denial decision was mailed to you." Because the applicant never received a denial decision, it was impossible to determine any ground for the denial. ©MurthyDotCom Motion to Reopen I-485 Successfully Filed by the Murthy Law Firm ©MurthyDotCom The Murthy Law Firm filed an MTR specifically stating that the reason for the denial was unknown. We argued that the applicants had not received any Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs), and that the USCIS had been properly notified of the address change. We argued that, in the event an RFE, NOID, or other notice had been issued and not responded to, it would be due to a failure of delivery, and not to any abandonment of the case or oversight by our client. The detailed records of our client's case follow up and compliance with fingerprinting appointments, as well as other requests, were used to demonstrate ongoing, active pursuit of the case by our client. We submitted detailed and complete documentation from the applicant's file, which served as evidence that he and his spouse made every effort in good faith to comply with USCIS requirements. In response to the MTR, the USCIS reopened the applicant's and his spouse's cases in record time, and indicated that they had proved their eligibility for adjustment of status to legal permanent residence. (The cases could not be approved, as the priority dates was not current.)  ©MurthyDotCom Conclusion ©MurthyDotCom Regardless of how unimportant a document or filing may seem in the overall scheme of things, it may serve as a crucial piece of evidence if one's immigration case goes awry. The simple habit of diligently maintaining good records may enable one to win the case without having to provide a sophisticated legal argument in some specific circumstances. For this reason, we at the Murthy Law Firm encourage all foreign nationals to make and retain for their own protection copies of their immigration documents, filings, and contact information by keeping them in an organized fashion, so that they are easily accessible when needed. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Announcement : Murthy Teleconference Series - Feb 6, 2008 Topic : H1B Cap Season - Fiscal Year 2009 (Part 2) ©MurthyDotCom The next teleconference in this monthly series offered by the Murthy Law Firm to guide employers and HR managers to the benefit of their employees is scheduled for February 6, 2008. This teleconference will continue to address important matters regarding the filing of H1Bs, as well as issues that may arise after H1B applications are filed and approved. We will discuss Labor Conditions Application (LCA) requirements, compensation for H1B workers - what may or may not be included in compensation for H1B workers, the U.S. Department of Labor’s public access record requirements, and more. ©MurthyDotCom Please feel free to share this announcement with your employer. We plan to begin a series teleconference for the broader immigrant community in the near future. ©MurthyDotCom Employers can find more information at : http://www.murthy.com/teleconference.html. Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about MurthyToGo? ©MurthyDotCom If you prefer your news on the go, the Murthy Law Firm provides two means of accessing the latest topics in U.S. immigration news. Mobile on MurthyDotCom is available to anyone using a cellular phone with a built-in web browser or PDA with wireless capability, like the Treo from PalmOne or Windows Mobile devices. For those who have PDAs without wireless, we have created a channel on AvantGo. This service enables subscribers to download weekly headlines and brief synopses of our MurthyBulletin articles for FREE with a simple HotSync to your desktop PC. Use MurthyToGo so that you are never out of touch! ©MurthyDotCom MurthyChat : The next session MurthyChat will be Monday, Feb 04, 2008, 9:00pm Eastern Time (U.S.). There will be NO CHAT on January 28, 2008. 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.
	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.