MurthyBulletin
VOL. XIV, no. 06; February 2008, week 2
Posted : February 08, 2008
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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 :
Announcement : Attorney Murthy Interviewed in Harvard Law Bulletin
1. Ombudsman's Teleconference on K-3 Visa for Spouse of U.S. Citizen
2. CIS Ombudsman's Teleconferences on USCIS Fee Refunds
3. EB1 for Multinational Executive / Manager Must Meet Burden of Proof
4. EAD Renewal : 120-Day Advance Filing Rule
5. MurthyDotCom : Did You Know about our USCIS Service Center Page?
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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Announcement : Attorney Murthy Interviewed in Harvard Law Bulletin
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"...When asked recently by the Harvard Law Bulletin, why she took a pay cut and left a promising career in a New York firm to go off on her own, Sheela Murthy's response was, '...I felt like a cog in a wheel. I didn't have that sense of good karma that comes from doing good works. But with immigration law I felt I could forever change, not just one immigrant's life and fortunes, but also their family's. I want to show the world and my clients that immigrants are a powerful voice, and not to be ignored. My clients know that I feel their pain and that we care. I've been where they are.' The January 2008 issue of Baltimore Magazine (PDF 293KB) reveals Attorney Sheela Murthy to be a Maryland Super Lawyer for another year! In addition to this honor, Ms. Murthy is highlighted for a feature story in the 2008 Maryland Super Lawyer publication (PDF 276KB)."
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COMMITMENT : Sheela Murthy LL.M. lends a hand to immigration. (PDF 290KB)
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1. Ombudsman's Teleconference on K-3 Visa for Spouse of U.S. Citizen
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The Citizenship and Immigration Services (CIS) Ombudsman held a teleconference January 31, 2008 on the K-3 visa. The K-3 visa is available to the spouse of a U.S. citizen who may choose to enter the U.S. as a nonimmigrant and then adjust status to Lawful Permanent Resident. The CIS Ombudsman's representative led a discussion of the problems that K-3 petitioners and beneficiaries are encountering currently. Although initially designed to overcome long delays associated with the traditional immigrant visa process for the spouse of a U.S. citizen, the experiences and concerns shared by participants in this teleconference soon revealed that the K-3 visa process is more complicated, costs more money, and often takes much longer than was first anticipated.
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To File the K-3 Visa
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The K-3 process requires that the petitioner file Form I-130 (Immigrant Petition for Alien Relative), as well as Form I-129F (Petition for Alien Fiancé/e). The I-129F filing must await the issuance of the Form I-130 receipt notice by the USCIS.
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Problems Encountered in Filing K-3
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Administrative Closing of K-3
According to many participants in the January 31st teleconference, complications can arise because adjudication of Form I-129F sometimes takes longer than the adjudication of Form I-130. Once the I-130 is approved, the I-129F may be administratively closed. One participant reported that he called the USCIS National Customer Service line on different occasions to inquire about this process and received different answers from the USCIS representatives. This inconsistent advice makes it difficult to understand if an I-129F filing, in fact, is matched with the related I-130 and if it may be administratively closed if the I-130 is approved. If this is the case, it leaves the beneficiary with the only option of applying for an immigrant visa instead of a K-3 visa, resulting in a waste of time, money, and effort in filing the K-3.
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Significant Wait for Appointments and Receipts
Several participants reported that, depending on which consulate is processing a spouse's K-3 visa, the wait time to get a visa appointment may be significant. The length of the wait time often depends on the date the petitioner's I-129F filing was received by the USCIS. Currently, the I-129F receipt date determines the date of the filing. The problem arises when the petitioner files an I-130 and has to wait several months for this filing to be receipted. Only after it is receipted can s/he then file the I-129F petition. This causes unnecessary delays that prevent many families from reuniting for long periods of time, thereby negating the very purpose of the K-3 filing. One caller shared his experience of filing an I-129F with a complete copy of the I-130 petition even before the I-130 receipt is issued. Again, the USCIS has not indicated if this is an acceptable practice.
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In-Person I-130 Filings Terminated
A caller from India reported that the USCIS office in New Delhi used to accept I-130 filings from U.S. citizen spouses in person. This was a convenient and expedited way for U.S. citizens to initiate the K-3 visa process. In the past year or two, however, this practice was terminated, apparently due to security concerns, causing additional delays in the K-3 process.
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Conclusion
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The CIS Ombudsman's office provides an important mechanism for the general public to address many problems with the USCIS procedures and policy. The January 31, 2008 teleconference revealed common problems with the processing of K-3 visas. As a result, the USCIS is obligated to respond to these concerns and report back to the CIS Ombudsman on the steps it intends to take to improve its services. MurthyDotCom and MurthyBulletin readers will be informed of the issues raised in the Ombudsman's teleconferences and resulting improvements, solutions, or suggestions. Useful information posted on the CIS Ombudsman's WebSite also will be reported, as it becomes available.
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Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved
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2. CIS Ombudsman's Teleconferences on USCIS Fee Refunds
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The Citizenship and Immigration Services (CIS) Ombudsman held a second teleconference on January 31, 2008. This one on obtaining filing fee refunds from the U.S. Citizenship and Immigration Services (USCIS). Among the topics covered were the criteria for refund eligibility and procedures for obtaining refunds. Premium processing refunds were also discussed. This is part of a series of teleconferences held by the CIS Ombudsman's office, in which attorneys from the Murthy Law Firm regularly have participated. Previous teleconferences were reported to MurthyDotCom and MurthyBulletin readers in our December 28, 2007 article, Ombudsman on USCIS National Customer Service Center and InfoPass.
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USCIS Fee Refunds : General Considerations
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The CIS Ombudsman's representative began the teleconference by providing participants with general eligibility guidelines for filing fee refunds and information on the process for requesting refunds. Fee refunds generally are warranted when there is a clear USCIS error. In other words, if the USCIS fails to adjudicate an application or petition, or requests a filing fee that is unnecessary or excessive, it should return the fee to the applicant or petitioner. Also discussed was an example in which an individual asked the USCIS not process an I-765 application (EAD). This request to cancel the I-765 application was made immediately after the individual's I-485 was approved. The Ombudsman agreed that the USCIS should refund such checks, but understands that it may be difficult to do so.
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Procedure for Obtaining USCIS Fee Refund
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There are two ways to request a fee refund: (1) by calling the National Customer Service Center line or (2) by writing a letter to the USCIS, explaining the reason a refund may be due. While the USCIS has indicated that the appropriate form for requesting a fee refund is Form G-266, it appears that it is an internal form that is not accessible to the general public. This means that the USCIS must complete the form and send it to the U.S. Department of Treasury in order to process the refund. Therefore, no special form is needed from an individual or a U.S. employer. It is unclear what method should be used to follow up on a request for a fee refund, if the USCIS fails to act within a reasonable period.
©MurthyDotCom
Premium Processing Refunds for Cases Not Adjudicated within 15 Days
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The Murthy Law Firm posed several questions during this teleconference. One of the most frequent scenarios seen at our firm involves delays in the adjudication of premium processing cases, which remain unadjudicated beyond the timeframe mandated under the premium processing procedures. These most commonly involve H1B and O-1 petitions. The USCIS is required to refund the fee if a case has not been reviewed within fifteen calendar days of the premium processing request. However, it is rare that the $1000 premium processing fee is returned to these petitioners or beneficiaries. In many cases, the USCIS asserts that it is not obligated to refund the premium processing fee when the delay is due to security checks. We at the Murthy Law Firm suggested that the CIS Ombudsman look into this matter further and request that the USCIS establish an automatic refund system in premium processing cases for which a decision is not rendered within the required timeframe for any reason, especially since neither the employer nor the employee, in most cases, has any control over a security hit.
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Conclusion
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Sometimes at the Murthy Law Firm we find that the USCIS, on its own, refunds the $1000 premium processing fee in H1B and other nonimmigrant petitions if it is unable to process the case within 15 days. In other instances it is difficult to obtain the promised refund. The Ombudsman's representative assured teleconference participants that our clients' concerns will be communicated to the USCIS. In turn, the USCIS will provide the Ombudsman's responses to all questions and issues raised at the teleconference. These will be posted at the CIS Ombudsman's WebSite in question-and-answer format.
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3. EB1 for Multinational Executive / Manager Must Meet Burden of Proof
©MurthyDotCom
The Administrative Appeals Office (AAO), in a non-precedent case, upheld the denial of an I-140 petition for the multinational executive / manager of a restaurant, noting that a recitation of the beneficiary's vague and broadly-cast job responsibilities was insufficient to establish that she would be employed in a primarily managerial or executive capacity. The Murthy Law Firm did not act as the attorney in either the initial filing or the appeal to the AAO in this case. As our regular readers of MurthyDotCom may know from our articles, including Employment Based First Preference (EB1) or Priority Workers / Multinational Executive or Manager, the petitioner must establish that the beneficiary will work at the company in an executive or managerial capacity. This is a summary of the position of the U.S. Citizenship and Immigration Services (USCIS) and the AAO with regard to the burden of proof to be met by the employer to establish legal eligibility in this category.
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Facts of the Case and USCIS Denial of the Petition
The petitioner, a Japanese restaurant, filed a Multinational Executive or Manager petition in the EB1 category, proposing to employ the beneficiary as the chief executive officer of its company. The petitioner indicated that "the beneficiary would be the highest-ranking officer of the company and would be responsible for the financial and business performance of the organization." The USCIS denied the petition, stating that the broad description was insufficient to establish that the beneficiary would perform the duties required of a multinational manager or executive. In addition, the USCIS noted that the restaurant generally does not require or involve the employment of this level or type of professional employee and, therefore, the beneficiary's position would not appear to be that of a multinational manager or executive.
©MurthyDotCom
AAO Says Petitioner Must Clearly Define Manager's / Executive's Duties
©MurthyDotCom
In reviewing the denial decision of the USCIS, the AAO agreed that the job duties, as described by the petitioner, were simply a paraphrase of the regulatory criteria. The AAO noted that it was not enough for the petitioner to state that the beneficiary will "make all day-to-day business decisions for the company." In addition, the restaurant's personnel structure generally does not require a chief manager who will manage a specific function, but usually requires one to "perform duties relating to that function." Because the AAO concluded that the beneficiary will perform daily functions as opposed to managing them, it affirmed the denial of the Multinational Executive / Manager petition.
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Conclusion
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The AAO's decision affirms the USCIS's recent policy of adjudicating Multinational Executive or Manager / EB1 petitions establishing a high threshold for the petitioner to meet all of the required criteria. Based on this decision and other indicators of the stringent requirements of the USCIS, the Murthy Law Firm has developed a unique, winning approach to the preparation and filing of eligible EB1 petitions for multinational managers and executives. This case certainly comports with our experience that cases of this nature must be clear and, sometimes, excruciatingly specific as to job duties that meet the statutory and regulatory criteria to the satisfaction of the USCIS.
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4. EAD Renewal : 120-Day Advance Filing Rule
©MurthyDotCom
Many MurthyDotCom and MurthyBulletin readers hold Employment Authorization Documents (EADs) received as the result of I-485, Application of Status filings. This is particularly so, following the large volume of I-485 filings made during the summer of 2007. These EADs have a one-year validity and can be renewed during the time when the I-485 remains pending. The U.S. Citizenship and Immigration Services (USCIS) recently has updated and clarified the timing rules for the filing of EAD renewals. It is important one remembers to file no earlier than 120 days in advance of the EAD expiration date.
©MurthyDotCom
What is the 120-Day Rule?
©MurthyDotCom
The USCIS's revised instructions make it clear that EAD renewals cannot be filed more than 120 days in advance of the expiration date of the most recent EAD. Any cases filed prior to this will be rejected. This rule applies to all EAD filings made on or after January 29, 2008. It is important, therefore, to carefully count the days to make sure that the case is not filed too early. Use of a date calculator is recommended for this purpose, like the one available at http://www.timeanddate.com/.
©MurthyDotCom
Safest to File around the 120-Day Point - Avoid Lapse in Work Authorization
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Those who rely solely on the EAD for employment authorization (with no H1B or L-1 status, etc as backup) need to apply for the EAD renewal as early as legally permitted. This is the 120-day point. Since many individuals obtained EADs based upon the summer 2007 I-485 filings, all of these EADs will expire over the same few months. Thus, there will be a large volume of EAD renewal requests, causing possible delays. Those who do not allow enough time for processing the EAD could run into problems if there is a gap in employment authorization.
©MurthyDotCom
Conclusion
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The need to renew the EAD each year is a good reason to maintain a work-authorized, nonimmigrant status, such as an H1B, even after filing the I-485. This is not always an option for many reasons, however. Thus, it is important to track one's EAD expiration date carefully and file renewals at the 120-day mark prior to expiration.
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5. MurthyDotCom : Did You Know about our USCIS Service Center Page?
©MurthyDotCom
At the Murthy Law Firm, we receive many inquiries about the specific service centers. Because the service centers are somewhat unique in their procedures and in how they handle cases, we have prepared a page for each. Whether you wish to know about California, Nebraska, Texas, Vermont, or the National Benefits Center (Missouri), we have the information available for you, with convenient links to the processing times for each one. MurthyDotCom has information and analysis on the policies and procedures specific to each of the different USCIS service centers. More general news, that affects all of these centers and, perhaps, local offices, as well, is linked from this main page for the USCIS Service Centers.
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MurthyChat : The next session MurthyChat will be Monday, Feb 18, 2008, 9:00pm Eastern Time (U.S.). The MurthyChat is held on the 1st and 3rd Monday of each month unless Attorney Murthy's schedule conflicts. 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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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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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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6. 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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