MurthyBulletin VOL. XIV, no. 07; February 2008, week 3 Posted : February 15, 2008 . . . . . . . . . . . . . . "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. . . . . . . . . . . . . . . TOPICS in this Edition of the MurthyBulletin : 1. March 2008 Visa Bulletin : EB3 Movement 2. PIMS Likely to Cause Delays for H1Bs and Others 3. Certain Ombudsman's Recommendations Accepted by USCIS 4. Preserving Permanent Residence for Citizenship / Naturalization   5. Religious Workers Must Show Two Years' Paid Experience 6. CBP on Documents Requested at POE Posted on MurthyDotCom Feb 12, 2008 7. Announcement : Murthy Teleconference Series - Wednesday, March 05, 2008 Topic : Business Immigration - Looking Back and Bracing for the Future! 8. MurthyDotCom : Did You Know about Our Page for Employers and Employees? 9. 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. March 2008 Visa Bulletin : EB3 Movement The U.S. Department of State (DOS) has issued the Visa Bulletin for March 2008. The Visa Bulletin holds good news for EB3 in what is referred to as the "worldwide" category. Worldwide means all countries of chargeability other than China, India, Mexico, and the Philippines. Additionally, the Visa Bulletin shows a bit of forward movement in the cutoff dates for EB3 categories for the listed countries. EB2 China also is seeing forward movement. The EB2 India category continues to be unavailable. Categories that were previously current remain current. The latest Visa Bulletin chart is always available on MurthyDotCom. ©MurthyDotCom Summary of Visa Bulletin ©MurthyDotCom Employment-Based, First Preference (EB1) The EB1 category remains current for all countries of chargeability. ©MurthyDotCom Employment-Based, Second Preference (EB2) The EB2 category continues to be current for worldwide, Mexico, and the Philippines. The cutoff date for China moved forward by 11 months, to December 1, 2003. Visa numbers for EB2, India, continue to be unavailable. ©MurthyDotCom Employment-Based, Third Preference (EB3) The cutoff date for the EB3, worldwide category, as well as the Philippines, moved forward quite significantly, to January 1, 2005. This represents a jump in excess of two years. China moved forward by more than a year, to December 1, 2002. India's cutoff date improved by several months, to August 1, 2001. The smallest improvement was experienced by Mexico, with just a few days' advancement to May 1, 2001. Other workers from all countries of chargeability now have a cutoff date of January 1, 2002. ©MurthyDotCom Employment-Based, Fourth / Fifth / Religious Workers and Targeted Employment (EB4 and EB5) The EB4, EB5, religious workers, and the targeted employment categories are all current. ©MurthyDotCom Explanation and Prediction ©MurthyDotCom The explanation for advancing the cutoff dates in the categories designated above is that this is to avoid a surplus of unused immigrant visa numbers at the end of the 2008 fiscal year. Advancing visa numbers expands the possible universe of pending cases that are eligible for approval of the "green card" (lawful permanent resident status). If the usage of immigrant visa numbers increases with the forward movement of dates, the DOS may slow or stop the forward movement trend until the start of the next fiscal year, which is October 2008. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. PIMS Likely to Cause Delays for H1Bs and Others ©MurthyDotCom At the Murthy Law Firm, we have been receiving reports of substantial delays in visa issuance at consulates abroad due to the recent implementation of the Petition Information Management Service (PIMS). PIMS was reported to readers in our December 28, 2007 MurthyBulletin article PIMS Verification Update, available on MurthyDotCom. The PIMS system applies to certain nonimmigrant visa applications like the H, L, O, P, and Q, at U.S. consulates abroad. These applications have to be verified through PIMS before a visa can be issued. This is currently creating delays of several weeks in many cases. ©MurthyDotCom Delays Likely, Confirms U.S. Consulate in Chennai ©MurthyDotCom Our affiliate office in Chennai, India, Murthy Immigration Services, Pvt. Limited, communicated with the Nonimmigrant Visa Section of the U.S. Consulate in Chennai regarding visa delays caused by PIMS. The consulate confirmed that the recent change in processing H and L visas is causing considerable delays in many cases. (The consulate did not reference the O, P, and Q visas, presumably since the majority of applications processed at Chennai are in the H and L categories.) It was noted that, as soon as the database is updated, the consulate processes the relevant visa automatically. ©MurthyDotCom The spokesperson for the consulate was unable to predict any timeframe for the resolution of these delays. Most cases take about 5 to 12 extra work days to be resolved, but some can take much longer if the USCIS has not updated the information promptly in the database for verification by consular officers. ©MurthyDotCom Allow Extra Time in Cases Requiring PIMS Verification ©MurthyDotCom In light of these delays, it is best for individuals applying in the H, L, O, P, and Q categories to allow extra time for the visa application process. Individuals who have received advance parole (AP) based upon the filing of an I-485, Application for Adjustment of Status, may choose to use that document for travel to avoid the delays of visa application at the consulates. Persons who do not have AP, but who are eligible to request it, may choose to do so in order to facilitate future travel. ©MurthyDotCom Conclusion ©MurthyDotCom Delays of several weeks in visa issuance are often quite disruptive, both for individuals and their employers. In a global economy, travel is often necessary for business purposes, and not simply an optional luxury. The PIMS system needs to become more efficient in order to reduce disruption and facilitate necessary foreign travel. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Certain Ombudsman's Recommendations Accepted by USCIS ©MurthyDotCom The U.S. Department of Homeland Security (DHS) and Citizenship and Immigration Services (CIS) Ombudsman's office recently released a recommendations status chart (PDF 181KB) of all of the formal and Annual Report recommendations made to the USCIS since the establishment of the CIS Ombudsman's Office in July 2003. This chart also includes a summary of the USCIS's response and any implementation of a recommendation. ©MurthyDotCom History of the CIS Ombudsman's Office ©MurthyDotCom As long-time MurthyDotCom and MurthyBulletin readers may recall from our August 8, 2003 article, DHS Watch: New Citizenship and Immigration Ombudsman, Mr. Prakash Khatri was selected as the CIS Ombudsman. His role was to act as intermediary between the USCIS and those using the USCIS to file for immigration benefits, including employers and employees, families, community organizations, and those representing foreign nationals and/or their employers. ©MurthyDotCom Certain Recommendations by Ombudsman's Office Accepted ©MurthyDotCom The USCIS has agreed, as a whole or in part, with a number of the Ombudsman's recommendations, and has implemented or agreed to make changes. Some of the areas addressed include: improvement in Freedom of Information Act (FOIA) operations, standardization of business processes for O and P visas, high rates of rejections of N-400 citizenship applications due to a lack of pre-application security screenings, improved fingerprint storage and retrieval capabilities, wrap-around security checks to prevent expirations that require additional background investigations, delivery of permanent resident cards using U.S. Postal Service "return receipt requested," reforming employment-based permanent residence application processes, providing a breakdown of pending immigration benefits cases, coordinating change-of-addresses and the status of AR-11 filings, and changes to the eFiling system. ©MurthyDotCom As is evident from this list, the Ombudsman's office tries to address system-wide problems and inefficiencies. There is clearly a need for this type of broad review of real-world problems faced by foreign nationals and others trying to work within the immigration system. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm appreciate the CIS Ombudsman's efforts since 2003 to persuade the DHS and the USCIS to implement formal and annual report recommendations. The Ombudsman's role is valuable and has the potential to improve the level and efficiency of services provided by the USCIS to all those who use its services for immigration petitions or filings. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Preserving Permanent Residence for Citizenship / Naturalization ©MurthyDotCom A common problem faced by some permanent residents (green card holders) in the modern U.S. workforce is the preservation of their continuous residence in order to qualify for naturalization as U.S. citizens. We at the Murthy Law Firm are receiving more questions on this matter than ever before. This problem arises when a permanent resident needs or desires to spend extended periods of time outside of the U.S. One way for lawful permanent residents (LPRs) to address the situation of employment outside of the U.S. is the filing of Form N-470, Application to Preserve Residence for Naturalization Purposes. ©MurthyDotCom Requirements for Naturalization ©MurthyDotCom Clarity of the naturalization process is available on MurthyDotCom in our Citizenship section and in our recently updated Frequently Asked Questions on this area. Issues relating to travel by LPRs and the consequences on applications for naturalization were addressed specifically in our December 22, 2003 article, Permanent Residents: Keep These Things in Mind! ©MurthyDotCom Preservation of Residence to File for Citizenship ©MurthyDotCom U.S. Immigration law provides a mechanism that allows some LPRs, who are absent from the U.S. for more than one year, to preserve their residence for naturalization purposes. It should be noted that the granting of an N-470 application does not relieve an LPR from the physical presence requirement in the U.S. unless s/he is an employee or contractor of the U.S. government. It also does not preserve her/his permanent residence, which is a separate matter when spending extended time abroad. Information on this topic is available in our April 12, 2002 article, Immigration Rumor: Travel by Permanent Resident, also available on MurthyDotCom. ©MurthyDotCom Employer Must be U.S. Company / U.S. Citizen ©MurthyDotCom There are two provisions that provide for the preservation of residence for naturalization purposes. The first provision is for employees and contractors of the U.S. government, and certain American institutions of research, as well as employees of American firms or corporations (or subsidiaries) involved in foreign trade or commerce and public international organizations. The second provision is for persons performing specific religious duties outside the U.S. The focus of this article is those persons working for American firms or corporations, as that is the most typical situation faced by our clients and readers of MurthyDotCom and the MurthyBulletin. ©MurthyDotCom Employee Requirements : One Year and Foreign Trade or Commerce ©MurthyDotCom An employee of a U.S. corporation may qualify for such preservation of residence if s/he meets three important requirements. ©MurthyDotCom 1) The individual must have been physically present in the U.S. for an uninterrupted period of at least one year after being lawfully admitted for permanent residence. This means any one-year period after becoming a permanent resident. This is often a difficult hurdle to overcome. Many of those who might be in need of the N-470 have international careers and travel frequently. Others simply travel at least once per year to see family members who live abroad. ©MurthyDotCom 2) The individual must be employed by an American firm or corporation engaged in the development of foreign trade or commerce of the U.S. The employment can also be with a subsidiary of such an American firm or corporation 50 percent or more of whose stock is owned by an American company. ©MurthyDotCom 3) The individual must establish that the purpose of his/her absence from the U.S. will be to engage in the development of foreign trade and commerce on behalf of the qualifying company, or to protect the company's property rights abroad. The preservation of the continuity of residence accorded by the N-470 also extends to the individual's spouse and unmarried sons or daughters who are members of the household during the period that they reside abroad as dependent family members. ©MurthyDotCom Interpretations of Foreign Trade or Commerce ©MurthyDotCom The requirement that an LPR's employer be engaged in the development of foreign trade or commerce of the United States has been interpreted by Legacy INS. There can be subtle nuances and issues that depend upon the exact facts of the situation; for example, the sole owner of a firm, who goes abroad to represent that firm, may not obtain preservation of residence by using Form N-470. However, an LPR, other than a sole owner, who is employed abroad representing a sole proprietorship doing business under a trade name, is eligible for such preservation. An LPR who is not an employee of a U.S. firm, but rather who goes abroad voluntarily for the purpose of soliciting business for that firm to be paid solely on a commission basis, is not entitled to preservation of residence because the LPR is not considered an employee but rather an independent contractor. ©MurthyDotCom The development of foreign trade and commerce has been interpreted broadly enough to include the work done by refugee relief agencies and other nonprofit organizations. The basis of this interpretation is that these nonprofit organizations purchase relief supplies in the U.S., pay ocean freight to U.S. shipholding companies to transport these supplies, and pay U.S. shipping companies to transport refugees into the U.S. ©MurthyDotCom LPRs who are employed abroad on a part-time basis may not receive preservation of residence unless they devote a substantial amount of time to this employment. This means that such employment must not be incidental to other activities in which the LPR engages abroad. ©MurthyDotCom Corporate Requirements for Preservation of Residence ©MurthyDotCom Publicly traded companies are considered to be American firms or corporations, if they are incorporated in the U.S. and traded exclusively on the U.S. stock exchange markets. If those requirements cannot be met, then it is necessary to demonstrate that 51 percent or more of the company's owners are U.S. nationals. Subsidiaries of U.S. firms or corporations are considered to include foreign firms owned by a U.S. company through a third corporation. However, one U.S. company must own more than 50 percent of the foreign company. There are other possible complexities that depend upon company structure. ©MurthyDotCom Conclusion ©MurthyDotCom The N-470, Application to Preserve Residence for Naturalization Purposes, remains a powerful tool to protect eligibility for citizenship for some LPRs who must perform the duties of their employment outside of the U.S. Because the requirements for the purposes of preservation of one's residence are complex and depend on each individual situation, however, anyone considering this type of application should consult with a knowledgeable, experienced attorney for an assessment of his/her eligibility. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Religious Workers Must Show Two Years' Paid Experience ©MurthyDotCom The Administrative Appeals Office (AAO) recently dismissed the appeal of a petition for a Special Immigrant Religious Worker, finding that the beneficiary could not demonstrate that she had two years of paid employment prior to filing the petition. The AAO denied the petition for employment of a missionary, concluding that the beneficiary did not have the requisite paid experience. This is a non-precedent case that has not been released. The Murthy Law Firm did not act as the attorney in either the initial filing or the appeal to the AAO in this case. ©MurthyDotCom Two Years of Full-Time Work Must be Established Prior to Filing ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers will recall from our December 29, 2006 article CSC to Issue RFEs on All Religious Workers' I-360 Petitions, a foreign national, seeking permanent residence status as a religious worker, must submit Form I-360, Petition for an AmerAsian, Widow/er, or Special Immigrant. ©MurthyDotCom The regulation discussed by the AAO requires the beneficiary of the I-360 petition to have been continuously employed by a qualifying religious organization for at least the two-year period immediately preceding the filing of the petition. This regulation further requires each I-360 petition to be accompanied by a letter from an authorized official of the petitioning religious organization to establish that the beneficiary has the requisite two years of membership in the denomination and two years of qualifying experience in the religious vocation or profession. ©MurthyDotCom Facts of this Case ©MurthyDotCom The AAO found that the beneficiary in question had entered the U.S. on a B-2 nonimmigrant visa and had served as a missionary tending to the spiritual and physical needs of the elderly. The AAO determined that the beneficiary had not been granted any work authorization and that her past employment was as an ordained licensed missionary. ©MurthyDotCom In response to a Request for Evidence, the petitioning religious organization provided proof of the missionary's salary for one of the required two years of employment. The pay records provided did not indicate continuous, full-time employment and the petitioner could not provide the beneficiary's tax documentation. Relying on prior case decisions, the AAO stated that it requires proof that the beneficiary of an I-360 petition was employed in the proper religious vocation and profession on a full-time basis and paid accordingly. ©MurthyDotCom Investigations of Petitioning Religious Organizations ©MurthyDotCom As reported in our December 7, 2007 MurthyBulletin article, Immigrant Religious Worker Petitions Require Site Visits, available on MurthyDotCom, the USCIS has implemented stricter anti-fraud procedures for religious worker immigrant petitions. It is mandating that each petitioner be reviewed by the Office of Fraud Detection and National Security (FDNS) before the I-360 petition can be adjudicated. ©MurthyDotCom Adjustment of Status ©MurthyDotCom Once the I-360 petition is approved, the beneficiary may seek to adjust status to that of lawful permanent resident. The filing procedures for such applications are available in our December 7, 2007 MurthyDotCom article, Immigrant Religious Worker Petitions Require Site Visits, where they are discussed generally. ©MurthyDotCom Conclusion ©MurthyDotCom This non-precedent AAO decision emphasizes that the burden of proof in I-360 Special Immigrant Religious Worker cases rests with the petitioning religious organization. This is not a new development and there are many such cases. It is a recent reiteration of a long-standing requirement that must be met in order to obtain success in this type of case. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. CBP on Documents Requested at POE Posted on MurthyDotCom Feb 12, 2008 ©MurthyDotCom On Feb 06, 2008 the U.S. Customs and Border Protection (CBP), responded to a question regarding the documents that foreign nationals must present at ports of entry. More on this topic is available on the CBP WebSite. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 7. Reminder : Murthy Teleconference Series - Wednesday, Mar 05, 2008 Topic : Business Immigration - Looking Back and Bracing for the Future! ©MurthyDotCom This teleconference will review the recent past and provide some perspective on the future in business immigration law. Last year's changes have taken corporations, as well as employees and their families, on a roller coaster ride of confusion and emotion. It is our goal at the Murthy Law Firm to offer some recommendations and clear-headed perspective for the coming year. ©MurthyDotCom Among the matters to be addressed in this teleconference are: the H1B cap and dire lack of adequate numbers; VisaGate, or employment-based priority dates becoming available to many permanent resident seekers, and then to everyone, and back and forth during the summer of 2007; the misnamed substitution regulation, who can pay, labor certification expiration dates, 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. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 8. MurthyDotCom : Did You Know about Our Page for Employers and Employees? ©MurthyDotCom At MurthyDotCom we know that many immigrants come to the United States chasing employment opportunities. On the other side of this equation are the U.S. employers who are looking for the best, brightest, most willing job applicants to fill positions in their companies. In the middle is the U.S. government. Among the government agencies affecting this match are the U.S. Department of State that determines whether to grant a visa to a worker bound for the U.S.; the Department of Homeland Security, whose dual role is to grant benefits as well as secure borders; and the Department of Labor that seeks to protect the U.S. workforce, while facilitating employer access to the non-U.S. workers they require. Find relevant news effecting employers and immigrant workers on our page for Employers and Employees on MurthyDotCom. ©MurthyDotCom 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.  ©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 . . . . . . . . . . . . . . 9. 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.