MurthyBulletin VOL. XIII, no. 08; Feb 2007, week 4 Posted : Feb 23, 2007 . . . . . . . . . . . . . . "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. Common H1B Questions 2. Interim EAD Procedure 3. Physician NIWs Now Available to all Specialties 4. MurthyDotCom : Did You Know About Our Section for Medical Professionals? 5. 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. . . . . . . . . . . . . . . ©MurthyDotCom 1. Common H1B Questions ©MurthyDotCom We at the Murthy Law Firm try to provide answers to questions that plague many who visit our MurthyForum, as well as readers of MurthyDotCom and the MurthyBulletin. A few of the more common H1B questions that come up from time to time are addressed in this article. ©MurthyDotCom Question 1. I read your 2005 article, Travel after Change-of-Status with Future Start Dates, about travel for students after a Change of Status (COS) to H1B is approved. This is my situation exactly. Is this still valid? Has anything changed? Does this only apply to students? What if I am going from H-4 to H1B and want to travel before my job starts? ©MurthyDotCom The information in the 2005 article is still valid. There has not been any change in the law that would override the USCIS opinion letter discussed in the article. The USCIS has not issued any new letters or memos that are contrary to the letter's interpretation. ©MurthyDotCom Although the opinion addressed the common situation of students changing to H1B, the principle in the letter does not appear to be limited only to students. We believe that it also applies to persons in other categories who need to travel after a COS to H1B has been approved, but before the October 1st start date. ©MurthyDotCom --- ©MurthyDotCom Question 2. I am graduating in May with a master's degree. I want an H1B under the advanced-degree cap. What should I do? ©MurthyDotCom There is no way to predict when either the regular or advanced-degree H1B cap will be reached. They were reached very quickly in Fiscal Year (FY) 2007 (May 26, 2006 and July 26, 2006, respectively). It is generally expected that the caps will be reached even faster in FY2008. Therefore, we do not recommend waiting to file one's case. The eligibility for a cap number is based upon the date of filing. Thus, if the master's degree will not be completed until May, it is better to file a regular case at the beginning of April, unless the job requires a master's degree. ©MurthyDotCom --- ©MurthyDotCom Question 3. I heard about the Decoupling Memo. Can I use that right away? Does it matter that I am beyond my six years in H-4 status? Does it matter that I changed from H-4 to H1B [or H1B to H-4]? ©MurthyDotCom Information on the Decoupling Memo is available in our January 5, 2007 article, H1B/H-1 Decoupling Effective Immediately, available on MurthyDotCom. It can be used right away. It was effective immediately upon publication. Under the Decoupling Memo, time spent in H-4 status does not limit the time available in H1B. It does not matter if a person has used all of her or his six years (or more) in H-4 status. It also does not matter if s/he has changed back and forth between H1B and H-4. ©MurthyDotCom --- ©MurthyDotCom Question 4. If my H-4 spouse changes to H1B, can s/he still be the dependant in my green card case? ©MurthyDotCom We have answered this often, but we still see this question come up again and again, and feel it is important to repeat the answer - particularly around the time when people have to file their H1B cases. Yes, the spouse can still be a dependant in one's green card case, even if s/he does not hold a dependant nonimmigrant status. Many couples are in this situation, both holding H1B status. Some of them file two green card cases, one through each spouse, to enhance their likelihood of success. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 2. Interim EAD Procedure ©MurthyDotCom The Vermont Service Center (VSC) has advised that they have instituted a new procedure for issuing interim Employment Authorization Documents (EADs). These are appropriate in situations where the EAD request has been pending for at least 90 days. The expected termination of interim EADs at local USCIS offices was reported in our June 30, 2006 MurthyBulletin article, June 2006 Conference Update: Interim EADs to End, available on MurthyDotCom. ©MurthyDotCom The new procedure requires that an individual go to the local USCIS office to make the interim EAD request. The local office then will contact the VSC. The VSC will review the file and try to adjudicate the initial EAD application and avoid the need for an interim EAD. If they cannot complete the initial application, however, they can issue an interim EAD. ©MurthyDotCom The interim EAD will not be issued if there are "national security issues." Therefore, if the case is held up due to security concerns, there may be instances where the interim EAD is not given. Whether or not it is issued depends upon the severity of the security matter. ©MurthyDotCom This procedure will help some people with delayed EADs. MurthyDotCom and MurthyBulletin readers who will be renewing their EADs should not wait until they are close to their expiration dates to request new ones. We recommend filing four months in advance to avoid a lapse in employment authorization. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 3. Physician NIWs Now Available to all Specialties ©MurthyDotCom As a result of some recent litigation, the physician-specific National Interest Waiver (NIW) is now available to physicians in all specialties. This change, which was implemented nationwide in a memo dated January 23, 2007, is effective immediately. ©MurthyDotCom Background ©MurthyDotCom Prior to the litigation and the implementing memo, the physician-specific NIW was limited to primary care physicians and psychiatrists, unless the physician was qualifying through work with the Veterans Administration. Primary care was defined as, "family or general medicine, pediatrics, obstetrics / gynecology, and general internal medicine." The physician-specific NIW waives the requirement of a labor certification in a green card case; it does not waive the J-1 two-year, home-return requirement or any other ground of inadmissibility. ©MurthyDotCom Requirement : Five Years of Service ©MurthyDotCom The qualifying physician must agree to work for five years, on a full-time basis, in areas that have been designated by Heath and Human Services (HHS) as having a shortage of specialty-care health professionals. These are known as Physician Scarcity Areas (PSAs). The three-year service periods for some J-1 waivers can count toward the five years of service required for the NIW. ©MurthyDotCom Elimination of the Deadline for Completion ©MurthyDotCom Another major change is that physicians no longer have a set time in which to complete their five years of service. Prior to this, physicians had to complete the five years of service within a six-year period. (Cases filed before November 1, 1998 had a three-year service requirement, which had to be completed in four years.) However, the approval of the petition may be revoked if the USCIS finds that the physician is using the NIW petition in order to pursue employment or activities other than the service in the scarcity area. Thus, the timeframes, while not specifically defined, are not unlimited. The exact parameters are yet to be determined. While most physicians can complete the five years of work in six years, there have been cases with problems. Examples include a situation where the employer goes out of business or cannot offer full-time employment, and when a physician becomes ill or pregnant or has a family member with a serious illness. ©MurthyDotCom Better Medical Care for Shortage Areas ©MurthyDotCom We at the Murthy Law Firm applaud these changes, and know that they will open opportunities for more physician NIW cases. This, in turn, will result in more specialists providing much needed medical care in shortage areas throughout the United States. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 4. MurthyDotCom : Did You Know About Our Section for Medical Professionals? ©MurthyDotCom The United States is facing a critical shortage of in many health care areas. Those in the medical profession who wish to work in the U.S. may find that opportunities abound, but they also have more complex qualifications than many other professionals seeking employment-based immigration benefits. Even if there are no special laws governing a particular medical group, many states require licenses for employment, and often these must be obtained before one may file for benefits under U.S. immigration law. MurthyDotCom provides a Medical Professional section with immigration news and articles specifically for Physicians, Nurses, and Allied Health Care Professionals. ©MurthyDotCom The next session MurthyChat will be Monday, February 26, 2007, 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 © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 5. 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 © 2007, MURTHY LAW FIRM. All Rights Reserved
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