MurthyBulletin
VOL. XIV, no. 09; February 2008, week 5
Posted : February 29, 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 :
1. Extraordinary Ability and Other Special Options
2. CIS Ombudsman's Office Addresses Customer Service
3. USCIS On Frontlog / Backlog, I-485 Processing, Naturalization, and Other Issues
4. Attorney Murthy Honored - 12th Annual Maryland Leadership Award
5. Announcement : Murthy Teleconference Series - Wednesday, March 05, 2008
Topic : Business Immigration : Looking Back and Bracing for the Future!
6. MurthyDotCom : Do You Know How We Can Help You?
7. 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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1. Extraordinary Ability and Other Special Options
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Information on the topic of immigrant petitions in the employment-based first preference (EB1) and the National Interest Waiver (NIW), employment-based second preference (EB2), categories has been provided for MurthyDotCom and MurthyBulletin readers in a series of articles and Frequently Asked Questions (FAQs). A number of articles about the O-1 nonimmigrant status for Workers of Extraordinary Ability (EA) can also be found on MurthyDotCom. This comparative analysis on these types of petitions, all of which require a high level of achievement, should prove helpful to those individuals searching for less traditional paths toward immigration. This information may prove valuable when evaluating one's chances for the less common O-1 status and/or the "special category" green card in the EB1/NIW categories, which have stringent requirements and are discretionary.
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Nonimmigrant Categories : Choosing O-1 Over H1B
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Besides taking into account that both H1B and O-1 are nonimmigrant (i.e. temporary) statuses, one must consider many other factors when determining with which to proceed. Far more individuals qualify for H1B status than for O-1. A successful O-1 petition requires a beneficiary to show "extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions, a demonstrated record of extraordinary achievement." Thus, there are many who clearly qualify in the H1B category by virtue of having an offer of employment in a specialty occupation in which they have their respective professional degrees, who will not be able to meet these criteria for a more stringent O-1 status.
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There are individuals, however, who would qualify for H1B or O-1, as well as some, particularly artists and athletes, who may qualify for O-1 but not for H1B. Also, there are individuals who would otherwise qualify for H1B based upon education and type of employment, but who would not immediately be eligible to obtain H1B status because they previously held J-1 status and remain subject to the two-year home-residency requirement. These people cannot obtain H1B status, but may be eligible for O-1 status.
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On a positive note, there is no annual cap on the number of O-1 petitions the USCIS can approve each year and there is no maximum number of years one can stay in O-1 status. Unlike H1B, an O-1 petition does not require the Labor Condition Application (LCA) to be filed with the U.S. Department of Labor (DOL). An O-1 filing, however, requires that one obtain an advisory opinion from a relevant peer group, which may sometimes be difficult to identify. Both H1B and O-1 require an offer of employment and neither H-4 nor O-3 dependents are allowed to work in the U.S.
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Proving extraordinary ability for O-1 in the categories other than arts requires either the receipt of a major, internationally recognized prize (such as the Nobel Prize) or at least three of the criteria listed in the law. These criteria are: receipt of nationally / international recognized awards; membership in organizations that require outstanding achievement; published materials about the foreign national in professional / major trade publications; judging the work of others; original scientific / scholarly work of major significance; authorship of scholarly work; employment at an organization with a distinguished reputation; receipt of a high salary in relation to others in the field.
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O-1 may be Beneficial for an EA Case
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The beneficiary has to meet a number of criteria in order to be eligible for the O-1 status, most of which mirror those for the EB1, EA category. Generally, the O-1 status holder is thought to have a better chance of qualifying for this type of immigrant petition than a nonimmigrant holding a status such as H, J, or F. However, there certainly are many people who hold statuses other than O-1 who have received approval in the EA category. The legal standards for EA overlap with O-1 requirements, explained above. However, because the additional eligibility criteria for the EA category are somewhat higher, not all O-1 holders may qualify for the EA category. Additionally, simply having evidence in three of the listed categories does not assure approval of either the O-1 or the EA. These are minimum requirements to be considered for approval. Successful candidates generally have extensive documentation within at least three of the listed categories of required evidence.
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Deciding between EA and NIW
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Both EA and NIW petitions are exempt from the labor certification and job offer requirements. Therefore, they can be self-sponsored by the foreign national. Both of these categories require a showing of significant success in one's field. The eligibility for NIW, however, has a lower threshold as the individual petitioning in this category does not need to show that s/he "is one of that very small percentage who has risen to the very top of the filed of endeavor," as is the case with EA petitions. In contrast, the petitioner in an NIW case needs to show that the requirement of a job offer can be waived if the proposed employment is determined to be in the "national interest." This petitioner still has to show a high degree of achievement in addition to the "national interest" aspect of his or her field. It is not sufficient to show that s/he works in and has expertise in an area that is in the national interest. The waiver given to the NIW petitioner is a waiver of the requirement for a labor certification, if doing so is in the national interest. In order to meet this criterion, the foreign national must establish that his/her unique abilities, as demonstrated by a pattern of notable past achievements, would provide the U.S. with a benefit that outweighs the significant national interest in protecting U.S. workers through the labor certification requirement.
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OOne needs to carefully evaluate his or her qualifications before deciding whether EA and/or NIW is appropriate. If one might be eligible for both, it is possible to file both. In addition, for individuals from certain countries who may have to wait several years until their EB2 priority dates becomes current in order to file applications for adjustment of status (i.e. "green card"), the decision of category may be a critical component of this consideration.
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Deciding between OPR and EA
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The Outstanding Professor / Researcher (OPR) also presents a possible "special category" within EB1. While EA is exempt from employer sponsorship, an OPR petition is conditioned upon a job offer and employer sponsorship. It does not require the filing of a labor certification application (PERM) with the US Department of Labor, however. Thus, like the EA and NIW cases, it starts with the filing of an I-140 (Employer's Petition for Foreign National Worker).
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One hurdle faced by those considering the OPR category is that it requires at least three years of experience in teaching or research in the field. It also requires the offer of a permanent position (tenure-track or tenured or a comparable research position), and an offer of employment at a university or a private employer that employs at least three researchers full time and that has achieved documented accomplishments in an academic field. The personal qualifications that the beneficiary must document may be somewhat lower for the OPR than for the EA category, but are still high. It requires demonstrating that international recognition as outstanding in a specific academic area. If one has a job offer and intends to stay in the job for some time, filing in the OPR category may be a better option than filing an EA petition.
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Conclusion
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Deciding which nonimmigrant and/or immigrant case to pursue often involves careful consideration of legal requirements as applied to an individual's circumstances. As this decision may significantly impact one's life, it is always advisable to consult a knowledgeable attorney, experienced in these aspects of U.S. immigration law. As the demand for H1B visas exceeds the current limit, and as the labor certification process becomes more and more stringent, more and more individuals are considering alternative ways to legally live and work in the United States. Depending upon one's particular circumstances, these options may include filing a nonimmigrant or an immigrant petition in a category that requires a high degree of achievements and qualifications.
©MurthyDotCom
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2. CIS Ombudsman's Office Addresses Customer Service
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The CIS Ombudsman held a February 20, 2008 teleconference on the topic, "How Is USCIS Working For You?" This was the latest in the series of teleconferences held by the CIS Ombudsman's Office. Most recently, MurthyDotCom and MurthyBulletin readers learned of two teleconferences in our February 8, 2008 articles, Ombudsman's Teleconference on K-3 Visa for Spouse of U.S. Citizen and CIS Ombudsman's Teleconference on USCIS Fee Refunds. During the February 20, 2008 teleconference the CIS Ombudsman's office discussed USCIS customer service matters and provided some solutions. This was Mr. Prakash Khatri's last teleconference in his capacity as the Citizenship and Immigration Services (CIS) Ombudsman.
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Information from USCIS Customer Service Line
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A major concern expressed by teleconference participants was the insufficient or incorrect information provided by the USCIS Customer Service line. In many cases, USCIS representatives provided the same information already available to the customers through the online case status service. In a few instances, USCIS representatives provided case-specific information that was different from that posted on the USCIS WebSite. There were also examples of representatives providing different information each time a customer called the USCIS Customer Service line.
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InfoPass Appointments Often Not Helpful
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According to teleconference participants, in-person inquiries during InfoPass appointments are often not helpful. Customers may receive little or no information and, at times, USCIS officers even provide incorrect information during in-person appointments.
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Also from the Feb 20, 2008 Teleconference
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Other matters addressed during the teleconference included unavailability of status information with regard to Applications for Naturalization (N-400), improper rejections of Applications to Adjust Status (I-485), USCIS's new policy concerning the adjudications of I-485 applications after 180 days or more since the request for the FBI name check has been issued. (See our February 7, 2008 NewsFlash, Faster Security Clearances for I-485s and Other Applications). The Ombudsman's office promised to review these matters and investigate ways in which they might be improved.
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Mr. Khatri Resigns as CIS Ombudsman
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Mr. Khatri's resignation from the position of CIS Ombudsman was first made public in the February 15, 2008 U.S. Department of Homeland Security (DHS) press release. In the press release, DHS Secretary Michael Chertoff commended Mr. Khatri for "his energy and talent" with regard to "streamlining the process by which we provide important immigration services and benefits to individuals and employers ranging from citizenship, lawful permanent residency, employment authorization, adoptions, asylum and refugee status, and foreign student authorization." Mr. Khatri's resignation follows over four years of service as the first DHS CIS Ombudsman. He was appointed by then-DHS Secretary, Tom Ridge. During his tenure, Mr. Khatri has made over 70 recommendations to the USCIS, addressing systemic problems and assisting numerous individuals and employers experiencing difficulties with the USCIS. This resulted in a more streamlined functioning of the USCIS for the benefit of millions of its former, current, and future customers.
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Future Teleconferences
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Ombudsman Khatri assured his teleconference audience that functions of the Office of the CIS Ombudsman will continue without interruption under the leadership of an Interim CIS Ombudsman and that a new CIS Ombudsman is expected to be appointed in the future. The teleconference series also is expected to continue according to the normal schedule at least once each month. Mr. Khatri shared the news of his resignation from his position as CIS Ombudsman at the beginning of the February 20, 2008 teleconference.
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Possible Solutions Suggested by the Ombudsman's Office
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The USCIS customer service deficiencies result in considerable frustration and confusion over the status of cases, as well as wasted resources for both the USCIS and its customers. Mr. Khatri criticized these as unacceptable practices in great need of improvement. He urged everyone who experiences such problems to eMail his office at CISOmbudsman.Publicaffairs@dhs.gov.
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One caller proposed that the USCIS make information available to customers online regarding all of their completed and pending cases based on a unique number and/or password, such as an A-number. Mr. Khatri commented that he was informed of USCIS's plans to institute such a system some time ago and promised to follow up with the USCIS on this matter.
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In order to minimize time and effort spent by both customers and USCIS officers on multiple and unproductive InfoPass appointments, the USCIS Office in Tampa, FL, has initiated a pilot program for its officers to follow up on customer requests using their contact information. At this time, it is not clear how this program is working.
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Mr. Khatri indicated that the USCIS posted a set of questions and answers (Q/As) on their website, providing additional information with regard to I-485 adjudications for which the FBI name check has been pending for at least 180 days. Since the teleconference, however, these Q/As were withdrawn. A replacement set of Q/As was issued on February 28, but has not, as of this writing, been posted on the USCIS website.
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Conclusion
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The Murthy Law Firm applauds the Ombudsman's office for its efforts to improve efficiencies within the USCIS. MurthyDotCom and MurthyBulletin readers will continue to be updated on future CIS Ombudsman teleconferences and on the important issues these raise with regard to the USCIS policies, procedures, and customer service. We at the Murthy Law Firm appreciate Mr. Khatri's dedication and enthusiasm, and his efforts to streamline USCIS procedures, to assist USCIS customers who encounter problems, and his recommendations for improvements to the USCIS during his tenure as CIS Ombudsman. We hope and expect the work at the Ombudsman's office to continue with the positive energy that has been set into motion, resolving problems and providing suggestions for improvement.
©MurthyDotCom
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3. USCIS On Frontlog / Backlog, I-485 Processing, Naturalization, and Other Issues
©MurthyDotCom
The U.S. Citizenship and Immigration Services (USCIS) held a stakeholder meeting on January 29, 2008, the details of which were released recently. Questions were answered on receipting frontlogs and case backlogs, processing times, special circumstances in naturalization cases, religious worker cases, and other immigration matters. Many of the topics discussed at the January 29th meeting are summarized here for the benefit of MurthyDotCom and MurthyBulletin readers.
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USCIS Works on Eliminating Current Receipting Frontlog
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The USCIS indicated at the end of January 2008 that they were receipting I-130, immigrant petitions for alien relatives received on December 14, 2007. All other forms, besides the I-130s, should be current in issuance of receipt notices. Anyone who files a petition or application with the USCIS should receive the receipt notice (Form I-797) within the normal receipt issuance period, which is supposed to be two weeks. It is our experience at the Murthy Law Firm that this can take a few weeks or longer.
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USCIS on Backlog of Naturalization Cases
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With regard to the current backlog of cases, the naturalization application backlog presents a significant problem. Detailed information on naturalization adjudication delays may be found in our February 22, 2008, MurthyBulletin article, USCIS Expects Significant Processing Delays for Citizenship Applications, available on MurthyDotCom. At the stakeholder meeting, the USCIS indicated that the agency is currently in the process of hiring new officers to assist with eliminating the backlog of naturalization cases.
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New Naturalization Test Effective from October 1, 2008
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As regular MurthyDotCom and MurthyBulletin readers know, the new naturalization test will go into effect on October 1, 2008. Information on the new test was provided in our February 1, 2008 MurthyBulletin article, CIS Ombudsman Releases Q/As on New Naturalization Test. In response to the question of whether the USCIS will make public its internal guidance with regard to the new test administration, the USCIS explained that, "because these processes concern internal agency matters, this memorandum has not been offered for general publication."
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The USCIS also responded to a question on when a naturalization applicant is unable to sign the application due to a disability. The USCIS agreed that the current instructions are not clear and it will provide clarification on this matter in the near future.
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R-1 Religious Worker Issues
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As regular MurthyDotCom and MurthyBulletin readers may recall from our May 11, 2007 article, USCIS Proposes Revisions for Religious Workers, the USCIS may conduct employer site visits on a pending R-1 (nonimmigrant religious worker) petition. When the site visits result in significant delays in the adjudication of R-1 petitions, the beneficiaries of these petitions for extension of R-1 status may not be able to continue employment if the delay is beyond 240 days. The USCIS indicated that it would not toll the number of days during which the I-129 petition is pending due to security reviews and site visits.
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Conclusion
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This stakeholders' meeting shed some light on the internal workings of the USCIS. As this information directly concerns many individuals, as well as employers who hire foreign nationals, we are happy to share it with our MurthyDotCom and MurthyBulletin readers.
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4. Attorney Murthy Honored - 12th Annual Maryland Leadership Award
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The World Trade Center Institute Awards Review Committee has announced that the Murthy Law Firm has been selected as from among 150,000 companies in Maryland as one of only six recipients for their prestigious 2008 Leadership Award. Celebrating global success, Attorney Sheela Murthy is recognized for creating a fine example for other Maryland firms to follow. Among the accolades are the Murthy Law Firm's strong growth record and international recognition. Ms. Murthy and the other honorees will be central to a ceremony in March, where their accomplishments will be celebrated in the presence of hundreds of Maryland's business leaders.
©MurthyDotCom
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5. 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.
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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. Details will be sent prior to March 5th and will be posted at http://www.murthy.com/teleconference.html.
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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.
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Employers can find more information at : http://www.murthy.com/teleconference.html.
©MurthyDotCom
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6. MurthyDotCom : Do You Know How We Can Help You?
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While we at the Murthy Law Firm provide the immigrant community with a wealth of free information on our WebSite, we also want MurthyDotCom and MurthyBulletin readers to know how our firm is prepared to help them with their U.S. immigration matters. We have a page dedicated to explaining how we can assist in various nonimmigrant and immigrant cases. This page also provides links to other areas on MurthyDotCom that offer client service information.
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MurthyChat : The next MurthyChat session will be Monday, Mar 19, 2008, 9:00pm Eastern Time (U.S.). While the MurthyChat generally is held on the 1st and 3rd Monday of each month, Attorney Murthy will be traveling and there will be NO CHAT the first Monday in March. 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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7. 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.
Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved
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