MurthyBulletin
VOL. XIII, no. 09; Mar 2007, week 1
Posted : Mar 2, 2007

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"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.

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TOPICS in this Edition of the MurthyBulletin :
1. USCIS on the First Filing Date for FY2008 H1B Cases

2. RIR Conversion Update - Feb 2007

3. Policy on Expediting FBI Name Checks : Very Limited

4. Special Immigrant Visa Category for Iraqi and Afghan Translators

5. MurthyDotCom : Did You Know about Our Page for Employers and Employees?

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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1. USCIS on the First Filing Date for FY2008 H1B Cases
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In a January 8, 2007 teleconference with the American Immigration Lawyers Association (AILA), the USCIS provided some clarification regarding the first official filing date for the 2008 H1B cap season. There has been some confusion this year because the first filing day, April 1, 2007, falls on a Sunday. The USCIS is not open on weekends. The guidance indicates that cases filed on Saturday, March 31, 2007, will be receipted in and treated as if they were filed on April 2, 2007. Anything filed earlier with an October 1, 2007 start date will be rejected. So the word to the wise is: Don't file even a day too early!
©MurthyDotCom
As regular readers of MurthyDotCom and the MurthyBulletin know, H1B cases can be filed six months in advance of their requested start dates. Those cases requesting October 1, 2007 as their start date would normally be filed as early as April 1, 2007. With H1B cap numbers limited so severely, many are anxious to make sure that their filings arrive at the USCIS on the first permissible filing day. There was some uncertainty, however, as to whether it would be better to schedule the cases for delivery on Monday, April 2nd this year, or over the immediately preceding weekend.
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USCIS Suggests March 31, 2007 as Acceptable
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The first business day on which USCIS will accept a Fiscal Year (FY) 2008 H1B petition and issue a receipt notice is Monday, April 2, 2007. The USCIS guidance stated that cases delivered on Saturday, March 31, 2007 will most likely be receipted in for Monday April 2nd, since their offices are closed on Saturdays. Thus, it seems that it is safe to time delivery so that filings reach the USCIS over the final weekend of March or, possibly safer, for Monday, April 2, 2007. There does not appear to be a particular advantage to weekend delivery.
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Do Not File Too Early
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The Vermont Service Center (VSC) noted that it will reject H1B petitions requesting an October 1, 2007 start date if they are received on Friday, March 30, 2007. Thus, March 31st is acceptable since those cases will be issued receipts with the date of April 2, 2007; while March 30 is not acceptable for filing H1B cases under the FY2008 cap.
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VSC Likely to Process all H1B Cap Cases
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As of now, it is anticipated that all H1B cap-subject cases will be filed with the VSC. The USCIS will issue further guidance on this matter as the end of March 2007 approaches.
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Timing is Critical
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We at the Murthy Law Firm would like to reiterate the importance of filing all H1B petitions subject to the cap as early as possible to increase one's chance of securing an H1B visa number for FY2008. Based on the expected demand for the limited H1B numbers, it is widely anticipated that the H1B cap will be reached very soon after the filings begin.
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2. RIR Conversion Update - Feb 2007
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The U.S. Department of Labor (DOL) provided updated information in mid-February 2007 regarding the reduction in recruitment (RIR) conversion process. This process, which applies to some of the labor certification cases pending at the Backlog Processing Centers (BPCs) was covered in our January 5, 2007 MurthyBulletin article, DOL Updates Guidance on Conversion to RIR - December 2006, available on MurthyDotCom. Essentially, those employers wishing to convert a labor certification pending with the BPC from a traditional recruitment (TR) case to an RIR case were able to make a request by eMail to the DOL to put a "hold" on the case to allow them to initiate the required recruitment for RIR. The DOL states that it has responded to approximately 75 percent of the RIR conversion eMails.
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DOL Response on Employer's "Hold Harmless" Request
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The DOL had stated that, once an employer or the employer's representative sent in a "hold harmless" conversion request eMail, the DOL would respond with a prevailing wage determination. Thus, some of the responses from the DOL provide the employer with prevailing wage information.
©MurthyDotCom
Not all responses give the go-ahead for the case, however. Some of the DOL responses have informed employers that the case in question has been rejected for RIR conversion. It appears that these rejections must be due to ineligibility for RIR.
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No Reconsideration of DOL Denial of Conversion Requests
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If the DOL denied the conversion request, there is no method to ask for reconsideration. There is no rebuttal process. The case will continue, but will be processed with supervised recruitment under the TR labor process, rather than undergoing the RIR process. The DOL stated that any case that could reasonably have been approved for the conversion opportunity was sent a prevailing wage determination permitting the conversion to proceed.
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Timeframe for Sending All eMail Responses
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The DOL did not provide a timeframe within which eMail responses will be sent. They did say, however, that they will notify the public when they have done so.
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Conclusion
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The DOL was generous to provide this updated information that we are able to relay to MurthyDotCom and MurthyBulletin readers. As the DOL plans to wrap up its backlog work, employees can retain their earlier priority dates from TR or RIR cases filed to obtain their labor certification towards processing their green cards. Obtaining the labor certification is the first (and a critical step) toward the green card in most employment-based cases, as one works toward the ultimate goal of making the U.S. her/his permanent home.
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3. Policy on Expediting FBI Name Checks : Very Limited
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In a press release dated February 20, 2007, the USCIS indicated that they will no longer request that the Federal Bureau of Investigation (FBI) expedite a pending "name check" solely because the foreign national has filed a writ of mandamus against the government. Writs of mandamus are lawsuits, filed against the government, to force them to make a decision when they have simply taken too long to do so. Since the USCIS does not control the required name checks, and must rely upon the FBI, they previously would push the FBI to act once a mandamus action was filed. They will no longer do this.
©MurthyDotCom
The various required security checks, including the FBI name checks, were explained in our May 12, 2006 MurthyBulletin article, Security Checks : How and Why, available on MurthyDotCom.
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The USCIS listed the criteria required for them to request an expedited name check of the FBI so they can move a pending case forward. These very limited expedite criteria are set forth below.

  1. military deployment

  2. age-out cases not covered under the Child Status Protection Act (CSPA), and applications affected by sunset provisions such as green card lottery

  3. significant and compelling reasons, such as a critical medical condition

  4. loss of social security benefits or other subsistence at the discretion of the USCIS District Director

The need for background security checks on those applying for U.S. immigration benefits is not at issue here. The time that it takes to conduct a background check, however, is a concern both from the benefits and security points of view. If it takes years to make a determination, the affected individual is potentially in the U.S. while the security check is ongoing. The risk factor makes this matter rather urgent for our country and the safety of our people. It is ironic that the greatest amount of waiting time is experienced in those cases with some sort of security concern. Since these individuals are often physically present, living and working in the U.S., it would seem that it would enhance security for their cases to be resolved quickly, one way or the other. Instead, cases are stuck in the name-check procedure for durations that are measured in years.
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4. Special Immigrant Visa Category for Iraqi and Afghan Translators
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Under the Employment-Based Fourth Preference (EB4) Category is the rather new special immigrant visa category for Iraqi and Afghan translators, created by the National Defense Authorization Act for Fiscal Year 2006. This category was first brought to the attention of our readers in our November 17, 2006 MurthyBulletin article, Report on December 2006 Visa Bulletin, available on MurthyDotCom. That was the first U.S. Department of State (DOS) Visa Bulletin which included this special category.
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Eligibility for EB4 Translator Category
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An applicant filing for special immigrant translator status must meet certain criteria. One must be a national of Iraq or Afghanistan who has worked directly with the U.S. Armed Forces as a translator for a period of at least 12 months. S/he also must have obtained a favorable written recommendation from a General or Flag Officer (Naval Admiral) in the chain of command of the U.S. Armed Forces unit that was supported by the translator.
©MurthyDotCom
The individual must have cleared a background check and screening, as determined by a General or Flag Officer in the chain of command of the U.S. Armed Forces unit that was supported by the translator. S/he must also be otherwise eligible to receive an immigrant visa and be otherwise admissible to the United States for permanent residence. While the “public charge” provisions do not apply, it would seem that the valuable translation skills possessed would enable one filing under this category to support him/herself and any dependents in that, or another area of work for which s/he may be qualified.
 ©MurthyDotCom
Numerical Limitation of 50
©MurthyDotCom
The U.S. Armed Forces unit acts as the advocate and petitioner on behalf the translator and his / her immediate family and assists them with the required evidence. The total number of principal foreign nationals who may receive special immigrant translator status during any fiscal year cannot exceed fifty (50). This number does not include the dependent family members. Therefore, there can be fifty primary beneficiaries plus their spouses and/or minor children.
©MurthyDotCom
Quota Reached Early in FY2007
©MurthyDotCom
Regular readers of MurthyDotCom and the MurthyBulletin will recall that the fiscal year for the federal government begins on October 1st of the calendar year prior to the fiscal year. The numerical limitation for Fiscal Year (FY) 2007 was reached very near start of that fiscal year, in November of 2006. The USCIS announced that they continued to accept filings until November 17th, 2007, for the next available visa cycle, but have not yet announced how many of these petitions will be counted toward the numerical limitation for FY2008.
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5. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
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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 Employment Page on MurthyDotCom.
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The next session MurthyChat will be Monday, March 05, 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. 
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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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