MurthyBulletin VOL. XIV, no. 12; March 2008, week 3 Posted : March 21, 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. USCIS Releases Interim Final H-1 Rule - March 2008 Posted on MurthyDotCom March 20, 2008 2. April 2008 Visa Bulletin : EB2 India Moves Forward 3. Effect of Travel While in H1B / L-1 Status and Pending I-485 4. Law Assists Military Personnel to Obtain U.S. Citizenship Faster 5. Sundance 2008 6. MurthyDotCom : Did You Know about Our Citizenship Section Page? 7. 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. USCIS Releases Interim Final H-1 Rule - March 2008 Posted on MurthyDotCom March 20, 2008 ©MurthyDotCom The USCIS has made some procedural changes that apply to the fiscal year (FY) 2009 H-1 cap-subject filings. These changes primarily prevent a single employer from filing multiple H-1 petitions for a single foreign national, and provide for a greater window of time - five business days - for filing this year's cases. More information is available in our NewsFlash, USCIS Interim Final H1B Rule : March 19, 2008 on MurthyDotCom. Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. April 2008 Visa Bulletin : EB2 India Moves Forward ©MurthyDotCom The U.S. Department of State (DOS) recently issued the Visa Bulletin for April 2008. This Visa Bulletin has significant and positive news for those in the employment-based, second preference (EB2) category for nationals of India. EB2 India has been completely "unavailable" during the months of February and March 2008. However, for April 2008, a cutoff date once again has been established. That cutoff date is December 1, 2003. The reappearance of visa numbers in the EB2 India category is due to a shifting of numbers from the general EB2 category due to reduced demand and provisions that allow the per-country limits to be disregarded if adhering to those limits would lead to unused immigrant visa numbers before September 30, 2008, which marks the end of the 2008 fiscal year. ©MurthyDotCom There was also some forward movement in the EB3 category. Categories that were previously current in the employment-based categories remain current. The latest Visa Bulletin chart is always available on MurthyDotCom. ©MurthyDotCom Summary of April 2008 Visa Bulletin ©MurthyDotCom Employment-Based, First Preference (EB1) This category remains current for all countries of chargeability. ©MurthyDotCom Employment-Based, Second Preference (EB2) This category remains current for worldwide, Mexico, and the Philippines. As explained above, the cutoff date for India was reestablished, and is December 1, 2003. The cutoff date for China was unchanged, remaining at December 1, 2003. ©MurthyDotCom Employment-Based, Third Preference (EB3) The EB3 worldwide category cutoff date continued to move forward to July 1, 2005. The same is true of the Philippines. China also moved slightly forward, to February 8, 2003. India's cutoff date improved by several months; moving to October 1, 2001. Mexico also has an October 1, 2001 cutoff date. "Other workers" of all countries of chargeability have a cutoff date of March 1, 2002. ©MurthyDotCom Employment-Based, Fourth (EB4) / Fifth (EB5) / Religious Workers and Targeted Employment These categories are all current. ©MurthyDotCom DOS Explanation and Prediction ©MurthyDotCom The DOS's explanation for the forward movement of the EB2 India cutoff date, after becoming "unavailable" is, as mentioned above, due to an anticipated excess of visa numbers overall. If the demand in an employment preference category is not sufficient to use all of the available numbers in a quarter, then the unused numbers can be made available notwithstanding the per-country limitations. Thus, it appears that visa numbers that potentially would have gone unused were shifted to EB2 India. This is obviously a significant benefit to those in the EB2 India category, who otherwise suffer from the seven percent per-country limitation out of the total number of immigrant visas issued each year. ©MurthyDotCom Conclusion ©MurthyDotCom As a result of the February 4, 2008 Aytes memo regarding revised name check clearance procedures, it is anticipated that demand for EB visa numbers will increase significantly in the near future. Regular MurthyDotCom and MurthyBulletin readers have seen several recent articles on the Aytes memo, including, Adjustment Cases Delayed by Name Checks - February 2008, Feb 22, 2008. It is estimated that over 47,000 cases are impacted by the Aytes memo. (This includes family and employment-based cases.) The USCIS indicated that it would be identifying and moving forward with eligible cases in March 2008. We at the Murthy Law Firm have seen signs of that action, including approvals for long-delayed cases. Thus, the demand for the limited supply of available visa numbers is likely again to increase, as cases with beneficiaries from many different countries, which were long delayed in the name check process, become eligible for approval and use the pool of immigrant visas. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Effect of Travel While in H1B / L-1 Status and Pending I-485 ©MurthyDotCom There are questions commonly on the minds of many Murthy Law Firm clients, as well as the greater immigrant community, that involve the effect of reentry into the U.S. on those who hold H1B or L-1 status as well as having approved Advance Parole (AP) based upon pending applications to adjust status (I-485). The law pertaining to this situation is not clear and the result is confusion. Thus, many with both H1B (or L-1) status and AP find themselves faced with the difficult decision of how to reenter the U.S. after travel abroad. One must decide between reentering in H1B (or L-1) status, which requires that the passport have a valid H1B (or L-1) visa stamp or utilizing the AP document. AP does not require an approved visa at the U.S. consulate. Such individuals are concerned about the manner they choose for reentering, as this may affect their respective status in the U.S. Answers to many of these questions are  in our MurthyBulletin article, Adjustment of Status and Travel : Your Questions Answered! (August 31, 2007), available on MurthyDotCom. The differences between entering in H1B (or L-1) status as opposed to entry on AP, as well as the effect on one's immigration status and employment authorization are explored here for the benefit of our readers. ©MurthyDotCom One Entering on AP Becomes a Parolee ©MurthyDotCom It is a common misconception that entering the U.S. on a valid AP will not impact one's H1B (or L-1) status. An individual with a pending I-485 application, who is eligible to enter in H1B (or L-1) status, may do so without abandoning the I-485 application. Using the AP to enter the U.S., however, terminates one's nonimmigrant H1B (or L-1) status. The reason for this is that an entry on AP is not considered an admission in any particular status but, rather, it is a separate form of entry known as parole. Since the most important document evidencing one's status in the U.S. is the I-94 form, one may easily determine the category of entry by looking at the I-94 issued at the port of entry. One who enters the U.S. on AP has a notation on the I-94 indicating that s/he is paroled into the U.S. An individual who uses a valid H1B (or L-1) visa to enter the U.S. is issued an I-94 specifying the appropriate nonimmigrant status and the date of expiration. ©MurthyDotCom The complete analysis, however, is not quite so simple. Under Legacy INS memoranda issued March 2000 and revised in May 2000, the H (or L) individual who enters on AP does not lose all benefits related to the H-1 (or L-1) status. This is wherein the confusion arises, as explained below. ©MurthyDotCom Parolee may Work for H1B (or L-1) Employer without Valid EAD ©MurthyDotCom Pursuant to the Legacy INS memorandum issued on May 16, 2000, a parolee may continue to work for the H1B (or L-1) employer "if the alien's H1B or L-1 employment authorization would not have expired had the alien not left and returned under advance parole." Such employment is not regarded as being unauthorized, even if the individual does not hold a valid Employment Authorization Document (EAD). In practical terms, while an individual in this situation would no longer hold a nonimmigrant status, s/he still would be able to use the H1B (or L-1) employment authorization to continue working for the H1B (or L-1) employer. This appears to be the most difficult concept to understand, as it does not have any parallel applications within other immigration concepts. The easiest way to grasp this is to think of the unexpired H1B (or L-1) approved petition and I-94 in this situation as employment authorization, which does not give one a corresponding status. Essentially, while the individual does not hold H-1 (or L-1) status after a paroled entry, s/he does retain some of the privileges of that status. It is important to note, however, that in the event that one's I-485 application is denied, the individual would be out of status since s/he would not be maintaining the H (or L) status. ©MurthyDotCom One who chooses to enter the U.S. on AP to resume working for the H1B (or L-1) employer, according to the terms of an unexpired nonimmigrant petition, is eligible to use it as employment authorization. Therefore, s/he does not need a separate EAD. Since the employee continues to hold a valid document permitting employment, the travel and reentry do not trigger any obligations on the part of the employer with respect to Form I-9 prior to the expiration of the H1B (or L-1) petition. ©MurthyDotCom EAD is Safer / H1B Makes Extensions Possible ©MurthyDotCom As a matter of precaution, since the above information is based on a long-standing Legacy INS memo, rather than law or regulation, it may be advisable to possess an EAD in this situation, in the event of any questions on the issue. However, even in that scenario, the employer would not seem to have any additional I-9 obligations, as the last document reviewed by the employer (H1B or L-1 I-94) would be unexpired. Also, the employee would be allowed to file for the H1B (or L-1) extensions even after entering on AP. ©MurthyDotCom Parolees Resume H1B (or L-1) Status upon Admission or upon Approval of H/L Petition ©MurthyDotCom The May 2000 memorandum clarified that an H1B (or L-1) nonimmigrant, who has traveled abroad and reentered the U.S. on AP "may apply for an extension of H1B or L-1 status, if there is a valid and approved petition." If the USCIS approves the petition, this "will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification." Therefore, one's H1B (or L-1) status will be reinstated upon the approval of the petition for extension of status. In order to utilize these provisions, s/he should have resumed employment with the H1B (or L-1) employer following the paroled entry. ©MurthyDotCom Similar Result if Employer Files H1B Amendment ©MurthyDotCom The same effect would be achieved if the current employer files an amended petition. It can also be achieved if the individual works for the H1B employer, and later seeks to extend H1B status through a change of employer. Additionally, since the AP entry does not invalidate the approved H1B (or L-1) petition, the foreign national potentially could regain H (or L) status by traveling abroad and reentering with a valid H (or L) visa, and obtaining an H (or L) notation on the I-94 card at the port of entry. In these circumstances, the H (or L) status will be reinstated, giving one the benefit of continuing in that status for a length of time even if the I-485 ultimately is denied. Thus, when one wishes to maintain H1B (or L-1) status, which is often the case, this still may be accomplished, even if AP is used for entry at some stage in the process. This is particularly straightforward for individuals who have H1B (or L-1) status that will need to be extended shortly after their reentry into the U.S. The H (or L) extension, if approved, will put them back in H (or L) status, even if they last entered on AP. At the Murthy Law Firm, we also see many situations in which one uses AP for emergency travel or shorter trips, but then seeks the H (or L) visa on a later trip, when time allows for a visa application at the consulate. ©MurthyDotCom Conclusion ©MurthyDotCom An H (or L) nonimmigrant with a pending I-485 application may have to make a number of decisions before traveling abroad. These decisions potentially subject one to an unintended result that could have been easily prevented, if anticipated. There are risks and variables to weigh, each of which is case specific. Because each person's situation is different, a consultation with a knowledgeable, experienced attorney is advisable prior to travel. Additionally, since AP can take several months to process, it is often a good idea to request AP just in case it is needed for an emergency or other unexpected situation, even if the intention is to travel as an H (or L) nonimmigrant. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Law Assists Military Personnel to Obtain U.S. Citizenship Faster ©MurthyDotCom The Office of U.S. Senator Barbara A. Mikulski (D-MD) has recently announced that both the U.S. Senate and the U.S. House of Representatives have approved the Kendell Frederick Citizenship Assistance Act (S. 2516). This legislation was originally introduced by Senator Mikulski and Congressman Elijah Cummings (D-MD). The President has not yet signed the bill, as needed for it to become law. It is expected that it will be signed by President Bush any day. Once signed, the new law will assist members of the U.S. Armed Forces to obtain U.S. citizenship more quickly. General guidance on citizenship requirements for military personnel is described in our August 10, 2007 MurthyBulletin article, Naturalization Procedures for Members of the Military, available on MurthyDotCom. ©MurthyDotCom History of the Kendell Frederick Citizenship Assistance Act ©MurthyDotCom U.S. Army Spc. Kendell Frederick was a resident of Randallstown, Maryland, and a citizen of Trinidad. He had applied for naturalization while serving on active duty in Iraq. His naturalization application was slowed as the result of multiple delays due to miscommunication with the USCIS. In October 2005, he was required to submit his fingerprints at a remote base, as part of the naturalization process. While en route for the fingerprinting process, the Army Specialist was killed by a roadside bomb. He was posthumously granted citizenship a week after his death. ©MurthyDotCom Purpose of the Act In order to expedite adjudication of citizenship applications filed by military personnel, the new law directs the USCIS to accept biometrics information submitted by applicants at the time of enlistment. Fingerprints received at the time of enlistment should comply with the naturalization biometrics requirements. It is also noted that the new procedures should not jeopardize security measures normally associated with the naturalization process. This law would avoid the need for additional biometrics from one currently serving in the U.S. military or on active duty with the military. ©MurthyDotCom Conclusion ©MurthyDotCom It indeed is unfortunate that Kendell Frederick lost his life to obtain his U.S. citizenship. The American Immigration Law Foundation (AILF) honored him posthumously at the AILF Immigrant Achievement Awards in March 2007 in Washington, D.C. His mother was in attendance and gave a moving and glowing tribute, speaking of her son and his death. Her commitment and passion helped see to that this law was passed. We at the Murthy Law Firm commend Senator Mikulski and Congressman Cummings for their efforts in helping with the naturalization application procedures for military personnel. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Sundance 2008 ©MurthyDotCom Even for those who do not relish brisk winter winds, frosty breath on the air, or fresh-fallen snow, there is something else that winter has to offer - Sundance. The attention of the film-loving world shifts to the Sundance Film Festival in Park City, Utah each February. It is known for highlighting independent films the likes of Sex, Lies, and Videotape 1989 (1990 Audience Award winner at Sundance, 1990 Academy Award for best original screenplay and four Independent Spirit Awards) and Smoke Signals 1998 (Sundance Audience Award and Filmmaker's Trophy). The Sundance Institute has produced films such as Little Miss Sunshine (2007 winner of two Academy Awards and four Independent Spirit Awards). In recent years, immigrants and immigration and the clashing, acceptance, and melding of different cultures have been prominent themes among the films at Sundance. Several years ago MurthyDotCom began a list of films on this topic, for which we regularly receive messages of thanks from immigrants, from teachers, and from those in the film industry, as well as regular film buffs. Following are some films from Sundance 2008 that will be added to our film page in the coming days. Find the entire list, in reverse-chronological order at http://www.murthy.com/films.html. ©MurthyDotCom Frozen River (2008)  Written and directed by Courtney Hunt (USA) and winner of the dramatic Grand Jury Prize at Sundance 2008. Frozen River stars Melissa Leo (The Three Burials of Melquiades Estrada 2005) and Misty Upham. It is the story of an alliance between two desperate women in Upstate New York. Hunt examines the realities of human smuggling and the difficult choices with which poor, single mothers are faced. ©MurthyDotCom La Misma Luna (Under the Same Moon) (2007)  Directed by Patricia Riggen and written by Ligiah Villalobos, this is a heartwarming story about a mother who leaves Mexico to make a home for herself and her son (Adrian Alonso). When the boy's grandmother dies, leaving him alone, he sets off on his own to find his mother (Kate del Castillo). Fox Searchlight purchased this film at the Sundance Film Festival. Recognizing that this theme is more than just the plot for a movie, the film's website has provided links to organizations that help to reunite separated immigrant families. ©MurthyDotCom The Visitor (2007)  Written and directed by Tom McCarthy (USA), who brought us the award winning, The Station Agent 2003, The Visitor is the story of Walter (Richard Jenkins), a lonely widower and professor of economics, who is called to a conference in New York. When he arrives at the rarely-used apartment he keeps in the City, he startles a young couple who have been squatting there illegally. The young man is from Lebanon (Haaz Sleiman) and his wife from Senegal (Danai Jekesai Gurira). When the young man is arrested and his wife is not allowed to see him in the immigration detention center, Walter is prevailed upon to help her. But in the end, it may be Walter who is truly rescued. ©MurthyDotCom Strangers (2007)  Written and directed by Erez Tadmor and Guy Nattiv (Israel), this is an impossible love story about an Israeli kibbutznik and a Palestinian from Paris, who meet in Berlin at the World Cup finals when their identical backpacks are switched. The boy follows the girl to Paris, where the harshness of the real world makes its presence felt. ©MurthyDotCom Towelhead (2007)  Written and directed by Alan Ball (USA), based on a novel by Alicia Erian. 1980s-USA was the time of Desert Storm. Towelhead is the coming-of-age story of a 13-year-old ArabAmerican girl, Jasira (Summer Bishil). The daughter of estranged parents, an American mother (Maria Bello) and a strict and patriotic AmericanLebanese immigrant father (Peter Macdissi), Jasira's sexuality has the men prowling around. Towelhead portrays the racial attitudes that already existed towards Arabs in the U.S., erupting after 9/11. ©MurthyDotCom Sleep Dealer (2008)  Written by Alex Rivera and David Riker, directed by Alex Rivera (USA / Mexico).  International borders that are impenetrable, militarized corporations, and how the average drone fits into a computerized future are the theme of this compelling film. ©MurthyDotCom Kicking It (2007)  Written and directed by Susan Koch (USA). Both homelessness and soccer can be found throughout the world. Kicking It brings them together for the film-going audience, showing us the astounding Homeless World Cup. Begun in 2001 to improve the lives of the homeless through sports, we learn that 500 players, representing 48 countries, have earned a trip to Cape Town, South Africa to play in the tournament. Seven players are profiled. Although this is a documentary, there is something reminiscent of the Preston Sturges film classic, Sullivan's Travels 1941 in this theme. ©MurthyDotCom Captain Abu Raed (2007)  Written and directed by Amin Matalqa (Jordan), this is the first independent film to come out of Jordan. Captain Abu Raed is significant for that reason alone, but the film continues to deliver from there. While this is not a film on immigrants or immigration, it is about the dream of seeing the world and the sharing of imagined experiences through storytelling. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about Our Citizenship Section? ©MurthyDotCom Many visitors to MurthyDotCom have the ultimate goal of living the American dream as citizens of the United States. To help them realize this dream we provide information on the naturalization process, namely, what one needs to do to acquire U.S. citizenship. This section of our WebSite includes the basic requirements to file for U.S. citizenship and 100 sample questions that could be asked on the requisite civics examination that must be passed for U.S. citizenship eligibility.  Answers to all the sample questions are provided. PDFs of the USCIS study guides are also available for download. We at MurthyDotCom are pleased to provide our readers with this help in our Citizenship section. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, April 07, 2008, 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 © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 7. 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.