MurthyBulletin VOL. XIV, no. 13; March 2008, week 4 Posted : March 28, 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. DOS Insights and Predictions on Visa Numbers 2. USCIS Discusses H1B Receipts, I-140 Premium Processing, More 3. Bill Gates Testifies on Need for Skilled Workers 4. Bills Proposed for Special Immigrants and More H1Bs 5. MurthyDotCom : Did You Know about Our Rumor Control Page? 6. 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. DOS Insights and Predictions on Visa Numbers ©MurthyDotCom Many attorneys from the Murthy Law Firm attended a March 19, 2008 American Immigration Lawyers Association (AILA) meeting in Washington DC, at which Charles Oppenheim, Chief, U.S. Department of State (DOS), Immigrant Visa Control and Reporting Division, shared his insights and predictions on the future movement of visa numbers for various categories and countries. Mr. Oppenheim's opinions are relevant since he is in charge of the Immigrant Visa Control and Reporting Division, which is responsible for the movement of visa numbers each month and for releasing the monthly DOS Visa Bulletin. The Visa Bulletin and the establishment of cutoff dates is a method for monitoring and predicting the demand for visa numbers in the various categories. The cutoff dates published in the Visa Bulletin are important to many MurthyDotCom and MurthyBulletin readers. The chart from the most recent Visa Bulletin is posted on MurthyDotCom. ©MurthyDotCom General Process and Procedure for Movement of Visa Numbers ©MurthyDotCom The content of the Visa Bulletin, including cutoff dates and indications of current (C) or unavailable (U), determine both whether a pending Application for Adjustment of Status (I-485) case can be approved, as well as when an I-485 can be filed. It also determines whether a visa number is available to any U.S. consulate abroad for immigrant visa processing in a particular category. Mr. Oppenheim noted that the Visa Bulletin is intended to reflect the availability of visas for cases that are pending. Thus, if there is an indication of current, there are enough visa numbers for cases in that category that have been filed and are far enough along in the process to be ready for approval during the particular month for which that bulletin was prepared. It does not mean that there are enough visa numbers for all cases in that category that may exist either in the queue or that are waiting for cutoff date movement in order to be filed. Since the USCIS ties the filing of I-485 cases to the Visa Bulletin, however, priority date movement has the result of allowing cases to be filed, even if there will not be enough visa numbers available for the particular cases once they are reviewed by the USCIS. Many who filed I-485s during the summer of 2007 have come to understand this concept, as their cases are pending but may not be eligible for approval for a very long time due to a shortage of immigrant visa numbers under the per-country quota limits.   ©MurthyDotCom The cutoff dates are set based upon estimates of anticipated demand for visa numbers. Taken into consideration are historical patterns, data regarding cases awaiting interview at the consulates, and reports from the USCIS about their case load. The dates are set in an effort to use all the immigrant visa numbers by the end of the fiscal year, however, efforts are made to avoid having a category become unavailable. ©MurthyDotCom EB1 Should Have Excess Numbers ©MurthyDotCom The employment-based, first preference (EB1) category is expected to remain current for all countries of chargeability for the rest of the fiscal year; that is, through Sep 30, 2008. The allowable seven percent per country limit has already been used for both China and India. Rather than listing the category as unavailable for these two countries, however, visa numbers were shifted to them from the other countries' unused quota in EB1, due to the excess and unused EB1 worldwide quota. In fact, a surplus of numbers in the EB1 category is anticipated. Therefore, it is expected that thousands of the numbers allocated to EB1 will be shifted down and made available to EB2, since the EB2 category includes any unused visa numbers in the EB1 category. This would occur before the end of the fiscal year. ©MurthyDotCom EB2 Issues : China and India ©MurthyDotCom The Visa Bulletin for the month of April 2008 brought positive news for nationals of India in the employment-based, second preference category (EB2). As explained in our March 21, 2008 MurthyBulletin article, April 2008 Visa Bulletin : EB2 India Moves Forward, the category moved from being unavailable to a cutoff date of December 1, 2003, due to a shift of visa numbers that otherwise would have been unused, based on current projections. The law allows for otherwise unused numbers to be made available, regardless of the seven percent per country limitations. Thus, the EB2 India category received an influx of visa numbers for April 2008, and this will result in India's exceeding its seven percent per country allocation. ©MurthyDotCom The influx of EB2 immigrant visa numbers was also allocated to China. A question was asked whether the shift in numbers to India was unfairly disadvantaging China, which also has not been current in the EB2 category. Mr. Oppenheim explained that China would have been unavailable for April 2008 had numbers not been shifted to that category to allow the cutoff date to remain at December 1, 2003. Therefore, while it is expected that India will use a great many of the visa numbers that otherwise would have gone unused, no other country of chargeability is being disadvantaged. ©MurthyDotCom If the situation changes with respect to the demand for the EB2 worldwide category, then the cutoff dates may have to be changed for India and China. Mr. Oppenheim noted that the demand in the India chargeability, both for EB2 and EB3, is quite large; particularly as a result of the volume of I-485 cases filed during the summer of 2007. This period has become known as the VisaGate fiasco, with which regular MurthyDotCom and MurthyBulletin readers are familiar. ©MurthyDotCom EB3 ©MurthyDotCom It is expected that the cutoff dates in the employment-based, third preference category (EB3) will remain the same during the month of May 2008. However, this depends on the USCIS's processing of cases, as visa numbers are assigned based on I-485 approvals. Therefore, the number of I-485 applications approved by the USCIS determines, to a large extent, the immigrant visa number usage. (The consulates also use EB3 visa numbers, but far fewer than the USCIS.) ©MurthyDotCom The EB3 cutoff dates moved forward in March and April 2008 in an attempt to avoid a recurrence of the events of the summer of 2007. As our readers recall, in the summer of 2007, the Visa Bulletin reflected current for most categories in an effort not to have any immigrant visa numbers go unused by the end of the fiscal year. The dates are being moved more quickly in the spring, as there is a potential that USCIS will have to reallocate staff from I-485 cases to naturalization cases to address the backlogs with those filings in order to naturalize eligible individuals prior to the November 2008 general election. Moving the dates forward permits case approvals and full utilization of immigrant visa numbers before the end of the fiscal year.   ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm sincerely thank Mr. Oppenheim for this helpful information and his willingness to share detailed explanations of the inner workings of the DOS Immigrant Visa Control and Reporting Division. Neither the shifting of visa numbers in the EB1 category, nor the fact that EB2 China would have gone unavailable in April 2008, was explained previously. Our clients certainly appreciate the shift of visa numbers from the unused worldwide quota to nationals of India and China, particularly in the EB2 category. While this obviously does not solve the simple lack of sufficient visa numbers, or the problems created by the seven percent per country limitation, it will help with some of the cases that otherwise would have had to wait until either the EB1 numbers rolled down or until further annual allocations made numbers available. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. USCIS Discusses H1B Receipts, I-140 Premium Processing, More ©MurthyDotCom The USCIS Service Center Operations (SCOPS) held a March 5, 2008 teleconference with the American Immigration Lawyers Association (AILA) on important matters of adjudication and procedure. Of particular interest to MurthyDotCom and MurthyBulletin readers, are USCIS issuance of H1B receipt notices only for cap cases selected under the FY2009 random lottery, the name change procedures for I-485 applicants, possible additional time to file extensions for Advance Parole (AP), and possible reinstatement of the premium processing service for I-140 Immigrant Petitions. ©MurthyDotCom H1B Receipt Issuance Only for Cases Selected under Random Lottery ©MurthyDotCom During the teleconference, the USCIS indicated that only H1B petitions selected in the lottery will be issued receipt notices. Last year, some H1B petitions were issued receipts before the lottery and without consideration for whether or not they were accepted for processing. This created significant confusion. Some petitioners who were issued the receipt notice assumed that their filings were accepted for processing when, in fact, they were refused later through the lottery. To avoid this confusion, the USCIS will conduct the H1B lottery before issuing receipts for H1B petitions accepted for processing for FY2009. In anticipation of the rush of cap-subject H1B filings that will begin April 1, 2008, the USCIS has alerted the U.S. Postal Service and the courier services to the increased volume of mail expected. ©MurthyDotCom Procedure on Name Changes While I-485 is Being Processed ©MurthyDotCom Because of the length of time that many to Adjustment-of-Status Applications (I-485s) remain pending, it is not uncommon for an applicant to have occasion to change her/his name as a result of marriage or other circumstances. The USCIS has indicated that one who changes his/her name while the I-485 is pending should mail the request for name change to the USCIS, addressed to the P.O. box of the original I-485 filing. The applicant should provide proof of the name change and enclose a copy of the I-485 receipt notice. ©MurthyDotCom Request for Earlier Date to File Extensions of Advance Parole ©MurthyDotCom AILA has suggested that the USCIS consider accepting applications for Advance Parole (AP) extensions earlier than 120 days in advance of the expiration date of the existing AP. This was prompted by the fact that many individuals, who received their APs in the second half of 2007 as a result of the high volume of I-485 cases filed in the summer 2007, will be extending their APs at about same time, creating an influx of filings. If the USCIS allows applicants to request  extensions earlier, then the filings could be spread over a longer period of time, relieving USCIS efforts to adjudicate all of them at the same time, resulting in delays in processing AP extensions. The USCIS agreed to consider this proposal. ©MurthyDotCom I-140 Premium Processing Possible in "Waves," or Batches ©MurthyDotCom The USCIS has been considering the reinstitution of premium processing for I-140 petitions in waves. As regular MurthyDotCom and MurthyBulletin readers will recall from our July 6, 2007 article, USCIS Suspends I-140 Premium Processing : July 2007 and our August 3, 2007 article, Suspension of I-140 Premium Processing Continues, premium processing for I-140 petitions was indefinitely suspended in July 2007. This has created a number of problems and inconveniences for people who need to have the decisions on their petitions expedited. Those who need their I-140s approved before they are eligible for additional time in H1B status, for example, would greatly benefit from the return of the premium processing service. ©MurthyDotCom The USCIS is currently reviewing its case load to determine whether it will be able "to commit to the 15-day turnaround," since its goal is to resume premium processing only if it is able to process I-140s and other cases in a timely manner. It may consider premium processing for certain types of applicants before others, depending upon its case load. The USCIS benefits tremendously from the additional revenue of $1000 per person, per premium case, so it is motivated to resume I-140 premium processing at the earliest opportunity. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm urge the USCIS to take the action needed to resume I-140 premium processing. It could have positive results for all concerned - the USCIS, employers, and employees who need to extend their H1B status in the U.S. Permitting earlier AP extension filings would also benefit foreign nationals who need to travel internationally, for business and personal reasons. We will keep MurthyDotCom and MurthyBulletin readers updated on any new developments on these important matters of concern. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Bill Gates Testifies on Need for Skilled Workers ©MurthyDotCom Bill Gates, Chairman of Microsoft Corporation, addressed the U.S. House of Representatives Committee on Science and Technology on March 12, 2008, regarding the future of technological innovations in the United States. In his testimony, Mr. Gates provided a comprehensive analysis of the current state of the U.S. as a "global leader in technology innovation," identified current strengths and weaknesses in the field of technology, and expressed his concern that "we are failing to make the investments in our young people, our workers, our scientific research infrastructure, and our economy that will enable us to retain our global innovation leadership." In addition, Mr. Gates outlined his plan for improvement that addressed, in large part, the inadequacy of the United States' "immigration rules for highly skilled workers." ©MurthyDotCom Problems for U.S. Companies with Limited H1B Skilled Workers ©MurthyDotCom In his testimony, Mr. Gates proposed a new set of policies to address the shortage of qualified scientists and engineers in the United States. As chairman of one of the leading technology corporations in the world, Mr. Gates is in a position to witness the shortfalls of the U.S. labor market and immigration system when it comes to attracting and retaining highly skilled workers. He noted that the current system makes it "exceptionally challenging for U.S. firms" to remain competitive in the global market. To illustrate this, Mr. Gates reminded the members of the Committee that the supply of H1B visas allocated by Congress is so extremely limited that it was exhausted on the very first day of filing for FY2008. Moreover, the number of petitions filed greatly exceeded the number of H1Bs available. Because Congress has not taken any action to correct this situation - passing no immigration reform for high-skilled workers - he believes that history is expected to repeat itself on the first day of filing for FY2009, which is April 1, 2008. As a result, many affected companies, including Microsoft, are forced to allocate work to staff located beyond U.S. shores. ©MurthyDotCom As U.S. companies are deprived of the human resources they desperately need, the U.S. economy is suffering great losses. Mr. Gates pointed out that engineering and technology start-up companies founded by foreigners in recent years have "produced $52 billion in sales and employed 450,000 workers." Employment of foreign workers also increases the overall employment as companies hire additional workers "to support [H1B employees] in various capacities." Without revamping its immigration rules, the U.S. is destined to give up its leading position in the global market and economy. ©MurthyDotCom Gates Calls for Revamping Immigration for the Highly Skilled ©MurthyDotCom In order to attract more highly-skilled foreign workers, Mr. Gates proposed an immediate extension of the period of Optional Practical Training (OPT) for international students from 12 months to 29 months, which "would help to alleviate the crisis employers are facing... ." A second change that was suggested by Mr. Gates was to improve the lawful permanent resident, or "green card," process for highly-skilled, well-trained workers. These individuals should be able to obtain lawful permanent resident status more easily via a more streamlined and efficient process. In addition, Mr. Gates urged Congress "to pass legislation that does away with per-country limits and significantly increases the number of green cards available in any fiscal year." ©MurthyDotCom Conclusion ©MurthyDotCom Mr. Gates has long been a vocal advocate for changes in the immigration system that would allow the U.S. to attract and retain foreign, highly-skilled workers. His valuable observations and detailed proposals include efforts to bring a greater math and technology focus to the U.S. educational system, and make it more attractive for skilled workers to obtain temporary and permanent immigration to the U.S. to fill unmet employer needs. His voice definitely has impact, as it could pave the way for long-term solutions to the U.S. immigration system. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Bills Proposed for Special Immigrants and More H1Bs ©MurthyDotCom The U.S. House of Representatives has legislation pending that addresses the shortfall in the nonimmigrant H1B category for highly-skilled foreign workers. Another bill has been introduced that would provide a new special immigrant category for persons with U.S. Ph.D. degrees. It is essential to understand that, at this time, the legislation described is simply in the proposal stage. It is an indication of some support for positive changes in areas important to MurthyDotCom and MurthyBulletin readers. The law cannot change unless legislation is passed by both the House and the U.S. Senate and, thereafter, signed by the President. ©MurthyDotCom Various Bills Introduced in the House ©MurthyDotCom The House is currently reviewing several bills designed to provide much needed relief to U.S. employers and the highly-educated foreign national employees they need. On March 13, 2008, Congresswoman Giffords (D-AZ) introduced the "Innovation Employment Act" (H.R. 5630), proposing to increase overall H1B numerical limitations and to "modify certain requirements with respect to H1B nonimmigrants." On March 14, 2008, Congressman Smith (R-TX) introduced H.R. 5642 proposing to increase the numerical limitations temporarily in fiscal year (FY) 2008 and FY2009. In addition, Congressman Kennedy (D-RI) introduced the "New American Innovators Act" (H.R. 5634) to exempt from the immigrant numerical limitations any person who has received a Ph.D. from an institution of higher education within the three-year period preceding such person's petition for special immigrant status. ©MurthyDotCom Proposal to Increase H1B Numbers ©MurthyDotCom The bill introduced by Congresswoman Giffords contains the most generous proposal to increase the numerical limitations imposed on H1Bs. It provides for an increase to 130,000 (as opposed to the current cap of 65,000) available in FY2008 and each succeeding year. (Note that the last day of FY2008 is Sep 30, 2008. Current H1B cap filings are being made for FY2009, which begins Oct 01, 2008.) If certain conditions are met to indicate that the increased cap number is not adequate, the proposed law provides for further increases in the H-1 cap based on a formula. The bill introduced by Congressman Smith would simply provide for 195,000 H1B visas during fiscal years 2008 and 2009. (The cap of 195,000 was set and available 2001-2003, at which time there were adequate cap numbers to meet demand.) Both bills are designed to fix the problem of the inadequate H1B cap numbers for high-skilled temporary workers. ©MurthyDotCom Proposal for Special Immigrant Visas for Certain Ph.D. Candidates ©MurthyDotCom The bill sponsored by Congressman Kennedy would add a new category to the list of special immigrants that currently includes such categories as immigrant religious workers, Panama Canal company employees, certain retired international organization employees or family members, Armed Forces member, and nationals from Afghanistan or Iraq who supported the U.S. Armed Forces as translators. The proposed new category that would be added to this list is reserved for individuals who received Ph.D. degrees from U.S. institutions of higher education within 3 years preceding the filing of the special immigrant petition. These individuals would be exempt from any numerical limitations in order to receive lawful permanent residence in the United States. ©MurthyDotCom Conclusion ©MurthyDotCom The recent testimony of Bill Gates is consistent with these proposed bills and it is a sign that legislators do heed the words of stalwarts in business and technology. [See article #3, Bill Gates' Testimony on Technology and Need for Skilled Workers, in this week's MurthyBulletin.] It is important to stress that these various bills introduced in the U.S. House of Representatives are not law. They are only at the proposal stage of the legislative process. Many bills are introduced, but never passed. Immigration remains a controversial issue, and perhaps this is heightened in the period leading up to the 2008 elections. As explained in our August 2, 2002 article, The Legislative Process – How a Bill Becomes a Law, available on MurthyDotCom, the legislative process is complex. We at the Murthy Law Firm will continue monitor and report on developments in this important matter. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. MurthyDotCom : Did You Know about Our Rumor Control Page? ©MurthyDotCom Whether the result of spreading an erroneous understanding of the law or getting caught up in a media frenzy over some issue that is constantly changing, there are often items in U.S. immigration law needing knowledgeable, clear-headed explanations. MurthyDotCom has established a Rumor Control page for immigrants to find fiction separated from truth and the truth clarified by attorneys at the Murthy Law Firm. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, April 07, 2008, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Monday of each month. 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 . . . . . . . . . . . . . . 6. 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
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