MurthyBulletin
VOL. XIV, no. 14; April 2008, week 1
Posted : April 04, 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. FY2009 H1B Cap Filing Procedures and Update on Reentry Permits
2. Potential Extension of F-1 OPT Validity Period
3. Nonimmigrant Visa Applicants and PIMS - March 2008 Update
4. Visa Waiver Program Likely to Expand to Five More Nations
5. MurthyDotCom : Do You Know How We Can Help You?
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. FY2009 H1B Cap Filing Procedures and Update on Reentry Permits
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The U.S. Citizenship and Immigration Service's (USCIS) Service Center Operations (SCOPS) office responded to questions from the American Immigration Lawyers Association (AILA) on March 19, 2008. These questions addressed H1B cap filings for the Fiscal Year 2009 (FY2009) and I-131 Reentry Permits. The first day for filing FY2009 cap-subject H1B cases was April 1, 2008.
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Procedures for USCIS to Accept Deliveries by Courier Services
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As regular MurthyDotCom and MurthyBulletin readers know, the USCIS changed a key element in the H1B selection procedures for FY2009. Essentially, the USCIS will conduct a lottery of the H1B cases filed in the first five business days of April, if the cap is reached on any of those five days. This applies to the regular cap as well as the advanced-degree allocation. More details can be found in our March 19, 2008 NewsFlash, USCIS Interim Final H1B Rule, which was posted for MurthyDotCom visitors as soon as the information was made available. In order to accommodate these filings, the USCIS service centers is accepting delivery of H1B petitions from 6:00 a.m. until the close of business each day from April 1st through April 7, 2008. Close of business normally means 5:00 p.m. local time at the location of each service center. However, on April 7, 2008, which is the fifth business day in April, USCIS will accept deliveries from courier services until 7:00 p.m. local time. Those who still have cap-subject H1B cases to file need to finalize those petitions and arrange for proper delivery by approved courier (FedEx, DHL, and UPS are approved, among others) by April 7, 2008.
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Risky to Use U.S. Postal Service for H1B Petition Delivery to P.O. Box
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If an H1B petition is sent to an USCIS service center's post office (P.O.) box address, using U.S. Postal Service delivery, it may not be received in time to be counted against this year's cap. The USCIS stated that its service centers pick up correspondence delivered to P.O. boxes at one or more scheduled time/s each day. Filing an H1B petition in this manner does not ensure that the petition will actually be received and, therefore, considered filed before the close of business on April 7th. This is particularly vital for last minute filings.
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New Procedures for I-131 Reentry Permits
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As regular MurthyDotCom and MurthyBulletin readers read in our March 14, 2008 article, Biometrics Now Required for Reentry Permits and Refugee Travel Documents, the USCIS stated that new biometric requirements would go into effect on March 5, 2008. The USCIS has now stated that cases filed before, but not approved by March 5, 2008, will not be subject to these new requirements. The USCIS noted that it retains the discretion to request biometrics in any case it deems necessary to confirm a foreign national's identity.
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The USCIS stated that a short grace period is now in place for applications that are submitted without the new $80 biometrics fee. During this grace period, a billing notice will be sent to the applicant stating that the biometrics fee must be paid.
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One Must be in U.S. to File for Reentry Permit
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The USCIS clarified its prior press release by emphasizing that an I-131 applicant must be physically present in the U.S. to file for a reentry permit. Applications for refugee travel documents may be filed abroad and biometrics for these cases may be completed at a U.S. embassy or consulate. The USCIS continues to recommend that applications for refugee travel documents be filed while the applicant is inside the U.S. whenever possible and that applicants complete their biometrics before departing the United States.
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Conclusion
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We at the Murthy Law Firm appreciate the clarification of these time-sensitive issues regarding H1Bs and I-131 Reentry Permits provided by the USCIS and AILA. Clearly understanding and following the law, rules, and procedures for immigration petitions and applications is a vital part of filing a viable case. The standards that apply one year do not necessarily make for a proper filing the next. Be sure you receive advice from a knowledgeable attorney, who keeps up with these changes. We at the Murthy Law Firm are happy to consult with you about your case if you have doubts or concerns.
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2. Potential Extension of F-1 OPT Validity Period
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The U.S. Immigration and Customs Enforcement (ICE) submitted an interim final rule to the Office of Management and Budget (OMB) on March 31, 2008 that would extend the period of Optional Practical Training (OPT) for eligible students in F-1 status by 17 months. Because the regulation remains at the OMB, a copy is not yet available publicly. It is somewhat unclear if the regulation would extend the total possible time on OPT to 17 months or if it would provide for an additional 17 months beyond the currently authorized 12 months, for a total of 29 months. It appears that the F-1 OPT will be valid for a total of 29 months. However, one must plan to file for the F-1 OPT before graduation, under existing procedures, until the regulation is published or until ICE issues a public notice, if one is to avoid losing out on the OPT altogether. It is unwise at this stage to wait for any potential changes.
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U.S. Senators Previously Requested F-1 OPT for 29 Months
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It seems more likely that the maximum period of authorization would total 29 months. This is in accord with a letter sent by 19 U.S. senators to U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff on November 8, 2007. This development was reported in our November 16, 2007 MurthyBulletin article, Senators Request Longer OPT Time for Students, available on MurthyDotCom.
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Review Process by OMB and Date for Interim Final Rule
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The general time for OMB review is ninety days. Thus, it is expected that the OMB will complete this review by the end of June 2008. If the OMB does not find any significant issues with the regulation, it will be published in the Federal Register. Since it is an interim final rule, the USCIS may place an effective date in the notice, and the rule will be in effect from that date. Should the OMB still have comments or questions on the rule, it may need to be returned to the DHS and/or ICE for further revisions.
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What Should F-1 Students Do Now?
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It is impossible to predict whether the OMB will approve the rule for publication, or exactly when that might happen. Individuals who need to apply for F-1 OPT, therefore, should do so in a timely fashion before graduating to avoid losing eligibility for OPT. The law requires the OPT application to be filed before the F-1 student graduates. Clearly, many U.S. employers and their foreign national employees authorized for OPT would welcome an extended validity period. Most importantly, this benefit would provide the much needed relief for those who need additional time on OPT before they are able to start work in H1B status, known as the "cap gap." We at the Murthy Law Firm will continue to monitor this important new development, to update our readers once the OMB's review is complete.
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3. Nonimmigrant Visa Applicants and PIMS - March 2008 Update
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The U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of State (DOS) have provided the American Immigration Lawyers Association (AILA) with an update on the Petition Information Management Service (PIMS). As MurthyDotCom and MurthyBulletin readers read in our December 7, 2007 article, PIMS Verification Required for Certain Nonimmigrant Visas, the PIMS system requires electronic verification of the case record before issuance of the visa at a U.S. consulate or embassy abroad. However, initially, only those cases that requested consular processing were being routinely entered into the PIMS database. This created problems and delays for individuals with petitions that were approved for a change of status or extension of status within the U.S. when the individual traveled abroad later. Effective March 2008, the DOS and the USCIS have entered into an agreement and the PIMS system is now more comprehensive.
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PIMS Updated for COS, EOS, or Amendments in the U.S.
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USCIS and DOS informed AILA that the PIMS system will now be extended to include all employment-based nonimmigrant petitions that request extensions of stay (EOS), changes of status (COS) or amendments. In all EOS, COS, or amendment cases, USCIS will forward duplicate, original petitions to the DOS's Kentucky Consular Center (KCC) for scanning and entry into the PIMS database. For the full story of the KCC's role in PIMS, see our December 28, 2007 MurthyBulletin article, PIMS Verification Update.
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Conclusion
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We at the Murthy Law Firm would like to express our thanks to the USCIS, DOS, and to AILA for providing the public with this update on the PIMS verification process. It is our hope that, with this information in the PIMS system, visa applicants will avoid H1B and other visa issuance delays, as noted in our February 15, 2008 MurthyBulletin article, PIMS Likely to Cause Delays for H1Bs and Others. Readers are reminded to allow sufficient time for any potential delays when applying for a visa of any type at a U.S. consular post abroad.
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4. Visa Waiver Program Likely to Expand to Five More Nations
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The U.S. government has taken another step toward expanding its Visa Waiver Program (VWP) to include Slovakia, Hungary, and Lithuania. This was accomplished when U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff signed agreements with representatives of these three European nations on March 17, 2008. Secretary Chertoff signed similar agreements with Estonia and Latvia on March 12, 2008. The agreements, and the enhanced security measures they require, may allow these five nations to be designated as VWP members later in 2008. Essentially, this would make it easier for nationals of these designated countries to travel to the United States for up to 90 days, under the terms of the VWP, without obtaining the visa in advance at a U.S. consular post.
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Description of the U.S. Visa Waiver Program
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As reported in our December 8, 2006 article, President Wants to Expand Visa Waiver, available on MurthyDotCom, the VWP allows a foreign national from one of the current 27 VWP nations to travel to the U.S. for 90 days or less without the need for a B-1/B-2 visitor visa. The VWP only accepts nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants.
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VWP Purpose Limited to Short-Term Travel
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The VWP program does not replace the need for other types of visas, such as those required for employment and study purposes. It is only an alternative to the B-1/B-2 for a short visit to the United States. Thus, nationals of the VWP countries still need to obtain from the U.S. consulates in their respective home countries other types of visas, such as the H1B, L-1, J-1, and F-1. The VWP also only allows visits of up to 90 days, with no extension of status or ability to file for a change to some other type of work status. Therefore, while it is a significant privilege and makes visiting the U.S. much easier for VWP members from eligible countries, it is in no way an open door to live or work in the United States.
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List of 27 VWP Eligible Nations
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Currently, the following 27 countries are included within the VWP program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
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Conclusion
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These steps toward the possible inclusion of Slovakia, Hungary, Lithuania, Estonia, and Latvia, in the VWP program later in 2008 help to advance the dual interests the U.S. has in promoting visa-security enhancements and facilitating travel between partner nations. As other countries become more economically prosperous, the likelihood of their inclusion in the VWP increases.
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5. 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. We will soon have the facility for companies and individuals to request free pre-hire appointments with an attorney as well as a method for obtaining a quick fee quote for services.
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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.
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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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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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