MurthyBulletin
VOL. XIII, no. 14; Apr 2007, week 1
Posted : Apr 06, 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. H1B Cap Reached : What Now?
2. Still No Set Deadline for Elimination of Labor Substitutions
3. Student Visas and Employment Matters (Part 1 of 2)
4. Immigrants Naturalize at Higher Rate than Ever Before!
5. MurthyDotCom : Did You Know about Our Citizenship Section?
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. H1B Cap Reached : What Now?
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As posted on MurthyDotCom and to MurthyBulletin subscribers in a NewsFlash on Tuesday, April 3, 2007, it was determined by the USCIS that the cap for fiscal year (FY) 2008 was reached on the first day filings would be accepted. This year, because April 1st fell on a Sunday, the first day of filing was April 2nd. As explained in our NewsFlash, regulations require that a lottery system be used to select the filings that will be applied against the FY2008 cap. This lottery system was explained in our March 23, 2007 MurthyBulletin article, H1B Cap and Lottery Issues.
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And so, our worst fears are realized; with the limited slots for H1B cap-subject workers gone, only the fortunate recipients are yet to be determined. The status of the 20,000 numbers available for advanced-degree cap applicants remains unknown, awaiting further USCIS notice. This will be revealed as each filing is reviewed by an examiner.
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This presents a dire situation for many foreign nationals. It puts many U.S. employers, who were counting on the availability of a fully qualified, talented workforce for FY2008, in the position of going another year and a half without the workers they need. This will impact the United States' place in the global economy. Robert Hoffman, a vice president of Oracle and co-chair of Compete America said, "Our broken visa policies for highly educated foreign professionals are not only counterproductive, they are anticompetitive and detrimental to America's long-term economic competitiveness." [Associated Press, Apr 4, 2007].
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It is time for Congress to act. The need for immigration reform is clear. We at the Murthy Law Firm will continue lobbying for changes that are needed. We encourage our readers to contact congress, as well. This is the right and responsibility of each one of us. A model letter is available on AILA's InfoNet, the website for the American Immigration Lawyers Association. Write letters also to the editor of your local newspaper, and the producers of the radio and television news programs to which you listen. As reported in our article entitled, Immigrants Naturalize at Higher Rate than Ever Before! (Article #4 in this week's MurthyBulletin), naturalized citizens comprise a significant segment of the population in America today. When they are joined by employers, like Oracle, Intel, and Microsoft, and other pro-immigration voices, Congress will not be able to continue tabling this critical issue.
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2. Still No Set Deadline for Elimination of Labor Substitutions
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Contrary to recent rumor in the immigration community there has not been any official public notice stating when, or even IF labor certification (LC) substitution will end. It is not clear if they will end in the immediate future - much less that they will end on April 15, 2007, as the rumors have indicated.
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April 15, 2007 is Not a Deadline for Substitution Cases
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As regular MurthyDotCom and MurthyBulletin readers will recall from our recent articles, Labor Substitutions : Still Possible in February 2007 (February 9, 2007) and NewsFlash! LC Substitution Termination Regulation Moves to OMB (February 2, 2007), the regulation proposed by the U.S. Department of Labor (DOL), which would eliminate LC substitutions and limit the validity of LCs, was sent to the Office of Management and Budget (OMB) for final review. The OMB has 90 days to review the proposed regulation. Because the 90 days will expire on or about April 15th, many have assumed that the regulation will go into effect after 90 days. In fact, the process does not end with OMB review.
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More Steps after OMB Review
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Once the OMB completes its review, it will have to return the reviewed regulation to the DOL for any changes noted by the OMB. After that is complete, the final regulation will be published in the Federal Register. At that point, the regulation could become effective immediately or after a specified period of time. In such a circumstance a regulation can be changed, sometimes substantially, from its initial proposed form.
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Wait and Watch for Updates on MurthyDotCom
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We at the Murthy Law Firm continue to monitor the LC substitution process and will report to our readers if and when the new regulation is published in the Federal Register. There are times when the final regulation is accessible immediately prior to its filing. Meanwhile, we continue to process LC substitution requests as quickly as possible, without a guarantee that they can be filed before the regulation is implemented. Moreover, only once the regulation is issued will it be clear what is prohibited and what affect, if any, the regulation will have on pending substitution cases.
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3. Student Visas and Employment Matters (Part 1 of 2)
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Many of the questions that come into the Murthy Law Firm are about student matters and, in particular, pre-graduation and post-graduation employment. This week we are running the first of a two-part article providing general information on these issues. It should prove helpful to many MurthyDotCom and MurthyBulletin readers. Most commonly, inquiries we receive are about the difference between F-1 students, J-1 cultural exchange program students / workers, and M-1 vocational students, and ways for them to transition smoothly from study to employment in the United States. In Part 1 of this article, we examine in greater detail the issues pertaining to F-1 students. Part II will provide an overview of the options for J-1s and M-1s.
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Overview of Employment Opportunities for F-1s, J-1s, and M-1s
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As explained in our December 11, 2000 overview of F-1 visas (Part 2 of 3), available on MurthyDotCom, F-1 students are eligible for both pre-completion and post-completion Optional Practical Training (OPT). Likewise, J-1 students are eligible for pre-completion and post-completion Academic Training (AT). This is employment based on one's field of study. M-1 students, on the other hand, are limited to post-completion employment.
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When one decides on the visa category that would be most beneficial to him/her, consideration of employment options may be one of the most important factors. For example, while F-1 students may be eligible for more employment options during their studies than J-1 students and M-1 students, J-1 students may be eligible for longer periods of employment, depending upon the level and length of their studies. Another factor would be that F-2 dependants of F-1s may not engage in employment under any circumstances. In contrast, J-2 dependents of J-1 students may obtain authorization from the USCIS to engage in employment, almost without restriction, during the time authorized, other than the requirement to show that the J-1 is not relying on the J-2's employment for the family's sustenance.
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On-Campus Employment for an F-1 Student
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An F-1 student is eligible for on-campus employment during her/his studies, not to exceed 20 hours per week. There is neither a waiting period for this kind of employment, nor does it require any authorization from the student's school or the USCIS. Additionally, in some very limited circumstances, an F-1 student may be permitted to engage in employment at an off-campus location that is educationally affiliated with the school. An example would be when a student conducts research under the supervision of his/her professor, similar to a graduate research assistantship.
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An F-1 student may also work on campus between academic levels (e.g. when moving from a bachelor's degree to a master's degree program) at the same school, if certain requirements are met. The requirements are that the student must have been issued Form I-20 to begin a new program and must intend to enroll for the next regular academic year. In addition, if a student transfers to a different school between academic programs, then s/he may work on campus at the school which has jurisdiction over that student's SEVIS record. The old school has jurisdiction of the student's record before the transfer release date, while the new school has jurisdiction after the transfer release date. The on-campus employment does not have to be related to the student's course of study.
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Practical Training for an F-1 Student
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There are two types of Practical Training as applied to the F-1 student: Curricular Practical Training (CPT) and Optional Practical Training (OPT). No practical training is available to a student in an intensive English language program. Both OPT and CPT may be granted for part-time and full-time employment and require that the student has been enrolled one full academic year before s/he becomes eligible. If a student spends part of the academic year enrolled in a study abroad program, then the time spent abroad would count toward the full-year requirement, provided the student had spent at least one full academic term in F-1 status in the U.S. There are some graduate programs that require immediate participation in CPT. In such a case, CPT would be immediately available to the student without the need to be enrolled for a full year.
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CPT for the F-1 Student
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An F-1 student applying for CPT may engage in employment only for the specific employer. There is no limit on the maximum time allowed for CPT, except that it can only be approved before completion of study. The most important caveat is that one year of full-time CPT employment eliminates eligibility for OPT. An F-1 student who wants to preserve her/his eligibility to engage in OPT employment, must not be authorized for one year of full-time CPT. The student must utilize part-time CPT, as that does not eliminate one's eligibility for OPT. Authorization from the USCIS is not required.
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The F-1 Student and OPT
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As stated above, OPT is available both pre- and post-completion of study. In addition to the student enrolled in an intensive English language program and who is not eligible for any practical training, the F-1 or F-3 "border commuter student" (i.e. one who lives in Mexico or Canada while attending a U.S. college or university) is eligible only for post-completion OPT.
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An F-1 student is eligible for a maximum of 12 months cumulative OPT. Both part-time and full-time are valid options before completion of study, but only full-time OPT can be authorized following graduation. When a student is engaged in part-time OPT, it is deducted from the 12-month limit at 50 percent. A student must obtain authorization from the USCIS and no job offer is required. One is expected, however, to work or actively be seeking employment after the OPT employment authorization is issued.
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Off-Campus Employment for an F-1
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An F-1 student may also be eligible for off-campus employment, under provisions that are separate from the practical training provisions discussed above. There are three situations, not involving practical training, in which an F-1 student may be eligible for off-campus employment. These are: if s/he experiences a severe, unforeseen economic necessity; if s/he has an internship with an international organization; or if the employment is based on the Special Student Relief Program.
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Severe Economic Hardship
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In the first instance, of severe economic hardship, the student must be in F-1 status for at least one full academic year prior to making the request. The student must prove to the USCIS that employment is necessary due to severe economic hardship caused by circumstances beyond his or her control. An example of that is when a student was relying on financial support from a sponsor in his/her native country and the sponsor is unable to continue to provide support because of illness, death, or natural disaster. Authorization is granted by the USCIS in one-year increments until the program end date. The authorization is for employment not to exceed 20 hours per week while school is in session, but can be full-time during school breaks. It does not have to relate to the student's course of study and can also be used for on-campus employment.
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F-1 Work and International Organizations
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In the second instance, an F-1 student may be authorized for employment with a recognized international organization under the International Organization Immunities Act. A listing of qualifying international organizations can be found on the GPO Access WebSite. There is no waiting period for this type of employment, but the student must complete employment before reaching his/her educational objective. The USCIS will grant employment authorization in increments of one year or until the date of expected graduation, whichever is shorter. The work does not have to relate to the student's course of study, but it usually does because of the hiring needs of international organizations. The student must obtain a written offer of employment from a qualifying international organization and apply for authorization from the USCIS. After commencement of employment, the student must maintain a full course of study.
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Special Student Relief Program
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The third option is the special student relief program. One may only benefit from this program if s/he has been in the United States since June 10, 1998, and if her/his funding came from Indonesia, South Korea, Malaysia, Thailand, or the Philippines. This program benefits a very small number of students.
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Conclusion
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Watch for Part II of this article, which will provide MurthyDotCom and MurthyBulletin readers with information on J-1 and M-1 student employment options, as well as issues of transition from student status to an employment-based status after graduation.
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4. Immigrants Naturalize at Higher Rate than Ever Before!
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According to a report released by the Pew Hispanic Center on March 28, 2007, there are currently more immigrants choosing to file to become U.S. citizens than ever before. The study found that a record 12.8 million people in the U.S. population in 2005 were naturalized citizens. This number represents not only an increase in the number of legal immigrants in the U.S., but also the number of legal immigrants who specifically choose to obtain U.S. citizenship. Out of all legal immigrants living in the U.S., more than half (52 percent) have been naturalized to U.S. citizenship.
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Ethnic Backgrounds of those Filing for Naturalization
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The study revealed some other important new trends. For the first time in history, Europeans are not the largest group of immigrants who become naturalized U.S. citizens. This place has been taken by people who originally came from Latin America and Asia. There are also more people from Mexico who are now U.S. citizens, but their numbers are still comparatively lower than those for people from other parts of the world.
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Why Are More Filing to Become U.S. Citizens?
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While the report released by the Pew Hispanic Center does not purport to explain why the naturalization rate has increased or what its effect is going to be, many commentators have suggested that the immigration political debate may have been a factor. If people feel threatened that they may lose privileges they currently enjoy, they are more likely to pursue citizenship in order to have the rights afforded them through American citizenship. In addition, the proposed naturalization application fee increase and a more comprehensive U.S. history and English language test that will go into effect in the months to come, have both contributed to the recent increase in naturalizing citizens.
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Assimilation by those Filing to Become Naturalized Citizens
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As the immigration debate becomes increasingly pronounced in U.S. society and in political circles, there are large numbers of people who associate all immigrants with undocumented foreign nationals. Therefore, those often vocal immigration opponents wish to promote stricter immigration laws and regulations. In fact, as this newly released statistical data shows, a significant number of immigrants are not only legally present in the U.S., but have chosen naturalization and, therefore, have legal rights and privileges like those whose U.S. citizenship was acquired at birth. It also addresses the assimilation issue, as many feel that immigrants are not willing to integrate into U.S. society and, particularly, that they hold to their native language/s. Naturalization requires English language skills, in both reading and writing, with very limited exception. Thus, high rates of naturalization reflect a certain level of assimilation and English language proficiency.
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Political Implications of our New American Citizens
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People who have recently acquired the rights and benefits of U.S. citizenship, which includes the right to vote, are likely to affect the outcome of local, congressional, and presidential elections. This is an extremely important political implication, which is being recognized by politicians and pundits across the country.
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New Citizens Enjoy Privilege and Bear Responsibility of U.S. Citizenship
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Predating its birth as a nation, America has been - and continues to be - a country of immigrants. This new data illustrates that the U.S. population includes some 25 million legal immigrants, more than half of whom are U.S. citizens. Contrary to common misunderstanding, all immigrants are NOT illegal. In fact, the legal immigrant population is far greater than the estimates of people within the U.S. who are undocumented or, otherwise, not in valid immigration status. If enactment of comprehensive immigration reform is on the horizon, as is hoped by many U.S. employers, employees and families, there will be more avenues to obtaining legal status in the United States and, ultimately, to becoming naturalized U.S. citizens, for those who chose this privilege and responsibility. [For more information on the benefits of naturalization, see our February 8, 2002 MurthyBulletin article, Benefits of Becoming a U.S. Citizen, available on MurthyDotCom.
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5. MurthyDotCom : Did You Know about Our Citizenship Section?
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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. We at MurthyDotCom are pleased to provide our readers with this help on our Citizenship section.
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The next session MurthyChat will be Monday, Apr 09, 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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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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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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Slogans covered by pending applications as service marks of the Murthy Law Firm for registration with the U.S. Patent and Trademark Office include 'Immigration Matters!' 'Your immigration matters!' 'We know immigration matters!' 'We know your immigration matters!' MurthyDotCom, MurthyBulletin, MurthyChat, MurthyForum, and MurthyFoundation. . . . . . . . . . . . . . . This Bulletin is not sent unsolicited. The information provided above 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. Disclaimer and Privacy Policy are available on MurthyDotCom. To Unsubscribe, please click the URL provided below (or copy and paste the URL into the address field of your web browser). Changing profiles is irrelevant to MurthyBulletin subscribers as demographic and personal data was not gathered at the time of initial subscription. |
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