MurthyBulletin
VOL. XIII, no. 15; Apr 2007, week 2
Posted : Apr 13, 2007
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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 :
Late-Breaking News! H1B Lottery Starting April 12, 2007
1. USCIS Announced Status of Advanced-Degree Cap
2. Premium Processing for H1B Cap Cases
3. Student Visas and Employment Matters (Part 2 of 2)
4. National Interest Waivers (Part 1 of 2)
5. MurthyDotCom : Did You Know about MurthyToGo?
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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Late-Breaking News! H1B Lottery Starting April 12, 2007
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As the MurthyBulletin was headed for publication, it came to our attention that the USCIS announced today, April 12, 2007, that the H1B random number generator would run on April 12th. This number generator is the process of random selection of the regular H1B cap cases filed on April 2nd and 3rd, to determine which ones will receive the cap numbers. This process is commonly referred to as the lottery.
©MurthyDotCom
This information was released at an AILA conference, by the USCIS Associate Director for Domestic Operations, Michael Aytes. Since the lottery is being held on April 12th, no regular H1B cap cases can be adjudicated before April 13th. It was not clear from the notice exactly when adjudications will start.
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1. USCIS Announced Status of Advanced-Degree Cap
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The USCIS announced on April 10, 2007 that, as of the 3rd of April, 12,989 cases had been received toward the Fiscal Year (FY) 2008 H1B cap for professionals with U.S. advanced degrees. This means that cases filed against the advanced-degree cap on April 2 and 3, 2007, reached the USCIS in time to be considered. At the time of this writing, there is no more recent information on how many additional cases seeking the 20,000 advanced-degree cap exemptions have been received by USCIS since April 3rd.
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H1B Quota Not Yet Closed, but Availability Uncertain
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Until the USCIS sorts and counts the cases filed after April 3, 2007, they will be unable to announce whether the U.S. advanced-degree limit has been reached for FY2008. Thus, for the time being, the cap for professionals with advanced degrees is still officially open. It is possible to file cases under the advanced-degree cap, until the time the USCIS officially announces a cutoff date.
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We note that, in the past, the USCIS's announcements of cap-cutoff dates have sometimes come several days later than the dates the caps were reached. Therefore, similar to the regular cap cases, those filing advanced-degree cases at this time need to establish backup plans, should there not be numbers available for them.
©MurthyDotCom
H1B Regular Cap Update
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The USCIS reported receiving a total of 119,193 H1B petitions on April 2 and 3, 2007 toward the regular H1B cap. These cases will be subject to the computer-generated, random lottery, once they have been receipted. The USCIS revealed last week that it may take several weeks to enter all of the cases into the system and then administer the computer-generated, random selection.
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Conclusion
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We rely upon the information made available through the USCIS and other reputable sources. As soon as possible, these important announcements are then posted for our MurthyDotCom and MurthyBulletin readers. We understand that both the advanced-degree cap and the regular cap lottery are critical to many of our readers.
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2. Premium Processing for H1B Cap Cases
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The USCIS announced on April 9, 2007, that Premium Processing will be available for cap-subject H1B cases only after certain conditions have been met. Due to the large volume of cases received on April 2nd and 3rd of this year, the USCIS has to select cases by random, computer-generated lottery to fill the Fiscal Year (FY) 2008 cap. Therefore, it has been decided that the 15 days mandated by regulation for the Premium Processing service will begin once the lottery selection has been completed. In an announcement dated April 5, 2007, the USCIS stated that it may take several weeks to sort through the 133,000 pieces of mail it received in the first two business days of April 2007 and to process the cases for the lottery selection.
©MurthyDotCom
Authority to Extend Processing Time for H1B Premium Cases
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Normally, the USCIS would have to return the $1000 per-case surcharge collected for premium processing for any case not reviewed within 15 calendar days. The USCIS, however, has invoked an interim rule, published in the Federal Register on May 23, 2006. This interim rule allows the USCIS to impose conditions on the availability of premium processing, granting it the flexibility when circumstances affect its ability to provide the premium processing service. As its basis for placing certain additional conditions on premium processing, the USCIS points to the volume of mail received in the first two days of April 2007, namely the 133,000 pieces of mail containing one or more H1B petitions.
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Comment - USCIS Not Prepared for Expected Surge in Filings
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We would note that the $1,000 fee for premium processing represents a significant amount of money to most of those who opt for that service. While it is understood that the sheer volume of mail has prevented the USCIS from providing the service as originally promised, this problem was foreseeable. In fact, it was foreseen. In a Q & A session with the USCIS Ombudsman on March 27, 2007, it asked whether extra officers would be assigned to handle the premium processing H1B cap cases. The response was that the California and Vermont Service Centers had a plan to handle the surge of H1Bs.
©MurthyDotCom
It appears that the plan was to accept the fees and only make the restrictions public after the fact. While the USCIS may not have the resources to sort the volume of mail received, they should have announced the conditions and limitations on the availability of premium processing, should filings reach the numbers that were anticipated, prior to the time H1B cap cases were filed. Many selected premium processing so that they potentially could travel between April and October 1, 2007, before starting new H1B jobs, without abandoning requests for change of status, as happens when one departs the U.S. while such a request is pending. These people many not have spent the $1,000 had they known their cases would have no chance of a decision before their planned departure dates.
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3. Student Visas and Employment Matters (Part 2 of 2)
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This is the second of our two-part article on the subject of employment as it relates to those in student status. Here we provide some additional information on J-1 students, as well as the transition from student- to employment-based immigration statuses. Part I of this article addressed some employment issues relevant to students. In particular, some differences between F-1, J-1, and M-1 student employment options were addressed. [Part I of this two-part article, Student Visas and Employment Matters (Part 1 of 2), from April 6, 2007, is available on MurthyDotCom.]
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J-1 Student Academic Training
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Academic Training (AT) is work, training, or experience related to a student's field of study. While there are many similarities between employment options available to F-1 students and AT available to J-1 students, they differ in many respects.
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Unlike F-1 employment options, AT can only be authorized for work related to one's course of study. AT is permitted at any stage of a student's program, while s/he is enrolled in school or after completion of the program, without authorization from the USCIS. Instead, the J-1 student should be authorized for work by the Responsible Officer (RO) or Alternate Responsible Officer (ARO) at the school s/he is attending. Students in undergraduate and pre-doctoral programs are permitted an overall limit of 18 months of AT. If the academic program is shorter than that, then the AT would be reduced so that it does not exceed the total length of study.
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For post-doctoral J-1 students, AT is 36 months maximum, inclusive of prior periods of academic training. Again, the total training period may not exceed the period of the full course of study. Another important distinction is that all AT is counted as full time, even if employment is on a part-time basis. Post-completion AT should commence no later than 30 days after completion of the student's studies.
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Student Post-Completion Training
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We at the Murthy Law Firm receive many questions from students whose prospective employers petition for the H1B status on their behalf following completion of these students' F-1 status. This situation may present many difficulties due to the nature of H1B employment subject to annual limitations.
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Students in F-1 status have 60 days after the completion of the F-1 program of study to remain legally in the U.S. Individuals in J-1 status have only a 30-day grace period before they either need to leave the U.S. or extend their studies. The same considerations, however, apply to them with respect to the transition to different statuses, as outlined below.
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Transition from Student (F-1 or J-1) to Employment Status
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As regular MurthyDotCom and MurthyBulletin readers know, the new H1B cap year for which one may apply begins on October 1st each year. The filings are accepted six months in advance, on April 1st. If a student completes his/her study or F-1 OPT, s/he is allowed to stay in the U.S. for an additional 60 days. The sixty days are counted after either the date of graduation, or the date the OPT expires (30 days only for J-1s, as stated above). Many students graduate in May and obtain OPT that is valid for one year, from June or July to the following June or July. This leads to the "cap gap" problem when there is no status permitting one to remain in the U.S. until the H1B start date on October 1st. More fortunate students may end up having OPT approved from August to August, so that they are covered until October 1st by the 60-day grace period after OPT.
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The cap gap exists even if one has what seems to be a valid student visa in his/her passport. The difference between a visa and a status is an important distinction when students transition between student- and employment-based statuses. This important, fundamental immigration concept is clarified in About Visas & Status, available on MurthyDotCom.
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When there is a gap, the student must either depart the U.S. during the gap period and return once the H1B period is valid, or figure out a way to bridge the gap. The simplest solutions often exist for students who are married. They can often change to a dependant status (H-4 or F-2, for example) during the gap period. Other students may choose to extend their F-1 status by enrolling in a different study program. If the H1B petition is approved for change of status within the U.S., one's status will automatically change to that of H1B on October 1st, or whenever the start date may be. No visa stamping is required in the passport if the USCIS has approved the change of status with the tear-off I-94 card, attached to the bottom of the H1B approval notice, to complete the change-of-status process.
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Miscellaneous Issues for F-1s, J-1s, and their Dependants
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While employment options are one of the most important differences between various student statuses, there are some other considerations that one should take into account when deciding which status to pursue. For example, J-1 status provides for certain non-degree or non-enrolled educational programs that are not easily available to F-1 students. Also, students who are funded totally or for the most part by personal or family funds are ineligible for J-1 status.
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Generally speaking, regulations pertaining to J-1 students do not require applications to the USCIS. J-1 students are required to carry health insurance for themselves and their dependents while there is no such requirement for F-1 students. J-2 dependents are eligible to apply for work authorization, while F-2 dependents may not work under any circumstances.
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One of the most important considerations to keep in mind is that individuals in J-1 status are often subject to the two-year home country return requirement. There is no such requirement for F-1 students. This should be fully investigated before accepting J-1 status. One should subject him/herself to the two-year home residency requirement only if s/he is willing and able to make that commitment. While there are sometimes waivers available, it should not be assumed that one will be able to acquire relief from the two-year requirement.
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As mentioned above, students in M-1 status are usually those who engage in vocational and nonacademic programs. They may, however, qualify for J-1 trainee status, depending upon their fields and activities that may or may not be connected to a college or university.
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4. National Interest Waivers (Part 1 of 2)
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The NIW category falls within the employment-based, second preference category (EB2). In contrast to regular EB2 petitions, however, NIW cases are exempt from the labor certification and job offer requirement. This means that a person who does not have a tenure-track or permanent job offer could potentially qualify and file a self-sponsored NIW petition, if otherwise eligible. Information on NIWs is available on MurthyDotCom in our National Interest Waivers section. At the Murthy Law Firm, we have routinely filed NIW applications for selected clients with considerable success. Since we receive many inquiries about applying for "green cards" through the NIW category, this article will provide guidance and information with regard to this category desirable to those who have the required credentials and few other options. Part 2 of this article will carry some recent success stories of NIW approvals our clients have obtained. These may serve to help as you plan your immigration law future in the United States.
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Overview of NIW Requirements
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In order to qualify under NIW, the following three requirements must be met. First, the applicant must be seeking employment in an area of substantial intrinsic merit. Second, the proposed benefit of the employment should be national in scope. And third, the applicant must show that the national interest would be adversely affected if a labor certification were required.
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1) Substantial Intrinsic Merit Requirement As stated above, the first NIW requirement is that the proposed employment be in the area of substantial intrinsic merit. Eligibility may be shown by documenting that the particular field of endeavor is related to an important national goal. Many professional fields do relate to some important national goal, such as health, education, and the economy. The work must extend beyond the purely theoretical, however.
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2) Proposed Benefit is National in Scope The second criterion of NIW eligibility is that the proposed benefit be national in scope. It is worth mentioning that a correlation between national goal and the proposed activity need not be direct. For example, an engineer who works on his/her state's road and bridge infrastructure would be able to show that the activity will benefit the entire nation, as roads and bridges connect different states, aiding interstate commerce and impacting the country in numerous other ways.
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3) NIW Must Outweigh the U.S. Interest under the Labor Certification Process The last of the three requirements established by the precedent decision in Matter of N.Y. State Department of Transportation (NYDOT) in 1998, is by far the most difficult to meet. To show eligibility under this requirement, a petitioner must prove that the work presents a national benefit so great as to outweigh the national interest inherent in his/her labor certification process, or that s/he will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Since the U.S. interest in protecting the labor market is a strong national interest, this last requirement also establishes a high standard for this particular category.
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To exhibit eligibility, the petitioner's record of achievements must show "some degree of influence on the field as a whole." In addition, the petitioner must possess unique knowledge, abilities, or experience that sets him/her apart from others in the field. S/He must play a critical role in cutting-edge projects in the specific discipline. It is neither enough to simply be highly skilled in a particular area, nor to have a skill that is in great demand. Such situations are more appropriate for the labor certification process.
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Defining "National Interest"
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The case law has found that seven factors should be considered to determine whether a particular occupation is in the national interest. These factors are: improving the U.S. economy; improving wages / working conditions; improving education and programs for children and/or under qualified workers; improving health care; providing more affordable housing; improving the environment; and/or an interested government agency request.
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EB2 Visa Backlog Applies for NIW Cases
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The NIW, as mentioned above, is within the EB2 preference category and is subject to the same backlogs as other EB2 labor certification cases, even though they may enjoy the benefit of not having to get a labor certification or require employer sponsorship. Nationals from India and China, who are applying in the EB2 preference category, are currently subject to a substantial backlog in visa number availability, sometimes referred to as the priority date retrogression.
©MurthyDotCom
As of this writing, the backlog in visa numbers for Indian nationals is measured in years. People from China are also subject to a visa backlog, but the wait time for these individuals is presently shorter. Readers unfamiliar with the topic of visa numbers and retrogression should refer to MurthyDotCom, where updated information on visa numbers is provided each month, and the current Department of State Visa Bulletin chart is always available. In short, the lack of visa numbers is due to U.S. limits on the numbers of individuals who can immigrate permanently to the United States each year. This is controlled by the issuance of constrained immigrant visa numbers and compounded by per-country limits.
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To reach the second and final stage of the green card process, which is either an adjustment of status or a consular processing for an immigrant visa, there must be a visa number available in the particular category and for the country of chargeability. The first stage in an NIW case is the filing of the I-140 Petition with the USCIS.
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Maintaining Status While Waiting for Visa Number
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Individuals from India and China who are eligible for and obtain the NIW approval will need to maintain a separate immigration status at least until the priority date becomes current and a visa number is available to them. The filing of Form I-140 alone, even if and when it is approved, does not protect nationals of India and China from "falling out of status." One needs to maintain a separate nonimmigrant status until s/he is permitted to apply for adjustment of status when the visa numbers become current. By far, the most common way to achieve this is to maintain an H1B, L-1, O-1, or other relevant nonimmigrant status.
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Conclusion
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We have had many successful NIW cases at the Murthy Law Firm. Individuals considering this category may find it helpful to review the approvals. A sampling of abstracts and reports of other successful and difficult cases can be found in our NIW section, referenced above. Watch for Part 2 of this article, where we will share some of our more recent approvals with MurthyDotCom and MurthyBulletin readers.
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5. MurthyDotCom : Did You Know about MurthyToGo?
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If you prefer your news on the go, the Murthy Law Firm provides two means of accessing the latest topics in U.S. immigration news. Mobile on MurthyDotCom is available to anyone using a cellular phone with a built-in web browser or PDA with wireless capability, like the Treo from PalmOne or Windows Mobile devices. For those who have PDAs without wireless, we have created a channel on AvantGo. This service enables subscribers to download weekly headlines and brief synopses of our MurthyBulletin articles for FREE with a simple HotSync to your desktop PC. Use MurthyToGo so that you are never out of touch!
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The next session MurthyChat will be Monday, Apr 16, 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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