MurthyBulletin
VOL. XIII, no. 17; Apr 2007, week 4
Posted : Apr 27, 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 :

Late-Breaking News! Latest Advanced Degree Count - Cap Almost Reached!
1. Murthy Takes Action : Visa Number Movement Expected for India and China

2. Recently Introduced Legislation Addresses H1B Cap and EB Limits

3. Murthy Law Firm Submits Proposal to Revise PERM Form

4. Options for Athletes : O & P Visas (Part 1 of 2)

5. MurthyDotCom : Did You Know about Our Legislation Page?

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! Latest Advanced Degree Count - Cap Almost Reached!

It is important for our readers to note that the Advanced-Degree Cap is fast approaching. A table has been linked from the main page of MurthyDotCom, which is updated with the latest numbers as soon as possible.
 ©MurthyDotCom
 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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1. Murthy Takes Action : Visa Number Movement Expected for India and China
©MurthyDotCom
MurthyDotCom and MurthyBulletin readers learned that the Visa Bulletin for May 2007 carried a glimmer of hope for stagnant EB categories in our April 20, 2007 article, May 2007: EB3 Movement, Not for China, India or Mexico. On April 20, 2007, Sheela Murthy spoke on an immigration visa panel with Mr. Charles Oppenheim, Chief Immigrant Visa Control and Reporting Division, Department of State Visa Office, at an American Immigration Lawyers Association (AILA) Conference. After the panel, Mr. Oppenheim discussed the future of visa numbers with Ms. Murthy. He acknowledged that an earlier dialogue during a previous DC AILA Chapter meeting with Attorneys Sheela Murthy and Aron Finkelstein, also of the Murthy Law Firm, had played an important part in ensuing discussions with other government agencies as to the factors impacting the use of Employment immigrant visa numbers during the summer months. Through his deliberations with the U.S. Dept of Labor and the USCIS, Mr. Oppenheim determined that it was appropriate to release some additional visa numbers by moving some of the May cut-off dates, and that movement for India and China is likely to occur, possibly as early as June or July 2007! On April 26, 2007, Mr. Oppenheim confirmed and reviewed this MurthyBulletin article with Attorney Murthy personally once again to ensure its accuracy with respect to the various discussions with the Murthy Law Firm and his estimates on the movement of worldwide immigrant visa numbers.
 ©MurthyDotCom
Visa Numbers Based on Demand
 ©MurthyDotCom
As regular MurthyDotCom and MurthyBulletin readers know, visa number movement is based upon a number of variables, one of which is the amount of expected demand. [The U.S. Department of State's Visa Bulletin chart is always available on MurthyDotCom.] The U.S. Department of State (DOS) must estimate this demand when it determines what cutoff dates, if any, to establish in the monthly Visa Bulletin. If the demand which DOS has anticipated does not materialize, it is possible that visa numbers will go unused. When asked, Mr. Oppenheim mentioned that this did happen last year and resulted in about 11,000 immigrant visa numbers not being used last fiscal year.
©MurthyDotCom
Demand Overestimated : Our Input
 ©MurthyDotCom
Attorneys Murthy and Finkelstein spoke with Mr. Oppenheim on February 28, 2007 at an AILA meeting. Mr. Finkelstein pointed out that, based on our firm's experience it appeared that the DOL figures were exaggerated. One of these reasons was that the DOL's Backlog Processing Centers (BPCs) were to be processing cases in a First-In / First-Out (FIFO) order. Thus, they already have processed many of the older cases with earlier priority dates. These older cases have already made their way into the USCIS system, if the employers are intending to move forward with their respective cases.
©MurthyDotCom
 Additionally, many of the BPC cases are not moving forward to the USCIS, even after approval from DOL. Although the BPC sent out 45-day continuation letters to determine ongoing employer interest, many employers are no longer interested, given the lengthy delays in the DOL processing of cases. Many of the employees have moved on to other job opportunities. Thus, it is not appropriate to look at the number of cases in the BPCs and assume that each translates to a demand for a visa number in the near future. The ratio is actually fairly small for the cases that are being approved at this time.
 ©MurthyDotCom
Also discussed was the possibility that the labor substitution process will end in the near future. This would reduce some of the demand for visa numbers and the use of older priority dates. Without substitution, many of the older cases will simply be abandoned because the employers will not continue to sponsor the original beneficiaries for any number of reasons.
©MurthyDotCom
Expectations
 ©MurthyDotCom
Based upon these discussions, we expect some movement for India and China as early as the June or July 2007 Visa Bulletin. We do not have indications of how far forward the dates will move. The Visa Bulletin for June 2007 would usually be issued around the middle of May. We believe that any movements could impact both EB2 and EB3 petitions at some point. For now, people should continue as usual. Anyone eligible to file the I-140 petition, should likely do so. S/he should continue to extend his or her nonimmigrant status and not make any assumptions about the ability to file the I-485.
©MurthyDotCom
We would also note that, while forward movement is expected for the summer in 2007, it is also expected that the cutoff dates could move further back during the fall of 2007. Therefore, those who benefit by the movement need to take advantage of it while they can.
©MurthyDotCom
Flexibility of DOS Visa Office is Appreciated
 ©MurthyDotCom
 We at the Murthy Law Firm extend our most sincere appreciation and thanks to Charles Oppenheim for considering our input and verifying our theories. We know that each visa number represents an individual with potential benefits flowing to all family members. We know that wasting even a single visa number means that an employer's needs go unmet and a person's dreams go unfulfilled. While we think it is abundantly clear that more visa numbers are needed, we are very pleased that the DOS Visa Office has determined that the cutoff dates will likely be shifted forward in an effort to avoid wasting visa numbers this year.
 ©MurthyDotCom
 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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2. Recently Introduced Legislation Addresses H1B Cap and EB Limits
©MurthyDotCom
Recent legislation has been introduced to help address certain issues that are of concern to MurthyDotCom and MurthyBulletin readers. If passed into law, this legislation could greatly benefit many. On April 10, 2007, Senator Cornyn, a republican from Texas, introduced the Securing Knowledge, Innovation and Leadership (SKIL) Act of 2007. The bill addresses the H1B visa cap and provides relief for employment-based "green card" backlogs making more visa numbers available in those categories. Additionally, Senator Hagel, a republican from Nebraska, introduced the High-Tech Worker Relief Act of 2007. We emphasize that both of these bills are proposals, only. They do not mean that there have been changes in the law nor do they mean that there is any certainty that the law will change. What they mean is that there are efforts being made to change the laws.
 ©MurthyDotCom
SKIL Act
 ©MurthyDotCom
In his opening remarks, Senator Cornyn emphasized the importance of retaining U.S. competitiveness when "everyone has to do their part to keep our country's economy strong and viable." Senator Cornyn also referred to the congressional testimony of Microsoft Chairman Bill Gates, which was reported in our March 16, 2007 MurthyBulletin article Proposal to Increase H1B Quota Gathers Momentum!, available on MurthyDotCom. In his testimony, Mr. Gates proposed an increase, and even elimination, of the H1B annual quotas in order to boost the nation's competitiveness in a global economy.
©MurthyDotCom
The SKIL Act of 2007 does not purport to replace or eliminate the need for legislation on Comprehensive Immigration Reform. Instead, it provides for an emergent measure to fix the problem revealed by the current H1B cap crisis. Among other things, the bill provides for a flexible calculation of H1B visa numbers per year, which would depend on then-current demand. It also provides for a mechanism to retain foreign workers educated in the United States, to reduce immigrant visa backlogs, and to reform the student visa system to facilitate growth of U.S. business and economy.
 ©MurthyDotCom
High Tech Worker Relief Act of 2007
©MurthyDotCom
The High Tech Worker Relief Act, also introduced in the Senate, proposes to temporarily increase the number of visas that may be issued to certain highly-skilled workers. This bill focuses on providing immediate relief from the current H1B cap crisis. If enacted, this act would increase the H1B visas available from 65,000 to 115,000 for the fiscal year (FY) 2007, and to 195,000 in the FY2008. In FY2009 and every succeeding fiscal year, the number of H1B visas available would revert to 65,000 per year. This then could be reexamined and increased, if the U.S. continued to need higher levels of H1B workers.
©MurthyDotCom
The bill proposes to lift any numerical limitation on H1B visas available to people with advanced degrees earned in the U.S. This limit is currently set at 20,000 per year.
©MurthyDotCom
In addition, the bill would add several categories of foreign nationals who are not subject to numerical limitations counting toward immigrant visas. These categories would include foreign nationals who have earned advanced degrees in science, technology, engineering, and math and have been working in related fields in the U.S. under nonimmigrant visas during the three-year period preceding their applications for immigrant visas. Also included would be people who qualify for the EB1 category of extraordinary ability and outstanding professor or researcher, individuals who qualify for the national interest waiver (NIW) as part of the EB2 category, and the immediate relatives of employment-based immigrants.
 ©MurthyDotCom
Further Action Required for Bills to Become Law
 ©MurthyDotCom
 As explained in our August 2, 2002 article The Legislative Process - How a Bill Becomes a Law, further action is required before these bills can become law. Therefore, the SKIL Act of 2007 and the High Tech Worker Relief Act of 2007 should simply be considered proposals that do not have any power of law at this time. They do represent recognition by at least some in Congress, however, that the H1B limits are simply not currently working. We at the Murthy Law Firm will provide our input and support for positive immigration reform, directly and by supporting and participating in the lobbying efforts of AILA, Immigrants' List and like-minded organizations. We will continue to share developments with our readers when more information becomes available.
 ©MurthyDotCom
 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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3. Murthy Law Firm Submits Proposal to Revise PERM Form
©MurthyDotCom
The Murthy Law Firm recently submitted our proposal to revise Form ETA 9089 (PERM labor certification form) to a taskforce comprised of members of the American Immigration Lawyers Association (AILA). The taskforce is in the process of advising the U.S. Department of Labor (DOL), which adjudicates Form ETA 9089. The ETA 9089 form is used by U.S. employers to file labor certifications for their current or prospective foreign national workers; the first step in the "green card" process.
©MurthyDotCom
ETA Form 9089 Changes Likely after April 2008
©MurthyDotCom
The revisions are not expected until after April 2008, which is the expiration date of the current version of Form ETA 9089. The regulatory process, however, requires that much of the substantive work be done well in advance.
 ©MurthyDotCom
Murthy Law Firm's Proposed Changes
©MurthyDotCom
The Murthy Law Firm made numerous suggestions, based upon our extensive experience in preparing and filing PERM cases. We believe that our suggestions, if implemented, would streamline the completion of Form ETA 9089, reduce confusion as to the meaning and implications of answers to various questions, and decrease chances of wrongful denials of applications by the DOL.
©MurthyDotCom
Our recommendations include the following changes:

  • a separate category for employees who are medical doctors, with MD degrees

  • suggestions that would reduce confusion in situations where employers are equally willing to accept potential employment candidates with either specified experience or experience in related occupations, as opposed to what is classified as alternate experience

  • revision of certain questions so that the response will accept "months" as opposed to "years," since that will lend clarity

  • expanding the definition of "foreign education equivalent" to include, where applicable, a "combination of education from any institution/s equivalent to the required U.S. degree," along with similar, other relevant important issues

We believe that these changes, if implemented, will benefit a great number of employers and their prospective foreign national employees in the PERM labor certification process. After agreeing with many of our points and thanking us for our efforts, AILA advised that many of our suggestions would be utilized in their proposal to DOL.
 ©MurthyDotCom
Conclusion
 ©MurthyDotCom
In the area of U.S. immigration law, there are many subtle and complex issues. The PERM process revised the labor certification system in a comprehensive and efficient manner. Neither the DOL nor the private practitioners involved in the review process for the initial PERM form could anticipate every nuance or potential problem. PERM is a form-driven process, and deficiencies in the form lead to confusion and improper denials. The consequences are devastating delays and lost opportunities for thousands of families to live and work legally in the U.S. It also results in penalties for U.S. employers, who strive to comply with the ever-changing, complex immigration laws, regulations, and policies. It can take time to determine all the problems with a particular form that are not obvious in the beginning. There are matters that have come to light only through application of the process over time. We at the Murthy Law Firm are pleased to share some of our ideas and proposals to help further streamline and improve the existing system, for the benefit of both employers and employees who use the PERM system for the green card process.
 ©MurthyDotCom
 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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4. Options for Athletes : O & P Visas (Part 1 of 2)
©MurthyDotCom
The United States is home to many of the world's top athletic events and competitions, including numerous international athletes and sports teams. It provides a rich and dynamic professional environment to some of the most accomplished athletes and promising athletic stars of the future. As a magnet for top competitors from around the globe, the U.S. offers a choice of nonimmigrant visa categories for which athletes may be eligible. Most commonly, athletes come to the U.S. for short-term employment in O, P, or H2B status. Common features of these categories and differences between them, as well as information on important updates, are provided here for the benefit of MurthyDotCom and MurthyBulletin readers.
 ©MurthyDotCom
O and P Petitions can be Filed One Year in Advance
 ©MurthyDotCom
On April 11, 2007, the USCIS announced that it would permit U.S. employers and agents to file O and P petitions up to one year before a scheduled event, competition, or performance. Previously, the cases could only be filed six months in advance. This change was strongly supported by various groups, including the sponsoring performing arts organizations, educational institutions, even the general public, and the sports industry. Athletic events and other performances are often scheduled well ahead and O and P visa petitioners need to be able to plan for these events with time to plan events. This is a positive change that will benefit many U.S. petitioners and performers as they make plans for events requiring the participation of foreign national athletes and performers.
 ©MurthyDotCom
O Visas for Athletes
 ©MurthyDotCom
The O visa category is reserved for individuals with extraordinary ability in the sciences, arts, education, business, or athletics, and is extended to include their family members and critical assistants to the primary beneficiaries. As reported in our October 12, 1998 MurthyBulletin article, O-1 Visas : Nonimmigrant Visas for Aliens of Extraordinary Ability, individual athletes who meet a very high threshold of "extraordinary ability" may qualify for the O-1 visa. These athletes need to demonstrate that they possess "a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor."
©MurthyDotCom
Ways to Meet the O-1 Visa Eligibility Criterion
 ©MurthyDotCom
One way to meet this standard is to show the receipt of a major, internationally-recognized award such as an Olympic gold medal. The more common way to show eligibility for an O-1 status, however, is based on providing evidence of meeting three of the following categories:

  • receipt of nationally- or internationally-recognized prizes or awards for excellence in the athletic field

  • membership in sports associations that require outstanding achievements of their members

  • published material in professional or major trade publications or major media about the athlete

  • evidence of participation on a panel or individually as a judge of the work of others in the same or allied field

  • evidence of employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

  • evidence that the athlete has either commanded or will command a high salary or other remuneration of services

  • other comparable evidence

All O-1 visa applicants, including athletes, need to demonstrate that they are coming to the U.S. to work in their specific areas of extraordinary ability or achievement. The event, performance, or position for which an athlete comes into the U.S. does not need to require the services of an athlete of extraordinary ability or achievement. The chances for approval, however, may improve if the individual is seeking the O-1 in connection with a high-caliber event, performance, or position.
 ©MurthyDotCom
No Numerical Quota for O Visas

Unlike the H1B visa, the O-1 visa has neither a numerical quota nor the prevailing wage requirement, but presumably the person is paid based on the level of expertise. An O visa petition may be initially granted for three years, but potentially may be renewed an infinite number of times in one-year increments, provided the O-1 athlete continues to meet the eligibility requirements.
 ©MurthyDotCom
O-2 and O-3 Categories
 ©MurthyDotCom
The O-2 category is set aside for foreign nationals who will accompany and assist O-1 athletes in athletic performances. The roles of such individuals is usually critical for the successful participation of the primary O-1 visa holder and cannot be performed by other individuals, as unique skills and experience is required. One important distinction between individuals in O-1 status and those in O-2 status is that an O-2 must maintain a foreign residence which s/he has no intention of abandoning - a requirement not imposed upon an O-1. The O-3 category is reserved for family members of O-1s and O-2s.
 ©MurthyDotCom
Visa Filing Procedures for the O Status
©MurthyDotCom
Classification in the O-1 and O-2 categories requires filing a petition by an employer or a U.S. agent. An athlete may not file a petition on his or her own. An O-1 petition needs to be accompanied by an advisory opinion from a "peer group," labor organization, or management organization in the area of the athlete's ability. This requirement can be avoided if the petitioner is requesting an expedited processing, and if there is either no appropriate entity or if a consultation has taken place within the two previous years. If the athlete is abroad, s/he will need to apply for the O-1 visa at the appropriate U.S. consulate. It is possible to include multiple O-2 beneficiaries in the same petition, but only one O-1 athlete can be named in a single petition.
 ©MurthyDotCom
Alternative : P-1 Option for Other Athletes
©MurthyDotCom
For athletes who may not qualify under the O-1, the P-1 may be a viable option. More information on this category will be provided in Part 2 of this article. Look for it in a future edition of the MurthyBulletin.
 ©MurthyDotCom
 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom : Did You Know about Our Legislation Page?
 ©MurthyDotCom
At the Murthy Law Firm, we are often asked questions indicating that there is confusion surrounding proposed legislation and new laws. We have a Legislation Page on MurthyDotCom, where we clarify these matters for our readers. We also provide an article on How a Bill Becomes a Law and instructions for contacting your congressional representatives  so that our readers may understand and become involved in the legislative process.
 ©MurthyDotCom
The next session MurthyChat will be Monday, Apr 30, 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. 
 ©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.
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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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 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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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 © 2007, MURTHY LAW FIRM. All Rights Reserved


 

  
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