MurthyDotCom : U.S. Immigration Law

MurthyBulletin
VOL. XIII, no. 20; May 2007, week 3
Posted : May 18, 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 :

LC Substitution Elimination Reg Effective July 16, 2007
Posted on MurthyDotCom May 16, 2007

1. June 2007 Visa Bulletin : EB2 and EB3 Movement!

2. 221(g) Visa Denials at Consulates Abroad

3. Further Delays in H1B Receipt Notices

4. Filing for FOIA Requests in Immigration Proceedings

5. TB Test Update on I-485 Adjustment Application

6. MurthyBlog : Recent Changes in U.S. Immigration & Info on the Internet!

7. MurthyDotCom : Did You Know about Our Page for Employers and Employees?

8. 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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©MurthyDotCom
LC Substitution Elimination Reg Effective July 16, 2007
Posted on MurthyDotCom May 16, 2007
©MurthyDotCom
The labor certification (LC) substitution regulation that many MurthyDotCom and MurthyBulletin readers have been following in our articles now has been finalized. The regulation is 96 pages in length. We at the Murthy Law Firm are in the process of distilling this information. Please check (http://www.murthy.com/nflash/nf_051607.html) for the details of this important announcement!
©MurthyDotCom
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1. June 2007 Visa Bulletin : EB2 and EB3 Movement!
©MurthyDotCom
After a long period of backlogged dates in the Visa Bulletin, we are pleased to report to MurthyDotCom and MurthyBulletin readers that the June 2007 Visa Bulletin contains wonderful news for many. There was significant forward movement in the cutoff dates for India and China in the employment-based, second preference (EB2) category. The employment-based, third preference (EB3) category cutoff dates jumped forward considerably for all countries, including India and China, moving the dates forward by about two years across the board. This means that many people will be able to file their I-485 Adjustment of Status (AOS) cases and that many pending I-485 / AOS cases are potentially eligible for approval while the dates remain current. [The most recent Visa Bulletin chart is always available to our readers on MurthyDotCom.]
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Our Role in this Change
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Visa cutoff dates are set based upon expectations of demand for the numbers. If the anticipated demand is higher than what is experienced in reality, there is a chance that numbers will not be used by the end of the year. These numbers end up being wasted under current laws, unless there is some change in the law that allows for them to be recouped at a later time. Attorneys from the Murthy Law Firm discussed issues related to overestimation of demand for visa numbers with the Department of State (DOS), as reported in our April 27, 2007 MurthyBulletin article Visa Number Movement Expected for India and China, available on MurthyDotCom. The issues raised were considered, among other factors and research undertaken to revise the estimates of demand, resulting in the forward movement of visa dates as seen in the June 2007 Visa Bulletin.
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Employment-Based First Preference (EB1)
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The EB1 category remains current for all countries of chargeability in June 2007.
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Employment-Based Second Preference (EB2)
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The EB2 category is also current for all countries of chargeability, except for China and India. The cutoff date for China moved forward by almost nine months, to January 1, 2006. India's cutoff date moved forward by more than a year; to April 1, 2004. This is very good news for many of our readers.
©MurthyDotCom
Employment-Based Third Preference (EB3)
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In EB3, all countries of chargeability continue to have cutoff dates. All of the chargeability categories, however, saw forward movement by approximately two years. While there are still many people with priority dates that are after the new cutoff dates, this change will mean that many people will be able to file I-485/AOS or process for immigrant visas at the consulate.
©MurthyDotCom
The cutoff date for worldwide and the Philippines in the EB3 category will be June 1, 2005. For China, India, and Mexico the new cutoff date is June 1, 2003.
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Other Worker Category
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The EB3 Other Worker category was previously unavailable, and was expected to remain so. It is now at October 1, 2001 for a brief period. It is expected, however, to return to unavailable in July 2007.
©MurthyDotCom
Employment-Based Fourth (EB4) / Fifth / Religious Workers and Targeted Employment (EB5)
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The EB4, EB5, religious workers, and the targeted employment categories are all current.
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Translators
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This EB4 subcategory for Iraqi or Afghani nationals who have worked with the U.S. Armed Forces as translators continues to have a September 18, 2006 cutoff date.
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Predictions for July / August 2007
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The DOS stated that there could be additional advances in the cutoff dates in the upcoming months. This will allow many people to file their I-485/AOS cases. Once the USCIS starts to act on those cases and creates demand for the visa numbers (a visa number is assigned when an I-485 is approved), the cutoff dates will have to be adjusted. This adjustment will mean that the dates will likely move backward. The DOS could not offer a prediction of when this might occur, however.
©MurthyDotCom
What this Means : File by June 30, 2007
©MurthyDotCom
These forward movements in the dates mean that many people will now be eligible to file their I-485/AOS cases or move forward with consular processing for immigrant visas. The visa cutoff dates discussed are for June 2007. Therefore, cases based upon these cutoff dates cannot be filed until June 1, 2007. The dates are valid at least through the end of June. Thus, the deadline for filing under the June Visa Bulletin is June 30, 2007. If the dates remain unchanged or move forward in the July Visa Bulletin, then there will be additional time to file these cases during July 2007. So it will depend on the movement of dates.
©MurthyDotCom
There is no need to file on June 1, 2007, nor is there any advantage in terms of visa numbers in filing on June 1st. This does not work like the H1B cap, which required everyone to rush to file on the first day of filing. For I-485 cases, it is better not to rush unnecessarily in order to file at the beginning of June. Rather, take the time that is needed to make sure the case is complete and proper. Then, one may file at any time on or before June 30, 2007, unless the dates continue to be current during July, also.
©MurthyDotCom
As explained above, the June 30, 2007 timeframe could potentially be pushed back further, if the cutoff dates either move forward or remain unchanged for July 2007. Until the July Visa Bulletin is issued in mid-June 2007, however, this factor remains an unknown and no one should assume that s/he will be able to file after June 30th.
©MurthyDotCom
Travel Planned for Summer 2007?
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One important point about I-485 filings is that it is necessary to be physically in the U.S. in order to file. Many may have travel plans for the summer months of June and/or July. That travel may interfere with the ability to file the I-485, thus, it may be necessary to reschedule one's travel or s/he may risk losing this chance to file the I-485. The same also applies to dependant spouses and children. Sometimes spouses and children spend extended periods abroad during the summer. It may be necessary to bring the spouse and any other family member back to the U.S. in order to file their I-485s. Of course, these spouses and children have to be eligible for this travel within a dual intent category, like the H-4 or L-2 status, in order to enter the U.S. with the intention to file the I-485. The only exception is if, by the mid-June release of the next Visa Bulletin, it is clear that we have the month of July to file, these family members could remain abroad for a few extra weeks.
©MurthyDotCom
Movement of Dates is Likely Temporary
©MurthyDotCom
While this forward movement is a tremendous relief to many, it is most likely only a temporary situation. The DOS is only relaxing the constraints a little, in an effort to make sure that all visa numbers are utilized during this fiscal year, which ends Sep 30, 2007. It does not represent any overall fix or improvement to the retrogression problem. It will allow many people to file their I-485/AOS cases, however. This will open opportunities for those individuals. It will allow others to obtain approvals of their pending I-485/AOS cases and consular processing cases.
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Conclusion
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Since this reprieve with the movement of immigrant visa numbers is expected to be brief and temporary, it does not help many who have cases that are also quite old - for example, it does not cover EB3 nationals of India for the last half of 2003 through the present. We at the Murthy Law Firm still believe that a larger, legislative fix is needed; so that the visa number allocations match the actual need U.S. employers have for foreign workers. We urge our readership, employers and employees alike, to write their congressional representatives [sample letters are available from AILA through MurthyDotCom at (http://www.murthy.com/news/n_caneac.html)] to request that they address this problem for the long term.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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2. 221(g) Visa Denials at Consulates Abroad
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U.S. consulates abroad have been known to deny visas based upon Immigration and Nationality Act (INA) Section 221(g) even after the United States Citizenship and Immigration Services (USCIS) has approved a petition for the visa application. Some nonimmigrant categories require USCIS approval of a petition before one may apply for a visa at the consulate. Included are categories such as H, K, L, O, and P petitions. Nonimmigrant cases that do not require prior petitions under current law are the B, F, J, and R categories. Virtually all of the immigrant visa categories require an approved petition from the USCIS before an immigrant visa may be granted. For the benefit of MurthyDotCom and MurthyBulletin readers, we have outlined common 221(g) denials and ways that our firm plans to address this matter; hopefully finding satisfactory resolution.
©MurthyDotCom
Refusals under Section 221(g)
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Periodically, consular officers determine that the requirements for a petition-based visa are not met by an applicant. They can refuse to issue the visa under INA Section 221(g). When they do so, they also request that the USCIS revoke the petition that was approved earlier.
©MurthyDotCom
The USCIS has the primary authority to determine whether or not a person meets the requirements for particular, petition-based visa classification. Consular officers may, in limited circumstances, reach a different conclusion and request that the USCIS reconsider its original approval of a petition. Essentially, what is happening is that the USCIS has said "yes," when the consulate thinks that they should have said "no." So, the consulate says "no" to the visa and sends the approved petition back to the USCIS with a request for revocation, based on their findings.
©MurthyDotCom
Common 221(g) Visa Denials
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This type of situation occurs most often in connection with nonimmigrant visa applications for temporary worker classifications and for fiancé/es applying for visas abroad. What can happen is that new, negative information can come to light at the time of the interview. More specifically, the interviewing consular officer may conclude that the visa applicant either does not appear to meet the requirements for a temporary worker classification or, in the case of a fiancé/e, does not appear to have a bona fide relationship with the petitioning U.S. citizen. We touched on some of the issues of concern in our March 24, 2006 article, Report from Attorney Murthy: Meeting with Consular Leadership (Chennai, India - March 2006), available on MurthyDotCom. A particularly disturbing trend at certain consulates in some countries, including India, uses this provision liberally. We at the Murthy Law firm are making efforts to address this in a comprehensive fashion.
©MurthyDotCom
USCIS has Primary Authority over Petition Approvals
©MurthyDotCom
As indicated, in every visa issuance case that requires an approval of a petition, that petition has to be initially sent to the USCIS. The USCIS has the primary responsibility to make decisions in such cases, under law.
©MurthyDotCom
DOS / Consular Authority to Revoke must be Used "Sparingly"
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The Department of State (DOS) issued guidance to its consular officers abroad in 2001 to clarify their role in connection with the adjudication of petition-based visas. This memorandum reminds consular officers that the revocation process should only be used "sparingly," and that consular officers should not attempt to re-adjudicate (i.e., reevaluate) petitions.
©MurthyDotCom
Furthermore, the guidance states that consular officers should only seek revocation of a petition if they know, or have reason to believe, that the petition approval was obtained through fraud, misrepresentation, or other unlawful means; or that the beneficiary is not entitled to the status conferred by the petition. The guidance also cautions that a petition should not be returned unless the officer uncovers new information that was not available to the USCIS at the time of that petition's approval. Thus, the consular officers abroad are not supposed to second guess the USCIS's assessment of the sufficiency or content of evidence provided. For example, a consular officer is not supposed to re-think the question of whether an applicant with an engineering degree is qualified for a position as an IT professional in an H1B case. That is a USCIS decision. S/he could refuse the visa, however, if it is discovered that the degree submitted is a forgery or that the individual does not actually possess the claimed experience required for the approval or other required qualifications.
©MurthyDotCom
Consular officers are, under official DOS policy, limited in the application of the revocation request process for petition-based visas, therefore, which prevents a duplication of efforts by the USCIS and the DOS. When the consular officer chooses to request revocation of the approved petition, the revocation process is lengthy and burdensome. It is widely known that returning a petition with a request for revocation often effectively destroys the petition. This is particularly so in the case of a petition for a temporary worker, since the employer cannot always hold the job open for years, until the matter is sorted out.
©MurthyDotCom
Petition Revocation Process is Lengthy and Expensive

To begin the revocation process, the consular officer must forward the petition and revocation request to the U.S. Department of State's Kentucky Consular Center. From there, it is processed and returned to the USCIS service center that originally approved the petition. The USCIS then reevaluates the petition's approval and either reaffirms the petition and returns it to the DOS or, in many cases, issues a Notice of Intent to Revoke (NOIR) to the petitioner. The petitioner is given 30 days to respond to the NOIR with additional evidence.
©MurthyDotCom
This process can take anywhere from several months to over a year or two in some cases! Accordingly, by the time a NOIR is issued by the USCIS to the employer / petitioner, the petition itself may only have less than half of its original validity remaining. Furthermore, in the case of a petition for a temporary worker, neither the employer nor the employee is usually able to wait for the case to be resolved. It is expensive to respond and the loss of time and money is onerous on the parties. Consequently, most petitions are abandoned by the time a NOIR is issued.
©MurthyDotCom
In the unlikely event that a petitioner decides to respond to a NOIR and is successful in having the petition reaffirmed, the original consular officer has likely already moved on to her/his next rotation or assignment. The original consular officer will not learn that his/her decision has been overridden. Thus, although the DOS guidance exists, there does not appear to be sufficient oversight on petition revocations. This procedure often sends the cases into a bureaucratic black hole, with little chance of ever emerging again.
©MurthyDotCom
The Murthy Law Firm Takes Action
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A disturbing trend of 221(g) denials that are not in compliance with the official policy has not gone unnoticed by the Murthy Law Firm. This has been long-standing, but has increased lately. In the past, we addressed issues of improper policy or application of legal rules directly with the consulate, either on a case-by-case basis or in a more comprehensive fashion. We succeeded in having problems in individual cases addressed, and changes in some areas have resulted. We determined, however, that the problem of 221(g) denials contrary to stated DOS policy needed further action.
©MurthyDotCom
In order to start to remedy this problem, the Murthy Law Firm drafted a legal brief and submitted it for an advisory opinion to the DOS's Visa Office. The brief requests a review of the adjudication practices and procedures at the consulates in India with regard to H1B visa applications. We have also requested that the Visa Office reiterate its guidance to the consular posts, if necessary. We outlined some particularly egregious examples where the post was using 221(g) in a manner that did not comply with the stated policy of not re-adjudicating approved petitions and not requesting proof that was previously available to USCIS.
©MurthyDotCom
Conclusion
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We at the Murthy Law Firm would like to state that we are grateful to the U.S. consulates in India for their cooperative spirit. In particular, we have worked closely with officials at the U.S. Consulate in Chennai over the years to understand their methods and limitations, and to solve problems for many of our clients. We will follow up and pursue this matter with all concerned parties. It is our belief that all will work together to find an agreeable resolution, so that the intent of Congress is executed and there is effective and fair implementation of our immigration laws and regulations.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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3. Further Delays in H1B Receipt Notices
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An announcement came from the USCIS on May 11, 2007 that they were unable to meet their projected deadline of that date for issuance of all receipts on regular H1B cap-subject filings. This was attributed to the receipting and data entry required for such high case volume. This means that there are still H1B regular cap cases that were selected in the lottery, but that have not yet been issued receipts.
©MurthyDotCom
VSC Receipts by June 2nd and CSC by June 15th
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The USCIS did not provide a date by which all cap cases absolutely will be receipted. They did provide information about the Vermont and California Service Centers' (VSC and CSC) expectations for when they will be back in compliance with the timeframes for issuing receipt notices on the H1B cap-subject cases. These dates are June 2, 2007 for the VSC and June 15, 2007 for the CSC. The USCIS is asking the public to wait at least 30 days from these dates before contacting them with inquiries about H1B receipts.
©MurthyDotCom
Mailing Delays Possible after June 15, 2007
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The USCIS reminds everyone that further delays may be experienced in the mailing of receipts, once they have been issued. Many MurthyDotCom and MurthyBulletin readers are waiting to learn what has happened with their cap-subject H1B cases, so this update should provide them with at least a little assurance.
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4. Filing for FOIA Requests in Immigration Proceedings
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There are new Freedom of Information Act (FOIA) processing procedures that allow for faster responses to FOIA requests for individuals who are in immigration proceedings (removal / deportation). These apply only to cases that are in removal or deportation proceedings and not to other types of cases. This matter was previously reported in our March 30, 2007 MurthyBulletin article Faster FOIA Response Available for Limited Class, available on MurthyDotCom. The most expeditious way to obtain FOIA records for these individuals is by contacting the Immigration and Customs Enforcement (ICE) office directly.
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The mailing address specifically for making such FOIA requests is :

Attn: FOIA Director
ICE
c/o Catrina Pavlik-Keenan, FOIA Officer
800 North Capitol Street
5th Floor, Suite 585
Washington, DC 20536

Or, they may be reached by eMail : cab.foia@dhs.gov

The request should be made on a Form G-639 and should include documentary evidence that the case is in proceedings (removal / deportation). Requests submitted by eMail should have attached scans of the required documents.
©MurthyDotCom
Other FOIA Requests
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Please do not send routine FOIA requests to this address. This ICE office will not handle FOIA requests other than those for individuals in immigration proceedings. This does not change procedures for routine requests that also require form G-639, but are not submitted to ICE.
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5. TB Test Update on I-485 Adjustment Application
©MurthyDotCom
Foreign nationals who are filing the I-485 application for adjustment of status (i.e. final stage of the "green card" process) have to demonstrate eligibility in a number of areas. One area involves medical screening, by a specially authorized physician, referred to under law as a civil surgeon. The exam includes a number of different tests to order to determine whether the applicant has certain "contagious diseases of public health significance" that should prevent her/him from obtaining the I-485 approval and becoming a U.S. permanent resident. One of the medical conditions for which an individual is tested is tuberculosis (TB). The required test for TB for obtaining the I-485 approval is a skin test, not simply an x-ray test from the civil surgeon.
©MurthyDotCom
USCIS RFEs Request Skin Test for TB
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There recently have been many reports of the USCIS sending Requests for Evidence (RFEs) for tuberculosis skin tests. These were generated because the doctors in these cases used x-ray only examinations for TB, rather than skin tests as part of the physical examination. TB is comparatively rare in the U.S. and more common in India and several other countries. Under the regulations, the USCIS is correct in insisting upon a skin test.
©MurthyDotCom
Request that Your Doctor Perform Skin Test for TB
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We remind MurthyDotCom and MurthyBulletin readers that a TB skin test is a necessary part of the physical examination required by the green card application process. It can be waived only in limited circumstances, such as for children under two years of age. Otherwise, a showing of good cause, such as a particular health condition, may exempt an applicant from the actual skin test. In order to avoid delays or an RFE on this issue, it is best to ask the civil surgeon to perform a skin test for TB, in the event that the physician does not do so without prompting.
©MurthyDotCom
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6. MurthyBlog : Recent Changes in U.S. Immigration & Info on the Internet!
©MurthyDotCom
As was recently announced to MurthyDotCom and MurthyBulletin readers, Attorney Sheela Murthy has begun a personal blog. An entry from her blog will be selected on a regular basis and included here. To keep up with the MurthyBlog in its entirety, find it at (http://www.murthyblog.com).
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Recent Changes in U.S. Immigration & Info on the Internet!
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Attorney Murthy talks about the most recent changes in U.S. immigration law and recommends that great care be taken when acting on information available on Internet forums and websites, in order to avoid jeopardizing the immigration process - an important phase in one's life. This blog is available at http://www.murthyblog.com/murthyblog/2007/05/recent_changes_.html.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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7. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
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At MurthyDotCom we know that many immigrants come to the United States chasing employment opportunities. On the other side of this equation are the U.S. employers who are looking for the best, brightest, most willing job applicants to fill positions in their companies. In the middle is the U.S. government. Among the government agencies affecting this match are the U.S. Department of State that determines whether to grant a visa to a worker bound for the U.S.; the Department of Homeland Security, whose dual role is to grant benefits as well as secure borders; and the Department of Labor that seeks to protect the U.S. workforce, while facilitating employer access to the non-U.S. workers they require. Find relevant news effecting employers and immigrant workers on our Employment Page on MurthyDotCom.
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The next session MurthyChat will be Monday, May 21, 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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8. 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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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

Disclaimer : The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm or establish an attorney-client relationship.

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