MurthyBulletin
VOL. XIV, no. 21; May 2008, week 4
Posted : May 23, 2008
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"We know your immigration matters!" SM
The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin :
1. BALCA Upholds Denial of Incomplete PERM Application
2. USCIS Revises Guidance on CSPA : More Protection for Children Aging Out
3. Misprinted I-94 Cards Issued by CBP
4. Announcement : Murthy Corporate Teleconference Series - Wed, Jun 04, 2008
Topic : I-140 RFE - Understanding & Responding to Common Problems Raised by USCIS
5. MurthyDotCom : Did You Know about Our Travel 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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1. BALCA Upholds Denial of Incomplete PERM Application
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In the case of Matter of 5th Avenue Landscaping, Inc., the Board of Alien Labor Certification Appeals (BALCA) upheld the Certifying Officer's (CO's) denial of a PERM labor certification application in which the employer failed to include several responses on the ETA 9089 Form. The employer blamed the error on individuals who assisted with the form filing. According to BALCA, even though the employer provided responses after requesting a review of the application, the denial was still proper. The Murthy Law Firm was not involved in any aspect of this case. The information is included here to help MurthyDotCom and MurthyBulletin readers - employers and employees, alike - realize that it is important to be thorough and accurate when preparing PERM cases. As explained in our April 11, 2008 article, Simple Errors May Lead to Denials of PERM Cases, there is a distinction between harmless errors and outright omissions.
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Harmless Error and Outright Omission
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In Matter of HealthAmerica, BALCA held that denials due to inadvertent, harmless errors may be inappropriate but substantive omissions will result in denial. An example of something that potentially could be viewed as a harmless error is listing an incorrect date (that is otherwise compliant with Department of Labor regulations) in the recruitment section of the ETA 9089 Form. Leaving blanks instead of providing information on the minimum requirements for the position is an example of a substantive omission that will result in denial of a PERM application. In the 5th Avenue Landscaping case, the PERM application was submitted with numerous omissions.
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Policy Reasons for Denying Incomplete Applications
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BALCA held that the proper remedy in this case is for the employer to file a new application for labor certification. It was found that, although the employer had submitted a corrected application, as an appeals board, BALCA could only review the initial decision. Since the initial decision to deny the incomplete application was found to be correct, BALCA upheld that decision.
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Although it was not mentioned in this case, BALCA has consistently said it would be improper to allow employers to fix errors after submission because that would reward them for filing hasty or inaccurate PERM applications. Instead, requiring a new application in these cases would dissuade applicants from filing incomplete PERM applications just to get an earlier priority date.
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Conclusion
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It is important in all types of immigration filings to be accurate and complete in the initial filing. It is often not possible to fix errors after the fact, particularly those that are significant. Ever since the HealthAmerica decision, a body of case law has developed that distinguishes between inadvertent, harmless errors and careless omissions in PERM filings. BALCA has provided some flexibility with innocent mistakes, but not for substantive omissions that appear to be the result of filing hastily. To prevent such denials, employers should review PERM applications carefully before submitting the final application.
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2. USCIS Revises Guidance on CSPA : More Protection for Children Aging Out
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The U.S. Citizenship and Immigration Services (USCIS) recently issued Revised Guidance for the Child Status Protection Act (CSPA) (PDF 106KB). This significantly expands the scope and class of individuals potentially eligible to benefit under the CSPA. The USCIS posted a series of Questions and Answers on May 6, 2008, clarifying the new guidance and providing background information on the CSPA. Background information on the CSPA is available on MurthyDotCom, including our November 4, 2005 article, The Impact of Retrogression on the CSPA. The new CSPA guidance replaced the earlier USCIS policy, and is relevant to children who "aged out" (reached over 21 years of age) before the CSPA was enacted, as well as those with cases denied based upon prior policies.
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CSPA Applies Retroactively
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The new CSPA interpretation grants benefits to those individuals who "aged out prior to the enactment of the CSPA." More specifically, it permits those individuals "who did not have an application for permanent residence pending on August 6, 2002 and did not apply subsequently for permanent residence" to file their applications for adjustment of status at this time. Those eligible include individuals who had an approved immigrant petition prior to the enactment of the CSPA, are filing as immediate relatives, and whose visa numbers became available on or after August 7, 2001.
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Denials Based Solely on "Aging Out" may Re-File or File MTR
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In addition, those who filed their applications for adjustment of status previously, but were subsequently denied solely based on the finding that the applicant was not a child for the purposes of the CSPA, are permitted to re-file at this time. This benefit does not apply to those applicants who received a final decision on their applications prior to the enactment of the CSPA or those whose applications were not denied solely based on the CSPA ineligibility ground. In all eligible cases, applicants should file a motion to reconsider an earlier decision with their local USCIS field office. There is no filing fee and no deadline for filing the motion.
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Conclusion
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The new interpretation of the CSPA may benefit many applicants who had their applications for adjustment of status denied in the past or who did not apply for adjustment of status because they aged out before the enactment of the CSPA. One who may be eligible to apply at this time should consult with an immigration attorney since the CSPA involves some highly complex concepts. A qualified, experienced professional may need to discern whether to apply these in a specific situation in order to determine eligibility and possible benefits under the CSPA.
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3. Misprinted I-94 Cards Issued by CBP
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Misprinted I-94 cards, used by Customs and Border Protection (CBP) in early 2008, are causing problems with Social Security number issuance. According to the American Immigration Lawyers Association (AILA), CBP received approximately one million I-94 Arrival-Departure cards that were missing the first digit. They utilized these misprinted cards and issued them to individuals arriving through various Ports of Entry.
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Correct I-94 cards should have eleven digits. The incorrect I-94 cards only had ten digits. I-94 cards are issued one of two ways: either at the Port of Entry (POE) by the CBP, or by the USCIS as an attachment to certain approval notices for changes or extensions of status. The defective cards were only issued at the POE. Long-time readers of MurthyDotCom and the MurthyBulletin may recall a discussion of I-94 cards in our June 30, 2006 article, Always Keep a Copy of Your I-94 Cards.
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Misprinted I-94s Causing Delays in Issuance of SSNs
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These misprinted I-94 cards have caused the Social Security Administration (SSA) to refuse and delay the issuance of Social Security numbers (SSNs) to applicants who are otherwise eligible. CBP indicated that the misprinted I-94 cards have been recalled and replaced. The cards were issued by Calgary Airport in Canada and may have been issued by POEs on a more widespread basis. Although the defective cards have been recalled, CBP does not know how many were issued.
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Replacing a Misprinted I-94 Card
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Anyone with one of these defective I-94 cards can request a new card from CBP through a Deferred Inspection site or at a POE. FAQs on the I-94 card corrections are available on the CBP WebSite.
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Conclusion
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Individuals who received I-94 cards from a POE in 2008 should double check the card and make sure it has eleven digits. The card numbers appear as nine digits, a space, and then two digits. If the card is incorrect, it can be corrected as described above.
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4. Announcement : Murthy Corporate Teleconference Series - Wed, Jun 04, 2008
Topic : I-140 RFE - Understanding & Responding to Common Problems Raised by USCIS
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The next teleconference in this monthly series to guide employers and HR managers and benefit their employees will review the current policy of the U.S. Citizenship & Immigration Services (USCIS) towards issuing a Request for Evidence (RFE) regarding Form I-140 Petition filed to sponsor a foreign worker for the green card. The mechanics and mysteries of what USCIS asks when issuing the RFE will be explained, including how to address questions about a foreign worker's credentials and the sponsoring company's financial situation. The Murthy Law Firm turns its experience preparing I-140 Petitions to avoid the RFE and rescuing cases from the threat of denial into recommendations and insights for finishing the second stage of the green card process.
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Employers and their representatives can find more detail and learn how to register here.
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5. MurthyDotCom : Did You Know about Our Travel Page?
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Immigrants, nonimmigrants, tourists, and students always have questions about when it is safe to travel and what documentation they should carry. With the summer travel season before us, it is important to be prepared. At MurthyDotCom we provide a Travel Page with links to articles as well as to U.S. consulate and embassy websites. Our articles on this topic range from transit to changes in security measures that may impact our readers as they move about the U.S. or reenter from a trip abroad. Whatever your question regarding travel, find your answers on MurthyDotCom!
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MurthyChat : The next MurthyChat session will be Monday, Jun 02, 2008, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Monday of each month. Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions.
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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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