MurthyBulletin VOL. XIII, no. 23; June 2007, week 2 Posted : Jun 08, 2007 . . . . . . . . . . . . . . "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. To receive MurthyBulletin via eMail, follow this link to subscribe. To Unsubscribe, please go to the end of the eMailed MurthyBulletin and click the URL provided. This an Announcement Only list. Subscribers cannot post to the list. . . . . . . . . . . . . . . TOPICS in this Edition of the MurthyBulletin : 1. NSC on Unauthorized Employment in I-485 Context - June 2007 2. H1Bs Can Change Fields 3. USCIS Promises Improved Service as Fees Increase 4. Cantwell-Cornyn Amendment to CIR Bill 5. MurthyBlog : Murthy Law Firm & the Baltimore Symphony Orchestra 6. MurthyDotCom : Did You Know about our USCIS Service Center Page? 7. Important Processing Times and Dates . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . ©MurthyDotCom 1. NSC on Unauthorized Employment in I-485 Context - June 2007 ©MurthyDotCom Guidance regarding the issue of unauthorized employment was issued by the Nebraska Service Center (NSC) in June 2007. This guidance is contained in notes from an American Immigration Lawyers Association (AILA) meeting with the NSC that occurred in April 2007. The subject of unauthorized employment is important. Engaging in unauthorized employment is a status violation and, among other penalties, can result in the inability to adjust status to permanent residence. The questions regarding unauthorized employment were raised with the NSC in the context of filing the I-485, application for adjustment of status (AOS). ©MurthyDotCom What is Employment? ©MurthyDotCom For I-485 purposes, employment means any service or labor performed by an employee for an employer within the United States. Once a person is in the U.S., any employment performed needs to be authorized by the USCIS in one form or another. Some statuses are authorized to work "incident to status." This means that the individual's status alone allows employment (subject to certain restrictions) without additional authorization. An H1B is one of these categories that allows work with only the H1B-sponsoring employer/s. Some other categories of foreign nationals can obtain employment authorization, but must request that authorization from the USCIS.   ©MurthyDotCom Unauthorized Employment Can Prevent Approval of AOS ©MurthyDotCom The law prohibits a person who accepts or continues in unauthorized employment prior to the filing of an I-485 from adjusting status to permanent residence. There are a variety of other rules and definitions, but the basic idea is that unauthorized employment generally prevents adjustment of status, unless there is an exception that applies. ©MurthyDotCom Exception for Employment-Based Cases Up to 180 Days ©MurthyDotCom For employment-based I-485 cases, there is a provision that allows the USCIS to "overlook" up to 180 days of unauthorized employment. This does not mean that one should go out and work without authorization for 180 days or that there are not other potential consequences. It just means that if a person accidentally happens to work without authorization (the ways in which this can occur are outside the scope of this article), s/he will still be eligible to file the I-485 in an employment-based case, as long as the violation is under 180 days. One way in which people often engage in unauthorized employment without intending to do so is described in our July 29, 2005 article, Home-Based Businesses: Inadvertent Unauthorized Employment, available on MurthyDotCom. ©MurthyDotCom Method for Counting 180 Days ©MurthyDotCom The 180 days includes unauthorized employment both BEFORE the filing of the I-485 and AFTER. So, if one works without authorization for 170 days BEFORE filing, s/he could still file the I-485. However, if the individual keeps working without authorization for an additional 11 days, s/he will not be eligible for approval of the I-485 application. ©MurthyDotCom The unauthorized employment is counted from the time the employment begins until either employment authorization is granted or the employment is terminated. The USCIS's current interpretation counts the days in the period of unauthorized employment, including routine absences from work such as weekends, vacations, and sick leave. Thus, if a person starts work on day 1 and remains employed and working through day 181, s/he will have exceeded the 180-day provision. This is true even if the individual did not come to work literally each and every day, due to weekends, vacations, sick leave etc. ©MurthyDotCom The time toward the 180 days is counted from the last lawful admission prior to filing the I-485. It should be noted that work is not defined by compensation. Therefore, simply not getting paid does not resolve the problem, unless the efforts clearly fit within the nature of voluntary work for a nonprofit agency, in many cases. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm hope this explanation is helpful for many, as they plan to file an I-485 with the priority dates moving forward substantially. It is important to be mindful of the rules on unauthorized employment, and not try to stretch these rules. It is important to make sure that one has the appropriate approval for employment and, if limited to working for a particular employer (such as is the case with H1Bs), that no other employment is performed. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 2. H1Bs Can Change Fields ©MurthyDotCom A question that often arises among MurthyDotCom and MurthyBulletin readers involves a person in H1B status who wishes to change to a field of employment that is different from the field of his or her current H1B job. Such an individual often thinks that there has to be a similarity between the current H1B job and the prospective H1B position. To clarify for our readers; this is not true. There is no limitation on a change in fields in an H1B. One is in no way "locked in" to the type of job held in the current H1B as long as s/he he has the degree required for the new job or position. ©MurthyDotCom Fact Pattern Commonly Encountered with H1Bs ©MurthyDotCom Question : I am on an H1B. I have a bachelor's degree in computer science and a master's degree in mechanical engineering. My current H1B job is a computer programming position. I have an opportunity to change to an engineering position. Can I do this? Does it matter that the job descriptions for my current job and my new job are different? Will I need a cap number to change to a different type of job? I thought there was a requirement that the jobs be the same or similar. ©MurthyDotCom Answer : It is NOT necessary for the new H1B job to be similar to the current H1B job in any fashion. What is necessary is for both jobs to meet the general H1B requirements for a specialty occupation. That is, the positions must require the minimum of a bachelor's degree in a field of specialized knowledge. Of course, the foreign national beneficiary must possess the required degree or its equivalent. ©MurthyDotCom Potential for New Type of Job ©MurthyDotCom Thus, since many people have multiple degrees, they could potentially qualify for multiple types of H1B jobs. Additionally, many who have degrees in math, engineering, physics, and other technical areas have extensive experience in information technology (IT) and work within that area. They often qualify for IT-related H1B positions. They could, however, also potentially qualify for positions that more directly match their degree fields. ©MurthyDotCom There is no need for the jobs to be in the same or similar job category. The same or similar requirement is a concept used in green card cases when an individual is changing jobs under AC21 portability. It does not relate to H1B eligibility. ©MurthyDotCom No Cap Number Needed ©MurthyDotCom The change in fields does not impact the need for an H1B cap number. Moving from cap-subject H1B employment to another cap-subject employer does not require another cap number since the person was counted before against the regular or U.S. advanced-degree quota. ©MurthyDotCom Conclusion ©MurthyDotCom The misconception that H1B holders cannot change fields, or that they need a cap number to do so has led some to think they cannot change their employment. This is not correct, as explained for the benefit of MurthyDotCom and MurthyBulletin readers. It is our goal to clarify matters that cause confusion for many as they traverse the landscape of U.S. immigration law. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 3. USCIS Promises Improved Service as Fees Increase ©MurthyDotCom As readers were informed in our May 29, 2007 NewsFlash! USCIS Filing Fees Skyrocket from July 30, 2007, a USCIS regulation was published May 30, 2007, establishing greatly-increased filing fees, effective July 30, 2007. The new fees are available on the USCIS WebSite. In a Q and A released May 29, 2007, the USCIS made repeated promises of better service in exchange for the increased fees. The USCIS (and Legacy INS) has been criticized widely over the years and in recent news reports for their inefficiency and delays. They have now promised improvements. Many are skeptical, as there have been promises in the past with no significant improvements. While there are certain enhanced efficiencies and backlog reduction efforts that have impact within certain limits, the overall operation remains cumbersome and inefficient in many respects. ©MurthyDotCom When Will the Promised Improvements Appear? ©MurthyDotCom The USCIS stated that they intend to reduce processing times in four common applications by the end of Fiscal Year (FY) 2008 (September 30, 2008). These applications are: Form I-90 (Application to Renew or Replace a Permanent Resident Card), Form I-485 (Application to Register Permanent Residence or Adjust Status), Form I-140 (Immigrant Petition for Alien Worker), and Form N-400 (Application for Naturalization). These four types of cases account for about one-third of the USCIS workload. The goal is to reduce the processing times for the first three types of cases to four months; naturalization cases are to be reduced to five months. The USCIS set a further goal of reducing processing times by 20 percent overall by the end of FY2009. ©MurthyDotCom Why Will it be Different this Time? ©MurthyDotCom The USCIS has made promises of improvements before. So, the logical question is, "What is different this time?" The USCIS explained that the difference in this fee schedule is that it goes beyond just a general increase. In the past, the increases reflected increased costs and just kept the USCIS where it had been from a budget perspective. This increase goes beyond that and, according to the USCIS, will allow them to increase staffing, infrastructure, and processes. This, in turn, will allow for overall improvements in administration. USCIS intends to invest much of the increased fee revenue into improvements that will enhance efficiency. They state that they will look for ways to improve productivity and reduce costs. ©MurthyDotCom Future Fee Reviews ©MurthyDotCom The USCIS plans to review fees every two years to ensure that they are recovering their full costs. These fee reviews will incorporate productivity gains that result from modernization of operations. They want to adjust fees as needed at least once every two years.  ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 4. Cantwell-Cornyn Amendment to CIR Bill ©MurthyDotCom On May 24, 2007, Senators Maria Cantwell (D-WA), John Cornyn (R-TX), Patrick Leahy (D-VT), Orrin Hatch (R-UT), and Robert Bennett (R-UT) introduced an important amendment to the pending comprehensive immigration reform (CIR) bill. This amendment, in effect, would create a dual "green card" system. As MurthyDotCom and MurthyBulletin readers were informed in our May 25, 2007 article, Immigration Reform Proposal: Senate Compromise, the immigration reform bill, in its current form, would create a merit-point system. The system would be based entirely on points assigned for employment, education, English and civics, and extended-family connections. The Cantwell-Cornyn amendment proposes keeping an annual pool of 140,000 employer-sponsored "green cards" for foreign national workers separate and in addition to those currently in the bill. This would allow businesses to keep closer control over the workers they would like to keep in the United States. In addition, the amendment would keep the employment-based category for people with extraordinary abilities and/or special skills who are both self-sponsored and sponsored by a specific employer. It is important to note that this proposed amendment is to legislation that is also currently only proposed. At the time of this writing, no new legislation has been signed into law. ©MurthyDotCom Amendment's Treatment of H1B Visas ©MurthyDotCom In addition to the dual green card system, the amendment proposes establishing no limit on H1B visas for foreign nationals with advanced degrees in the fields of science, technology, engineering, and mathematics (STEM), as well as all foreign students who have advanced degrees from U.S. universities. The proposal also would strike the immigrant-intent presumption written in the original bill and restores the degree-equivalency provision. If enacted the proposal would also strike the new and strict provisions requiring employers to comply with burdensome requirements that currently apply only to willful violators. ©MurthyDotCom The amendment would relax the requirement that those with H1B visas hold professional degrees that match their jobs. If enacted, it would make it possible for foreign nationals with degrees in mathematics, for example, to apply for jobs in software engineering, if they otherwise qualify. ©MurthyDotCom Support from Various Organizations and Groups ©MurthyDotCom The Cantwell-Cornyn amendment has been met with strong support from the American Immigration Lawyers Association (AILA), as it helps the U.S. economy and is highly beneficial for U.S. employers and foreign national workers. Of course, not everyone feels the same. There are restrictionist groups that, as expected, oppose the amendment. ©MurthyDotCom Conclusion ©MurthyDotCom It is important that MurthyDotCom and MurthyBulletin readers understand that the amendment, as well as the various versions of the comprehensive immigration reform bill, are not law at this time and will become law only if approval is met by both the Senate and the House of Representatives and it is signed by the President of the United States. This amendment is yet another example of the myriad of changes that legislation can undergo between proposal and enactment. ©MurthyDotCom Since this legislation is still only in the proposed stage, we at the Murthy Law Firm warn our readers to be wary of any people who propose to provide "assistance" with any of the benefits that are currently being debated as part of the immigration reform. There are no benefits or new types of visas yet available, since these bills are merely proposals at this stage. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 5. MurthyBlog : Murthy Law Firm & the Baltimore Symphony Orchestra ©MurthyDotCom An entry from Attorney Murthy's personal 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). ©MurthyDotCom Murthy Law Firm & the Baltimore Symphony Orchestra ©MurthyDotCom Attorney Murthy talks about a project to ‘adopt’ an underprivileged child and teach that child a musical instrument of her/his choice by working with a Baltimore Symphony Orchestra artist. Through her involvement on a leadership level with the United Way, she plans to work together with the BSO, to help make this goal a reality. This Blog is available at  (http://www.murthyblog.com/murthyblog/2007/06/murthy_law_firm.html). ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 6. MurthyDotCom : Did You Know about our USCIS Service Center Page? ©MurthyDotCom At the Murthy Law Firm, we receive many inquiries about the specific service centers. Because the service centers are somewhat unique in their procedures and in how they handle cases, we have prepared a page for each. Whether you wish to know about Vermont, Texas, Nebraska, California, or the National Benefits Center (Missouri), we have the information available for you, with convenient links to the processing times for each one. MurthyDotCom has information and analysis on the policies and procedures specific to each of the different USCIS Service Centers. More general news, that affects all of these centers and, perhaps, local offices, as well, is linked from this main page for the USCIS Service Centers. ©MurthyDotCom The next session MurthyChat will be Monday, June 11, 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. ©MurthyDotCom MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY! ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 7. 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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