MurthyBulletin
 VOL. XIII, no. 26; June 2007, week 5
Posted : Jun 29, 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 :
1. Changing from CP to AOS Now - Pros and Cons

2. Retrogression is Not Over Forever!

3. USCIS on H1Bs and Refunds of Premium Fees

4. MurthyBlog : U.S. / India Business Meeting in D.C.

5. MurthyDotCom : Do You Know How We Can Help You?

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. Changing from CP to AOS Now - Pros and Cons
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In light of the "current" priority dates reflected in the July 2007 Visa Bulletin for most employment-based (EB) categories, we are receiving many questions from those who had selected consular processing (CP) on the I-140 petitions filed by employers on their behalf. The I-140 petition for foreign worker inquires as to whether the case will be processed for adjustment of status (AOS) or CP. The last stage in a "green card" case may be processed through AOS or through CP. When CP is selected, the individual must appear at the U.S. consulate abroad (usually in the person's home country) for an interview following the I-140 petition approval. If all goes well, the family will receive the immigrant visa, and enter the U.S. as permanent residents. There is no need to file AOS. Many of those who selected CP now wish to change to AOS, however, so that they can take advantage of the fact that the dates are current for July 2007. They would be able to file for employment authorization and advance parole for themselves and all eligible members of their immediate families, as well as enjoy certain benefits, like changing employers and continuing with the green card case under AC21 portability.
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Should I Change from CP to AOS?
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At this time, it is a wise decision, in most cases, to change from CP to AOS, as the visa numbers will likely retrogress substantially sometime in the near future. For most people, unless they already have a consular interview set for a date in July 2007, it is unlikely that they will reach the stage of obtaining the immigrant visa before the visa numbers retrogress again.
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Since immigrant visas cannot be issued unless a visa number is available at the time of the visa interview, they will have to wait (potentially for a long time, depending upon category and priority date) until a visa number is available for their category and priority date, once again. They also will have missed the ability to file the I-485, and to receive the related benefits, like an employment authorization document (EAD), advance parole (AP), and the ability to use AC21 AOS portability to change jobs or employers.
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Some people want to stay with the CP option, in the hope that they will get visa numbers before they retrogress again. The likelihood of accomplishing this goal depends upon how far along their cases are in the CP process. But, for many, it will be a mistake to try to grab the uncertain prize at the consulate, while giving up the more certain benefits of AOS.
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This should be discussed with one's attorney, as there may be many variables, depending upon an individual's particular circumstance. There are procedural problems that limit the choice available in some cases. There are some who have no choice but to use CP, if there have been out-of-status issues, etc. There are also some situations in which AOS is the only option.
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Method to Process the Change from CP to AOS
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It is possible to change one's mind about processing the green card case through CP. It is easier to change from CP to AOS than from AOS to CP. In CP cases, upon the approval of the I-140 petition, the USCIS service center sends the original I-140 petition to the National Visa Center (NVC), which then initiates the CP of the case.
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If, prior to the approval of the immigrant visa at the consulate, the person files an I-485 AOS, that will end the CP process. In that event, if the I-140 was already approved, the USCIS requests that the original I-140 be sent back from the NVC to the particular USCIS service center. This usually takes around 120 days. People who request CP, and later change their minds and file AOS, should be aware of this delay in final adjudication of their I-485 applications and plan accordingly. This delay should not impact one's ability to obtain the EAD or the AP within the normal processing time. Also, if the I-140 is pending (not yet approved) then there should not be a delay. Additionally, since visa numbers are most likely going to retrogress once again in the near future, absent a change in the law, this delay may not impact the ultimate processing time for the case, since I-485s can only be approved if there are current visa numbers.
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2. Retrogression is Not Over Forever!
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The July 2007 Visa Bulletin, shows all categories of the employment-based (EB) Visa Numbers as "current." While this is remarkable and it was not anticipated that the numbers would move so much so quickly, it does NOT mean that retrogression has ended or that the problem with backlogs has been eliminated in any way. At the Murthy Law Firm, we are receiving questions and requests indicating that some people think the July Visa Bulletin means that retrogression is no longer a problem. Nothing could be further from the truth.
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If It Says "Current," Doesn't that Mean Retrogression is Over?
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No, retrogression is not over. The July 2007 Visa Bulletin is simply a reflection of efforts by the U.S. Department of State (DOS) to make sure that all the visa numbers allocated under the law are used by the end of Fiscal Year (FY) 2007, which ends September 30, 2007. Any FY2007 EB visa numbers that are not used by that date will be lost forever, unless there is a change in the law. Given the scarcity of visa numbers, the DOS is trying to avoid that possibility before Sep 30, 2007.
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Why Do the Immigrant Dates Keep Changing?
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In order to understand what is going on with the movement of immigrant visa numbers, one must keep in mind that there is a limited supply of visa numbers. The DOS is supposed to control the cutoff dates in the Visa Bulletin to properly spread the allocation of immigrant visa numbers throughout the fiscal year, as mandated by law. They do this based on estimates of the demand for various EB and family-based (FB) categories from certain countries. The demand comes from I-485 case approvals by the USCIS and the issuance of immigrant visas at the U.S. consulates worldwide.
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Visit our MurthyDotCom article, An Analogy to Explain Immigrant Visa Numbers, if you are interested in reading an explanation of the visa number system in simplified terms.
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 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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3. USCIS on H1Bs and Refunds of Premium Fees
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The American Immigration Lawyers Association (AILA) recently released information from two teleconferences with the U.S. Citizenship and Immigration Services (USCIS) - one with the Vermont Service Center (VSC) on May 30, 2007 and the other one with the Nebraska Service Center (NSC) on May 31, 2007. The questions asked at these teleconferences and answers provided by the USCIS should be useful to many MurthyDotCom and MurthyBulletin readers. Items discussed include Fiscal Year (FY) 2008 H1B cap cases to be processed by August 1, 2007, evidence acceptable to file an H1B petition, with respect to the completion of the degree, and refunds of premium processing fees, particularly in I-140 cases.
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H1B Cap Cases by August 1, 2007
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All H1B cases subject to the annual cap with the employment start date of October 1, 2007, which have been received at the VSC, are going to be reviewed by August 1, 2007. At that time, the VSC should issue an approval notice, a Request for Evidence (RFE), or a Notice of Intent to Deny (NOID). If the VSC follows this timeline, it will be a major improvement over last year, when it took the USCIS six to seven months to process H1B cap-subject cases. Because of this delay in adjudication, some cases were decided after the October 1st start date, which required some employers to pay the additional $1000 fee for premium processing.
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If the VSC indicates that it is unable to meet the August 1st deadline, and it needs more time to adjudicate cap-subject H1B cases, we at the Murthy Law Firm will alert our readers. The goal of the VSC at this time is to complete all cases before August 1, 2007.
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H1B Degree Completion Evidence
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Because they had not yet graduated, a number of people were unable to file H1B petitions on April 2 or 3, 2007, the only dates available this year for submission of cap-subject H1B petitions. In most cases, their projected graduation dates were in May or June 2007. In response to a question posed by AILA with regard to acceptable documentation evidencing graduation, the VSC provided the following examples:

  • a copy of the diploma showing that the degree has been awarded

  • a letter from a registrar or dean of the college, stating that the beneficiary has met all requirements for the degree (A letter simply stating that the candidate is expected to graduate in the spring or summer is NOT acceptable as evidence of the degree.)

No other document, including a letter from a registrar or other official within a school authorized to speak on behalf of the school, would be considered sufficient, unless it confirms that all degree requirements have been met. The letter is used when one has completed all requirements, but does not yet have the actual, physical diploma.
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Refunds of Premium Processing Fees
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AILA has received reports that cases (mostly I-140s) filed via premium processing are not being adjudicated within the statutory 15 days and that no reimbursement of the $1000 filing fee has been forthcoming. According to the NSC, refunds of premium processing fees are not made until both the 15-day processing time has lapsed with no final decision and a determination has been made that there was no fraud or misrepresentation in the filing. A determination regarding fraud and/or misrepresentation cannot be made until all security check procedures are completed. Because most applications and petitions are subject to security checks, the USCIS will not make a decision within the 15-day processing time and will not refund the premium processing filing fee until all security checks are cleared.
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Conclusion
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 We at the Murthy Law Firm appreciate confirmation from the VSC that the FY2008 H1B cap cases will be reviewed by August 1, 2007. On the other other matter, we are concerned. The USCIS policy of not refunding the premium processing fees, possibly for years due to delays in security checks, could adversely affect thousands of individuals each year.
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 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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4. MurthyBlog : U.S. / India Business Meeting in D.C.
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An entry from Attorney Murthy's personal blog is 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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U.S. / India Business Meeting in D.C.
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Attorney Murthy attends the June 27, 2007 U.S. / India Business Meeting in Washington D.C. and reports on that meeting for readers. Attended by CEOs of some of the world's largest companies, the keynote speaker was U.S. Secretary of State Condoleezza Rice. This Blog is available at (http://www.murthyblog.com/murthyblog/2007/06/us---india-busi.html).
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5. MurthyDotCom : Do You Know How We Can Help You?
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While we at the Murthy Law Firm provide the immigrant community with a wealth of free information on our WebSite, we also want MurthyDotCom and MurthyBulletin readers to know how our firm is prepared to help you with your U.S. immigration matters. We have a page dedicated to explaining how we can assist in various nonimmigrant and immigrant cases. This page also provides links to other areas on MurthyDotCom that offer client service information.
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The next session MurthyChat will be Monday, July 02, 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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 Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved


 

  
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