MurthyBulletin
VOL. XV, no. 30; July 2009, week 4
Posted : Jul 24, 2009
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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. TSC Erroneously Issues I-140 Approval eMails on Premium Processing Cases
2. USCIS Says Name-Check Backlog is Resolved
3. DOL Forced to Process Delayed PERM Case on Emergency Basis
4. Diversity Visa Lottery Status Check Available Online
5. Reminder : Murthy's Corporate Teleconference - Wed, Aug 05, 2009
6. MurthyDotCom : Did You Know the Value of Our Consultations?
7. 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. TSC Erroneously Issues I-140 Approval eMails on Premium Processing Cases
©MurthyDotCom
The Texas Service Center (TSC) advised in late July 2009 that eMail notifications have incorrectly been sent, which indicate approvals of Immigrant Petition for Alien Worker (I-140) cases. These eMails are originating from the Premium Processing Unit due to a technical problem. The system is issuing these eMails in error shortly after the transmission of the eMail receipt.
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Erroneous I-140 Approval eMails do not have a Priority Date
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The erroneous eMail does not contain a priority date or EB classification for the case. TSC is working to address the technical problem. Employers who are unsure about any such communication received from the TSC Premium Processing Unit can contact that unit at the eMail address or phone number provided on the I-140 receipt notice.
©MurthyDotCom
Conclusion
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This likely is annoying and frustrating to individuals who believed their I-140 approvals were received in record time, only to find out that the approval eMail notification was erroneous. Although not specifically stated in the information released by TSC, it appears that this problem has been limited to eMail notifications. There was no indication that any hard-copy approval notices have been issued in error. MurthyDotCom and MurthyBulletin readers will be advised of any further information on this topic, when it is made available.
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2. USCIS Says Name-Check Backlog is Resolved
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The USCIS announced in late June 2009 that the goals agreed upon with the Federal Bureau of Investigation (FBI) for elimination of the name-check backlog have been met. The USCIS news release states that the backlog in the FBI National Name Check Program (NNCP) has been eliminated. Delays in the name-check process had substantially prolonged case adjudications for many adjustment-of-status (I-485) cases.
©MurthyDotCom
30-Day Processing Expected
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For the future, the standards require that 98 percent of the name-check requests be completed within 30 days. The remaining two percent can take up to 90 days. NewsBriefs on the topic of name checks, the evolution of the policies and practices, and attempts to address frustrations for those impacted by delays include our March 13, 2009 MurthyBulletin article, USCIS February 2009 Update on Name Check Delays.
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Longer Processing if Records Found
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The USCIS advises that most of the backlogged name-check cases resulted in the FBI determination that there were no records regarding the individual. Such cases, therefore, can continue processing through any further USCIS steps toward adjudication. If, however, the FBI does locate information of concern about the applicant, the resolution of the matter could create additional delays.
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Conclusion
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The efforts put forth to eliminate the delays in name checks are commendable. This was a significant problem, causing years of delay even in many cases involving individuals with completely clean backgrounds. A note of clarification for MurthyDotCom and MurthyBulletin readers: this does not address other causes for case delays, such as standard processing times and the shortage of visa numbers.
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3. DOL Forced to Process Delayed PERM Case on Emergency Basis
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A U.S. District Court granted an emergency motion in June 2009 for a temporary restraining order (TRO) against the U.S. Department of Labor (DOL)'s Employment and Training Administration (ETA) in a case involving a delayed PERM labor certification application. The Federal Judge ordered ETA to make a decision on the PERM application by 2 o'clock p.m. the next day. As explained below, the facts of this particular case, Artur Kumykov v. William Carlson, et al, were compelling. There was an urgent need for a decision in the case, due to the impending aging out of the plaintiff's son. Although the Murthy Law Firm was not involved in this case against the DOL, we are pleased to share this success story with our readers.
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Background on Writs of Mandamus
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This case is yet another use of the writ of mandamus action in order to force the government to make a decision. (A writ of mandamus complaint was made prior to the filing of the emergency motion, and the Court relied upon its mandamus authority to grant the motion.) A July 3, 2009 discussion of how writ of mandamus lawsuits have resolved a wide variety of immigration benefits cases can be found on MurthyDotCom in our NewsBrief entitled, Murthy Law Firm Resolves H1B Delays through Filing Lawsuit.
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Facts of Case : Delayed PERM Application
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The issue in this case was that a foreign national was sponsored for labor certification for the position of chief financial officer. This PERM application (or ETA-9089) was filed on July 17, 2008, after the sponsoring employer completed the required recruitment. At the time of the filing of this writ of mandamus lawsuit, the PERM application was pending for approximately ten months. The application was not selected for an audit by ETA.
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Aging-Out of Beneficiary's Child
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The sponsored employee brought the lawsuit against the DOL, claiming that the processing time was unreasonable and that it was going to deprive his son of lawful permanent residency. The son's 21st birthday was June 7, 2009. Thus, at the time of the filing of the motion, in late May 2009, the matter was urgent. The Judge's written decision notes that, for the son to qualify for a green card through his father's labor certification case, an Immigrant Petition for Alien Worker (I-140) had to be filed with the USCIS. In order to have protections under the Child Status Protection Act, and potentially be eligible as a derivate beneficiary in his father's green card case, the I-140 petition had to be filed before the son reached age 21. Of course, the I-140 could not be filed without the approved PERM labor certification. The delay in processing the PERM application, therefore, was preventing an I-140 filing and precluding the son from qualifying for permanent residence as a derivative beneficiary in his father's case.
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Need for Court to Reach Decision Promptly
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The plaintiff, Mr. Kumykov, filed his complaint for writ of mandamus on May 5, 2009. The deadline for the DOL's written response to the complaint would normally be 60 days later. This would have been after the son's 21st birthday. On May 27, 2009, Mr. Kumykov thus filed a motion for emergency TRO seeking a ruling before his son's birthday. The court required the filing of legal briefs and held a hearing within a matter of days. The decision on the TRO states that, while all such cases are factually different, in this case the delay in processing the PERM application was unreasonable. The court wrote that Mr. Kumykov had no alternative but to seek help from the court. They noted that ETA was currently processing PERM applications not selected for audit filed four months after Mr. Kumykov's application.
©MurthyDotCom
PERM Processing Not Discretionary - Must be Timely
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The Judge wrote in his decision that, while the decision to certify or deny certification on any particular PERM application is discretionary, the legal requirement to process PERM applications is not discretionary. ETA must process all PERM applications in a reasonable time. What constitutes a reasonable time depends upon whether the application is selected for audit and the individual facts of each PERM application. There is no specific processing time set within the law. However, the Court noted that the preamble to the PERM regulation indicated an anticipated 45-to-60-day processing time for PERM applications not selected for audit.
©MurthyDotCom
ETA Confirmed FIFO Processing - No Explanation for Delay
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The ETA submitted a declaration stating that PERM applications are processed on a first-in/first-out (FIFO) basis. The particular application, however, was filed four months earlier than the PERM cases the DOL was processing at the time of the lawsuit. Because the ETA could not offer any explanation for the delay, the Judge found that he could compel the ETA to process the individual PERM application through both the writ of mandamus and the Administrative Procedures Act.
©MurthyDotCom
Other Class Actions Possible
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While this mandamus victory in Federal Court only relates to one family, there are situations in which similarly situated people can join their cases together in class actions. Regular readers of MurthyDotCom and the MurthyBulletin may recall our report of a class action that was brought in Federal Court in New York City in our May 9, 2008 NewsBrief, Good News on Mandamus Lawsuits for Delayed Naturalization Applicants. In a decision released on July 16, 2009, a Federal Judge granted class certification in a class action lawsuit filed in the U.S. District Court for the Central District of California. The case, Costelo v. Chertoff, deals with numerous individuals' claims relating to interpretation of the Child Status Protection Act (CSPA). The Murthy Law Firm was not involved in these lawsuits.
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Conclusion
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We at Murthy Law Firm commend the individuals and attorneys involved in bringing these two lawsuits and congratulate them on their successes. The Kumykov v. Carlson case is the first reported case of this type against the DOL that has come to our attention. There may be other opportunities for similar cases against the DOL, when supported by the facts. While other such cases may be brought in Federal courts around the United States, it is important to remember that the individual facts of each case may determine whether relief can be granted through a writ of mandamus. Such relief on behalf of appropriate clients will continue to be pursued by our firm. Developments in mandamus litigation will be reported to our readers.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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4. Diversity Visa Lottery Status Check Available Online
©MurthyDotCom
The U.S. Department of State (DOS) has a new online feature for tracking the status of diversity lottery (DV) applications. This allows individuals who applied for the DV lottery for fiscal year (FY) 2010 to check the status of those applications online. This will allow applicants to learn whether or not their applications were picked in the lottery.
©MurthyDotCom
Background
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The DV lottery is held annually. Information on the lottery application process for the 2010 DV lottery was provided in our September 26, 2008 NewsBrief, 2010 Diversity Lottery Registration Begins October 2, 2008. Prior to the online system, applicants had to wait for the receipt of a notification letter in the mail. The DOS continues to transmit notification letters (not eMails) to the selected lottery applicants. Notification is sent ONLY to individuals who are selected.
©MurthyDotCom
Information Needed
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In order to use the online system, the applicant must have the confirmation number. This would have been received following submission of the DV lottery application. Also needed is the name and birth date information.
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Permanent Residence Not Guaranteed
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The lucky individuals who are selected in the DV lottery need to follow the directions in their "winner" letters carefully. Selection alone does not grant individuals or immediate family members U.S. permanent residence. The individuals must move forward either to adjust their status to permanent residence in the United States, or to complete consular processing for an immigrant visa at the appropriate U.S. consulate abroad within the timeframes required by law. They must meet general requirements for these procedures, as well as requirements for the DV lottery. More people are granted winner letters than ultimately receive permanent residence under the DV program.
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Conclusion
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The DOS online system is an improvement over a mail-only system. It also provides a good way for individuals to verify selection in the DV lottery. It should help to reduce the common problem of fraudulent websites and winner notifications (often sent via eMail), attempting to take advantage of the desperation and vulnerability of foreign nationals.
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5. Reminder : Murthy's Corporate Teleconference - Wed, Aug 05, 2009
Topic : LC Primer
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Our August teleconference, specifically for CEOs and HR managers with interest in the immigration process from the employer's point of view, will provide an overview of the PERM Labor Certification Process. This teleconference will review the standard procedures involved in filing a labor certification case as well as recent case law developments. Attorneys from the Murthy Law Firm will also discuss the potential impact of the new 9089 form and the implementation of the iCert system for labor certification cases.
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Employers and their representatives : register for Aug 05, 2009 here.
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6. MurthyDotCom : Did You Know the Value of Our Consultations?
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At the Murthy Law Firm, we are often asked, "With all the free information available on the Internet - especially MurthyDotCom - why do I need to pay for a consultation?" Scheduling a consultation with an attorney in our firm provides you with the opportunity to have all the details of your case discussed so that you can make an informed decision as to the best strategy to pursue and the safest course to follow. Read more on the Value of Our Consultations on MurthyDotCom.
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MurthyChat : The next MurthyChat session will be Monday, Aug 03, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays 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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7. 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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