MurthyBulletin VOL. XIII, no. 30; July 2007, week 4 Posted : Jul 27, 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. USCIS Provides Favorable Guidance for Various I-485 EB Filing Issues Posted on MurthyDotCom Jul 23, 2007 2. Kudos : Together We Did It! by Sheela Murthy 3. Travel Options / Risks for I-485 Filings in July 2007 4. Ombudsman Addresses Excessive Name Check Delays 5. DOL Regulation from July 16, 2007 / AILF Seeks Plaintiffs 6. MurthyDotCom : Did You Know about Our Travel 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. USCIS Provides Favorable Guidance for Various I-485 EB Filing Issues Posted on MurthyDotCom Jul 23, 2007 On July 23, 2007, the USCIS issued favorable responses to many I-485-related questions posed by the Murthy Law Firm and other members of the American Immigration Lawyers Association. These problems were created by the recent debacle caused by the USCIS's refusing to accept employment-based (EB) I-485s on July 2, 2007, and then, fortunately, their overturning that decision on July 17, 2007, following pressure from various quarters. Based on the responses, the USCIS appears keen to reestablish its credibility. Highlights of the USCIS response, which affect many Murthy Law Firm clients and other EB I-485 applicants, are included in this NewsFlash on MurthyDotCom. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 2. Kudos : Together We Did It! by Sheela Murthy ©MurthyDotCom We at the Murthy Law Firm have been receiving messages of thanks from many of our clients and others for keeping them well informed and for any part we played in the recent concessions from the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) with regard to honoring the July Visa Bulletin and again accepting employment-based I-485 (Adjustment of Status) filings. We appreciate the kind words and compliments of so many of you for our involvement in the recent decision of July 17, 2007. I want to assure you that, although we each contributed, without the direct involvement and threats of Congresswoman Zoë Logfren, and the collective efforts of the pro-immigrant community, this effort could not have successfully concluded in the reversal of their position - and certainly not so quickly! ©MurthyDotCom For those who are not familiar with the American legal system or process, who may be under the impression that one particular person or event led to the government's reversal, I assure you that many players were involved in making the impossible possible. Following are some of the major players, whom I believe helped make this a reality. ©MurthyDotCom First, Congresswoman's Zoë Logfren's letters to Department of Homeland Security (DHS) Secretary Chertoff, first dated July 3, 2007 followed by a very strong letter, closely resembling a subpoena of documents, on July 11, 2007. The July 11, 2007 letter demanded an extensive list of documents, including all eMails or other communication related to every aspect of the July Visa Bulletin fiasco. Had the USCIS's actions been allowed to stand, tens of thousands of legal foreign national employees and their families would have been denied the opportunity to file the last stage of the papers for their "green cards" in July 2007. ©MurthyDotCom While Congresswoman's Lofgren's July 3, 2007 letter to the USCIS and DOS did not receive a timely response, it was clear that the second letter could not be ignored. The clear direction of that letter and the result of a failure to respond would likely have been devastating and potentially led to senior DOS, DHS, and USCIS officials having to face Congressional investigation for their actions relating to the July Visa Bulletin. ©MurthyDotCom Also making a great impact were the concerted efforts of the pro-immigrant community, including the ongoing discussions and negotiations of the American Immigration Lawyers Association (AILA) with senior level officials at DOS and USCIS and the American Immigration Law Foundation's (AILF's) preparation of a class action lawsuit against the DOS and the USCIS. AILF genuinely believed that they had proper grounds to win this lawsuit. They had completed drafting the complaint to file the case, as per their website. The government appears to have believed that if they litigated against a convincing case brought by a strong group of advocates supported by a national organization and lost, it would be viewed as millions of dollars of taxpayers' money wasted in needless litigation caused by the government's lack of transparency in their legal process and systems. Those interested may review AILF's Complaint Statement, as well as their Complaint. ©MurthyDotCom Other pro-immigrant advocates, individuals and groups, also organized peaceful protests by sending flowers and signing petitions protesting the impropriety of the USCIS's actions and insisting upon a reversal. There was major print media coverage of these events, including the delivery of the many flower bouquets to USCIS Director Emilio Gonzalez on or around July 10, 2007. There was a petition from Immigrants' List, on which many worked together to obtain over 10,000 signatures within a couple of days. This was delivered to Mr. Chertoff on July 16, 2007. Thank you to each of you who signed the petition and forwarded it to your families and employers to obtain those signatures in record time. Public outrage was admittedly significant in the USCIS decision to reverse its earlier decision, as noted in the USCIS Announcement of July 17, 2007. For my part, I sent my own letter to DHS Secretary Chertoff, outlining the legal issues and the problems of highly-skilled, legal individuals and families and expressing the sentiments of many in the pro-immigrant sector. Emphasized was the fact that these are highly-skilled, educated professionals, who played by the rules and whose work is in demand by U.S. employers, and that the actions of the government were leading to a breakdown of trust in the integrity and transparency of the American government and in our country, which is the beacon of hope for the world. ©MurthyDotCom Thank you all for your involvement and commitment in fighting and demanding that the government not play games with people's lives and with the laws and regulations that are in place. Legal immigrants are often too afraid to draw attention to themselves, repeatedly tolerating deplorable government actions. While patience is a necessary part of working through the U.S. immigration system, let us use this as a learning opportunity. If we believe and work toward making a difference, and focus our efforts on a joint goal when needed, then we will make a difference. The power of belief will and can change the world. We stood firm for what we believed and said, "Enough!" and together we achieved the impossible and the U.S. government reversed itself and admitted to being wrong. Kudos! Together we did it! ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 3. Travel Options / Risks for I-485 Filings in July 2007 ©MurthyDotCom The pro-immigrant community at large was delighted with the good news on July 17, 2007, that the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) reversed their earlier decision to not accept I-485s. The DOS's reinstatement of the July 2007 Visa Bulletin and the USCIS announcement that it will accept I-485 cases filed under the July Visa Bulletin through August 17, 2007, have raised a number of questions, however. The American Immigration Lawyers Association (AILA) is making efforts to clarify many of these issues with the USCIS. While the USCIS published FAQs on July 23, 2007, in answer to some of the queries, they did not answer questions concerning travel, such as: What is the filing date of cases filed between July 1st and July 17, 2007 for folks to travel abroad? Is it safe to travel? Should they need to wait for the Advance Parole approval before departing the U.S.? These problems surrounding travel are addressed here for the benefit of MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom What is the Date of Filing at USCIS to Travel Abroad? ©MurthyDotCom One of the key issues regarding travel abroad is that it is necessary to be in the U.S. when the I-485 is filed and received at the USCIS. For those who filed their I-485s before the July 17th announcement that the Visa Bulletin was being reinstated, mainly for the purpose of being a class member under the class action lawsuit, it is not clear what date will be considered the date of filing at the USCIS. These cases were received by the USCIS between July 1st and July 17, 2007. Will the actual date that the USCIS received the I-485 package be considered the date of filing? Or, since the revised announcement was issued only on July 17, 2007, will that be considered the date of filing? Is there a possibility that it will be some later date, as USCIS accepts the cases and issues receipt notices of cases that were held in limbo? ©MurthyDotCom There is a USCIS regulation governing the receipt date. It states, in sum, that applications are to be stamped to show the date and time of actual receipt, and that they are to be regarded as filed when stamped, if they are properly signed and accompanied by the proper filing fees. Since the USCIS does affix a date and time stamp on applications / petitions they receive, however, we hope that this will be considered the filing date. We await guidance from the USCIS on this matter. ©MurthyDotCom Can Use the H1B/H-4 or Other NIV Status to Reenter U.S. ©MurthyDotCom It would be logical to have the filing date as either the actual date received or, at least, the date the USCIS decided to accept the cases. Therefore, logically, travel after July 17th should not create problems with respect to the validity of the filing. This assumes, of course, that the applicant is maintaining a valid, dual-intent nonimmigrant visa (NIV) status, and will return to the U.S. in that NIV status. These dual-intent nonimmigrant statuses are H1B/H-4 and L-1/L-2. Such a person must also have the H1B/H-4 or L-1/L-2 NIV stamp in the passport to reenter the U.S. and obtain status at the port of entry. If the individual does not have a valid, unexpired visa stamp (except for Canadian citizens or those who are visa exempt), s/he must book a visa appointment at the U.S. consulate abroad, obtain the visa stamp in the passport, and show evidence of visa eligibility to reenter in that NIV status. Travel that does not meet these restrictions will be regarded as an abandonment of the I-485, unless an Advance Parole has been issued. ©MurthyDotCom Advance Parole Must be Approved before Departing U.S. ©MurthyDotCom If one does not have a valid NIV status and cannot enter as a nonimmigrant, and s/he wishes to travel abroad and reenter the U.S. based on the I-485 filing, advance parole (AP) must be approved before the person departs the U.S. The approval of AP is required before departing the U.S. to avoid having the I-485 considered to be abandoned under law. Another family member cannot simply carry the AP approval abroad, since the CBP Inspector can deny entry to one who is entering on AP that was approved after s/he departed the U.S. ©MurthyDotCom If Possible, Avoid Travel at this Time! ©MurthyDotCom Since logic has not prevailed of late, it may be best to use caution. The cautious individual will wait for the I-485 receipt notice - or at least wait until the USCIS cashes the filing fee checks (which may clear the bank before the receipt notice is issued). Those who do not absolutely have to travel may want to remain in the U.S. in valid NIV status. In this time of uncertainty, it may be better to be safe than sorry, if travel abroad can be avoided. ©MurthyDotCom Conclusion ©MurthyDotCom We will provide further information to MurthyDotCom and MurthyBulletin readers if the USCIS clarifies the matter regarding the receipt date of cases filed in early July, or if we begin receiving receipt notices for these and other cases. It is expected, however, that the issuance of receipt notices could be substantially delayed due to the unprecedented volume of I-485 cases expected to be filed under the terms of the July 2007 Visa Bulletin. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 4. Ombudsman Addresses Excessive Name Check Delays ©MurthyDotCom The USCIS Ombudsman's office recently addressed various issues, including their ongoing efforts to reduce name check delays. Mr. Prakash I. Khatri, the Ombudsman for the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS), held a teleconference on July 20, 2007. The purpose of the teleconference was to discuss recommendations he recently made to the USCIS. ©MurthyDotCom The Office of Ombudsman ©MurthyDotCom As was reported to our readers on May 4, 2007, the Ombudsman held a prior teleconference on April 24, 2007 that addressed Requests for Evidence (RFE) and Notices of Intent to Deny (NOID. [See that May 4, 2007 article, Ombudsman's Teleconference on RFEs / NOID Issues, available on MurthyDotCom.] These teleconferences are part of the Ombudsman's Community Call-In Teleconference Series, designed to collect information on current problems and concerns with the USCIS's procedures and practices. The Murthy Law Firm participated in both the April and July 2007 teleconferences to obtain information of importance to our clients and to MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Role / Functions of USCIS Ombudsman ©MurthyDotCom The DHS / USCIS Ombudsman provides recommendations for resolving individual and employer problems with the USCIS. The Ombudsman's office also identifies recurrent issues in USCIS practice and the effects these have on customers, thereby making recommendations for improvement to the USCIS. ©MurthyDotCom Ombudsman's Report : 25 Recommendations to USCIS ©MurthyDotCom The Ombudsman began the July 20, 2007 teleconference by giving a brief description of his recommendations that were made to the USCIS on June 11, 2007, in his 2007 Annual Report Recommendations. The Report contains 25 recommendations highlighting the service areas in need of urgent attention. The USCIS has 90 days in which to respond to the Ombudsman's recommendations. The USCIS response has to be filed by September 11, 2007. ©MurthyDotCom The areas identified as being in need of improvement include: failure to provide adequate instructions on the USCIS forms (sometimes contradicting instructions contained in memoranda, various types of guidance, instructions and supplements to instructions to forms); difficult to understand rejection / denial criteria; RFEs written using complex, legalese and technical terms; as well as other important areas. Acknowledged as most important by Mr. Khatri and many of those who participated in the teleconference, the area needing most urgent attention and improvement is long delays in adjudication due to the FBI name checks. ©MurthyDotCom Statistics on FBI Name Check Delays ©MurthyDotCom In his June 2007 report, the Ombudsman provided staggering statistical data on the number of name check cases pending at this time. As of May 2007, there were 329,160 cases awaiting name check results, 32 percent of which have been pending for more than a year. The disturbing tendency is toward a general increase in pending cases, as there are 93,358 more cases pending this year as compared with cases pending as of May 2006. Most troubling, however, is a 44 percent increase in the number of cases pending for 33 months or more. There are 31,144 such cases this year, compared to 21,570 such cases in 2006. ©MurthyDotCom Ombudsman's Recommendations on Name Check Delays ©MurthyDotCom Mr. Khatri made several recommendations to the USCIS with regard to the dire situation created by cases pending due to name check delays. In particular, Mr. Khatri recommended that the USCIS: (a) evaluate the value of the name check in its current format and establish a risk-based approach to screening for national security concerns; (b) work with the FBI to provide the necessary resources to perform name checks in a timely manner; and (c) provide greater transparency to customers by publishing monthly the number of long-pending FBI name check cases. ©MurthyDotCom Mr. Khatri also indicated during the July 20, 2007 teleconference that the value of the FBI name check appears to be minimal. While it is clear that some kind of procedure to identify those who may pose danger to the U.S. security should be used, it is apparent that the FBI name check procedure currently in place is simply not working. As others have asked, if there are people who pose danger to the U.S. security, then why should we allow them to live in the U.S. for years, providing them with opportunities to work and travel into and out of the country while their name checks are pending? Would it not be more logical to identify all these people quickly - before they are able to do any damage to the United States? Mr. Khatri suggested that the government uses too many resources for the FBI name check procedure, and that it has to devote its attention to developing a different and more effective methodology. ©MurthyDotCom Expect Resolution of Certain Name-Check Delayed Cases ©MurthyDotCom According to Mr. Khatri, we should soon see some positive movement in the clearing of the backlog of cases that have been pending name checks for 33 months or longer. The USCIS and the Office of the Ombudsman have been working closely on this problem and there is some hope that the USCIS will soon dramatically decrease the number of cases pending due to security checks in the immediate future. While the Ombudsman appeared quite positive on this matter, no specific dates or deadlines were provided. ©MurthyDotCom Conclusion ©MurthyDotCom The FBI name check issue, for instance, is a good example when public outcry is being effectively conveyed to the USCIS by the Office of the Ombudsman, as a result of his discussions with the general public and the analysis of the statistical data. The efforts of Mr. Khatri are directed towards streamlining procedures used by the USCIS. We at the Murthy Law Firm applaud Mr. Khatri for his initiative to provide an open forum via regular teleconferences to discuss important issues and provide resolution to recurring problems in the USCIS. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 5. DOL Regulation from July 16, 2007 / AILF Seeks Plaintiffs ©MurthyDotCom The U.S. Department of Labor (DOL) issued a series of FAQs on July 16, 2007,with regard to Final Rule to Reduce the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity of May 17, 2007. This is the regulation that ended the practice of labor substitution. As explained in our May 16, 2007 MurthyBulletin article LC Substitution Reg Effective July 16, 2007, the regulation does more than just eliminate substitution cases. In addition to terminating substitution of beneficiaries in labor certifications, the regulation addresses other matters, such as expiration of labor certifications after 180 days from the date of certification and a prohibition of certain payments made by foreign nationals in connection with labor certifications, including attorneys' fees and costs for processing the PERM part of the "green card" case. The DOL's FAQs answer some of the questions that have been created by this new regulation. ©MurthyDotCom Labor Certification Substitution Terminated ©MurthyDotCom MurthyDotCom and MurthyBulletin readers are reminded that the DOL regulation terminated labor certification substitution of beneficiaries requested and filed at the USCIS after July 16, 2007. In other words, a permanent labor certification is valid only for the particular job opportunity, the foreign national named on the original application, and the area of intended employment stated on the application (Form ETA 9089). It is no longer possible to request substitution of a new foreign national beneficiary into a pending or approved labor certification. ©MurthyDotCom Prohibition on Payments by Foreign Nationals ©MurthyDotCom The new DOL regulation prohibits beneficiaries from making direct payments or reimbursements of employer's expenses of any kind for any activity related to obtaining permanent labor certification. The one exception is for a party with a legitimate, pre-existing business relationship with the employer, which was described in our earlier MurthyBulletin articles on this matter. ©MurthyDotCom Prohibited payments include, but are not limited to, monetary payments, deductions from wages or benefits, and any in-kind payments. Most importantly, this includes the prohibition against the foreign national beneficiary paying the employer's attorney fees in connection with the labor certification application. Any agreements of reimbursements between the employer and its beneficiaries are in violation of the current DOL regulations. ©MurthyDotCom As clarification for the transition to this requirement, if an attorney entered into a legal representation agreement prior to July 16, 2007 for the foreign national to pay a legal fee, but the payment occurs after July 16, 2007, the parties would be able to honor such an agreement. The attorney must fully explain on the labor certification application, however, that the payment obligation accrued prior to the effective date of this regulation. It should be noted that, since this is a new requirement, it is not clear how it will impact the labor certification. At a minimum, if choosing this approach, it is necessary to be able to fully document that the agreement was entered into before July 16, 2007, and that the monetary obligation accrued prior to July 16, 2007. ©MurthyDotCom AILF Intends to Initiate a Lawsuit on this Matter ©MurthyDotCom Critics of the new DOL prohibition on payments of attorney fees observe that the provision may violate certain fundamental provisions under law as available under the U.S. Constitution, including the right of a party to freely select his or her own attorney, as it effectively deprives the foreign national of that ability in a matter that is of direct interest to him or her. ©MurthyDotCom In this connection, the American Immigration Law Foundation (AILF) has expressed an interest in filing a lawsuit to fight this prohibition. AILF is seeking potential plaintiffs for this lawsuit. Please eMail us at ailf_lcsub@murthy.com if you think you have an interest in being a plaintiff and we will forward the names to AILF, once collected. Employers should seriously consider this opportunity. AILF often does not charge for filing such lawsuits, but appreciatively accepts contributions to continue their fight to protect causes that are consistent with the rule of law. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 6. MurthyDotCom : Did You Know about Our Travel Page? ©MurthyDotCom Immigrants, nonimmigrants, tourists, and students always have questions about when it is safe to travel and what documentation they should carry. 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! ©MurthyDotCom The next session MurthyChat will be Monday, July 30, 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
	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. Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.