MurthyBulletin
VOL. XIII, no. 35; August 2007, week 5
Posted : Aug 31, 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 :
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1. Proposed Replacement of Older I-551 "Green Card"
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2.
Adjustment of Status and Travel : Your Questions Answered!
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3.
2009 Diversity Visa Lottery Registration begins Oct 3, 2007
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4.
F-1 Students and Adjustment of Status
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5.
Ombudsman : USCIS Service Centers and Lockboxes
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6. MurthyDotCom : Did You Know about Our Online Glossary?

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7. Important Processing Times and Dates
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Engaging the Murthy Law FirmOur 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.
Proposed Replacement of Older I-551 "Green Card"
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The USCIS issued a proposed rule on August 22, 2007 that, if enacted, would require permanent residents holding Form I-551s (informally referred to as "green cards") without expiration dates to apply for new cards. This should not impact most MurthyDotCom and MurthyBulletin readers, because there has been a ten-year expiration date on green cards since 1989. The USCIS estimates, however, that 750,000 green card holders would be required to apply for replacement cards, should this rule go into effect. This rule is only a proposal at this time. The deadline for comments is September 21, 2007.
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Background on Validity of I-551 Cards
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The 10-year expiration date on the I-551 green card was introduced by Legacy INS (the term used in reference to the agency known as the INS prior to creation of the USCIS, as explained in our online glossary). The green card is actually named the Alien Registration Receipt Card or Permanent Resident Card, depending upon the date of issuance; but it is widely referred to as the green card. In 1989, Legacy INS did not have the capacity to terminate these cards, which numbered in the millions at that time, and require their replacement. This has changed, both in terms of the number of such cards and the capacity of the USCIS to issue replacements. Moreover, the proposed regulation uses the Border Security and Visa Entry Reform Act of 2002 to support the termination and replacement of the old I-551s. Under that Act, travel and entry documents were all supposed to be machine-readable, tamper-resistant documents that use biometric identifiers. The USCIS is characterizing the I-551 as an entry document because it is used for that purpose, although that is not its sole purpose.
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Filing Procedure to Request the New I-551 Card
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The procedure for obtaining a replacement green card requires the filing of form I-90. This form is used for replacing cards, whether or not they have expiration dates. The processing of the I-90 involves fingerprinting for identity and a background check. There is a filing fee for the I-90, as well as a biometric fee.
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Consequences of Failure to File for the Replacement Card
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The proposed rule would impose a 120-day application period for requesting a replacement card for those who have I-551s without expiration dates. After the 120-day period elapses, the USCIS would set a termination date for the validity of these I-551s. The individuals, however, would still be permanent residents. Although their cards would become invalid upon the established termination date, this would not change their status. The termination date will be determined after the 120-day point, based upon factors that include the expected timeframes for processing the replacement cards. The individuals impacted would still be permanent residents. (This is similar to having one's passport expire. The document expires and cannot be used for travel, but one's underlying citizenship does not change.)
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The law requires that permanent residents must have evidence of their status in their possession at all times. Failure to comply with this is a misdemeanor. Once the validity of the cards is terminated, therefore, violators could be prosecuted. The penalty for a conviction under these provisions is a fine of up to $100 and/or imprisonment of up to 30 days. There is also a separate charge for willful failure to register.
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It is hoped that there would be some reasonableness and prosecutorial discretion exercised in this situation, particularly given that the population at issue is primarily older, since the I-551s at issue were created between 18 to 30 years ago. If this proposal is enacted, however, people who do not replace their terminated I-551 cards, at the very least will likely have problems surrounding travel and employment, along with the possible risk of prosecution.
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Conclusion
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There has already been some concern about the reasonableness of the timeframe to file for the replacement card and the costs involved for each filing. People with the old I-551s that do not have expiration dates may want to simply file for replacements in anticipation of a change in the rules. It may also make travel and employment easier, as a new picture will be used for the newly-issued card. The fee for the I-90 is currently $290, plus a biometric fee of $80. Some may need to plan for this expense, particularly if it impacts multiple family members.

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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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2.
Adjustment of Status and Travel : Your Questions Answered!
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The following questions and answers are based on those frequently posed to the attorneys at the Murthy Law Firm. We are sharing these to clarify information of concern to our clients and the entire immigrant community. MurthyDotCom and MurthyBulletin readers are reminded that these responses are generic and specific facts or circumstances for a particular person or situation may make the response inapplicable in a particular case or require a different course of action or strategy. There is no substitute for a consultation with a knowledgeable and experienced immigration law attorney to ensure compliance with complex and constantly changing immigration law, regulations, and policy guidance. [See our MurthyDotCom article, One Simple Question, for more explanation.]
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Question 1. I filed my I-485 Application to Adjust Status last month. I am currently in H1B (or H-4, L-1, or L-2) status. Do I need Advance Parole (AP) to travel?
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In most cases, a person who is in valid H1B or L-1 status (or H-4 or L-2 dependent status), who has a valid visa in the appropriate category stamped in the passport, does not need AP to return to the United States. The H1B and L-1 allow for dual intent, so there is no abandonment of the pending I-485 by departing before the AP is issued. We generally recommend filing for Advance Parole and waiting in the U.S. until it is approved before departing the U.S. for several reasons:  
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First, if one does not have the appropriate visa stamped in the passport, it avoids the need to obtain a visa at the consulate in order to return to the U.S. While it is preferable that one maintains her/his nonimmigrant status and avoid using AP, if possible, it can be helpful if there is not sufficient time to obtain a visa stamp abroad; or if there is a delay in visa issuance. For many, it may be difficult or inconvenient to reserve a visa appointment and wait for an interview date at a U.S. consulate abroad.
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Second,
if there is any chance that the H1B or L-1 employment may be terminated unexpectedly at any time in the future, then it would not be permissible to reenter the U.S. on the H1B or L-1 petition approved for the terminated employer, and it would be necessary to use Advance Parole.
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Question 2. How long does it take to receive Advance Parole?
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At the time of this writing, according to the U.S. Citizenship and Immigration Services (USCIS) service centers' postings, applications made for Advance Parole in March and April 2007 are currently having their cases adjudicated for Advance Parole. The online posting of processing dates for each USCIS service centers is accessible through MurthyDotCom.
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Because of the unprecedented number of filings during July and August 2007, this timeframe is likely to increase; typically, APs take anywhere from 60 to 120 days.
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Question 3. May I apply for AP when I am already outside of the U.S.?
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As suggested by the name "Advance Parole," it is necessary to request permission to travel "in advance," i.e. before one departs the United States. Therefore, AP should be filed before taking a trip outside of the U.S.
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Question 4. Should I wait for the approval of my application for AP before I travel?
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Under current regulations, an AP document cannot be granted to a person outside of the U.S. One hears about people who did not wait for the Advance Parole document to be issued and had someone send it to them while they were outside of the United States. This is not the accepted procedure, and if the person left without having AP or without having H1B, H-4, L-1 or L-2 status, s/he is deemed to have abandoned the I-485 Adjustment of Status application.
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While there may be some people who were allowed reentry into the U.S., either in error or on humanitarian grounds, it is risky to depart before the AP is issued. There are provisions for situations in which a person has the AP and requests an extension prior to departure, then does not rely on the AP extension to reenter the U.S., but uses it for a future trip abroad. This situation is different from leaving without having AP at all.
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Question 5. I have not held any immigration status for over six months. My lawyer told me I was "unlawfully present," since I do not have a valid I-94. I was able to file my
I-485, Application for Adjustment of Status, however, based on a special provision in the law. I had to pay an extra penalty filing fee. I have not seen my family in many years. Should I apply for AP to travel to my home country while my I-485 is pending?

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There is a big difference between being out of status and being unlawfully present under U.S. immigration law. If one is out of status for over 180 days, and not protected under section 245(i), s/he is not entitled to obtain the I-485 approval under law. [Search MurthyDotCom for articles on the subject of 245(i) filings.]
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One who was granted an AP document after s/he was unlawfully present in the U.S. for more than 180 days, will be subject to either a three- or ten-year bar to admission. The AP does not protect one from this consequence. Thus, even if one is allowed to return on the AP, s/he potentially will be unable to adjust status to permanent residence. Such travel is not advisable.

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3.
2009 Diversity Visa Lottery Registration begins Oct 3, 2007
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The U.S. Department of State (DOS) has announced that it will accept 2009 Diversity Visa (DV) Lottery applications from noon Eastern Time (ET) on October 3, 2007 to noon ET on December 2, 2007. The only acceptable way to apply is through the DOS online system, which will be available at http://www.dvlottery.state.gov/, once the lottery registration begins. The DV Lottery Program is limited to persons from countries that are not well represented through other forms of immigration. Detailed instructions for the prior year's lottery are available on the DOS WebSite at http://travel.state.gov/pdf/DV_2008_Final.pdf. These instructions are for FY2008, not 2009. Therefore, they should be viewed only as a guideline at this time. The FY2009 instructions should be followed, once published.
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Ineligible Countries under the DV Lottery Program
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Persons from countries that have sent more than 50,000 immigrants to the U.S. over the past five years are not eligible to apply under the DV Program. The list of countries ineligible in 2008 was: Brazil, Canada, mainland China, Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (including its dependent territories, except for Northern Ireland), and Vietnam. Persons from these countries were NOT eligible to apply under last year's DV Program. As mentioned, we await detailed guidance on the list of countries not eligible under the 2009 DV Program.
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Exception for Certain Nationals of Ineligible Countries
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A person from one of the otherwise ineligible countries still might be eligible if s/he has a spouse who was born in a qualifying country. In such cases, the individual could apply with his/her spouse. Alternatively, if a person was born in one of the ineligible countries, but his or her parent/s were not born in that country and did not reside there at the time of the birth; the individual may be eligible to apply, based upon the country of birth of one of the parents. More details on this can be found in the instructions, referenced above.  
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Educational / Work Experience Required
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There are minimum educational requirements for lottery applicants. In order to be eligible, it is necessary to have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform. The instructions contain further information as to how eligibility can be determined under the education and experience requirements.
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Fraud Warnings : Use Official Registration Form ONLY
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The DOS announcement contains a fraud warning. Every year, there is a prevalence of scams and schemes, seeking to take advantage of unsuspecting applicants surrounding the DV Lottery Program. To avoid becoming a victim, keep in mind that all applications must be submitted only through the DOS official government website link (above). Additionally, only those who apply and are otherwise eligible can be selected. There is no fee for applying. If selected, the only fees that need to be paid are government filing fees for the Adjustment of Status forms or for the immigrant visa issuance at a consulate abroad.
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Increase Chance of Success by Filing Early
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Potential applicants should review the instructions carefully and comply with them in all respects. Do not submit more than one application, as that will lead to rejection. Avoid waiting until the last minute, as the capacity of the online system could become overtaxed as the deadline for registration period draws near. The photograph instructions should be followed closely.
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Selection of "Winners" for Green Card
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Once the entries are received, "winners" will be determined by random computer selection. Those selected will be contacted by U.S. mail - not by eMail or any other method. The DOS does not send notifications to those persons who are NOT selected. Selection is just the first step. Those selected must pursue adjustment of status to permanent residence or consular processing for an immigrant visa abroad. In order to obtain permanent residence through the green card lottery, a person must be otherwise eligible for adjustment of status or consular processing. Those who have committed certain immigration violations, and/or who have criminal histories, may not be eligible to obtain permanent residence. Questions on these and other issues regarding the DV Lottery should be discussed with an experienced, qualified immigration attorney.

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4.
F-1 Students and Adjustment of Status
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Regarding the vast number of I-485, Adjustment of Status to Permanent Residence, cases eligible for filing under the June and July 2007 Visa Bulletins, the Murthy Law Firm received many questions from clients in valid F-1 (student) status, who unexpectedly became eligible to file Form I-485. Most of these students became eligible through spouses, who had been sponsored for employment-based permanent residence, but had not expected to reach the point of I-485 eligibility for quite some time. Although each person's situation is unique, most of the questions asked by these students, essentially, involve the issue of maintaining F-1 status while an I-485 is pending. Because there is little direct guidance from the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) with respect to this matter, we at the Murthy Law Firm have conducted substantial research to benefit our clients and the greater immigrant community. Here, we share our preliminary research on this topic. We hope that this information will prove helpful to many who are puzzled by the same question: "If I apply for a green card, am I still in valid F-1 status?"
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Common View
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Applicants for F visas, along with other applicants for most nonimmigrant statuses, like J, B-1/B-2, and TN (except H and L), under current law are presumed to be intending immigrants. To show eligibility for a nonimmigrant visa, an applicant must overcome this presumption and establish the intent to come to the United States only temporarily. If such an individual files for adjustment of status to permanent residence while in the U.S., it contradicts the required nonimmigrant intent underlying the eligibility for temporary status. Therefore, the prevailing common view is that filing for adjustment of status effectively terminates a student's F-1 status. Hence, many are of the opinion that, once a student becomes an adjustment-of-status applicant, s/he is not eligible for any ancillary benefits normally extended to F-1 students. One example of such a benefit is on-campus employment without the need for an Employment Authorization Document (EAD) issued on the basis of a pending I-485. In addition, the student may not be eligible for Curricular Practical Training (CPT), which must be authorized by a Designated School Official (DSO). The student may not even be eligible to apply to the USCIS for Optional Practical Training (OPT).
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History of this Matter : No Formal Guidance
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The USCIS has issued almost no formal guidance on maintaining nonimmigrant status, other than for the H-1/H-4 or L-1/L-2, while an application for adjustment of status is pending. Various DHS / USCIS representatives have provided informal and contradictory statements, indicating that the USCIS has not formulated a clear policy on this matter.
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The last time there was clarity on this issue was under the provisions of the Immigration and Nationality Act of 1952, which specifically prohibited maintenance of nonimmigrant status while seeking adjustment of status. In 1958, however, this provision was removed from the Act. Furthermore, there are some precedent cases that unequivocally speak on the subject, finding that the student's filing of an adjustment-of-status application does not, in itself, constitute a failure to maintain nonimmigrant status.
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Effects of Filing for Adjustment on F-1 Status : A Viable Interpretation
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There is little doubt that a student who files an application for adjustment of status is not eligible for a student visa for the purpose of returning to the U.S. from a trip abroad. Leaving the U.S. while an adjustment-of-status application is pending generally constitutes an abandonment of the adjustment application, unless a student has obtained an advance parole document.
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It appears, however, that there is some argument for the position that a student may maintain the F-1 status in the U.S., while her/his adjustment-of-status application is pending. There may be many who can benefit from this for several reasons, such as the ability to continue on-campus employment without interruption, using an OPT / EAD until it expires (unless a new EAD is issued based on the I-485 filing), the ability to continue CPT employment or receive authorization for CPT employment, the ability to accept graduate assistantships, and, arguably, the ability to fall back on the F-1 status if the application for adjustment of status is denied.
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Conclusion
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Current immigration law provides little, if any, guidance on the maintenance of F-1 status while applying for adjustment of status. Students in this situation should be cautious when making any decisions pertaining to F-1 status issues. While it appears students are allowed to maintain their F-1 status while applications for adjustment of status are pending, each person's situation is unique and may require advice from legal counsel. Since there is no clear-cut law or guidance, the safest course for an F-1 student is to obtain the Advance Parole and the EAD, or have a backup dual-intent status, like the H1B or H-4, to be on the safe side.

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5.
Ombudsman : USCIS Service Centers and Lockboxes
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The CIS Ombudsman, Mr. Prakash Khatri, held a teleconference August 23, 2007, on the United States Citizenship and Immigration Services (USCIS) service centers and lockboxes. The matters addressed related to USCIS service center and lockbox filing, receipting and processing concerns, local field office customer service and application processing issues, Employment Authorization Documents (EADs), the processing of I-485 Applications to Adjust Status, and other important procedural and substantive matters. A number of USCIS officers, including service center officers, signed on to the teleconference so that they also could hear the topics raised by callers during the conference.
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This was part of the teleconference series, entitled "How Is It Working for You?" The series provides a forum for individuals and employers who have problems or concerns as they interact with the USCIS. Three earlier teleconferences have been reported to MurthyDotCom and MurthyBulletin readers, including our August 24, 2007 article, Ombudsman on Service Center Issues: EADs, RFEs, Etc, available on MurthyDotCom.
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USCIS Service Centers
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The role of the USCIS service centers is to adjudicate applications and petitions for immigration benefits filed by foreign nationals, their employers and/or Lawful Permanent Resident or U.S. citizen relatives. There are four service centers with designated roles based upon geographic location and/or the type of petition or application. They are the Vermont Service Center (VSC), the California Service Center (CSC), the Nebraska Service Center (NSC), and the Texas Service Center (TSC). In addition, there are two lockboxes designated to accept certain types of filings, and 70 field offices across the United States to conduct interviews and adjudicate family-based cases, naturalization applications, and other immigration benefits.
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USCIS Receipting : "Frontlog"
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The Ombudsman explained the nature of the current receipting "frontlog" at the service centers. The frontlog occurs when the USCIS receives an unprecedented number of applications, and is unable to generate receipts immediately. As a result, applications are sitting, waiting to be receipted. All the service centers and the Chicago Lockbox received a substantial number of cases prior to the fee increase that went into effect on July 30, 2007. Additionally, the Nebraska and Texas Service Centers were inundated as a result of the July Visa Bulletin. Consequently, hundreds of thousands of cases are awaiting receipts.
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A caller said she was receiving receipts from the Nebraska Service Center for I-485 cases filed in July, while cases filed in June were yet to be receipted. Since receipting is expected to be done on a first- in / first-out (FIFO) basis, the Ombudsman requested some follow-up information, enabling his office to review the process with the applicable service centers.
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Processing Order of I-485 Applications
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A number of callers raised the concern that I-485 applications are being processed and approved randomly, and not in the order in which they are received. According to the Ombudsman, the service centers and local offices are making every attempt to process cases chronologically, by the date of receipt. Since cases are distributed between the four service centers, however, the lockboxes and 70 field offices and the processing of cases depends on the number of officers available at each office. Some disparateness in the processing of cases is unavoidable, therefore. The USCIS has tried, to the extent practicable, to standardize processing of cases according to priority date and country limitations.
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Furthermore, during the months of June and July 2007, the USCIS processed and approved an incredible number of cases, but encountered problems in generating the approval notices and actual "green cards." Applicants whose cases have been approved may still be unaware of their approvals in August 2007, because case status is updated in the system only when the approval notice is generated. The USCIS is working to generate approval notices and green cards for these cases. However, the CIS Ombudsman encouraged anyone with an unusual experience regarding her/his case to submit DHS Form 7001, with specific case information.
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EAD Applications
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The CIS Ombudsman has been engaging in discussions with the USCIS filed offices, in an effort to institute a uniform policy to assist EAD applicants with applications pending for 75 days or more. Since interim EAD production could take several days, the Ombudsman believes it should not be necessary for an applicant to wait for 90 days before requesting an interim EAD at the field office. Field offices no longer issue EADs; however, they can request interim EADs for pending applications. Mr. Khatri regrets that some field offices are not focused on helping their customers to continue uninterrupted employment, when the customers are doing their part to abide by the laws and maintain the validity of their EADs.
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The CIS Ombudsman requested teleconference participants to notify his office if and when a field office refuses to request the production of an interim EAD card, when the application has been pending for approximately 75 days from the date of application.
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Pending I-485 Applications at Field Offices
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The Ombudsman's Office has been urging the field offices to undertake an accounting of all cases awaiting adjudication and institute a schedule to complete those cases. To date, however, the field offices have not cooperated in inventorying all of their pending cases and, as a result, many cases are unaccounted for, with applicants unable to obtain status information on their cases. Mr. Khatri requested conference participants whose cases were last known to have been transferred to a field office, and that have been pending at that field office for an extended period of time, to submit a "DHS Form 7001" (linked above), as well as send an eMail to his office, so that he may follow up with that office.
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Conclusion
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Mr. Khatri stated that the USCIS service centers and most field offices are providing good service to a lot of people. This is not always the case, unfortunately. The Ombudsman's role is to make sure that the service centers and field offices continue to improve their services and eliminate systemic problems. One of the great tools that enables the Ombudsman to fulfill his role is the teleconferences that he holds on a regular basis. The Murthy Law Firm will continue to participate in these conferences to report updated information to MurthyDotCom and MurthyBulletin readers.

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6. MurthyDotCom : Did You Know about Our Online Glossary?

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At MurthyDotCom we know that legal terminology can be confusing to the layperson. If this weren't enough, the vocabulary that is specific to immigration law needs its own explaining. This is why we provide definitions particular to the immigration law context for our readers. Use our online Glossary of Terms to help you more fully understand articles, NewsBriefs, and NewsFlashes on MurthyDotCom!
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The next session of the MurthyChat will be Monday, Sep 10, 2007, 9:00pm Eastern Time (U.S.). There will be NO CHAT session on Monday, Sep 3rd, in observance of the Labor Day holiday. 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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