MurthyBulletin
VOL. XIII, no. 37; September 2007, week 1
Posted : Sep 07, 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. USCIS Receipting Update
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2. Frequently Asked Questions Regarding Recent I-485 Filings
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3. AAO Affirms Detailed, Consistent Affidavits are Satisfactory Evidence
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4. Lawsuit on Substantial Increase in USCIS Filing Fees
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5. NPA Joins the Call for Immigration Reform
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6. Join the Sep 18th Immigration Voice Rally!
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7. MurthyDotCom : Do You Know How We Can Help You?
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8. 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. USCIS Receipting Update
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The USCIS issued an update on August 31, 2007 regarding progress in the issuing of receipts for recently-filed cases. As was explained in our August 10, 2007 MurthyBulletin article, Delays in Issuance of USCIS Receipt Notices - August 2007, the USCIS is experiencing a "front log" of cases awaiting data entry and receipting. This is due to the extraordinary volume of cases filed in the last month or two. The USCIS will provide weekly updates on their current receipt processing to keep the public informed. The most recent Notice is available on the USCIS WebSite.
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NSC Update on I-485, I-765, and I-131 Receipt Notices
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While the USCIS is having difficulty processing receipts, the latest notice does indicate some progress. The Nebraska Service Center (NSC) reports that it is processing receipts for employment-based I-485 (Application for Adjustment of Status) filings received on July 26, 2007, as well as I-131 (Advance Parole) and I-765 (Employment Authorization Document) cases received on the same day. This represents substantial progress from the earlier report. Of course, many chose not to file during the early part of July, following the USCIS's July 2nd announcement that it would not accept I-485 cases. Many waited and only filed their I-485s after that initial announcement was retracted on July 17, 2007.
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TSC Slower than NSC
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The Texas Service Center (TSC) is still processing employment-based I-485, I-131, and I-765 receipts for cases filed on June 30, 2007. At the Murthy Law Firm, we have received some inquiries regarding the discrepancy between the NSC and the TSC. There are always at least slight differences in the pace of processing and in backlogs between the different service centers. Historically, these differences often have been quite significant. Now there is less variance, but there will always be disparities due to volume, staffing, priorities, and other such issues.
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Conclusion - Receipt Notices are Often Delayed
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There is no cause for worry among those who filed cases before the stated dates, but who have not yet received their receipts. Processing date information is not an exact science. Many receipts continue to arrive at the Murthy Law Firm, but they do not come in perfect order according to date. If the receipt notice has not arrived, one may continue to look for confirmation that the filing fee checks have been cashed. This is a good indication that one's case has been accepted for filing. The USCIS also provides the receipt number on the back of the cashed check.
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2. Frequently Asked Questions Regarding Recent I-485 Filings
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The I-485 Adjustment of Status Applications filed under the June and July 2007 Visa Bulletins are moving forward. As they do, new questions arise that are reflective of the stage of these recent filings. A few of those questions are presented with our answers here, for the benefit of MurthyDotCom and MurthyBulletin readers.
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Question 1 : I filed my I-485, Application to Adjust Status, before August 17, 2007. I also requested an Employment Authorization Document (EAD) and Advance Parole (AP). I checked my bank account, and the USCIS has cashed the checks for EAD and AP, but not the I-485. This is strange, because my I-485 was filed first. Do I need to worry?
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There is no cause for concern. While the source of this situation is not entirely clear, many people are reporting that the checks for their EADs and APs have been cashed, but the I-485 checks have not. Presumably, this is the result of an internal USCIS system, and, hopefully, it is an indication that they will be making all efforts to work on EADs and APs in a timely fashion.
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Question 2 : I do not have a receipt notice for my recent I-485 filing (or my EAD or AP). How can I track my case?
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The only way to track case processing through the USCIS online system is by using a receipt number. If there is no a receipt notice, it is necessary to see if the filing fee checks have been cashed. If so, these have the receipt number on the back. That receipt number can then be used to track the case progress.
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Question 3 : My lawyer told me my case was rejected today! I am so upset. The USCIS said that we included the wrong fees, since we did not pay the higher fee that went into effect on July 30, 2007. I know we were allowed to pay the older fee until August 17th. What do I do now? Can I resubmit the case?
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It is correct that cases filed under the July 2007 Visa Bulletin could use the fees that were in effect in July, even if filed up until August 17, 2007. Thus, any rejection of such I-485, or a connected EAD or AP, due to failure to pay the higher fees is a mistake on the part of the USCIS. Given the volume of filings, this is bound to happen.
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The USCIS has issued instructions for the re-filing of these cases. The original application can be resubmitted, with proof of the timely filing. It should be accompanied by a brightly-colored coversheet marked: ATTN: CRU Supervisor - Case Improperly Rejected for Fees. There should be a short cover letter explaining the amount of the fees paid and the date the case was received.
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3. AAO Affirms Detailed, Consistent Affidavits are Satisfactory Evidence
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The U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) issued an opinion on August 15, 2007 confirming that "[a]ffidavits alone may serve as sufficient evidence to show a fact by a preponderance of the evidence when they are detailed and consistent." In that case, the applicant successfully showed that she derived U.S. citizenship from her U.S. citizen mother by submitting her parents' affidavits that the mother had met the necessary residency requirement to pass the U.S. citizenship on to her daughter, the applicant. Because the affidavits "presented adequate detail" needed to meet the physical presence requirement, they were considered to be adequate evidence for the case to be approved.
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Significance of the AAO Decision
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Very often, applicants and petitioners for various immigration benefits lack primary documentary evidence, which is must be submitted in support of their cases. Some primary documents, such as birth, marriage, divorce, and death certificates, may not be available due to a foreign country's policy and procedures, loss during war or riots, or having been misplaced over the years. An applicant or petitioner should first make every attempt to obtain the primary or other secondary documents requested and, only then, consider submitting affidavits to explain the circumstances and reasons for his or her inability to submit objective and unbiased evidence in lieu of the affidavits. There is always a concern that affidavits could be considered self serving and, hence, of less probative value in the mind of the USCIS examiner or the court.
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The recent AAO case confirms that the lack of primary or secondary documentary evidence does not mean that such a case will result in an automatic denial. In many cases, the applicants' inability to provide primary evidence can be overcome by submitting sufficient secondary evidence, which includes personal affidavits that are both detailed, as to the events, and consistent with other documents or information supplied with the case. Personal affidavits are submitted by those who have personal knowledge of the events under oath. The decision, however, to submit an affidavit in lieu of required primary evidence should be carefully considered.
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Conclusion
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While it is possible to file a successful case based on affidavits alone, as the recent AAO decision has confirmed, an applicant or petitioner should try to obtain primary supporting evidence required for the type of case being filed. When primary evidence is not available, only then should one consider affidavits as the substitute. When drafting an affidavit, one's best effort should be employed to present a consistent, detailed, and truthful description of the events at issue, in order to overcome the deficiency in documentary requirements, so that the examiner can verify the facts based upon an overall sense of the case.
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4. Lawsuit on Substantial Increase in USCIS Filing Fees
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The Services Employees International Union (SEIU), joined by Pineros y Campesinos Unidos del Noroeste (PCUN), Oregon’s union of farm workers, nursery, and reforestation workers, filed a lawsuit in federal court on August 28, 2007, against the U.S. Citizenship and Immigration Services (USCIS) for "overstepping its role as a federal agency and raising fees well beyond basic processing costs." (As regular readers of MurthyDotCom and the MurthyBulletin will recall from our series of articles on this subject, the USCIS's dramatically increased filing fees went into effect on July 30, 2007.) SEIU represents more than 1.9 million members, and it is the fastest-growing union in North America. The lawsuit, SEIU v. Chertoff accuses the USCIS of "unlawfully charging citizenship and visa applicants for infrastructure upgrades, expensive subcontractors, and other agency blunders." The SEIU WebSite carries a Press Release on this lawsuit.
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 This action dovetails with Congresswoman Zoë Lofgren's introduction of legislation in Congress to prevent the higher filing fees from going into effect, based on similar arguments. Both the introduction of the bill and the filing of the lawsuit indicate existing concern that the USCIS is reaching far beyond the costs of processing cases in an attempt to obtain funds for use in other, unrelated areas that should be borne by the DHS. Any victory in the federal lawsuit filed by SEIU together with PCUN potentially may benefit thousands of foreign nationals who are applying for immigration benefits with the USCIS. Any developments in this important case will be reported to MurthyDotCom and MurthyBulletin readers.
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5. NPA Joins the Call for Immigration Reform
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National Postdoctoral Association (NPA) is one of many professional and public organizations joining the call for immigration reform. NPA has recently issued a White Paper entitled, International Postdoctoral Researchers and Their Importance to the Advancement of U.S. Science, Technology and National Security, calling on the U.S. Congress to reform immigration laws as they pertain to international postdoctoral scholars.
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About NPA
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NPA is a national professional organization that advocates for the interests of postdoctoral scholars. Although in existence only a few years, NPA has already made itself visible in the rule and policy-making arena, as related to postdoctoral research. A nonprofit organization incorporated in the District of Columbia (Washington, DC), the organization provides a number of programs and resources for international scholars. As international postdoctoral researchers represent 50-72 percent of the pool of postdoctoral researchers in the U.S., and produce more peer-reviewed publications than U.S. postdoctoral researchers, NPA is actively involved in immigration issues faced by international researchers. Taking a leadership role, it advocates for more and easier-to-obtain nonimmigrant visas; such as Hs and Js, with better immigration benefits, and even for a new nonimmigrant category that could encompass all of the needs of international scholars.
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NPA Proposal - Short-Term Policy Recommendations
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NPA's recent White Paper made a number of recommendations for improvements in U.S. law and immigration regulations to ensure continued access to international talent. Short-term policy recommendations include the following points.

  • Eliminate the foreign-residence requirement currently attached to J-1 nonimmigrant visas.

  • Help International Postdoctoral Researchers return to the U.S. when they travel to their respective home countries.

  • Raise the cap on the quota of H1B visas for International Postdoctoral Researchers who have U.S. and / or foreign advanced degrees.

  • Enhance enforcement of Department of Labor laws regarding prevailing wages, as required by the H1B nonimmigrant classification.

  • Allow spouses of International Postdoctoral Researchers to work in the U.S.

  • Establish a new nonimmigrant classification specifically for nonimmigrant International Postdoctoral Research Scholars.

NPA Proposal - Long Term Policy Recommendations
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In addition to short-term policy recommendations, NPA calls for long-term policy changes; namely the new nonimmigrant classification allowing dual intent; a five-year validity; allowing salary to be paid from grants, fellowships and other non-employer sources; employment options for spouses; an easy way to transfer to other institutions; a sixty-day grace period to depart the U.S. or find another job; and authorizing consulting as a valid form of employment. NPA has also made recommendations with regard to the processing of the corresponding visa by the U.S. Department of State (DOS).
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Conclusion
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As with any calls for changes in policy in the area of U.S. immigration, we remind MurthyDotCom and MurthyBulletin readers that such efforts may be successful or may not, depending upon a variety of factors involved, including the interest generated, whether politicians and others with the necessary clout will take up their cause, the ability to sway public opinion, and how the subject is presented in the media. NPA's recent call for reform reflects the realization by some professional and political organizations that the U.S. immigration system needs to be improved upon to better use international talent and resources for the overall benefit of science, technology, our economy, and our country.
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6. Join the Sep 18th Immigration Voice Rally!
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As the September 18th Rally organized by Immigration Voice approaches, we at the Murthy Law Firm and MurthyDotCom would like to encourage all in the immigrant community to consider attending and participating in this important event. [See our Aug 26th article, Immigration Voice Group Organizes September Rally, available on MurthyDotCom.]
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Law-abiding, highly-skilled foreign nationals need to bring their dire situation to the forefront; awakening lawmakers and U.S. citizens to the broader social and economic implications. This segment of the immigrant population, represented by Immigration Voice, on the one hand is contributing to the U.S. economy, paying taxes, and following the complex and expensive path of legal immigration. On the other hand, they are caught in backlogs caused by processing delays and a shortage of immigrant visas stemming from annual numerical caps under U.S. immigration law. Their problems have been too long ignored by Washington. The time is right to add your voice and make sure you are heard.
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Add your number to those whom history will recognize as having made an important difference. Invite not only others in the immigrant community to join you at the rally, but also your U.S.-citizen colleagues, business associates, and friends. Let's not forget that throughout the history of this country, leaders have been moved to action through peaceful protest. Be a part of this historically significant rally. Help to change the present course and build a better future for immigrants to the United States!
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We at the Murthy Law Firm and MurthyDotCom support this peaceful demonstration and rally, organized by Immigration Voice, and offer to help where needed. A schedule for Lobby Day and the Immigration Voice Rally are available under September 18 Rally: Updates and What You Should Know, on the Immigration Voice WebSite.
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NOTE : For individuals who have concerns about participating in this event, we at the Murthy Law Firm would like to allay some of those fears. The right to gather peacefully is guaranteed by the First Amendment to the U.S. Constitution, in the Bill of Rights. It specifically allows peaceful demonstrations and the freedom to gather as a measure to address injustice. It states, in relevant part, that "Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances." [See http://usinfo.state.gov/usa/infousa/facts/funddocs/billeng.htm for the full text of the Bill of Rights. The U.S. Constitution, in its totality, is available at http://usinfo.state.gov/usa/infousa/facts/funddocs/consteng.htm.]
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The following FAQs are provided by Immigration Voice.
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Question 1. What is First Amendment? Does it apply to me? I'm on H-1 / H-4 / EAD / and have applied for I-485, etc.
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Constitutional rights of an individual are applicable to everyone, including foreign nationals.
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Question 2. Will I get arrested and/or deported for participating in the rally?
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No, participating in rally with proper permits from city police and other authorities is legal. You cannot be arrested or deported for simply participating in the rally.
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Question 3. Will participation in the rally negatively impact my current nonimmigrant status or future green card application?
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No, exercising your civil rights does not impact your nonimmigrant status or future green card application. There are certain procedures and processes for rejecting or denying petitions and applications, it is not done on whims and moods of agencies or USCIS employees. There is a process driven by federal regulations and rejections and denials are backed up by reasons described in federal regulations and the laws. Participating in rallies, meeting with your lawmakers, exercising your civic duties, and enjoying your civil rights granted by the Constitution are not grounds for denial or rejection of petitions and applications or any other adverse action on immigration petition or application.
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Question 4. Can my employer take action against me for participating in the rally? Do we have any obligation to inform my employer if I participate by taking a day off?
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No, an employer cannot simply take action against you for having exercised your Constitutional right granted by the first amendment. Whether you inform your employer about your plans for your vacation or day off is up to you and your relationship with your employer. Usually employers do not care what their employee do with their time off from work, as long as those activities are legal.
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Question 5. What kind of identification do I need to carry? Will my driver's license be enough?
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Yes. Your driver's license or a state-issued identification card is enough for ID purposes.
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7. 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 them with their 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 of the MurthyChat will be Monday, Sep 10, 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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8. 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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