MurthyBulletin VOL. XV, no. 39; Sep 2009, week 4 Posted : Sep 25, 2009 . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . TOPICS in this Edition of the MurthyBulletin : 1. Murthy Law Firm Obtains I-485 for Spouse Legally Separated 2. 2011 DV Lottery Begins Oct 2, 2009 : DV 2010 "Winners" Need to Act 3. Employment Agreements and Immigration Options 4. USCIS Website Overhaul with New Status and Other Information 5. Reminder : Murthy's Corporate Teleconference - Wed, Oct 07, 2009 6. MurthyDotCom : Do You Know the Value of our Consultations? 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. . . . . . . . . . . . . . . 1. Murthy Law Firm Obtains I-485 for Spouse Legally Separated ©MurthyDotCom Although the Murthy Law Firm obtains many case approvals each day, a few immigration stories are selected to share with our readers. In this particular client's case, an unusual legal issue is involved, stemming from a domestic relationship that is not uncommon. Another Murthy Law Firm success story is presented for the benefit of our readers, thanks to the gracious permission of our client. All personal, identifying information has been eliminated, protecting the identity of the individual and maintaining client confidentiality.  ©MurthyDotCom Facts : USCIS Denial of I-485 Based on Separation from Principal Beneficiary ©MurthyDotCom Our client's spouse was the primary beneficiary in an employment-based (EB) permanent residence (or "green card") case. The husband, our client, was a derivative beneficiary in the case. Prior to the adjudication of the couple's adjustment of status (I-485) applications, they experienced marital difficulties and were legally separated under the laws of their state of residence. (It is important to note that a legal separation is different from merely living separately. Procedures differ from state to state, but court filings and orders are required.) The USCIS approved the wife's I-485, as the status of the marriage was not relevant to the primary applicant's case. ©MurthyDotCom The USCIS denied the husband's I-485 application based upon the conclusion that “there remains no relationship with the principal applicant through whom you may derive status.” Basically, in order to be a dependant in a green card case, the relationship that makes one eligible to file the case must continue to exist. To support its finding, the USCIS cited a case entitled Matter of Lenning, 17 I&N Dec. 476 (BIA 1980). This is a long-standing, well entrenched case, often relied upon in cases and immigration literature for the proposition that dependant immigration benefits are not available to a spouse after a legal separation. In the Lenning case, the Board of Immigration Appeals affirmed the denial of an I-130 spousal petition in which the parties to the marriage had entered into a formal, written separation agreement. ©MurthyDotCom The Murthy Law Firm was hired by the husband to assist him with his I-485 case. We successfully filed and argued a motion to reopen / reconsider (MTR) the denial of his I-485. Our argument revolved around demonstrating that this particular case was different in significant ways from the case in Lenning and, thus, should have a different, favorable outcome. ©MurthyDotCom Murthy Law Firm Argues EB Case and Different State Laws ©MurthyDotCom In the MTR, several arguments were put forth in support of our client's case. Specifically, the Murthy Law Firm argued that Lenning did not apply in our client's situation, because there were significant, distinguishing factual differences between the circumstances in that case and in our client's case. First, the Lenning decision considers the case of a family-based (FB) immigrant visa petition and not an employment-based (EB) petition benefiting our client's spouse. Second, the laws of the state of the couple's residence, which governed the legal separation agreement at issue, are distinguishable from the laws and procedures in New York, which was the state in the Lenning decision. ©MurthyDotCom Murthy Argued Differences between EB I-485 and FB Filing ©MurthyDotCom The Murthy Law Firm distinguished the fact that our client applied for adjustment of status as a derivative beneficiary of his wife in an EB petition, while the petitioner in Lenning was the beneficiary of an FB immediate relative petition. While this difference alone would not be enough, we noted that the laws regarding these cases are contained in different provisions, with key differences in procedures. In employment-based cases, it is expected that derivative beneficiaries will simply "piggyback" on the qualifying principal family member's petition. More is required in FB / immediate relative cases. ©MurthyDotCom Differing State Laws Support Legal Arguments on Separation ©MurthyDotCom We at the Murthy Law Firm obtained input from divorce attorneys regarding New York domestic relations law, as well as the procedures in our client's state. The action of legal separation in the state that governed his separation agreement allowed for the prospect of reconciliation. It does not inevitably lead to divorce and, thus, does not irrevocably terminate the marital relationship. This is distinct from the procedure in New York, at the time of the Lenning case, where there was more of a direct, inevitable progression from separation to divorce. We demonstrated that there were important legal differences between the impact of a separation in our client's state, as compared to the same in New York. We argued that these differences meant that, while a legal separation may sufficiently break the marital relationship in New York, they did not do so in our client's state of residence. Thus, he remained eligible for immigration benefits appropriate for a spouse. ©MurthyDotCom The Murthy Law Firm also demonstrated that our client, the dependant in the I-485 application, continued to remain closely involved in the lives of his wife and his children. Based on these as well as other arguments, our client's I-485 application was reopened and approved. He has received his plastic green card and the entire family is excited with the approval and with our firm's ability to present legal arguments to help them obtain success. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm are happy to share encouraging immigration stories with our readers. Even complex and seemingly hopeless cases sometimes find positive outcomes. We advise our clients that legal separation, as a general matter, is regarded as a termination of eligibility for spousal immigration benefits. Anyone experiencing marital difficulties should seek advice regarding the impact of a separation or divorce on the parties' immigration statuses. Each situation is different, and, while our firm was successful in this case, for this man and his family, who reside in a particular state, the decision took well over a year. Our attorneys are always available to advise our MurthyDotCom and MurthyBulletin readers and offer guidance when complications arise in an immigration case. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. 2011 DV Lottery Begins Oct 2, 2009 : DV 2010 "Winners" Need to Act ©MurthyDotCom October 1, 2009 marks the start of fiscal year 2010 (FY10). Thus, eligible diversity visa lottery winners for 2010 (DV-2010) can move forward with their permanent resident (or "green card") cases. The lottery program allocates 50,000 visa numbers for immigrant visas each year to certain countries with low rates of immigration to the United States. Nationals of countries like India, the United Kingdom, and Canada were not eligible to apply under the DV-2010 lottery program since there are many immigrants from these countries already in the United States. The DV-2011 lottery application process begins on October 2, 2009, thus, it will soon be possible to submit an application to be eligible for next fiscal year's quota. ©MurthyDotCom Respond Immediately but Carefully to Winner Letter ©MurthyDotCom In each fiscal year the U.S. Department of State (DOS) selects more "winners" than there are visa numbers available. Therefore, simply receiving a selection letter under the lottery program does not guarantee an immigrant visa. According to the DOS, approximately 102,800 applicants were selected and registered under the DV-2010 lottery. The reason for notifying more than 50,000 people is that some will not follow through with the visa application and others will not qualify. Therefore, more individuals are notified to increase the odds of actually issuing the allocated 50,000 immigrant visas in each fiscal year. These letters should have been received in June or July 2009. Those who are not selected do not receive any notification. ©MurthyDotCom It is necessary to follow the directions in the winner letters carefully. Entrants who reside outside the United States need to process and obtain the immigrant visa from the U.S. consulates abroad. Those who are in the United States must either file for adjustment of status or select consular processing. For all applicants, it is necessary to meet both the legal and procedural requirements for either adjustment of status or consular processing. Those with questions about their filings should contact a qualified immigration attorney. ©MurthyDotCom Winners Must Complete Processing by September 30, 2010 ©MurthyDotCom The lottery program ends September 30th each year, as that is the final day of the USCIS fiscal year. The DV-2010 program will end September 30, 2010. Applicants, therefore, must complete the adjustment of status or consular processing procedures, through to case approval, no later than September 30, 2010, to obtain DV-2010 immigration benefits. The chance of success following selection depends, in part, upon the lottery case number assigned. Visa number availability depends upon the case number and is tracked by DOS in the monthly Visa Bulletin.   ©MurthyDotCom While the lottery is a viable option for many, no one should depend upon the lottery until s/he receives the final green card approval. It is best to continue to explore and pursue other immigration options while one's lottery case is pending. ©MurthyDotCom DV-2011 Opens October 2, 2009 ©MurthyDotCom The DV-2011 lottery year opens soon. Initial information on that is now available online and applications will be accepted from October 2, 2009 through November 30, 2009. More information regarding DV-2011 should be available through the link provided above shortly. This information will include the eligible countries and FAQs. As mentioned, this program is only for individuals from countries with low rates of immigration to the United States. ©MurthyDotCom Can Use Lottery Even if Other GC Case Filed ©MurthyDotCom Individuals who potentially are eligible for the DV lottery often ask whether they can enter if they already have started a different type of green card case. The answer is yes, it is possible to have a lottery case and an employment, family, or other type of green card case pending. In many situations, a successful lottery case will be much faster than other types of green card cases. As stated, however, lottery cases are always very uncertain and one should not abandon other immigration options unless and until permanent residence is obtained. ©MurthyDotCom Conclusion ©MurthyDotCom The lottery provides unexpected and significant immigration benefits to a lucky few each year. Only nationals of certain countries are eligible and may apply, as set forth in the instructions issued each year. While one's chances of selection are slim, there are winners each year, and the government charges no fees for the initial application process. Every year, we at the Murthy Law Firm find that we represent some of the successful lottery applicants and assist them with obtaining their green cards, either through adjustment of status or through consular processing. Since the program is time sensitive, those with questions, or in need of help with lottery matters should seek the assistance of a qualified immigration attorney promptly. We at the Murthy Law Firm are always happy to help anyone in need of immigration law assistance. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Employment Agreements and Immigration Options ©MurthyDotCom Many individuals in H1B status sign agreements with their employers regarding their terms of employment. Such agreements are considered fair when their purpose is to safeguard both parties who have certain rights and obligations. Generally, written agreements are intended to protect employers' investments of time and money in recruitment efforts by preventing employees from leaving the employment after a short time, or from accepting employment with a client or contact of the employer. To keep their business profitable, employers count on a period of longevity once they have invested in the hiring of employees. On the other hand, employees sometimes find themselves in bad situations with their employers, or simply want to leave for an opportunity elsewhere that seems more desirable. ©MurthyDotCom Employment and Contract Law Issues ©MurthyDotCom One's current employer does not have to give permission for a new employer to file an H1B petition, or for the U.S. Citizenship and Immigration Services (USCIS) to approve such a petition. Any agreements between the employer and employee are separate legal issues, generally governed by state law dealing with contracts and employment. These are not considered by USCIS officers when they review and adjudicate H1B petitions filed by new H1B employers. ©MurthyDotCom Of course, the ability to obtain approval of an H1B petition through a new employer does not mean that agreements negotiated and signed by the parties may be ignored. Generally, most employment agreements and non-compete agreements are governed by state employment and contract laws. Individuals who have signed such contracts need to seek advice based on the laws within the respective states where they are employed. One should contact a qualified employment law attorney to obtain an opinion as to whether the agreement is likely to be enforceable. This should be done before making any change of employment or commitment to a new employer. ©MurthyDotCom Employment Termination and Penalty vs. Liquidated Damages ©MurthyDotCom From an immigration point of view, it is not permissible for an H1B employer to require payment of a penalty from an H1B worker for ceasing employment prior to the expiration date of the H1B petition. The employer, however, is allowed under immigration law to recoup bona fide liquidated damages for early termination by the employee. Whether the DOL will regard an agreement as containing a penalty will depend upon the laws of the controlling state. Employers must have these matters evaluated when drafting any such agreements. ©MurthyDotCom Legal and Practical Considerations ©MurthyDotCom Sometimes questions about leaving the H1B employer arise because the employer is not meeting the standard H1B requirements. Workers find themselves in difficult positions, not receiving proper work assignments or payment, for example, but fearing that they cannot leave because of an employment agreement. If the employer has not met the contractual obligation of the employment terms, this should be documented and analyzed by an attorney knowledgeable in the employment laws of the state. ©MurthyDotCom When evaluating the risks of going against such an agreement, it is necessary to understand the cost of legal representation, should the employer try to enforce the agreement. Even if the agreement ultimately is not enforceable, there are likely to be costs associated with the legal representation required to argue or negotiate a compromise of the matter. ©MurthyDotCom Conclusion ©MurthyDotCom Employment agreements, as stated above, are fair when they safeguard both the employer and the employee, regarding their respective rights and responsibilities. To avoid finding oneself in the position of not knowing whether the terms in an employment agreement hold up legally, it is always best to obtain legal advice before signing any such contract. Once signed, potential legal obligations are created for both the employee and the employer, even if it ultimately is not enforceable. Employment agreements can both help and hinder all parties concerned - depending upon the terms and the applicable state and federal laws. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. USCIS Website Overhaul with New Status and Other Information ©MurthyDotCom The redesigned website of the USCIS was launched September 22, 2009. The new site contains many features that our readers may wish to explore. There have been changes to the online status information, widely used by many MurthyDotCom and MurthyBulletin readers. The website also provides access to information and charts regarding case volumes and other interesting charts and graphs that give insight into internal USCIS issues. ©MurthyDotCom Online Status Background Information on Pending Cases ©MurthyDotCom Online case status information has been moved, so users will need to create a new bookmark for this page. The new explanations of case progress are more detailed than those provided in the previous version. There is standard information about the particular processing stage. For example, for applications for adjustment of status (I-485s), in "initial review," the website advises that, "during this step, the USCIS initiates background checks … and identifies issues that may need to be addressed either during an interview or by asking the applicant / petitioner to submit additional information or documentation." The text also explains the standard process for fingerprinting needed in connection with an I-485 application. ©MurthyDotCom Processing Times at Service Centers for Different Processes ©MurthyDotCom Just below the status information, there is a section where processing time averages can be checked. There are drop-down menus for the general form number (such as the Form I-140), type of case (such as advanced degree, skilled worker / professional, or outstanding professor / researcher), and center where the case will be filed or is pending (such as the Nebraska Service Center). The results will advise of the national processing time goal, the national average processing time, and the processing time for the particular service center. For example, for a skilled worker / professional (EB3) I-140 filed at either the Texas or the Nebraska Service Center, the website currently gives four-month timeframes for the goal, the average as well as the current timeframe. ©MurthyDotCom Numbers of Pending Cases ©MurthyDotCom The new USCIS website also provides access to charts and graphs reflecting the volumes of cases filed, adjudicated and pending. For some, particularly those with I-485s pending, this number of filings may be a bit disconcerting. The user can select the type of case, location, and other variables regarding pending cases. It is possible to see how many I-485 cases have been preadjudicated and are awaiting visa numbers, at the Nebraska Service Center, for example. These numbers will be rather shocking to some MurthyDotCom and MurthyBulletin readers, particularly those among the large number of people whose cases are awaiting immigrant visa numbers. The only positive note is that this clear-and-easily-accessible data helps to illustrate and verify the problems faced by so many, as they wait for their priority dates to become current. The information currently on the charts is for July 2009. With the movement of priority dates in EB2 India / China in September 2009, we at the Murthy Law Firm have seen many I-485 approvals for September 2009 and hope this will continue in October. This is not enough, however, to make a meaningful dent in the number of I-485 cases pending at the USCIS, awaiting visa numbers. ©MurthyDotCom Conclusion ©MurthyDotCom The new USCIS website provides some interesting and clear information. We at the Murthy Law Firm will continue to review the website and suggest that our readers explore it also. Much of the content of the prior website continues to be available, including immigration forms and general immigration information. It is good to know that the USCIS is applying the comments and feedback it receives from various groups, including the American Immigration Lawyers Association, to provide better customer service to those who use their website. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Reminder : Murthy's Corporate Teleconference - Wed, Oct 07, 2009 Topic : When USCIS Comes Knocking - the USCIS Office of Fraud Detection and National Security (FDNS), Part 2 ©MurthyDotCom The topic of our October 07, 2009 session in this teleconference series continues our look at visits by officers from the USCIS Fraud Detection and National Security (FDNS) Office. Because of the interest in this important matter, attorneys from the Murthy Law Firm will continue discussion of the increasing frequency of such visits to H1B employers, employers’ options in responding to such visits, what to do if the officers want to speak with employees, the authority of the FDNS officers, and the potential consequences of such visits, among other issues. Don't miss Part 2 of this timely topic! ©MurthyDotCom For those employers who were unable to hear Part 1, or who would like to hear it again, we will replay that teleconference at 1:00pm (ET). Hear Part 2 at 2:00pm (ET). ©MurthyDotCom Employers and their representatives : register for Oct 07, 2009 here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Do You Know the Value of our Consultations? ©MurthyDotCom 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. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, Oct 05, 2009, 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 © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 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 © 2009, MURTHY LAW FIRM. All Rights Reserved
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