MurthyDotCom : U.S. Immigration Law

MurthyBulletin
VOL. XIII, no. 41; October 2007, week 2
Posted : Oct 12, 2007

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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. November 2007 Visa Bulletin : Summary and Analysis

2. More Visa Delays / Denials at Consulates for Alcohol-Related Offenses

3. Travel Reminder for Students and Exchange Visitors

4. New CBP Freedom of Information Act Office

5. MurthyDotCom : Did You Know about Our Travel Page?

6. 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. November 2007 Visa Bulletin : Summary and Analysis
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The U.S. Department of State (DOS) Visa Bulletin for November 2007 was recently released. The Employment-Based (EB) categories remain unchanged from the visa dates published in the October 2007 Visa Bulletin. Thus, those categories that were current remain current. Those categories with cutoff dates continue to have the same cutoff dates. A summary of the October Visa Bulletin was provided for MurthyDotCom and MurthyBulletin readers on September 14, 2007. Since the dates remain unchanged, please refer to that earlier article, October 2007 Visa Bulletin. [The most recent DOS Visa Bulletin chart is always available on MurthyDotCom. For the convenience of readers, the previous month's Visa Bulletin chart is also available for reference.]
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Rash of I-485 Filings in July / August 2007 Causes Stagnation
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The explanation for this stagnation is that the cutoff dates in the Visa Bulletin are based upon actual and anticipated demand for the limited supply of visa numbers. There was an enormous number of I-485 Adjustment of Status cases filed in June, July, and August 2007, because the cut off dates moved forward significantly in June 2007 and, then, were current in most EB categories under the July 2007 Visa Bulletin. It is too early in this fiscal year (2008) to determine the impact of all of the filings, in terms of demand for visa numbers. Thus, it appears that the DOS is setting the cutoff dates very conservatively. They state that they may be able to move the dates forward somewhat in December 2007.
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Allocation of Visa Numbers Only at Time of I-485 Approval
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MurthyDotCom and MurthyBulletin readers are reminded that pending I-485 Adjustment of Status cases cannot be approved without available visa numbers. Even though many cases were filed in the past, when the Visa Bulletin reflected availability in the particular category, this does not mean that a number has been allocated or assigned to that case. Additionally, I-485s cannot be filed without available visa numbers. This applies to both primary applicants and any dependant family members. There are many spouses who have to wait to file their I-485s, even if the primary applicants in these cases had already filed their I-485s at the particular time the EB category was current for the short timeframe.
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The December 2007 Visa Bulletin, which, as mentioned above, may reflect some forward movement in cutoff dates, will be issued in early to mid November 2007.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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2. More Visa Delays / Denials at Consulates for Alcohol-Related Offenses
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We at the Murthy Law Firm have recently learned of problems encountered at the U.S. consulates by both nonimmigrant and immigrant visa applicants with any drunken driving arrests or convictions. A record involving a drunk-driving charge previously would delay action on a visa, but it normally would not deem one ineligible to enter the United States. The law itself, in terms of the statute or regulations, has not changed for several years on this issue. Under a U.S. Department of State (DOS) Cable issued in June 2007, however, an applicant with such a record may be screened for a separate ground of inadmissibility related to physical or mental disorders that pose a danger to the individual or to others. The cable applies to all alcohol-related offenses. The details of the grounds of inadmissibility and related matters follow, for the benefit of MurthyDotCom and MurthyBulletin readers.
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Medical Grounds of Inadmissibility
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There is a ground of inadmissibility a person who has a physical or mental disorder, who demonstrates behavior relating to that disorder that may pose, or has posed, a threat to the property, safety, or welfare of the individual or others. The connection to drunk driving is clear in terms of the potential for danger to oneself and others, as well as property. The DOS cable states that a conviction, or even an arrest, within the past three years, is cause for further investigation to determine if an applicant may be ineligible under this medical ground.
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DUI Arrest / Conviction or Evidence Suggesting Alcohol Problem
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The DOS established its procedures after consulting with the Center for Disease Control and Prevention (CDC). If a person fits within the criteria, s/he will be referred to a panel physician for further evaluation. An applicant is referred to the panel physician under the following circumstance: If the applicant has a single drunk-driving arrest or conviction within the last three calendar years, or if s/he has two or more drunk-driving arrests or convictions within any time period. Such offences are sometimes referred to as DUI (driving under the influence) or DWI (driving while intoxicated), depending upon the jurisdiction. Consular officers are also required to refer an applicant to a panel physician if there is other evidence to suggest an alcohol problem.
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Panel Physician Referral for Nonimmigrant and Immigrant Visas
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In situations involving an application for a temporary nonimmigrant visa, an applicant who is found to have an alcohol-related arrest or conviction must be referred to a panel physician for evaluation. This procedure will be followed, even if the panel physician is in another city. An immigrant visa applicant will be referred again to the panel physician for further examination (as such a person would already have undergone a medical examination).
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Standard for U.S. Consular Officer to Deny the Visa
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In order for a consular officer to deny a visa under this medical ground, the panel physician must issue a diagnosis of a mental disorder of alcohol abuse AND there must be current harmful behavior associated with the disorder, or a history of harmful behavior that is likely to recur. The consular officer cannot make this determination without the opinion of the panel physician.
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Alcoholism Not Automatic Ground of Denial
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The Foreign Affairs Manual governing the decisions of the consular officers has been updated to clarify that this ground of inadmissibility does not refer explicitly to the medical condition of alcoholism. Alcoholics are still eligible for entry to the U.S., unless there is harmful behavior associated with the medical condition, and that behavior has posed or is likely to pose a threat to property or the safety of the foreign national or others.
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Conclusion
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Any person who has a history of alcohol-related arrests and/or convictions may face further problems and delays in connection with visa applications at the consulate. Individuals who have problems with alcohol should obtain proper treatment and counseling to address these, both as a matter of personal welfare and to address the matter at the consulate. One who has even a single arrest or conviction may wish to consider timing the visa application so that more than three years will have elapsed between the incident or arrest and the visa application.
©MurthyDotCom
Many drunken driving charges are the result of bad judgment, rather than a medical condition. We take this opportunity to warn MurthyDotCom and MurthyBulletin readers that, in many states, one can be charged with an alcohol-related driving offense even with very low levels of blood alcohol. The best approach, therefore, both with regard to public safety and to avoid an arrest record, is simply not to drive if one has been drinking even a fairly small amount of alcohol. It is not always enough to simply judge one’s own capacity to drive. One should err on the side of caution in such matters, and either designate a non-drinking driver, or forego drinking if one must drive.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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3. Travel Reminder for Students and Exchange Visitors
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The International Students and Exchange Visitor Program (SEVP) has issued a reminder to students and exchange visitors who intend to travel outside of the United States. The reminder is meant to minimize waiting times at the Ports of Entry (POEs), and to reduce the need for the issuance of Form I-515A (Notice to Student of Exchange Visitor). Form I-515A is issued to students and exchange visitors attempting to enter the U.S. in F-1, M-1, or J-1 status when s/he forgets the necessary travel paperwork or travels with unsigned or outdated travel documents. The form allows for lawful admission to the United States for a period of 30 days, during which time the student must remit appropriate documentation. The creation of this form was reported to MurthyDotCom and MurthyBulletin readers in our August 22, 2003 article, SEVIS: New Form for Students / Exchange Visitors.
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According to SEVP, last year there was a 30 percent increase in the number of I-515A forms issued. In addition to the delays created at the POE, this process also entails a 30-to-90-day wait for the U.S. Department of Homeland Security to update the student's record. It would be better for everyone involved - the student / exchange visitor, the school, and the U.S. government - for F-1, M-1, and J-1 foreign nationals to travel with appropriate documents, as described below, to reduce the need for I-515A issuance.
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Proper Travel Forms
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A student in F-1 or M-1 status, coming to the U.S. to begin or resume his/her studies, must carry the following documents:

valid passport
valid F-1 or M-1 visa
current Form I-20, endorsed by the Designated School Official for travel
Form I-901 fee payment receipt

An exchange visitor in J-1 status must present the following travel documents:

valid passport
valid J-1 visa
Form DS-2019 (filled out in blue ink)
Form I-901 fee payment receipt

In addition, SEVP suggests that students in F-1, M-1, and J-1 status should prepare their own affidavits, verifying the status of their travel documents.
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Conclusion
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While these requirements are not new, many routinely forget to obtain proper documentation that would allow them to travel safely to the United States. While these individuals are fortunate that the I-515A procedure is in place, so that they can gain temporary admission to the U.S., it would be best to avoid this process altogether. Those who are subject to these requirements should plan in advance and obtain proper documentation well before travel. In case of emergency, they should request the documentation immediately and make all efforts to have this in hand when seeking to reenter the United States.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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4. New CBP Freedom of Information Act Office
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The U.S. Customs and Border Protection (CBP) announced recently that it has opened and established a new Freedom of Information Act (FOIA) office under the Office of International Trade. The creation of this new FOIA office on October 1, 2007 is part of an effort to improve upon the disclosure of required information and generally improve the processing of FOIA requests. NOTE: This office is for CBP requests only. It does not change the procedures involved in requesting records from the USCIS.
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Centralized CBP FOIA
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The new FOIA office will centralize CBP FOIA functions. The office is also responsible for preparing statistical reports for CBP management, the U.S. Department of Justice, and the U.S. Department of Homeland Security.
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New FOIA Office Expected to Provide Information Faster
©MurthyDotCom
The new FOIA office will be completely responsible for processing those requests for records that are contained in national computer systems, and are accessible to FOIA staff. This effort includes receiving and logging requests, identifying the requested records, determining which records or portions of records are appropriate for release, and submitting documents to the requestor. For requests involving records that are not maintained in national computer systems, the new FOIA office will coordinate with the appropriate office for the processing of those requests.
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Where to Send New CBP FOIA Requests
©MurthyDotCom
Effective October 1, 2007, all new CBP FOIA requests should be sent to:

U.S. Customs and Border Protection
1300 Pennsylvania Avenue, NW
Attn: Mint Annex Building, FOIA Division
Washington, DC 20229

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom : Did You Know about Our Travel Page?
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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!
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The next session of the MurthyChat will be Monday, Oct 15, 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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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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6. 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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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.

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