MurthyBulletin
VOL. XIII, no. 42; October 2007, week 3
Posted : Oct 19, 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. Updates on July and August 2007 AOS/ I-485 Filings
2. DOL Backlog Processing Centers Wrap Up LC Cases
3. Federal Court Issues Preliminary Injunction on No-Match Program
4. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
5. 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. Updates on July and August 2007 AOS/ I-485 Filings
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The USCIS provided some updated information on the many July and August I-485 Application for Adjustment of Status (AOS) filings, at an AILA conference held in late September 2007 at Lake Tahoe, Nevada. This information should prove useful to many MurthyDotCom and MurthyBulletin readers who filed I-485 applications during that period. This will help in making travel plans and with expected dates for receiving EADs and APs, as well as other matters.
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Receipt Notices Given Priority
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Many are still awaiting their receipt notices for July and/or August I-485 filings, as well as for related Employment Authorization Documents (EADs) and/or Advance Paroles (APs). The USCIS notes that they received approximately 320,000 I-485 applications based on the July 2007 Visa Bulletin. They are prioritizing the receipting process, with a focus on the I-485s, EADs and APs. This may delay the receipting and processing of other types of cases, including naturalizations. Many naturalization cases also were filed around this period of time, enabling applicants to avoid the fee increases that went into effect on July 30, 2007.
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The USCIS is aware that receipting is not proceeding in date order, and that they have cases from early July that are yet to be receipted. Large volumes of receipts are being issued by the USCIS, as evidenced by those we at the Murthy Law Firm are receiving for cases filed during that timeframe. These receipts are arriving daily.
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EAD Issuance Expected within 90 Days
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The USCIS says that its goal is to adjudicate EADs within 90 days, as required by regulation. This would mean that many July / August filers, who have not already, should be receiving their EADs very shortly. Some have received the EADs already, within fewer than the 90 days.
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Travel without the I-485/AOS Receipt Notice
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The USCIS is aware of the problem for those in H1B/H-4 and L-1/L-2 statuses who may be traveling without the I-485 receipt notice. The law requires that one have the Advance Parole (AP) in order to travel after filing the I-485. Travel abroad without the AP is regarded as an abandonment of the I-485. There is an exception to this, however, for individuals in H1B/H-4 and L-1/L-2 statuses. Such persons may travel in these statuses without abandoning the I-485, provided they also have the I-485 receipt notice. This latter portion, regarding the receipt notice, has generally not been enforced by the Customs and Border Protection at the airports or other ports of entry into the United States. The requirement for the I-485 receipt notice is still contained in the law, however. It has created uncertainty, therefore, given the number of I-485 filings, the delays in the issuance of receipt notices, and the time it is taking to obtain APs.
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In order to address this matter, the USCIS is working on a regulation that would eliminate the receipt notice requirement. We at the Murthy Law Firm heartily approve of this decision on the part of the USCIS, since the requirement does not seem to serve any real purpose. Travel is increasingly a necessity in today's world, rather than an option or a luxury. Many of our clients travel internationally for business. Of course, there are also difficult situations when individuals must travel for family emergencies.
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Premium Processing for I-140 Not Expected Soon
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The USCIS suspended the premium processing option for I-140 petitions on July 2, 2007. This was in anticipation of large volumes of premium processing requests. The USCIS has announced that I-140 premium processing will not be reinstated anytime in the near future. They must be able to process the many existing cases before they can promise a 15-day turnaround on I-140 petitions.
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Conclusion
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The crush of I-485 filings in July and August 2007 is having an impact on the work of the USCIS. As noted, however, many receipt notices and some EAD/AP approvals for the June, July, and August filings are coming into the Murthy Law Firm. Hopefully, the USCIS will work on receipting the older cases. It is disconcerting when one's friends and co-workers, with later-filed cases, obtain their receipt notices first. This is not a new problem with the USCIS and it has been raised as an issue by the American Immigration Lawyers Association (AILA) for bringing fairness to the system with certainty and transparency.
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2. DOL Backlog Processing Centers Wrap Up LC Cases
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The U.S. Department of Labor (DOL), announced on October 1, 2007 that they have cleared the labor certification (LC) backlog, and did so within their scheduled timeframe. The announcement indicates that 99 percent of the original 363,000 backlogged LC cases are completed. The remaining LC cases await responses from the petitioning employers, rather than action on the part of the DOL.
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DOL Report Appears Accurate
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In comparing the DOL report to our own experience with cases at the Backlog Processing Centers (BPCs), it appears to us at the Murthy Law Firm that the DOL report is accurate. When the BPCs began their work in March 2005, many cases were moved to those centers. These cases were filed over the course of many years; some as early as 2001. At this time, we have only a handful of cases remaining at the BPCs. It is correct that they are waiting for action from the employers / sponsors on these cases. Several of our pending cases have been approved recently, but the actual certified forms are yet to arrive from the DOL in the mail.
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Bumpy and Slow BPC Processing Seems to be Resolved
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Many of us in the immigration community were quite skeptical as to the DOL's ability to process and adjudicate the backlogged cases by their original goal of September 30, 2007. The process was not always smooth, particularly in the beginning. The DOL initially did not have systems for employers or their attorneys to verify the existence and location of pending cases. There was no way to assure clients that their cases were filed and pending, and no way to obtain proof of the filings, which was required in order to file and obtain H1B extensions in many instances. This was resolved, fortunately, with an eMail system that worked well.
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The DOL's procedure of sending out continuation letters (also known as 45-day letters), also did not go smoothly at first. In an effort to narrow their caseload to only the cases that were still viable, the 45-day letter system created its own work and new set of problems. Once the DOL actually did begin adjudicating the LC cases, the case approvals trickled in slowly, and the promised method of First-In / First-Out (FIFO) was nonexistent. It was difficult to see how this task would ever be completed.
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Conclusion
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In the end, the DOL did get through this enormous undertaking of relocating all pending labor certification filings, from both state and regional offices, to the two BPCs, and then adjudicating them in two and a half years. This backlog reduction effort and the new PERM system for labor certification filings have made the labor certification system much fairer, in terms of processing times. In the past, the location of the LC filing made the difference between a processing time measured in months, and one measured in years. With PERM, while there are still marked differences between the processing times at the two centers, the processing is measured in months, if not weeks. We at the Murthy Law Firm congratulate the DOL on the completion of this daunting task and on the improvements that are now in place, in terms of timing and consistency in the labor certification process.
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3. Federal Court Issues Preliminary Injunction on No-Match Program
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A U.S. federal court judge issued a preliminary injunction on October 10, 2007, preventing implementation of the “no-match” letter program developed by the Department of Homeland Security, pending further hearings. As was reported to MurthyDotCom and MurthyBulletin readers in our September 21, 2007 article, No-Match Regulation is on Hold, the U.S. Immigration and Customs Enforcement (ICE) issued the no-match regulation on August 15, 2007, as part of the stepped-up worksite enforcement initiative. The no-match regulation essentially is a program wherein an employer receives letters from either the Social Security Administration (SSA) or the Department of Homeland Security (DHS) if an employee's documents pertaining to employment eligibility do not match the records of the SSA or DHS. Employers then face potential liability for continuing the employment of such an employee. MurthyDotCom and MurthyBulletin readers learned of this in our August 17, 2007 article, Liability for Employers Who Receive No-Match Letters.
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The regulation was challenged, and the plaintiffs filed motions requesting that the Court prevent the implementation of the regulation. The injunction was issued as a result of the court's hearing on October 1, 2007, when the parties explained their respective positions with regard to the regulation. This injunction follows a previously-issued temporary injunction that prevented implementation of the regulation until the October 1, 2007 hearing.
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Court's Ruling Supports Plaintiffs' Concerns
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The Plaintiffs (labor groups among them), the American Civil Liberties Union, the U.S. Chamber of Commerce, and immigration groups claimed that mistakes in the federal database would penalize individuals entitled to work legally in the United States. Essentially agreeing with the Plaintiffs, U.S. District Court Judge Charles Breyer noted that "[t]he magnitude of DHS's safe harbor rules is staggering. If enacted, DHS and SSA will immediately mail no-match packets to 140,000 employers, identifying no-matches for approximately eight million employees. There can be no doubt that the effects of the rule's implementation will be severe."
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In response to the ruling, the DHS issued a press release, indicating that the agency is disappointed by the federal court's decision to impose a preliminary injunction on the no-match regulation and that it is "reviewing the decision with the Justice Department and will examine all of our options, including appeal."
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Conclusion
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While the preliminary injunction does not permanently remove the no-match regulation, it does signify the court's intolerance of overly-broad measures to curb unlawful employment, as these affect many employers and employees who have valid employment authorization. As always, MurthyDotCom and MurthyBulletin readers will be apprised of further developments in this important case.
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4. Did You Know about Our Page for Employers and Employees?
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At MurthyDotCom we know that many immigrants come to the United States chasing employment opportunities. On the other side of this equation are the U.S. employers who are looking for the best, brightest, most willing job applicants to fill positions in their companies. In the middle is the U.S. government. Among the government agencies affecting this match are the U.S. Department of State that determines whether to grant a visa to a worker bound for the U.S.; the Department of Homeland Security, whose dual role is to grant benefits as well as secure borders; and the Department of Labor that seeks to protect the U.S. workforce, while facilitating employer access to the non-U.S. workers they require. Find relevant news effecting employers and immigrant workers on our Employment Page on MurthyDotCom.
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The next session of the MurthyChat will be Monday, Oct 22, 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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5. 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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