MurthyBulletin
VOL. XIII, no. 45; November 2007, week 2
Posted : Nov 09, 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 :
Announcement : Career-Building Opportunities in Immigration Law
1. CIS Ombudsman Second Teleconference on Receipting Delays
2. New Push to Raise the H1B and Green Card Quotas
3. Nunc Pro Tunc H1B and H-4s Approvals Have Gaps in Status
4. European Union Unveils "Blue Card" for Skilled Immigrants
5. MurthyDotCom : Did You Know about Our Legislation 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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Announcement : Career-Building Opportunities in Immigration Law
The MURTHY LAW FIRM is pleased to announce that we are entering a phase of planned expansion that reflects our growing reputation. We have acquired additional space and hired administrative and legal support staff. Currently we are seeking attorneys of the highest caliber to join our winning team and handle our increasing client volume and growth into new areas of practice.
Our firm is dynamic and fast-paced. We have high standards with regard to integrity, work ethic, and quality. Successful candidates will have the ability to work both as members of a team and as team leaders, when appropriate. We utilize our website and our own, proprietary case-management system to provide the highest quality of service to our clients. As a boutique practice, we are able to maintain the personal connection to our clients that they have come to expect and upon which our international reputation is built.
Current openings are for:
Junior attorneys with 2+ years of experience in business immigration law. Junior attorneys should have experience in intense business-immigration work with excellent academic credentials.
Senior-level attorneys with 5+ years of experience in business immigration law. Senior-level applicants should have real-world experience, be up to date on recent changes in immigration laws and regulations, and should have the ability and interest needed to supervise legal staff.
We are also looking for a Litigator with federal court experience; some immigration experience helpful.
Candidates are required to have good writing and analytical skills and are invited to familiarize themselves with www.murthy.com. Applicants with law firm or government experience will be considered. Forward your resume + cover letter to hr@murthy.com with "Attorney for Expansion Plan 2007/08" in the subject line.
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1. CIS Ombudsman Second Teleconference on Receipting Delays
©MurthyDotCom
Mr. Prakash I. Khatri, CIS Ombudsman, held a teleconference on November 2, 2007 on the topic of USCIS Receipting Delays: How Does this Affect You? This is a second teleconference on the topic of receipting delays. Attorneys from the Murthy Law Firm participated in this call on behalf of our clients and to help other MurthyDotCom and MurthyBulletin readers. The Ombudsman's office confirmed that the delays are symptoms of an ongoing and possibly widespread problem with the USCIS receipting process. Various common problems were discussed. Most likely, the USCIS will issue an FAQ with responses to the issues raised by those who participated in the conference call.
©MurthyDotCom
The first teleconference about receipt notices was held on October 12, 2007 and was the subject of our October 26, 2007 MurthyBulletin article, CIS Ombudsman on USCIS Receipting Delays, available on MurthyDotCom. As with all other teleconferences held by the CIS Ombudsman, this teleconference was available to the general public.
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Receipting Delays are an Indication of Problems with USCIS Procedures
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At the beginning of the November 2, 2007 teleconference, Mr. Khatri reminded the participants that the CIS Ombudsman's website has published questions and answers from the previous teleconference on the same issue of receipting delays. Unfortunately, many questions remain unresolved which prompted the Office of the CIS Ombudsman to hold another teleconference on the same topic. Mr. Khatri expressed his concern that the number and the nature of the problems with receipting may far exceed what had originally been his understanding. He based his concern on the nature of the complaints that he has been receiving and the responses to his inquiries received from the USCIS.
©MurthyDotCom
Issues Discussed in the Teleconference
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Mr. Khatri has indicated that he does not have definite answers to most of the questions posed, but assured his audience that he would personally follow up on these problems with the USCIS. Thereafter, he expects that the USCIS WebSite will carry a series of FAQs or would refer their answers to the Office of the Ombudsman to be posted on that website.
©MurthyDotCom
Some of the important questions addressed by Mr. Khatri in this teleconference included: filing K-3 spouse petitions on Form I-129F when there is no receipt available from the I-130 Immediate Relative Petition filing, Form I-765 Application for Employment Authorization receipting delays, improper rejections for incorrect fees, expired H1B status where the I-485 Application for Adjustment of Status has not been receipted, late rejections of filings resulting in unavailability of priority dates, filling out I-9 forms when no receipt is available, and other receipt-related matters.
©MurthyDotCom
Mr. Khatri encouraged participants to eMail him at with specific examples of problematic cases. Individual attention to a specific case can be requested by filling out Form DHS-7001 (PDF, 213K).
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Mr. Khatri reported to teleconference participants that the USCIS service centers have finished issuing receipt notices for most cases. The exception to this is the Nebraska Service Center, which still has applications and petitions that need to be receipted.
©MurthyDotCom
Conclusion
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The Ombudsman's November 2, 2007 teleconference on receipting delays has shown once again that the USCIS is struggling in streamlining its systems and procedures. The Office of the CIS Ombudsman is a reviewing tool that makes sure the USCIS uses the correct procedures and strives to improve its services. MurthyDotCom and MurthyBulletin readers will be updated on USCIS responses to the questions raised at this recent teleconference and any other developments regarding receipting delays.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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2. New Push to Raise the H1B and Green Card Quotas
©MurthyDotCom
On October 23, 2007, sixteen members of the New Democrat Coalition, led by the Speaker of the U.S. House of Representatives, Nancy Pelosi, requested that "the House take action this year to resolve the immediate talent crisis that is facing U.S. employers." The group is pushing for reform that would increase H1B and employment based permanent residence, or "green card" quotas, before Congress adjourns this year. The New Democrat Coalition is comprised of 59 Democratic members of Congress who are interested in modernizing the Democratic Party and the entire country. It is important that MurthyDotCom and MurthyBulletin readers understand that this interest among certain lawmakers does not guarantee that any increase in these numbers is in the offing.
©MurthyDotCom
Likelihood of the New Reform Passing
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The New Democrat Coalition is urging Congress to pass the new reform this year, before the Fiscal Year (FY) 2009 H1B filing season opens for the filing of new cap-subject H1B cases on April 1, 2008. In addition to requesting more H1B visas and employment-based permanent residence, the group is pushing for modernized student visa programs. It is attempting to align the student visas with an uninterrupted supply of employment-based temporary and permanent visas, should the students find employment offers following graduation. During FY2008, the gross inadequacy of the 65,000 H1B limit became evident, as there were not enough H1B cap numbers even for cases filed on the first day of filing. It is expected that this coming cap season will be even more severe, if the H1B cap-subject quota is not substantially increased. In addition to this push for reform from the Democrats, there is also overwhelming pressure from political lobbyists and the general public. Some observers believe, therefore, that a newly-increased H1B quota could be available this year.
©MurthyDotCom
Make Plans to Prepare Cases Dec '07 / Jan '08
©MurthyDotCom
MurthyDotCom and MurthyBulletin readers are urged to be prepared, however, and not to count on a possible increase in the H1B quota. H1B cap-subject cases can be filed on April 1, 2008. In the event that an increase is not passed by Congress, it is expected that there will be more than enough cases filed on the first day of filing to meet and possibly exceed the cap. (If this occurs, there will be a lottery of the cases filed on the first and second days of filing to determine which cases will be selected for the available H1B cap numbers.) Thus, those employers who wish to file for potential H1B employees and are subject to the cap need to file on April 1, 2008, and not assume that the quota will be increased. Employees should remind their employers of this deadline, as well.
©MurthyDotCom
Conclusion
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There is no assurance that new reform that would raise the H1B and green card quotas will be passed before this Congress adjourns. This is a highly-political issue, within a year of a major national election. Proactive individuals are already starting to prepare for the H1B filing season which, as stated, will open on April 1, 2008. The April 1st cases will request an employment start date of October 1, 2008, which is the first day of FY2009. MurthyDotCom and MurthyBulletin readers are reminded that there is no mechanism to push H1B filings ahead by filing before April 1, 2008. On behalf of our clients and the greater immigration community, we hope that Congress will heed the concerns about the inadequacy of the H1B and green card quotas and will do the right thing for the benefit of U.S. businesses, their employees, and the U.S. economy in general.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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3. Nunc Pro Tunc H1B and H-4s Approvals Have Gaps in Status
©MurthyDotCom
There are times when it is necessary to request that the U.S. Citizenship and Immigration Services (USCIS) forgive someone's failure to file a request to change or extend status in a timely fashion. Requests to change or extend status are supposed to be filed before the current nonimmigrant status expires, usually reflected on the foreign national's I-94 card. Through mistakes, misunderstanding, or illnesses, however, this does not always happen as it should. In that event, it is sometimes possible to request forgiveness and file for a backdated, nunc pro tunc (legal term in Latin, meaning "now for then"), approval. Nunc pro tunc (NPT) is a discretionary remedy by which the USCIS permits a late filed request to change or extend status, based on the facts and extenuating circumstances presented. Recently, our firm has seen an increasing number of NPT case approvals reinstating status, but not backdating the I-94 to the date that the prior status expired.
©MurthyDotCom
The Vermont Service Center (VSC) has confirmed to the Murthy Law Firm that, upon the approval of NPT cases, the agency is likely to reinstate the petitioner's H-4 or H1B status, but does not always backdate reinstatement to the date when the petitioner inadvertently fell out of status. This creates ongoing problems that are intended to be addressed by a NPT approval. To learn more about NPT and the circumstances in which it is appropriate to file it, please refer to our September 8, 2006 MurthyBulletin article, Nunc Pro Tunc H1B and H-4 Cases Approved, available at MurthyDotCom.
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Gap in Status if the I-94 Card Not Backdated
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In instances where the late filing is forgiven, but not backdated, a gap exists in the foreign national's status history. Thus, by approving the case and forgiving the late filing, the person, once again, is in valid nonimmigrant status. If there is a gap between her/his prior I-94 card and the newly issued one, however, the person's problems are not necessarily over. If there is a gap in status that exceeds 180 days, the foreign national faces ongoing difficulties in the event of international travel or the filing of an I-485, Application for Adjustment of Status to Permanent Residence ("green card").
©MurthyDotCom
Travel Concerns: 3-Year or 10-Year Bar on Reentry to the U.S.
©MurthyDotCom
With respect to travel, persons who have been unlawfully present in the U.S. for more than 180 days are barred from reentering the country for three years following departure. (This increases to a ten-year bar for individuals who are unlawfully present for over a year.) Unlawful presence is measured from the time when either the I-94 expires or there is a finding that one is out of status. Thus, without a valid I-94 for over 180 days, there is a three- or ten-year bar to one's reentering the U.S., if s/he travels abroad. Reinstating the status without backdating the I-94, therefore, does not solve all problems in this situation.
©MurthyDotCom
Another NPT Discretionary Approval Required for I-485
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Further, in cases for which the late filing is forgiven but a gap in status exists; one is not insulated from having to revisit the same nunc pro tunc argument at the I-485 Application for Adjustment of Status adjudication stage. In an employment-based case, it is still possible to adjust status to permanent residence even if the applicant has been out of status or worked without authorization for as long as 180 days. If the status gap extends beyond the 180-day point, however, then there is a problem. The individual will be left with requesting that the I-485 examiner exercise discretion and forgive the gap, since the late filing was previously forgiven. The examiner may or may not accept the argument that the person is eligible for adjustment of status to permanent residence (i.e., a "green card") because of the gap in valid status in the applicant's immigration history. This presents a problem and a certain degree of uncertainty for adjustment-of-status applicants in such circumstances.
©MurthyDotCom
Conclusion
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A foreign national in nonimmigrant status should be careful not to let his/her status lapse. It appears that, in addition to the VSC, other service centers are adopting the same procedures of not backdating an individual's status when granting reinstatement. While falling out of status is beyond one's control, in many cases, the foreign national is sometimes able to fix his/her current status by having a NPT case approved. One must be ready, however, to face the consequences of arguing the same issue when it comes up at the adjustment stage. The Murthy Law Firm has been successful in arguing the same issue of gaps in status after a person's status was reinstated but not backdated. There is no guarantee, however, that the I-485 adjudicator will accept this argument in every case. Additionally, this does not resolve the problem of travel. We would urge the USCIS to reconsider this matter, and to resume granting NPT reinstatements, when appropriate. The forgiveness contained in the regulation permitting late filings is intended to be remedial. Not approving such cases with backdated I-94 cards fails to carry out the remedial purposes of the approval of the late filings.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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4. European Union Unveils "Blue Card" for Skilled Immigrants
©MurthyDotCom
According to recent reports from BBC News and other sources, the European Union (EU) has estimated a need for twenty million high-skilled professionals in fields like medicine, engineering, and computer technology over the next twenty years. The newly unveiled plan for a blue card, which, according to its supporters, is based on the U.S. "green card" (lawful permanent resident card), is believed to enable the EU to attract some of the skilled workers from Asia, Africa, and Latin America who now primarily migrate to the United States. The blue card proposal is controversial, however, and will require the approval of all 27 EU states.
©MurthyDotCom
Blue Card Eligibility Requirements
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The blue card, if adopted, would enable holders and their families to live, work, and travel anywhere within the bloc of EU member countries. Applicants would be required to produce a recognized diploma and have at least three years of professional experience. Sponsors of the blue card emphasize that it would have stringent requirements. Unlike the U.S. green card, the blue card would not provide permanent residency. It would be valid for two years, after which it would be easily renewable. Unlike the U.S. system, the blue card would be easily renewable and, after five consecutive years, would provide permanent residency automatically.
©MurthyDotCom
Likelihood of Blue Card Being Adopted
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Although the blue card program has made it to the European Parliament in Strasbourg for consideration, there are many who have already voiced opposition to it. The Netherlands, Austria, and Germany are vehemently opposed to the blue card.
©MurthyDotCom
Conclusion
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The idea of an immigration program in the EU based on professional employment is not new. None of these past proposals has ever made it as far as the blue card, however. It remains to be seen whether EU states can come to any agreement on a means for attracting skilled workers into Europe. Should they adopt the blue card or an alternative that diverts these professionals from their current destinations in the United States, it would have a dramatic effect on employment-based immigration in the U.S., as more people would be able to pursue permanent residence in Europe. The United States, in setting its immigration policies, needs to be mindful of the opportunities in the rest of the world for those with technology, engineering, scientific, health care, and other skills, who are sought worldwide. This country needs to remain competitive to attract the best and brightest to our shores.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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5. MurthyDotCom : Did You Know about Our Legislation Page?
©MurthyDotCom
At the Murthy Law Firm, we are often asked questions indicating that there is confusion surrounding proposed legislation and new laws. We have a Legislation Page on MurthyDotCom, where we clarify these matters for our readers. We also provide an article on How a Bill Becomes a Law and instructions for contacting your congressional representatives, so that our readers may understand and become involved in the legislative process.
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The next session of the MurthyChat will be Monday, Nov 12, 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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6. 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.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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