VOL. XVIII, no. 19; May 2012, week 1
Posted : 11.May.2012

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We know your immigration matters! ^®

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.
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TOPICS in this Edition of the MurthyBulletin

1. EB2 "Upgrades" - Priority Date Retention and Online Degrees

2. Interfiling New Immigrant Petition into Pending I-485 Case: Part 1 of 2  

3. Extended Travel by a Permanent Resident: Part 1 of 2

4. Events @ Murthy: Mark Your Calendars

5. MurthyDotCom: Do You Know the Value of Our Articles?

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. EB2 "Upgrades" - Priority Date Retention and Online Degrees

With the ongoing backlog in the employment-based, third preference (EB3) category, many people look forward to using the strategy commonly referred to as an EB3-to-EB2 "upgrade." The U.S. Citizenship and Immigration Services (USCIS) recently confirmed a long-term favorable policy, which facilitates this strategy. It was also confirmed that, in some instances, online degrees are acceptable as educational credentials.

Background: EB3 to EB2 Upgrades

There are many foreign nationals who find themselves waiting for years to obtain permanent residence (commonly referred to as "green card") status in the EB3 category. The solution for some may lie in finding an employer to file a new green card case in the employment-based, second preference (EB2) category. The key to this strategy is retaining a priority date from an earlier permanent residence EB3 case for the new EB2 case. This can be requested if there was an approved I-140 employer petition for the earlier green card filing.

[More information about EB3 to EB2 upgrade procedures can be found in our NewsBrief, Considerations for EB3 to EB2 "Upgrade" (01.Jul.2011).]

I-140 Revocation Concerns

A frequent question from those considering an EB3-to-EB2 upgrade is whether the EB3 petitioning employer can create problems. Specifically, individuals in this situation want to know whether the EB3 employer can withdraw the earlier approved I-140 petition.

Under the law, the I-140 petition may be withdrawn by the employer who filed it, should the employer so choose. The I-140 may be withdrawn even after it has been approved, and even if it was approved several years before. The employer has this option until permanent residence that is based on that employer's filings has been approved. A more pressing question, however, is whether this revocation will make a difference in efforts to complete an EB3-to-EB2 upgrade, namely the employee's ability to transfer or retain the earlier priority date.

General Policy on Priority Date Retention

The long-standing Legacy INS and USCIS policy on retention of EB priority dates after I-140 revocation is favorable. The policy allows individuals to keep their (older) priority dates from approved I-140 petitions even after revocation in most instances. However, some questions arose regarding the continuation and uniform application of this policy.

Priority Date Retention Even After I-140 Revocation

The USCIS advised on April 12, 2012 that the Texas (TSC) and the Nebraska Service Centers (NSC) have had "robust" conversations on this topic with Service Center Operations. TSC and NSC want to act in a consistent manner. Both will allow for priority date retention when a new I-140 is filed, even if a prior employer has revoked the earlier I-140.

Exception to Priority Date Retention

The older priority date will be retained, as long as the earlier-dated I-140 was not revoked by the government for reasons of fraud or misrepresentation. With this confirmation of policy on the part of the service centers, there should not be a risk that a former employer will cause the loss of a priority date simply by withdrawing an approved I-140 after an employee leaves.

Acceptance of U.S. Online Degrees

For some, the use of the EB3-to-EB2 upgrade strategy requires obtaining additional education. This can pose difficulties for those who must balance the desire to gain additional education and degree/s with the need to maintain employment. It is often much easier to strike this balance by taking online courses for all or part of the educational requirements.

Given the recent controversy over online courses for foreign students, the USCIS was asked whether online degrees from accredited U.S. universities are acceptable for EB2 purposes. The USCIS confirmed that degrees from accredited U.S. universities will be accepted and, further, acknowledged that many major universities are providing online courses.

MurthyDotCom and MurthyBulletin readers have previously been provided with some guidance regarding the selection of U.S. schools in the immigration context for students. Our NewsBrief, Back to School: Considerations for U.S. Education (06.Aug.2010), contains some helpful guidance for those considering the EB3-to-EB3 upgrade option.

Conclusion

While not everyone in the EB3 category is be able to benefit from an EB2 upgrade, it is a viable strategy for many. The confirmation of the policy on priority date retention, as well as the option to obtain an online degree from an accredited U.S. university, serve to facilitate the possibility to upgrade to EB2 for many individuals. Those who have questions about this strategy, and whether it could be an option for them, may wish to consult with a knowledgeable and experienced attorney at the Murthy Law Firm.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

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2. Interfiling New Immigrant Petition into Pending I-485 Case: Part 1 of 2  

Some of the options for making changes to the basis of a permanent resident ("green card") case after reaching the adjustment-of-status (I-485) stage are addressed here for the benefit of MurthyDotCom and MurthyBulletin readers. Specifically discussed is interfiling, also referred to as conversion, utilized when an I-485 applicant wants to change the underlying immigrant petition that will serve as the basis of the I-485 approval. Also provided is guidance as to when this strategy can be beneficial, as well as the eligibility criteria for interfiling a new or different immigrant petition into a pending I-485 application.

Interfiling Defined

The concept of interfiling is fairly simple. It allows one to replace the underlying immigrant petition with another immigrant petition during the pendency of one's I-485 application. An immigrant petition is, most commonly, the I-140 employer-sponsored petition or the I-130 family-based petition. Thus, in an employment-based case, if one visualizes the I-140 petition as a pillar supporting the I-485, interfiling is simply switching one supporting pillar with a different pillar. As explained below, this procedure can be used in a variety of situations involving pending I-485 cases.

It should be noted that the concept of interfiling is not to be confused with pure priority date retention. Priority date retention involves keeping or assigning the priority date from an earlier-approved I-140 to a later-filed I-140 petition. While interfiling might also be used with priority date retention, they are two separate procedures, not always used together. Priority date retention is a process explained in numerous MurthyDotCom articles easily accessible by searching our site for priority date and retention.

USCIS Refers to it as "Conversion"

The U.S. Citizenship and Immigration Services (USCIS) memoranda and the Adjudicator's Field Manual (AFM) use either the term transfer or conversion for what most foreign nationals and immigration law practitioners refer to as interfiling. The underlying basis for a green card case may be converted in a number of situations.

Examples of Interfiling / Conversion

One common example familiar to many MurthyDotCom and MurthyBulletin readers is the EB3 to EB2 "upgrade" option, as explained in, EB2 "Upgrades" - Priority Date Retention and Online Degrees (11.May.2012), article #1 in this week's MurthyBulletin.

The conversion or interfiling option can also be used in what are less familiar scenarios. For example, it is available sometimes when an individual has filed an I-485 application based upon an employer's I-140 immigrant petition, but s/he wishes to change the underlying I-485 basis to an approved family-based petition.

Possible scenarios may even include switching the underlying basis from one spouse to the other, but it is important to understand the general criteria that govern all such interfiling or conversion requests. It is also important to understand, as explained below, that interfiling is a creation of Legacy INS and the USCIS, and its use therefore is dependent upon policy considerations. The acceptance of such cases has evolved over time and is largely discretionary.

Eligibility Criteria for Interfiling / Conversion

The criteria for interfiling are not written in the law or any regulation. Interfiling, or conversion, is purely an administratively created procedure and is described only in guidance for USCIS adjudicators - specifically, the AFM and USCIS memoranda. As such, the decision to grant any particular type of interfiling request is discretionary, and not guaranteed. If all the conditions set by the USCIS are satisfied, however, there is a good chance that the interfiling request will be approved, as this serves USCIS's interests of efficiency. It also facilitates the applicant's goal of obtaining permanent residence by saving time, effort, and multiple filing fees. 

The AFM requires that the request be made in writing. There is, however, no specific form or format for this request. Additionally, there are cases in which the USCIS will initiate a conversion without a written request.

I-485 Applicant Must be Continuously Eligible for Approval

The applicant should have no breaks in continued eligibility and pendency of the I-485 application. For this reason, it is often necessary to be proactive in interfiling requests. If the interfiling or conversion request is made after the applicant's previously held I-485 eligibility ended, the USCIS can no longer consider an interfiling or conversion request. For example, if one previously filed an I-485 based upon an employment-based, third preference (EB3) I-140 petition in 2007, s/he may later consider the option of upgrading to EB2. In that event, an employer would file a new PERM labor certification and I-140 petition in the EB2 category. Once the EB2 I-140 is approved, an interfiling request can be made. At all times, one must either still have the EB3 job offer or a job offer that meets the portability requirements under the American Competitiveness in the 21st Century Act (AC21).

In the above example, the individual has continuous, uninterrupted eligibility through the EB3 case. Continuous eligibility essentially means always having a good case. There was nothing wrong with the EB3 case described here other than the backlog in visa number availability.

Priority Date and Other Considerations

The interfiling request should be based on a priority date that is current, although many such requests are initiated prior to that point. Regardless, no action is taken by the USCIS unless the priority date under the new basis case is current. Additionally, it is required that the adjustment applicant not be subject to any bar on admission based on the new immigrant petition, even if s/he was exempt from these inadmissibility bars at the time of the initial filing.

Conclusion

There can be many benefits derived from the ability to use interfiling / conversion in an I-485 case. In part 2 of this article, we will explain how such requests are made, and will provide examples of some of the less common interfiling scenarios. The interfiling option can be quite helpful as a way to obtain approval of a pending I-485 on a faster or otherwise more favorable basis than the initial basis for the case. It can facilitate coordination of cases between family members and can be a fairly efficient mechanism for making changes in the I-485 case. Questions about the use of this option in your particular case may be addressed in a consultation with a knowledgeable and experienced attorney at the Murthy Law Firm.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

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3. Extended Travel by a Permanent Resident: Part 1 of 2

The Murthy Law Firm often receives questions from permanent residents ("green card" holders) regarding their options for traveling abroad for extended periods. There are certain common misunderstandings within the immigrant community regarding U.S. immigration laws for such travel by permanent residents. Here, we address some of these misconceptions and provide MurthyDotCom and MurthyBulletin readers with information valuable to green card holders who may have the genuine need to travel abroad for longer durations than considered common for most personal or business travel.

Once-a-Year Visit to United States is Insufficient

For the permanent resident, the appropriate document for gaining reentry to the United States, following an absence of less than one year, is the green card (Form I-551) or the stamp in the passport that is temporary evidence of lawful permanent resident status. On this basis, there is a mistaken belief that one can maintain permanent residency simply with brief annual visits to the United States. This is NOT the case. Visiting once a year is insufficient to protect a permanent resident from having the green card confiscated by a U.S. Customs and Border Protection (CBP) agent at the airport or other port of entry (POE).

Basic Requirements After a Trip of Less Than a Year

The one-year rule has two requirements. The green card is the appropriate document for reentry only if (a) the absence from the United States is less than a year AND (b) the individual is returning to a permanent residence status that has not been relinquished after a temporary absence.

The mere return to the U.S. in no way revalidates the green card. The U.S. Department of Homeland Security (DHS) can make a factual determination that the permanent resident status has been abandoned even if the green card holder has visited the United States each year.

Absence of Less than Six Months is Not a Guarantee

In some instances, people travel between the United States and other countries once every six months. Although this is helpful in many respects, the mere reentry to the U.S. every six months does not secure one as being considered to satisfactorily have maintained permanent residence.

The reason that some people return to the United States every six months is that there is a presumption of abandonment of permanent resident status when a foreign national departs the U.S. for longer than six months. To avoid this presumption, and to potentially preserve eligibility for naturalization to U.S. citizenship, some green card holders make plans to return to the United States every six months during their extended travel abroad. The issue to be determined in these situations is whether such individuals have relinquished their permanent residence by abandonment. The answer to this question is not determined solely upon how long they spent outside of the U.S. The answer depends upon whether they really reside in the United States and have made it their permanent home.

Abandonment Depends Upon Facts

The determination regarding abandonment is based upon a review of the specific facts of the case. The CBP officer at the POE can ask questions in an effort to determine if one's absence from the United States was temporary and consistent with being a permanent resident. The temporary nature of the absence is not solely assessed based on the number of days spent outside the United States, but rather upon whether the individual had a continuous, uninterrupted and realistic intention to return to the U.S. in the immediate future.

At the POE, the CBP officer looks at the individual's past actions and ties to the United States to determine intent. Among the factors considered are family ties, property holdings, business affiliations, length of time previously spent in the U.S., length of time outside the U.S., community ties, and related facts. The CBP compares the existence of these factors within the United States versus similar ties outside the United States. The CBP also considers tax filings, employment, and whether there is a physical residence that has been maintained during the absence/s.

Conclusion

In part two of this article, readers will be provided with more information regarding how the DHS / CBP assesses whether travel by a permanent resident is temporary. We will also explain the procedures for situations in which the CBP does not find it appropriate to admit an individual into the United States as a permanent resident, due to extended travel. Issues of extended travel can be complex, and anyone who is contemplating extended travel abroad should consult with a knowledgeable and experienced attorney at the Murthy Law Firm in advance of departure from the United States.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

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4. Events @ Murthy: Mark Your Calendars

The main page of MurthyDotCom has a new listing of calendar events. Check it regularly to be sure you are up on the latest goings on at the Murthy Law Firm.

Next Week . . .

MurthyChat: Join us for the next session on Monday, 14.May.2012 | 9-9:30pm Eastern Time (U.S.), when a senior attorney from the Murthy Law Firm answers your questions in real time! Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 

Murthy's Corporate Teleconference: Wed, 06.Jun.2012 | 2p.m. (E.T.)
Topic: Overview of the I-140 Immigrant Petition

This teleconference for employers and their representatives provides an overview of the I-140 immigrant petition, including issues and strategies related to educational equivalency and ability to pay. Attorneys from the Murthy Law Firm will discuss recent cases related to I-140 matters, as well as recent trends in adjudications from the USCIS.

Employers and their representatives: register for the upcoming teleconference here.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom: Do You Know the Value of Our Articles?

At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite.

MurthyBlog: Follow the latest musings - professional as well as personal - of Sheela Murthy and the Murthy Law Firm. Whether it is our take on immigration reform, the latest governmental change that could impact the immigration debate, a report from Sheela's recent travels, or the profile of one of our valued employees, you will find the lighter, more reflective side of Sheela and our firm on the MurthyBlog.  Check it out today!

MurthyForum: Join this community of immigrants, who have discovered the value of our forum. This message / discussion board is visited daily by at least one of our attorneys.

MurthyDotCom - MurthyBulletin - MurthyChat - MurthyForum - and the MurthyBlog! Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

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6. Important Processing Times and Dates

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.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved