VOL. XV, no. 47; Nov 2009, week 3
Posted : Nov 20, 2009

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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.
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TOPICS in this Edition of the MurthyBulletin :

1. December 2009 Visa Bulletin : EB3 India Inches Forward

2. Murthy Law Firm Obtains AC21 Option Letter on "Porting" Prior to I-140 Approval

3. Court Orders USCIS to Adjudicate Long-Delayed Citizenship Applications

4. Murthy's Corporate Teleconference - Wed, Dec 02, 2009
Topic : The Role of the U.S. Customs and Border Protection in Immigration Matters

5. MurthyDotCom : Did You Know about our Featured Staff Profile?

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. EB3 India Inches Forward in December 2009
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The U.S. Department of State (DOS) Visa Bulletin for the month of December 2009 has been released. The cutoff dates in the December Visa Bulletin for employment-based (EB) categories remain largely unchanged. There is slight forward movement in EB3 for India. [The most recent DOS Visa Bulletin chart is always available on MurthyDotCom.]
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Summary of December 2009 Visa Bulletin
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Employment-Based, First Preference (EB1)
This category remains current for all countries of chargeability.
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Employment-Based, Second Preference (EB2)
This category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change. The cutoff date for India remains at January 22, 2005, which has remained unchanged since the fiscal year 2010 (FY10) began on October 1, 2009. The cutoff date for China is April 1, 2005.
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Employment-Based, Third Preference (EB3)
This category remains unchanged, with the exception of India. The cutoff date for India moved forward to May 1, 2001. This is the third month in a row that this category has moved a bit forward. All other countries have the cutoff date of June 1, 2002.
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Employment-Based, Fourth (EB4) and Employment-Based, Fifth (EB5) Preferences
EB4 and EB5 are current. The EB4 and EB5 categories that had been unavailable due to expiration of the relevant programs are now current. This is due to extensions of funding for these programs, as explained in our November 6, 2009 article, Conrad 30, Investor, Religious Worker, and E-Verify Extensions until September 2012.
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Conclusion
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The Visa Bulletin for December 2009 is the third Visa Bulletin for FY10. This marks the end of the first quarter of FY10, as each USCIS fiscal year begins on October 1st. We will continue to monitor and evaluate the Visa Bulletin for MurthyDotCom and MurthyBulletin readers, as it is made publicly available each month.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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2. Murthy Law Firm Obtains AC21 Option Letter on "Porting" Prior to I-140 Approval
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In a recent letter, the U.S. Citizenship and Immigration Services (USCIS) responded to the Murthy Law Firm’s query as to what happens when the underlying I-140 petition has not been adjudicated prior to a change in employment by the adjustment-of-status (I-485) applicant. The USCIS clarification is regarding the American Competitiveness in the Twenty-first Century Act (AC21) on a topic about which our clients often inquire. In the letter dated October 19, 2009, Barbara Velarde, the Chief of the USCIS Service Center Operations provided some useful guidance. We at the Murthy Law Firm found it necessary to seek such clarification, separate and apart from current USCIS guidance memos, due to inconsistent application of the law and conflicting interpretation of various USCIS memos.
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"Porting" Before I-140 Approval
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There are many cases in which the employment-based petition (Form I-140) is concurrently filed with the application for adjustment of status (Form I-485). This has raised questions regarding the application of the adjustment of status (AOS) AC21 portability provisions or the green card portability provisions, when the foreign national changes jobs before the I-140 is approved. The USCIS issued memos on the topic, the most recent of which is available in our August 8, 2008 article, Neufeld Memo of USCIS on H1B/GC under AC21: Part 3.
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Prior USCIS Memos on the I-140 Approvable-When-Filed Issue
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Earlier USCIS memos were intended to provide the necessary interpretation on the details of AC21, as the USCIS has not issued regulations on this law. It should be noted that the October 19, 2009 letter from Ms. Velarde mentions that the USCIS is in the process of drafting regulations on AC21. There have been previous such USCIS announcements, however, during the nine years since AC21 was enacted.
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The memos interpret the terminology in AC21 that states that an I-140 "remains valid" with respect to a change of job or employer if certain conditions are met. The memos, in applying and adopting an Administrative Appeals Office case, state that an I-140 petition that was deniable when it was filed cannot serve as the basis for adjustment of status to permanent residence. The memos set forth a procedure for examiners to review such I-140 petitions to determine whether they were "approvable when filed." Our letter sought confirmation and further clarification on this matter, in an effort to address certain problems that the Murthy Law Firm has identified in such cases.
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USCIS Clarifies I-140 Approvable-When-Filed Standard
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The USCIS confirmed that, in order for an I-140 petition to remain valid under the AC21 provisions, it must have been valid when it was filed. Thus, before making a determination regarding the AC21 portability provisions, the adjudicator must have made a favorable determination on the I-140 petition. Prior to the enactment of the law under AC21, it was necessary for the original job offer contained in the I-140 to still exist in order to obtain a favorable determination.
©MurthyDotCom
As confirmed in the October 19th Velarde letter, the determinations of eligibility for AC21 portability are made in the context of the I-485 adjudication, not the I-140 adjudication. "The USCIS will first determine if the I-140 petition is approved or approvable," and then will address the issue of whether the new employment meets the AC21 same or similar occupational classification requirement. The letter confirms that, in the process of adjudicating the I-485, the examiner will check to see if there is an approved I-140. If not, and the individual is seeking to utilize AC21 adjustment portability, the adjudicator will determine whether the unapproved, pending I-140 petition was approvable when filed. Then, if the I-140 can be approved under the approvable-when-filed standard, the adjudicator will review the I-485.
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Risky to Port under AOS AC21 Provisions before I-140 Approval
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The use of AC21 portability when the I-140 petition has not yet been approved remains risky. One of the key problems includes the possibility of a request for evidence (RFE) on the I-140 petition. As Ms. Velarde's letter explains, when the I-140 is reviewed under the approvable-when-filed standard, the USCIS can issue an RFE on the merits of the I-140. Since the I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the beneficiary, such as education and experience, it will be transmitted to the employer. If the employer does not respond, or responds stating the beneficiary is no longer employed by the petitioner, the I-140 will likely be denied.
©MurthyDotCom
This is problematic and, since the I-140 is adjudicated in the context of the I-485, this approach raises legal concerns. It should be noted that the standard confirmed in the letter is "approvable when filed." For example, if a business ceases to exist at some point after the I-140 petition filing, and before the review of the case, any RFE issued to that business will not be answered. Such a case would be denied, even if the I-140 petition truly was valid and approvable when filed. Thus, under current procedures, the USCIS is not always making a proper assessment under the approvable-when-filed standard.
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Conclusion
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We at the Murthy Law Firm appreciate the USCIS's prompt response to our letter requesting clarification of key AC21 issues. We hope that this will help to provide a more uniform approach to the cases addressed by the Velarde letter. We also urge further consideration from the USCIS as to whether their current procedures in transmitting RFEs to prior employers serve the intended purpose of determining if an I-140 was approvable when filed. It is our contention that, in many situations, the answer is no. This October 19, 2009 letter from Ms. Velarde provides a ray of hope for those who are forced to leave their sponsoring employers, since it reiterates and reinforces a standard that has been applied inconsistently by the USCIS. We at the Murthy Law Firm will continue to dialogue with the USCIS. Along with the American Immigration Lawyers Association and other interested parties, we will work to obtain clarification and a more consistent approach in USCIS adjudications of I-485s.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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3. Court Orders USCIS to Adjudicate Long-Delayed Citizenship Applications
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The U.S. Citizenship and Immigration Services (USCIS) announced on November 9, 2009, the settlement of a class action lawsuit filed in 2007. The press release on this settlement regarding hundreds of delayed N-400 naturalization applications is available online (PDF 84KB). The Murthy Law Firm was not involved in this lawsuit. This summary is provided to our readers to illustrate developments in the process of obtaining U.S. citizenship by naturalization.
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Background: FBI Checks Lead to Long Delays
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As regular readers of MurthyDotCom and the MurthyBulletin may recall from our September 26, 2008 NewsBrief, Reduction in FBI Security Delay Cases, the U.S. Department of Homeland Security (DHS) and the Federal Bureau of Investigations (FBI) have recognized that the slowness of their background and name checks have seriously delayed the processing of immigration cases, including N-400 citizenship cases. The plaintiffs in this lawsuit were individuals whose naturalization cases were greatly delayed, due to chronic problems with the processing of FBI background checks. The delays often spanned years, as the USCIS awaited FBI feedback.
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Hundreds of California Residents Could Become U.S. Citizens
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According to the press release cited above, the USCIS has agreed to adjudicate hundreds of delayed naturalization petitions filed by individuals living in the Los Angeles, Santa Ana, and San Bernardino areas. These must be adjudicated within six months. The settlement agreement also requires DHS to provide ongoing reports on the processing times of N-400 naturalization cases to the groups involved in this lawsuit, so that future delays may be noted and reported early.
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Class Action Lawsuit Filed in 2007
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The National Immigration Law Center, American Civil Liberties Union of Southern California, and the Asian Pacific American Legal Center filed the class action lawsuit against the USCIS and FBI in 2007. This resulted in Federal Court supervision of the FBI's processing of name checks for thousands of people who essentially had been lost in the bureaucracy. The plaintiffs in this class action lawsuit provided proof of how the delays in their naturalization cases affected their families, their jobs, and their ability to lead normal lives.
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Improvement in Naturalization Processing Times
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Since the events that led to the filing of the class action lawsuit, there has been significant improvement in naturalization processing times. This is due in part to such lawsuits and other actions aimed at addressing the delays. These results are being seen nationwide, as naturalization cases are being processed often within the stated goal of six months. At a recent American Immigration Lawyers Association (AILA) meeting with officials from the USCIS Baltimore, MD office, attended by most of the attorneys from the Murthy Law Firm, we verified that Baltimore is moving quickly on naturalization cases. That office reported that they have had some cases set for interview before the individual is even eligible to naturalize. This happens because cases can be filed 90 days in advance of the (three- or five-year) eligibility for naturalization. If the interview is set faster than 90 days, it is too soon to grant approval.
©MurthyDotCom
This is a remarkable turnaround. Individuals who currently are eligible for naturalization may wish to consider taking advantage of these faster processing times. While it appears that the name-check delays have been addressed, to a large degree, there is no guarantee that the overall processing will continue to be as fast as we are seeing at this time.
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Conclusion
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The resolution of the background check delays, as well as the overall case processing backlog in naturalization cases is a welcome relief. This opens avenues for individuals who need to become U.S. citizens for employment purposes, as well as for those foreign nations who wish to petition for immigration benefits for eligible family members. It is also in keeping with the overall efforts of the USCIS to facilitate U.S. citizenship for eligible foreign nationals.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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4. Reminder : Murthy's Corporate Teleconference - Wed, Dec 02, 2009
Topic : The Role of the U.S. Customs and Border Protection in Immigration Matters
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The topic our December teleconference in this series for employers and their representatives is the role of the United States Customs and Border Protection agency (CBP) in the United States immigration system. The session will specifically describe potential pitfalls and complications to watch out for when applying for readmission to the United States after international travel. It also will address the manner in which these issues can be examined, adjudicated, and resolved by the CBP. As many employees of IT consulting and other corporate entities are now planning travel outside the United States during the holiday season, this is a timely discussion for employers who may be concerned about the orderly readmission of their employees to the United States to continue their critical occupations in the United States. Attorneys from the Murthy Law Firm will discuss what constitutes an error on an I-94 card issued by the CBP, how an error can be resolved, and other frequently asked questions about the CBP and how it conducts the orderly admission of arriving non-citizens.
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Employers and their representatives : register for Dec 02, 2009 here. 
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5. MurthyDotCom : Did You Know about our Featured Staff Profile?
©MurthyDotCom
It is often said that a company is only as good as its people. We at the Murthy Law Firm are fortunate to have many talented and loyal staff members. We now profile staff members periodically on MurthyDotCom. Read the profile of Drew Steinberg, Attorney, online now. Staff profiles that have run previously are available on our MurthyBlog. Get to know some of the individuals who greet you on the phone, who manage your case, and who do your legal work. Get to know why the Murthy Law Firm has a reputation for quality!
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MurthyChat : The next MurthyChat session will be Monday, Nov 23, 2009, 9-9:30pm Eastern Time (U.S.). In response to your requests, we have returned to providing the MurthyChat EVERY MONDAY night. 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
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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 © 2009, MURTHY LAW FIRM. All Rights Reserved