Chat : July 02, 2007

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

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Attorney Murthy : Dear MurthyChat Participants: It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration related issues.

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Chat User : What will happen to the I-485 applications that reached this morning, even before the revised state bulletin and USCIS rejection decision was published. Would special consideration been given to those cases?

Attorney Murthy : It is not clear what the USCIS will do with any cases it received before 9 or 10am today. The USCIS does not want to accept any cases and has stated that it will reject all I-485 filings, effective today. It may mean that they will reject all cases filed this morning. We will need to wait and see what may happen.

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Chat User : Madam, if my I-485 application was not accepted today, is it consider a 'denied' case? Do I have to start labor and I-140 again from scratch?

Attorney Murthy : No, it is not "denied," but simply rejected on the technical ground that an immediate visa number is not available by law for one to be able to file the I-485. Usually, the USCIS will simply reject the I-485 package. Sometimes, they accept the package and then cash the checks, then denying the I-485, stating that the case was improperly filed when there was no visa number available.

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Chat Master : The information provided during the Chat session is of a general nature and MAY NOT apply to any specific or particular circumstance. It is NOT to be construed as Legal Advice and does NOT establish an attorney-client relationship.

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Chat User : Ms. Murthy, Thanks for your chat sessions. Some attorneys are advising to file and others not advising to file 485s, as USCIS stopped accepting them today. What is in best interest of an applicant? Thanks again.

Attorney Murthy : Actually, both viewpoints are correct. There is no point in filing the I-485 if the only purpose is to have it accepted for issuance of the EAD or AP. The only advantage to attempting to file the I-485 is to file a lawsuit against the USCIS and the DOS for violating long-standing policy and practice without notification to the general public. This creates expectations and violates principles of equitable relief, including losses for detrimental reliance, as possible causes of action. Ultimately, it depends on what one hopes to accomplish. If it is to force them to accept the filing, and possibly issue an EAD and AP for all eligible members, then there may be a possible benefit to showing that one attempted to file the case and it was improperly rejected by the USCIS.

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Chat Master : Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

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Chat User : Quick question for those who filed the I-485 in June but have not yet received the receipt, will that be rejected per July bulletin?

Attorney Murthy : It is hoped that those who filed in June will be safe, even though the visa dates now show retrogression for all employment-based categories. The USCIS must issue a receipt notice unless they continue to flagrantly violate the law and the DOS Visa Bulletin for the June filers.

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Chat User : Do you think that USCIS will keep its promise of making the priority date current in October for filing the I-485?

Attorney Murthy : The U.S. Department of State was simply stating that a new quota will be opened from the start of the new fiscal year starting on Oct 1, 2007. It makes no promises that every person will be eligible to file in Oct. In fact, most EB dates will be like they were in April / May 2007, at best, in all likelihood. It is misleading for those who read the DOS release of today, July 2, 2007.

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Chat User : Dear Ms Murthy, is there a probability of USCIS accepting 140 premium filings, since they are not accepting 485s?

Attorney Murthy : It is possible that they will accept I-140 premium filings starting on Aug 1, 2007, since they put a hold on premium filings for only one month. One could file a regular case and then upgrade it to a premium I-140 case if the USCIS allows premium processing of I-140s again.

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Chat User : With the bulletin revised, do you advise filing 485 in the hope of favorable verdict in the lawsuit again USCIS?

Attorney Murthy : No one can be sure about what may happen in a lawsuit. It is likely that the gov't will want to throw out cases. But one must stand firm for what one believes is gross injustice against people's lives. No one asked the U.S. DOS to make the dates current, raise hopes, then for them to dash those hopes cruelly by issuing a revised Visa Bulletin on the very first day that a case could possibly be filed under the most recent Visa Bulletin issued in mid June for July 2007. We believe that many cases are won against the gov't by showing that one attempted to file under the law before it was changed improperly and in violation of long-standing policy and practice. Then one suffered harm or damage by the government's actions, like family members not getting the EAD or AP or not being able to take advantage of AC21 filing, etc.

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Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

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Chat User : What is the initial evidence for 485? Can USCIS reject the case or will they send an REF? If they reject, can we reapply for I-485? if yes, do we need to file fees and all documents again?

Attorney Murthy : If the USCIS rejects the package, usually that means that they will not encash any checks or review the package, but simply return it. Even if they accept it and issue the USCIS receipt notice, one can file for the EAD and AP extensions each year. Some people think that the USCIS may ask for the proof of the filing in July 2007, so that maintaining the evidence of the submission with the overnight courier service will act as evidence in such cases.

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Chat User : What would be the impact of this updated July Visa bulletin on people who filed for AOS, EAD, and AP in June 2007?

Attorney Murthy : We hope and expect that it means business as usual for such folks and that they will receive the USCIS receipt notice and obtain the EAD and AP within 3 or 4 months. One cannot be 100 percent sure, since they have flagrantly changed the rules in the middle of the game.

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Chat User : Hello, Ms. Murthy. How soon will the legal case be filed against DOS/USCIS? If a verdict is offered, when can we expect it? before October or November?

Attorney Murthy : The goal is to file the cases quickly; preferably, so that the judge will accept the case on an emergency basis and force the USCIS to accept all filings during July 2007, or require people to show evidence of having attempted to file in July to be eligible for relief. The USCIS cannot issue an immigrant visa number but they can accept the I-485 and then issue the EAD and AP, etc, for all eligible folks. Litigation, by its nature, is never 100 percent precise and will provide no guarantee that all will be exactly how we want things.

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Chat Master : Due to the server problems, tonight's MurthyChat will be extended for an extra 15 minutes.

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Chat User : Is there a possibility of USCIS reversing its decision today and making EB current again, at least for July 2007?

Attorney Murthy : I doubt that the USCIS will reverse its decision of its own free accord by making the PDs current for July 2007. The only way the USCIS will accept any I-485s for July 2007 is if the court forces them to accept cases from those who attempted to file and were improperly refused under the rules as we all knew them for decades. First, the DOS should not have issued a revised Visa Bulletin, since that has never happened before. Second, the USCIS compelled the DOS to do this, so that they could use that as the excuse to stop accepting I-485s.

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Chat User : Hello, Attorney Murthy. You and your law office played a major role in the movement of visa dates in June. Do you plan to have such conversations with DOS Chief in the future, to see if some relief can be provided from October 2007?

Attorney Murthy : Yes, we have been in communication with the DOS on this matter. They were helpful when they found that the USCIS was not processing cases, as had been promised for years. Suddenly, when the USCIS realized that they could not continue dragging out the processing of I-485s for years, they moved and processed, presumably, 40,000 to 60,000 cases within one month! That seems a little difficult to believe, when last year, in the entire 12 months, the USCIS only processed about 10,000 cases a month. If they truly have processed that many cases, then the DOS must follow the law and cannot release more immigrant numbers than the law allows each year. But that revised Bulletin should have been from August 2007 onwards, not for July 2007. From Oct 2007, there will be some movement with a cutoff date, but it may be closer to the dates from April and May 2007, than becoming current again.

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Chat Master : Due to this evening's server problems, we are extending tonight's MurthyChat until 10:15 p.m., ET.

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Chat User : Hello, Ms. Murthy. Since the hopes of getting GC are slim, what do you advise to people who want to change job profiles? Is it possible on 3-year H1B extension after 6 years?

Attorney Murthy : It is possible for a person who has an I-140 petition approval to file a 3-year H1B with a new employer. Today, we received an RFE from the VSC, advising our law firm that they would approve only a one-year H1B extension, since the priority dates are current. We were baffled that they did not know anything of what is going on with the priority dates and guided them to their own website to require they approve the H1Bs for 3 years instead of one year. They were surprised to learn of this development. So, yes, one option is to file the 3-year H1B and then carry the earlier PD from the first I-140 approval to start a new PERM case with a new employer.

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Chat User : Can one file for I-140 now and file for I-485 on Oct 1 (assuming PD become current) without I-140 approval notice?

Attorney Murthy : Yes, it is possible to file the I-140 petition now and, when the PDs become current for a particular person, then file the I-485 at that time with the receipt notice and without waiting for the I-140 approval notice. The I-140 approval notice is helpful to get the 3-year H1B extension and for AC21 portability purposes, as well as to carry the earlier priority date, if one changes employers, etc.

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Chat User : The June Bulletin had EB2 PD at April 2004. IF AT ALL, the new numbers are allocated on Oct 2007, will EB2 dates retrogress or will they be the same as in June 2007 Bulletin?

Attorney Murthy : At best, it will be as in the June 2007 Visa Bulletin, though it is likely to be closer to the April or May 2007 visa bulletin dates! It is not likely to become current for those categories that are traditionally backlogged.

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Chat User : Dear Ms. Murthy, do I have to be a plaintiff to take the benefit of the lawsuit, or by just maintaining the proof of filing, will I be eligible for the relief, in case the lawsuit goes in our favor?

Attorney Murthy : It will help to be registered, so that the gov't is required to contact every person who has registered as part of the affected class. It is true that many immigrants feel nervous about the possible ramifications from suing the gov't, but we have found that, if one is eligible for a legal benefit under law, the gov't cannot deny that person the benefit simply because the individual decided to exercise her/his legal rights and sue as allowed by law. It may be sufficient, but then the burden will be on each person affected to notify the USCIS to accept the filing, if the court orders them to make amends, should the plaintiffs win in the lawsuit.

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Chat User : Dear Ms. Murthy, does I-485 rejection for all July 2007 filings have any future consequences? In other words, is the Labor / I-140 still valid?

Attorney Murthy : Gosh, there is no problem with your LC and I-140 petition. They all remain fully valid and fine. The only downside is that one has to wait longer to file the I-485 and obtain the EAD and AP for him/herself and all immediate family members, as allowed to file. Sometimes, the USCIS may incorrectly cash the checks, and then one needs to send all the filing fees again for another I-485 filing.

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Chat User : Murthiji, what will happen to the I-485 cases that are mailed this morning? USCIS will receive them tomorrow morning. Will they return the entire package with the checks?

Attorney Murthy : Yes, the USCIS will most likely return the entire package with the checks. Then one will need to wait until his/her PD becomes current again to file later.

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Chat User : Hello, Ms. Murthy. What is a realistic expectation for priority dates for EB3 as of Oct 2007? Also, would it be required to go through the medical exam again, if we file on or after Oct 2007, if we have already done so in June 2007?

Attorney Murthy : If the medicals are less than 1 year old, they are supposed to be valid for filing the I-485. There likely will be some cases for which it may take longer than a year for the PD to become current again, especially for those with recent priority dates.

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

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Chat User : What will be the status for mid & late June AOS filers who have not received the Receipt from USCIS?

Attorney Murthy : It should be fine. Hopefully, they will get the receipt notice within a few weeks, since that would be more outrageous than even now.

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Chat User : Ms Murthy, will holding press conferences by people like us help any to publicize the matter or gain public sympathy?

Attorney Murthy : Yes, it will help. I have been contacted by media today on this issue. You should contact them, senators and representatives in your state, through your employer to point out the unfairness and violations of policy on the part of the gov't. We need to use all avenues to bring light to this and filing suit sometimes helps for the other side to take notice, especially if they think they can trample on the rights of people with no adverse consequences.

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Chat User : We will be posting updates on MurthyDotCom about the AILF lawsuit and FAQs about it. Please check the main page from time to time.

Chat Master : This ends tonight's session of the MurthyChat.

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Attorney Murthy : We look forward to continuing to help you, your family, and your friends with all of your immigration matters.

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Chat Master : Thank you all for logging in! The schedule will be posted at http://www.murthy.com/chat.html

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Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved