update pending H1B Bills. trends in priority date chart. labor certification - employer's recruitment efforts. INS 800 number. expanded extraordinary ability petition approval for physicist. INS service center processing times

h1visajobs.com thanks....
Sheela Murthy, Attorney at Law for this news article.
(h1visajobs.com Reference#21May2000MURTHY)

Subj: Attorney Murthy's Immigration Bulletin
Date: 6/14/00 12:59:53 PM Eastern Daylight Time
From: webmaster@murthy.com (Attorney Sheela Murthy)
Reply-to: webmaster@murthy.com
To: murthybulletin@topica.com

MURTHYBULLETIN
Attorney Murthy's Immigration Bulletin
LAW OFFICE OF SHEELA MURTHY, PC
Phone : 410-356-5440
Email : law@murthy.com
WebSite : <http://www.murthy.com>

VOL. VI, no. 24, June 2000, Week 3
Posted: June 14, 2000

-----------------

Attorney Murthy's Immigration Bulletin is a free e-newsletter covering all
aspects of U.S. immigration law. It contains the latest updates on work
visas, green cards and tracks changes in the law and procedure. Recommended
reading for all those interested in immigration law matters, including HR
managers, foreign employees, U.S. employers and students.

This Bulletin and past editions, as well as numerous other articles, are
available at our website.

This Bulletin is not sent unsolicited. The information provided below 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 Law Office of Sheela Murthy. This Bulletin
does not intend to establish an attorney-client relationship. Please be
advised that if you have a case specific question / situation on an
immigration matter, you should consult with an attorney who concentrates in
the area of immigration law.

-----------------

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TOPICS in this Edition of the MURTHYBULLETIN:

1. H1B Tentative Cut-Off Date for FY 2000 Cap Cases is March 10, 2000

2. Labor Certification Backlog Reduction Plan at Dept. of Labor

3. Visa Lottery Update and Dates for Next Year Announced

4. INS Issues Interim Procedures for Visa Waiver Program

5. Attorney Murthy Speaks on AILA Panel on EB1 and NIW

6. Article Review: “The Immigration Problem Then and Now”

7. INS Service Center Processing Times

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1. H1B Tentative Cut-Off Date for FY 2000 Cap Cases is March 10, 2000

In previous issues of the MURTHYBULLETIN, we have mentioned that the
Immigration and Naturalization Service (INS) has been processing and placing
temporary “pauses” on processing of the Fiscal Year (FY) 2000 H1B cases
subject to the 115,000 quota for this FY. The INS has recently announced
that it believes that all four Service Centers will reach the goal of
processing all H1B cases subject to the H1B cap for this fiscal year, during
this week of June 12, 2000.

Once the Service Centers confirm that they have reached the processing of
cases filed on or before March 10, 2000, the INS again expects to pause
processing of the H1B cap cases. Although the INS has not explained what the
“pause” means, we assume that they will again review the H1B cases approved
against this fiscal year at all the four Service Centers and make a decision
regarding whether that should be the final cut off date, unless U.S.
Congress passes legislation increasing the H1B quota for this fiscal year.

The California Service Center (CSC) hopes to clear its backlog of non-H1b
cap cases. CSC confirms that they have processed non-H1B cap cases filed
through April 10, 2000, and intend to reduce their backlog on non-cap H1Bs
to 45 days.

© Copyright Law Office of Sheela Murthy

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2. Labor Certification Backlog Reduction Plan at Dept. of Labor

In a report dated February 24, 2000 the U.S. Department of Labor (DOL)
proposed an ambitious plan to the U.S. Congress that would completely
eliminate the case backlog in the permanent labor certification (LC) process
by the end of 2001.

Overview of the LC Process:

If an employer of a foreign worker wishes to sponsor the worker through the
green card process, the first step in a majority of cases is the labor
certification. The purpose of the labor certification process is to
determine whether there is a qualified U.S. worker available to take the
job. After the labor certification, the employer files the I-140 Immigrant
Petition with the Immigration and Naturalization Service (INS). Once the
employer’s petition is approved, the employee submits his/her paperwork to
INS in the U.S., or at a consulate abroad, for the final stage of the green
card process.

Regular Labor Certification Process:

The Department of Labor has authorized state labor offices to accept
applications for labor certification and to oversee the initial recruitment
process. Upon receipt of the application, the state employment office (SESA)
assigns a priority date to the case and review the documents for
sufficiency. If no further information or clarifications are needed, the
SESA then issues advertising instructions to the employer. The employer
advertises the position and then issues the “results of recruitment” letter,
assessing the qualifications of anyone who may have applied. The SESA then
forwards the case file to the Regional Office of the Department of Labor
with a recommendation. The Department of Labor reviews the case, and either
certifies the application or issues a request for more information.

RIR Process:

By 1995, serious backlogs developed. By late 1996, with the backlogs
increasing across the country, the Department of Labor published guidance,
GAL 1-97, encouraging the use of the Reduction in Recruitment (RIR) method.
The Department of Labor ascertained that the longest delay in the regular
method occurred at the advertising and recruitment phase. They proposed that
for certain occupations for which a shortage of U.S. workers could be shown
to exist, it would be more efficient to complete the advertisements prior to
filing the application to the SESA. Employers who could demonstrate a
“pattern of recruitment” would be spared the inconvenience of waiting for
the SESA to issue advertising instructions. Instead, information on the
results of the recruitment would be submitted together with the application.

While the idea was a good one, the Department of Labor did not specify what
would constitute a pattern of recruitment, i.e. how many advertisements to
place, in what type of publication, how often, etc. Instead, the standard
was “a pattern of recruitment that has taken place within the last six
months." Many employers and SESAs, uncertain as to what was required of
them, were slow to begin using the process. For about two years, many
employers chose to continue using the slower but more predictable “regular
labor certification” process. This wary attitude further increased the large
backlog.

Moreover, Congress cut funding to the states for the labor certification
program by 33% in 1997. The shortage of resources caused a further reduction
in staffing at the SESAs, adding to the delays.

The process was strained even further by the sunset of Section 245(i), a law
that had allowed those present illegally in the U.S., who were otherwise
eligible for permanent residency, to complete their green card process from
within the U.S. rather than applying from consulates abroad. An announcement
was made that persons for whom labor certification applications were filed
prior to midnight of January 14, 1998 would be able to preserve the benefit
of being able to file for the green card in the U.S. (adjust status in the
U.S.)

As a result, an unprecedented number of cases were filed in the period
between November 1997 and January 1998. As of June 2000, some SESAs are
still working on regular cases filed on or before January 14, 1998. By late
1999, RIR was accepted as the preferred method of processing cases and the
backlogs began to recede. Because there are still over 75,400 cases pending,
however, Congress requested that the Department of Labor develop a backlog
elimination plan as expeditiously as possible.

The New “PERM” Process:

The Department of Labor’s newest solution, commonly called the “PERM
process,” introduces the following highlights.

Increased funding - Congress has provided an additional $5 million to be
distributed proportionately to the SESAs with the greatest backlogs.

The pipeline regulation - The Law Office of Sheela Murthy first reported
back in November 1999 that the Department of Labor had announced plans to
enable conversion of existing cases undergoing the regular labor
certification process to RIR, as part of an overall effort by the Department
of Labor to reduce backlogs at the state labor offices.

The PERM process would work as follows. An employer who conducts recruitment
(advertisements, job fairs, etc.) after a regular LC case is filed, but
before advertising instructions have been issued, would be able to submit
documentation of these recruitment efforts to the SESA as evidence of recent
recruiting. This documentation would allow the case to be converted to RIR
processing while retaining the original priority date. The Department of
Labor has estimated that about 85 percent of applications that are converted
to RIR would then be approved promptly.

Note: Since the time that this regulation was proposed, it has been
projected that the regulation would have an initial publication date
"sometime" in December 1999. That date was soon pushed forward to "sometime"
in March 2000 and effective May 2000. As of May 31, 2000 the draft
regulation was in the review process at the Office of Management and Budget,
so it may be several more months before the final regulation goes into
effect. The tentative proposed date for final implementation of the PERM
process is March 2001.

The benefits of the PERM process include elimination of the middle people:
one files all documentation directly with the Department of Labor. Then the
Department reviews it, requests any needed information, and issues a
decision on the case. The idea is to streamline the process by eliminating
any duplication of work between the state and federal agencies.

As previously reported in the MURTHYBULLETIN, the same type of application
package now prepared for the RIR process would be used in the PERM method.
The employer would make a good faith effort to recruit eligible U.S. workers
prior to the filing of a Labor Certification application, and--after finding
no available and qualified U.S. workers--would prepare the application,
showing that the company has an opening for the position and that the
sponsored employee meets the stated minimum requirements.

The difference between PERM and RIR is in the procedure for filing and
reviewing the labor certification applications. Currently RIR applications
are filed with documentation (such as copies of newspaper advertisements,
job fair information, Internet advertisements, results of recruitment
efforts and company information) to the state level Department of Labor. If
the SESA finds the application acceptable, it is forwarded to the Department
of Labor for final review and certification.

In contrast to RIR, PERM applications will be filed by facsimile, directly
to the Department of Labor. The application will be accompanied by an
affidavit summarizing the employer’s recruitment efforts. A percentage (yet
to be determined) of labor certification filings will be drawn from the lot
of filed applications and audited to ensure compliance with the law. While
no specific criteria have been established for these audits, proof of the
employer’s assertions would probably be required; therefore, a comprehensive
record must be kept. The new system has been promised to be in place by
April 1, 2001.

The following chart, included in the Department of Labor proposal,
illustrates the ambitious schedule for reducing the backlog:

Backlog beginning of year : (FY2000) 75,400 ----- (FY 2001) 40,400
Incoming Cases : (FY2000) 55,000 ----- (FY 2001) 27,000
Cases Processed : (FY2000) 90,000 ----- (FY 2001) 67,400
Backlog end of year : (FY2000) 40,400 ----- (FY 2001) 0

In addition to the above, the Department of Labor has already launched some
backlog reduction initiatives:

- Regions have been instructed to assess cases by reviewing 7 "key elements"
to determine the availability of U. S. workers.

- Regions have been instructed to perform "triage" with respect to incoming
cases, and act quickly in cases involving occupations in which there is a
known worker shortage.

The Law Office of Sheela Murthy, P.C. is optimistic about the potential of
these proposed changes for revolutionizing and shortening the time frames to
process permanent labor certifications. We view these proposals with some
caution, however, realizing that initial confusion is possible before any
new system operates efficiently. We will continue to provide updates on the
changes in labor certification processing as further information becomes
available.

© Copyright Law Office of Sheela Murthy

-----------------

3. Visa Lottery Update and Dates for Next Year Announced

In a news release on May 31, 2000, the U.S. Department of State (DOS)
reminded applicants who had been chosen through the DV-2000 Diversity Visa
Lottery that their permanent residency process needs to be completed by
September 30, 2000 -- the end of the current fiscal year.

As many readers of the MURTHYBULLETIN are aware, an annual lottery provides
an opportunity for persons from countries that do not have many immigrants
to the U.S. to be randomly chosen to apply for their green cards. Countries
such as India, China, Mexico, and Canada, whose nationals are well
represented in the U.S. immigrant population, are not eligible to
participate.

Every year, all visas available under the program must be issued before the
fiscal year ends. Formerly, 55,000 permanent visas were available each year
under the program. However, in 1997 Congress passed NACARA (the Nicaraguan
and Central American Relief Act), which sets aside 5,000 of those visas for
use by NACARA program applicants. Therefore, beginning with FY2000, there
are 50,000 lottery visas available annually. (That may seem like a large
number, but many more people apply!)

The DOS projects that the annual limit may be reached well in advance of
September 30, 2000 for this fiscal year, and advises that any remaining
paperwork needed to complete the adjustment of status or immigrant visa
process be submitted immediately.

Further, on May 30, 2000, the DOS also announced the application period for
the next lottery, known as DV-2002. Applications will be accepted between
noon on October 2, 2000 and noon on November 1, 2000. Previously,
applications were mailed to the National Visa Center in Portsmouth, New
Hampshire. However, the Diversity Lottery applications will now be processed
from the DOS’s new Kentucky Consular Center in Williamsburg, Kentucky.

The DOS plans to issue complete instructions for DV-2002 in August 2000.
Those instructions will be available on the DOS’s informative website,
<http://travel.state.gov>. In addition, written instructions can be obtained
by the fax-on-demand method at 202-647-3000, while recorded information will
be accessible by calling 202-331-7199. Again, this information is not
expected to be available until August 2000. Persons outside the U.S. will be
able to inquire at their local U.S. embassy or consulate to obtain
instructions for DV-2002.

The Law Office of Sheela Murthy hopes that DV-2002 will provide a golden
opportunity for those of you who may not have other options, to realize your
dreams in this great country.

© Copyright Law Office of Sheela Murthy

-----------------

4. INS Issues Interim Procedures for Visa Waiver Program

In previous issues of the MURTHYBULLETIN, we have discussed the Visa Waiver
Pilot Program (VWPP), the list of eligible countries, and the reasons these
countries have been selected. Historically, those countries where the
nationals have a high rate of return back home after entering on a visitor
visa or a tourist visa have qualified for the VWPP. VWPP countries include
Japan, Switzerland, Australia, and Britain. Countries such as Mexico, India,
and the Philippines do not qualify for the VWPP.

The VWPP, which allows nationals from eligible countries to visit the U.S.
for up to 90 days without obtaining a visa, expired on April 30, 2000. In
response, the Immigration and Naturalization Service (INS) implemented an
interim measure allowing eligible visitors to be paroled into the U.S.
However the interim measure expired on May 30, 2000, without any renewal of
the program in sight.

The U.S. Department of State’s website is now reporting that the INS has
extended the interim measure until June 29, 2000. In the meantime, the
American Immigration Lawyers Association (AILA) is working with
Congressional offices to encourage renewal of the program, and the INS has
reported that it will make every effort to facilitate the entry of those
visitors who would qualify for the VWPP.

To facilitate travel during this period, the following procedures are in
effect:

The INS has instructed ports-of-entry (POE) officers to parole for 90 days
all applicants who are eligible to enter under VWPP, as though the program
had been continued.
The foreign national must complete both the front and back of form I-94W
prior to applying for admission.
If the foreign national would be admissible under the VWPP, INS inspectors
are to place the admission stamp on the I-94W (both the arrival and
departure portion).

VWPP transportation lines will not incur any fines under the law for
boarding visitors who would otherwise have been admissible under the VWPP.

For those entering at land borders (as opposed to airports) the $6.00 fee
will be collected when the Form I-94W is processed, even though applicants
may be paroled.

INS POE officers may allow re-entry of persons paroled on or after May 1,
2000 who travel out of the U.S. during the 90-day admission period, within
the remaining time indicated on the parole I-94W, if such persons are still
eligible.

AILA reports that there is a proposal in the U.S. Congress to extend the
visa waiver program on a permanent basis. Supporters of the measure hope to
pass a bill within the next few weeks. Stay tuned for further updates from
The Law Office of Sheela Murthy.

© Copyright Law Office of Sheela Murthy

-----------------

5. Attorney Murthy Speaks on AILA Panel on EB1 and NIW

Again this year, Attorney Murthy has been invited to speak to immigration
lawyers in an advanced session at the Annual Conference of the American
Immigration Lawyers’ Association. This year, the Annual Conference will be
held in Chicago from June 14 through June 18, 2000.

Attorney Murthy will address complex questions and issues pertaining to
filing and obtaining the Green Card without undergoing the labor
certification process. Although the majority of candidates can qualify under
the regular labor certification or the RIR processes discussed above in this
issue of the MURTHYBULLETIN, there are several categories of applicants who
could qualify for the green card without undergoing the labor process. These
include candidates for the Employment-Based First Preference (EB1)
categories, either as Intra-company Executives or Managers, as Persons of
Extraordinary Ability, or as Outstanding Professors and Researchers. Also
exempt from labor certification are those in the Employment-Based Second
Preference category - those of exceptional ability, generally holding at
least one advanced degree, whose work is deemed in the national interest of
the U.S. (NIW)

The Law Office of Sheela Murthy is proud to have an outstanding and
dedicated staff of professionals who regularly participate in various
national and regional seminars. This work advances the progress of U.S.
immigration law, and educates immigration lawyers about options that help
them to provide the very best service to their clients.

© Copyright Law Office of Sheela Murthy

-----------------

6. Article Review: “The Immigration Problem Then and Now”

In prior issues of the MURTHYBULLETIN, we have discussed the benefits
brought by immigrants to the U.S. economy and education. We wish to share
with you another interesting article on the history and nature of U.S.
immigrants and their overall contributions to the U.S.

This fascinating article, “The Immigration Problem Then and Now” by Richard
Vedder, Lowell Gallaway, and Steven Moore, published in the April 15, 2000
issue of Bender’s Immigration Bulletin, explores immigration from a
historical perspective.

Vedder’s primary thesis is that U.S. citizens have the flawed assumption
that today’s immigrants present more problems to society than past
immigrants did. According to the article, the fear sometimes expressed --
that modern immigration will “destroy” the U.S. -- is not new. As far back
as colonial times, English colonists were described as a “race of convicts."
Later, in the mid-1800’s, Irish immigrants were blamed for high rates of
crime and pauperism. Twenty years later, U.S. residents decried the great
influx of Chinese on the West Coast, and as a result passed the Chinese
Exclusion Act of 1882. After that, negative sentiments focused on the new
influx of eastern, central, and southern European immigrants.

After the rise and fall of these various attitudes, mid-twentieth century
changes in the immigration law spawned yet another round of anti-immigrant
rhetoric. While in the past the majority of immigrants came from Europe,
today three times as many immigrants come from Asia than from Europe, and
the overall proportion of non-white immigrants has increased. This fact
alone has created controversy across the U.S. political spectrum. Some point
to the new influx of immigrants as the cause of environmental problems and
over-congestion. Those at the other end of the political spectrum have
become upset by the racially diverse society that is the hallmark of the
modern United States.

One of the primary arguments of the anti-immigration movement is that
immigrants pose a substantial burden on U.S. citizens because immigrants
rely on welfare more than the general population. This article points out
that an accurate analysis of the current data suggests that this is not the
case at all. In fact, “the reverse seems to be closer to the truth…as has so
often been the case in American history, the perceived immigrant problem du
jour is largely an illusion.” The Law Office of Sheela Murthy notes that
reports by the Cato Institute (a conservative think tank), as well as the
National Research Council, indicate that the figures on welfare use among
immigrants are slightly less than those for native-born citizens.

The Law Office of Sheela Murthy actively promotes immigrants’ rights through
several pro-immigration organizations, including the American Immigration
Lawyers Association and the American Immigration Law Foundation.

© Copyright Law Office of Sheela Murthy

-----------------

7. INS Service Center Processing Times

You can always locate the most up-to-date processing times for the INS
Service Centers on our website :

California <http://www.murthy.com/law/cscp.html>
Nebraska <http://www.murthy.com/law/nscp.html>
Texas <http://www.murthy.com/law/tscp.html>
Vermont <http://www.murthy.com/law/vscp.html>

© Copyright Law Office of Sheela Murthy

-----------------
This Bulletin is not sent unsolicited. The information provided above 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 Law Office of Sheela Murthy.
-----------------
Copyright 2000, LAW OFFICE OF SHEELA MURTHY, PC

Attorney Murthy's Immigration Bulletin
LAW OFFICE OF SHEELA MURTHY, PC
10451 Mill Run Circle, Suite 100
Owings Mills, Baltimore County
Maryland, 21117. USA.
Phone : 410-356-5440
eMail : law@murthy.com
WebSite : http://www.murthy.com
-----------------------------------------------

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