TOPICS in this Edition of the MURTHYBULLETIN:
1. INS Audit Puts Case Processing on Hold
2. Key Processing Issues Discussed with INS Officials
3. INS Nebraska Service Center Agrees to an RFE Fax Out / Fax Back System
4. Flawed House Budget Proposal for INS / DOJ
5. Backlog Reduction Bill Introduced in the House
6. New Law on Exit / Entry Control System Enacted to Replace "Section 110"
7. INS Service Center Processing Times
|
|
Subj: Attorney Murthy's Immigration Bulletin Date: 7/14/00 5:13:29 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. 28, July 2000, Week 2 Posted: July 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 immigrants, 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. ----------------- To Subscribe: Send a blank e-mail to: murthybulletin-subscribe@topica.com <mailto:murthybulletin-subscribe@topica.com> To Unsubscribe: Send a blank e-mail to: murthybulletin-unsubscribe@topica.com <mailto:murthybulletin-unsubscribe@topica.com> NOTE: Unsubscribe from the e-mail address you subscribed. Keep in mind that the Immigration Bulletin may reach you from other sources than this list (for example: India Network, forwarded from a friend etc.). In such cases, you will have to unsubscribe accordingly. Contact webmaster@murthy.com if you have any problems. MURTHYBULLETIN is an **Announcement Only** list. This means that subscribers cannot post to the list. ----------------- TOPICS in this Edition of the MURTHYBULLETIN: 1. INS Audit Puts Case Processing on Hold 2. Key Processing Issues Discussed with INS Officials 3. INS Nebraska Service Center Agrees to an RFE Fax Out / Fax Back System 4. Flawed House Budget Proposal for INS / DOJ 5. Backlog Reduction Bill Introduced in the House 6. New Law on Exit / Entry Control System Enacted to Replace "Section 110" 7. INS Service Center Processing Times ----------------- 1. INS Audit Puts Case Processing on Hold For those of you patiently awaiting adjudications of your H1B or I-140 Petitions, don't expect any approvals during the week of July 17, 2000, or perhaps for a few weeks thereafter. The Immigration and Naturalization Service (INS) has announced plans to conduct an agency-wide inventory of all pending cases during the week of July 17, 2000. The apparent purpose is to determine the dollar value of these cases, so that the correct amount can be withdrawn from the "user fee account" and be put toward processing the case backlog. The audit will involve opening each file and counting each form. According to the American Immigration Lawyers Association (AILA), this will interrupt processing for at least a week at all the four INS Service Centers. The one exception is that permanent residency "age-out" cases (where a beneficiary or family member is about to turn 21 years of age) will continue to be processed. As for the local INS District Offices, some locations may be at a standstill for as long as one to two months. Even worse is the news that the July 2000 audit is only a "run-through" or practice audit, similar to a smaller one that occurred in May 2000. The actual audit will happen in late September 2000, and is likely to cause another halt in case processing at the INS Service Centers. The fact that INS always seems to be scrambling for funds to do its job is closely linked to Congressional under-funding of adjudication functions, and to the raiding of the user fee account to pay for enforcement activities. Backlog reduction bills pending in Congress recognize that much of the monetary shortfall is due to the decisions of the U.S. Congress with respect to the allocation of funding. (See article 5 below about the House backlog reduction bill; the Senate bill, introduced by Sen. Dianne Feinstein (D-CA), is described in an earlier edition of the MURTHYBULLETIN.) Now, let us look at the bright side. If the money is correctly allocated and the INS can hire more adjudicators, or provide for overtime of their employees to adjudicate pending INS petitions, then perhaps future processing will speed up. We can only hope so. © Copyright Law Office of Sheela Murthy ----------------- 2. Key Processing Issues Discussed with INS Officials From time to time in the MURTHYBULLETIN, we highlight important issues addressed in meetings between representatives of the American Immigration Lawyers Association (AILA) and governmental agencies responsible for implementing the nation's immigration laws, such as the INS, the U.S. Department of Labor, and the U.S. Department of State. On June 29, 2000, AILA attorneys held a teleconference with officials at INS headquarters and discussed several processing issues of interest to our readers. I-140 Processing Delays One major concern is the processing time for Form I-140, the employment-based immigrant visa petition. Current processing times are longer than ever, with cases commonly taking as long as 14 months. This unprecedented delay can pose problems for persons reaching the end of their maximum stay in H or L status. Many persons are obliged to leave the country because they are still awaiting I-140 approval when their nonimmigrant status expires. Most Service Centers have not considered the limit on H or L status as a ground to expedite an I-140. AILA has urged the INS to develop an action plan to expedite such I-140 cases. In response, INS stated that they are working to solve the underlying problem by reducing the I-140 processing times. INS Headquarters has set a goal of 90 days for processing I-140s and has directed the Service Centers to submit action plans to achieve this goal by the end of the fiscal year (i.e., September 30, 2000). If cases can be processed within the 90-day timeframe, then the expedite plan would not be needed. Excessive Requests for Additional Evidence Many attorneys, through AILA, have submitted examples of unnecessary or unduly burdensome INS Requests for Evidence (RFEs). The INS will issue an RFE on a pending case to request additional information when the examiners believe that the information submitted is insufficient for an approval of the case. Obviously, RFEs are necessary in some cases. Yet attorneys have reported an unwarranted increase in the number of RFEs issued, and a broadening of their complexity and scope. In some recent cases, RFEs have presented mere recitations of the law with no specific questions. INS Headquarters indicated in the teleconference that they were about to issue Standard Operating Procedures to ensure some consistency in the handling of cases. It is expected that the clearer guidelines will enable INS examiners to issue fewer unnecessary RFEs. H1B Quota Cut-Off INS officials declined to provide the cut-off date for H1B cases to be processed within current fiscal year approvals, with a starting date of earlier than October 1, 2000. So it is still not possible to indicate a definite date, or to state that cases received after that particular date would be processed for the next fiscal year, with October 1 start dates. When updates are available from INS on this issue, we will pass that information along to readers of the MURTHYBULLETIN. New H Supplement Form The new H Supplement, discussed in the June 29, 2000 edition of the MURTHYBULLETIN (which can be found at : <http://www.murthy.com/jun2900.pdf>), is scheduled to go into effect from October 2000. The controversial subject of the beneficiary’s signature will be discussed in AILA's next conference call with INS headquarters. © Copyright Law Office of Sheela Murthy ----------------- 3. NSC Agrees to an RFE Fax-Out / Fax-Back System The INS Nebraska Service Center (NSC) has agreed, in light of recent discussions with the American Immigration Lawyers Association (AILA), to a new fax-out / fax-back system. This will enable adjudication officers to fax certain simple Requests for Evidence (RFEs), and allow attorneys to respond by fax. Under this system, the NSC will fax an RFE if it involves a simple issue capable of being resolved by fax. The RFE will instruct the attorney to respond to a dedicated NSC fax number within 72 hours of issuance of the RFE. If the attorney does not respond within 72 hours, the regular 87-day time frame, within which all RFEs must be addressed, will be used; and the RFE response will be treated the same as if it had arrived by mail. If inappropriate documents are faxed, the NSC may decide to terminate the RFE fax-out / fax-back program. In an effort to sustain this new option, AILA is urging its members not to abuse the program, and to send only items specifically requested by an RFE that the NSC sends by fax. Thus, if an RFE is received via mail, it is necessary to respond to the RFE via mail, and not by means of the fax-back program. © Copyright Law Office of Sheela Murthy ----------------- 4. Flawed House Budget Proposal for INS / DOJ In this MURTHYBULLETIN article, we share with you some information about INS funding -- one of the major sources of delays in processing of immigration-related petitions and applications pending with the INS. The annual appropriations bill to fund the U.S. Departments of Commerce, State, and Justice (which includes the INS) is now being considered in the House of Representatives. The budget bill for the fiscal year 2001, H.R. 4690, calls the immigration system "broken" and places much blame on the INS. The bill recognizes that funding shortfalls have played a role in increasing backlogs, but still faults the INS for failing to "adequately address its mission responsibilities." Unlike an earlier budget proposal from the White House, H.R. 4690 opposes the reinstatement of the Immigration and Nationality Act’s Section 245(i). That is the provision which enables those who are out of legal status in the U.S., but are otherwise eligible, to pay a $1000 extra fee to go through the final stage of Green Card processing (I-485) from within the U.S. The White House proposal had relied on the extra fees collected through 245(i) as an important source of funding. While the House of Representatives bill calls 245(i) a "gimmick," the Senate may be more open to restoring 245(i) as a means of alleviating some of the harsh consequences of the 1996 immigration laws. The House budget bill also allows a premium processing fee for expedited service for business customers. This fee would fund various infrastructure improvements. Both the Senate Commerce-State-Justice Appropriations Subcommittee and AILA oppose this expedite fee. In addition to allotting $52 million in new funds for the Border Patrol, H.R. 4690 does provide $44 million in new funding for naturalization and backlog reduction efforts. Another clause, however, allows the transfer of funds between enforcement and adjudications. The draining of fees from the user fee account (where the filing fees go) to enforcement has been the key cause of funding problems on the adjudications side. H.R. 4690 perpetuates that problem. Unlike the backlog reduction bills (see following article), the House budget bill does not adequately address the role of Congress in creating some of the problems that plague the INS. Before the budget bill becomes law, the Senate must draft its own bill. Differences between the two bills must then be worked out, resulting in a joint proposal. Traditionally, the Senate has taken a moderate view as compared to that of the House of Representatives; so it is difficult to predict what will be included in the final budget bill from Congress. © Copyright Law Office of Sheela Murthy ----------------- 5. Backlog Reduction Bill Introduced in the House On June 29, 2000, Representative Zoe Lofgren (D-CA) introduced an INS Backlog Reduction Bill, H.R. 4798, that closely resembles a similar bill (S. 2586) pending in the Senate. Both bills would create a special account earmarked for backlog reduction and improvements in INS procedures. Rather than relying upon user fees to fund this account, the bill would enable direct appropriation by the U.S. Congress of the necessary funds. One key difference between the House and Senate Bills is the definition of the timeframe for a case to be considered backlogged. H.R. 4798 defines a backlogged case as a nonimmigrant (temporary, e.g. H1) case pending more than 30 days or an immigrant (permanent) case pending over 90 days. This is stricter than the timeframes in S. 2586, which considers "backlog" to mean any case pending more than 180 days, except for H, L, O, and P non-immigrants, whose timeframe is 30 days. According to AILA, the authors of these bills "recognize that many of the processing delays are Congress' responsibility. In recent years, Congress has pumped funds into enforcement, provided insufficient additional money and much attention to naturalization, and diverted money from adjudications to pay for nonadjudicatory functions, thereby contributing to the enormous backlogs in almost every area of the agency." In contrast to the above understanding, the House's DOJ / INS budget proposal (see preceding article) would perpetuate the practice of raiding the user fee account to pay for enforcement initiatives, a move opposed by AILA and many immigration law attorneys, including those at the Law Office of Sheela Murthy. © Copyright Law Office of Sheela Murthy ----------------- 6. New Law on Exit / Entry Control System Enacted to Replace "Section 110" In an earlier MURTHYBULLETIN, we reported on a bipartisan compromise plan in Congress to repeal Section 110, a controversial section of the 1996 immigration law that would have required an entirely new automated system for tracking entries and exits across the borders. Instead, legislators agreed to pass a bill that would require the development of a database to organize the information already being collected by such agencies as the INS and the U.S. customs service. We are pleased to report that quick action was taken to draft and pass this substitute bill, H.R. 4489, the INS Data Management Improvement Act. It was signed into law by the President on June 15, 2000. This Act is considered a major victory for the pro-immigration lobby and a blow to Senator Smith, the strong proponent of Section 110. Kudos to all our good work and efforts that resulted in the new Act, replacing Section 110. © 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/pt_calif.html> Nebraska <http://www.murthy.com/pt_neb.html> Texas <http://www.murthy.com/pt_tex.html> Vermont <http://www.murthy.com/pt_verm.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 <mailto:law@murthy.com> WebSite : <http://www.murthy.com> ----------------------------------------------- ___________________________________________________________ T O P I C A The Email You Want. http://www.topica.com/t/16 Newsletters, Tips and Discussions on Your Favorite Topics ----------------------- Headers -------------------------------- Return-Path: <.list-errors.700002501.0.700627283.004@boing.topica.com> Received: from rly-yb02.mx.aol.com (rly-yb02.mail.aol.com [172.18.146.2]) by air-yb01.mail.aol.com (v75_b1.4) with ESMTP; Fri, 14 Jul 2000 17:13:29 -0400 Received: from outmta004.topica.com (outmta004.topica.com [206.132.75.201]) by rly-yb02.mx.aol.com (v75.18) with ESMTP; Fri, 14 Jul 2000 17:12:51 -0400 To: murthybulletin@topica.com From: Attorney Sheela Murthy <.webmaster@murthy.com> Subject: Attorney Murthy's Immigration Bulletin Date: Fri, 14 Jul 2000 14:11:19 -0700 Message-ID: <0.700002501.1262133326-951758591-963609079@topica.com> Reply-To: webmaster@murthy.com X-Topica-Loop: 700002501 Received: (qmail 21054 invoked by alias); 14 Jul 2000 21:11:10 -0000 Received: (qmail 20123 invoked by uid 0); 14 Jul 2000 21:08:43 -0000 Received: from harrier.prod.itd.earthlink.net (207.217.121.12) by inmta006.topica.com with SMTP; 14 Jul 2000 21:08:43 -0000 Received: from VAIOid (ip100.charleston4.sc.pub-ip.psi.net [38.30.243.100]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with SMTP id OAA12992 for <.murthybulletin-*****@topica.com>; Fri, 14 Jul 2000 14:08:33 -0700 (PDT) MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 |