h1visajobs.com thanks....
Sheela Murthy, Attorney at Law for this news article. http://www.murthy.com
(h1visajobs.com Reference#27May2000MURTHY)

Subj: Attorney Murthy's Immigration Bulletin
Date: 5/27/00 6:49:20 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. 21, May 2000, Week 4
Posted: May 26, 2000

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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, 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. New INS Guidance on H-1/L-1, EAD and Advance Parole

2. Attorney Murthy's Recent Visit to the U.S. Consulate in Mumbai (Bombay)

3. National Interest Waiver Approved for Materials Scientist

4. Compromise Reached on Entry/Exit Control System

5. Change in Dropbox Location for U.S. Consulate in Chennai (Madras)

6. INS Service Center Processing Times

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1. New INS Guidance on H-1/L-1, EAD and Advance Parole

Prior to July of 1999, all adjustment applicants were required to obtain
advance parole authorization before traveling outside the United States. A
person with a pending I-485 application and without an advance parole at the
time of reentry after foreign travel was deemed to have abandoned the
adjustment application. That policy changed from July of 1999, as previously
reported in the MURTHYBULLETIN, to allow persons in valid H-1, L-1, H-4 or
L-2 status to maintain that status even after filing for adjustment of
status (I-485) and to use H or L visas (instead of advance parole) for
travel.

Generally, H-1 and L-1 non-immigrants and their dependents in H-4 or L-2
status who have adjustment applications pending may be readmitted into the
United States in the H or L status, provided they are in possession of a
valid H-1 or L-1 nonimmigrant visa, and the original I-797 receipt notice
for the application for adjustment of status, and they continue to remain
eligible for the H-1 or L-1 classification. All other non-immigrants with
pending applications for adjustment of status must obtain advance parole
authorization prior to traveling outside the United States.

On May 16, 2000 the INS provided further clarification on how they were
going to view the interim rule and provided several points.

- For purposes of approval of the I-485, those who are on the H-1 or L-1
status are required to prove their intent to work for the petitioning
employer in their employment-based adjustment of status case, even though
they can obtain the non-restrictive work authorization (EAD).

- If an H-1 or L-1 holder decides to file for and obtain the EAD but keeps
working for the same company, he/she is still in valid H-1 or L-1 status and
able to extend the H-1 or L-1 as needed (up to the maximum allowable time on
that status). The mere fact of obtaining the EAD does not affect one's
status; only if the person uses the EAD to take on another job, would he/she
no longer be considered to be maintaining H or L status.

- If a person obtained an EAD and then went to work for another company
while waiting for the completion of her/his adjustment case, that action
would effectively terminate the H-1 or L-1 status of the beneficiary and
she/he would have to file for advance parole to travel. The H-1 or L-1
holder would not be able to renew the H-1 or L-1 status in this situation.

- An H-1 or L-1 holder who entered the United States on advance parole can
apply for an extension of H or L status, and the approval of that extension
would enable the person to return to the U.S. on H-1 or L-1 status. (To
maintain that status, the person cannot seek outside employment.)

- An H-1 or L-1 holder who travels out of the United States, and returns on
advance parole, is authorized to continue working for the H-1 or L-1
employer. He/she would not be required to obtain an EAD to work for this
same employer, within the validity dates of the H-1 or L-1 petition
approval.

- If an H-1 or L-1 holder presents both advance parole documents and
documents of valid H-1 or L-1 status at the port of entry to the U.S., the
INS Inspector should tell the person that she/he is not required to present
the advance parole, and admit the person to the U.S. on the H-1 or L-1
status.

- An H-1 or L-1 holder who has entered the U.S. with an advance parole
document may depart and return as an H-1 or L-1 holder if that status has
not expired.

The May 2000 INS memo implies that the new INS regulations will be
consistent with the information above. The Law Office of Sheela Murthy, P.C.
applauds the INS for issuing clear guidance on this important matter.

© Copyright Law Office of Sheela Murthy

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2. Attorney Murthy's visit to the U.S. Consulate in Mumbai (Bombay)

Attorney Sheela Murthy traveled to the U.S. Consulate in Mumbai, India in
April 2000 to meet with the Chief of the Consular Section, Donald E. Wells,
and the Chief of the Immigrant Visa Section, Patrick R. Quigley. The meeting
was a valuable opportunity to discuss various issues pertaining to
non-immigrant and immigrant visas.

The following are some of the questions posed by Ms. Murthy, and her
summaries of the responses from the consulate officials:

Query 1 : What can relatively small or new companies do to facilitate H-1
Visa issuance to their prospective employees? Companies like Microsoft would
never have become large if they had not had the opportunity to hire the
appropriate and qualified technical personnel, so you need to consider that.

Answer 1 : What is important than the size of the company is what the
applicant mentions during the visa interview. Our main concerns are fraud
issues. Since the Consular Officers have various concerns with respect to
both non-immigrant visas and immigrant visas on fraud matters, it is
advisable that the candidate be well prepared for the interview with respect
to the nature of the employer's business, and their own professional skills.
For example, if a computer programmer is unable to answer simple questions
pertaining to computer hardware or software, there may be difficulty in
obtaining an H1B visa.

In those cases where the applicant does not have the appropriate level of
experience, or is unable to obtain the appropriate reference letters from
prior employers and the experience is required to compensate for the lack of
a four year college education in the relevant field, the experience letters
and the degree certificates are analyzed and verified.

Query 2 : What is your Post's current policy with respect to representation
by AILA attorneys in Consular interviews?

Answer 2 : Don Wells, Consular Chief, commented that the minute you let one
person in, everyone will want to come in and act as the attorney of record.
The only times that they allow another person to attend the interview is
when an adult is supervising a child or assisting a handicapped person. In
most other circumstances, they will not allow any other person to enter. An
attorney can wait outside; and after the interview is concluded, the
attorney can meet the consular officer to discuss the reasons for the denial
of the case. (Attorneys would not ask to meet with the Consular officer when
the case is approved!)

Query 3 : Do you have a Business Express Program for companies that
frequently send their employees on business trips to the U.S.? What are the
criteria and procedures?

Answer 3 : Criteria for the Business Express Program for companies that
frequently send their employees on business trips to the U.S. are set forth
at our website located at www.usia.gov/ posts/mumbai. The criteria and
procedures are all mentioned on our website.

Please note that participation in the Business Express Program is by
invitation only. The Consulate requires that the company have processed at
least thirty (30) cases each year for business travelers and not for H-1B
applicants. It is not efficient for us, from an administrative point of
view, to allow the participation of companies with fewer than thirty B-1
applicants per year.

Query 4 : We have been very favorably impressed with the quick turnaround
time for immigrant visa applications submitted with attorney-certified I-140
packages. Do you consider this expedited process to be a success?

Answer 4 : The general policy is that we at the Mumbai Consulate will accept
I-140 Petitions as long as the original I-140 Approval Notice is included
with the package and copies of all relevant documents submitted with the
I-140 Petition to the INS are attached. In addition, the dates should be
current when the package is sent to us since we do not have space for
storage facilities at our Consulate.

The Mumbai Consulate receives the visa numbers even before they are posted
by the U.S. Department of State. We receive the chart early in the month and
at that time we decide to go ahead and issue visa appointment dates for
candidates if the dates are current and we have the above package.

One of the reasons why the Mumbai Consulate prefers to restrict the
expedited process to EB-1 and EB-2 cases is because we find that in many of
the EB-3 cases there is greater fraud and the people are not as well
qualified either with education or experience. We do process those EB-3
cases where the person is educated or which are not considered high
maintenance or high fraud cases.

With respect to our processing I-140 packages, we have the discretion
whether or not to accept the case based on the original approval and
attorney certified copies of the I-140. So far, we have seen very qualified
cases and as long as we are convinced that there is a legitimate claim to
the immigrant visa, and the applicant has jurisdiction at the Mumbai
Consulate, we are happy to go ahead and process the immigrant visa cases and
issue the visas. At present, we have processed and approved about 400
immigrant visas since October 1, 1999 in the employment based categories.

Query 5 : Your post has certainly set the standard for accessibility by
Email. Have the officials at your post considered encouraging other posts to
provide status updates to applicants by Email, or offering training and
ideas to posts seeking to implement such a system?

Answer 5 : Assistant Secretary of State Mary Ryan has allowed each Consular
Post to decide whether or not they would like to be accessible via Email.
Apparently the U.S. Department of State does not necessarily encourage use
of Email and many of the Consular Posts find that it takes a lot of person
hours to review and respond to Emails. The Mumbai Consulate is willing to
help out but so far their help has not been solicited!

At the Mumbai Consulate we consider that our Email process is probably one
of the most efficient and best among U.S. Consulates worldwide. We got into
this process seriously about one year ago, with Patrick Quigley having
solved most of the Email accessibility issues both for the non-immigrant and
immigrant visa sections of the Consulate.

Query 6 : Are there any policies or procedures of which you would like us to
be aware?

Answer 6 : We will not issue B-1 or B-2s to spouses or children of green
card holders. We are very concerned with the incredible delays for spouses
and children of green card holders to enter the United States while spouses
of H-1B holders enter immediately. Although we understand how the
immigration law system works, the difference in treatment defies common
sense!

We had observed one case where the INS Officer at the port of entry turned
down a person who was issued a B-1/B-2 visa after that person's family
member had filed an I-130 Petition as a spouse of a green card holder. So,
we try not to issue such non-immigrant visas in cases where an immigrant
petition has already been filed.

Obviously, since the H-1B or the L-1 do not have any Section 214(b) issues
with respect to the Dual Intent Doctrine (that is, they are not required to
prove that they intend to leave the U.S. when their stay expires), the best
situation would be for such a person, if eligible, to obtain a job offer and
then file an H-1B or an L-1 Petition.

The Mumbai Consulate commented that their Foreign Service Nationals (local
employees) are so good that they can handle an overwhelming load of work and
that is one of the reasons why they are able to process so many cases so
successfully.

A point to keep in mind with respect to H1Bs is that the Consulate will not
wait for the H-1B package to be sent by the INS to the Consulate since they
do not have a very scientific method of maintaining paperwork. It would be
much faster and easier if the visa applicant came into the Consulate with
all of the information for the Consular Officer to make a decision on the
case. (So no cable notification from INS is needed.)

© Copyright Law Office of Sheela Murthy

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3. National Interest Waiver Approved for Materials Scientist

In June of 1999, a client of the Law Office of Sheela Murthy, P.C. filed a
second National Interest Waiver Petition with the Nebraska Service Center of
INS, after the client's original petition had been previously denied. She
had filed her original NIW Petition under the pre-NYSDOT criteria; but INS
denied the NIW after the NYSDOT decision without affording her the
opportunity to address the NYSDOT criteria. The Law Office of Sheela Murthy
succeeded in obtaining an NIW approval for her. We were able to demonstrate
that our client's continued presence was vital to the interests of the
United States because of her work on advanced materials and composites,
which are essential for U.S. defense and industry.

This professional had been awarded advanced engineering degrees in
Chemistry, Materials Science, and Metallurgical Engineering, all from the
renowned Indian Institute of Technology. Her most significant contribution,
which was funded by the Ballistic Missile Defense Organization and the
National Science Foundation, involved the development of a novel biomimetic
route that mimics the processes by which living organisms synthesize ceramic
materials such as bones and shells, for the production of ceramic thin
films. This astounding technique can be used on a variety of surfaces such
as semi-conductors, ceramics, glasses, metals and plastics. Applications
include surgical instruments, medical and dental implants, catalysts for
control of air and water pollution, sensors that detect hazardous gas, and
many others.

We presented evidence that her research has also resulted in the production
of ultra-fast non-linear optical switching systems that will revolutionize
electronic data transfer and optical computing technology. Her work has been
largely funded by four U.S. government agencies: the Department of Defense,
the Department of Energy, the U.S. Air Force, and the National Science
Foundation.

The Law Office of Sheela Murthy, P.C. is proud to present another
post-NYSDOT approval of a national interest waiver case. Even with the more
stringent NYSDOT criteria, the Law Office of Sheela Murthy continues to
receive national interest waiver approvals. More importantly, this case
casts a ray of hope for those who may have previously received a denial
subsequent to the NYSDOT decision, on a petition filed prior to NYSDOT, when
they did not have an opportunity to address the NYSDOT issues to the INS.

We continue to provide our MURTHYBULLETIN readers with summaries of Special
Category green card case approvals, where the work continues to bring
tremendous benefit to the U.S.

© Copyright Law Office of Sheela Murthy

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4. Compromise Reached on Entry/Exit Control System

As readers of the MURTHYBULLETIN are aware, in 1996 several major pieces of
immigration legislation were passed, and those laws brought substantial
changes that have had serious consequences for a great many people. One of
the more controversial provisions passed has been Section 110 of the Illegal
Immigration and Immigrant Responsibility Act of 1996 (IIRAIRA). Section 110
required the Attorney General to develop a system to collect a record of the
departure and arrival of every alien at every port of entry, and allow the
identification of non-immigrants who remain beyond their period of
authorized stay.

Many groups and individuals feared that such a system would hinder tourism
and trade by slowing down border traffic. The Canadian government was
especially alarmed, and several U.S. business groups as well as the American
Immigration Lawyers Association (AILA) shared that concern.

After months of negotiations among the American Immigration Lawyers
Association (AILA), Representative Lamar Smith and Senator Spencer Abraham
and representatives from the Americans for Better Borders Coalition (a group
formed by AILA and the U.S. Chamber of Commerce), the White House, and
Members of Congress, all jointly announced an agreement to revoke Section
110. The provision will be replaced with a new law requiring that the INS
integrate existing data already being collected by INS, the Customs Service
and the Border Patrol at our ports-of-entry into a searchable database. It
is hoped that the new law would enable the above-mentioned agencies to focus
their attention on smugglers, drugs and illegal entrants, while freeing up
resources to facilitate the entry of legitimate visitors and travelers.

© Copyright Law Office of Sheela Murthy

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5. Change in Dropbox Location for U.S. Consulate in Chennai (Madras)

The Law Office of Sheela Murthy received an update from the Chennai
consulate regarding a change in drop-box location. The consulate has
designated a company known as T.T. Services to receive its drop-box visa
applications. Effective May 22, 2000, that company's location will change.

The new address is 10, Sriman Srinivasa Cross Road, Venus Colony, Alwarpet,
Chennai 600 018. Drop box hours are 7.30 a.m to 3.00 p.m., Monday through
Friday, except on Consulate holidays. Application packages in sealed
envelopes can be delivered or mailed to this address. The consulate reminds
applicants to include their passport, all supporting documents and demand
drafts for the U.S. visa application, and issuance fees. In addition, there
is a separate service fee of Rs.150/-, payable by separate demand draft, for
T.T. Services.

To facilitate return by courier, visa applicants should also include a
sticker address label with name, address, postal code, state, and telephone
number clearly marked. Turnaround time is currently within seven days.

We recommend that you check on any change on procedures, timings etc. The
Law Office of Sheela Murthy will make all attempts to update this data as
and when it becomes available.

© Copyright Law Office of Sheela Murthy

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6. 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

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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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