TOPICS in this Edition of the MURTHYBULLETIN:
1. INS California Service Center Announces Major Policy Changes
2. Bipartisan Bill Addresses Broad Range of Immigration Issues
3. Clarification on Work Authorization for I-485 Applicants
4. Government of India Considers Dual Citizenship
5. INS Service Center Processing Times

Subj: Attorney Murthy's Immigration Bulletin
Date: 6/9/00 4:28:18 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. 23, June 2000, Week 2
Posted: June 09, 2000

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Attorney Murthy's Immigration Bulletin is a free eNewsletter 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. INS California Service Center Announces Major Policy Changes

2. Bipartisan Bill Addresses Broad Range of Immigration Issues

3. Clarification on Work Authorization for I-485 Applicants

4. Government of India Considers Dual Citizenship

5. INS Service Center Processing Times

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1. California Service Center Announces Major Policy Changes

At a meeting on May 23, 2000 between the California Service Center (CSC) of
INS and representatives of AILA, the CSC announced the following policy
changes:

Denial Policy:

The CSC has pledged to stop denying petitions outright that appear to have
deficiencies and cannot be immediately approved. The new policy will be to
follow a three-tiered approach to handling deficient cases: a)
Applicants/Petitioners with cases that appear to have deficiencies which can
be explained or overcome will receive a “request for additional evidence”
(RFE). An RFE usually allows 12 weeks to respond with information or
evidence to the INS; b) Applicants/Petitioners with cases in which the
reason for a denial seems insurmountable, will be issued a “notice of intent
to deny” (NID). A NID usually allows up-to 30 days to respond by the INS; c)
Cases will still be summarily denied when they are clearly not approvable
under the statute.

Expedites in “Age Out” Cases:

The CSC has announced that it will finally follow the other Service Centers
and expedite cases where a dependent is about to age out (turn 21 years
old). By way of background, in either an Employment Based or most types of
Family Based green card cases (as well as lottery and asylum-based
adjustments of status) the principal’s spouse and children are eligible to
obtain their permanent resident status along with their parent or spouse.
For a child to be eligible for this “derivative” procedure, a few criteria
must be met. Under the statute, a “child” must be under 21 years of age, and
unmarried. A child who turns 21 years of age while his/her parent is in the
process of obtaining her/his green card no longer qualifies as a “child,”
and is no longer eligible to derive the benefit of becoming a Permanent
Resident through the parent’s case. This phenomenon is known as “aging out.”

In a case where an I-140 petition has been filed and a dependent has six
months or less until his/her 21st birthday, the petitioner or the attorney
may fax a request to expedite the case along with proof of the relationship
of the dependent to the principal and proof of the dependent’s birthday to
the INS. If the I-140 petition has not yet been filed, the petitioner should
request an expedite at the time of filing it, if the dependent will age out
within 8 months, and include proof of the relationship of the dependent to
the principal and proof of the dependent’s birthday. The CSC recommends
still filing a request to expedite by its usual fax procedures if there has
been no response to the first expedite request by the time the dependent is
6 months away from the 21st birthday.

I-485 Adjudications:

CSC is currently adjudicating I-485 applications with fingerprints that are
still valid and giving priority to those cases in which the fingerprints
will expire within 90 days. INS considers fingerprints as having expired
after fifteen (15) months. CSC has worked out a procedure with AILA for
requesting decisions on cases in which the fingerprints are due to expire
within 90 days. One result of this procedure is that many older cases
continue to be stuck in the backlog, while more recently filed cases are
being approved.

Effect of Corporate Changes on Green Card Cases:

CSC appears to have changed its policy allowing proof of
successor-in-interest to be submitted at the I-485 stage of an
employment-based case. By way of background, if a company has been bought
out, merged or had a significant change in ownership, it is generally
considered a successor-in-interest to the originally existing company, which
filed the original labor certification (LC). In order to continue processing
the employees’ green card cases, the Successor is required to submit
documentation that it has assumed the rights, duties, obligations and assets
of the original employer and that it continues to operate the same type of
business as before. Similarly, a company that changed its name or location
(even within the same metropolitan statistical area) would need to meet
these requirements and possibly file a new I-140 Immigrant Petition.

In cases where the LC has been approved and the I-140 has not yet been
filed, the Form I-140 (company’s immigrant petition filed with the INS for
the foreign worker) should be submitted with the above documentation, in the
name of the successor company. However, if the corporate change takes place
when the I-140 is already pending with INS, or the I-140 is already approved
and the beneficiary has filed the I-485 (application to adjust status), does
the company have to start the process over from ground zero, filing a new
I-140 petition?

In a prior MURTHYBULLETIN we reported that the head of the Residence Product
Division of the CSC had agreed that if an I-140 is pending at the time that
the company changes, no action would be required until the completion of the
I-140 stage. Instead, evidence regarding the Successor Company should be
submitted at the time of filing the I-485 application. In addition, the CSC
said that it would accept such evidence in connection with an already
pending I-485, and would continue processing the I-485 application as usual,
without requiring the I-140 petition to be re-filed.

Adding to the uncertainty and confusion surrounding successorship issues,
the CSC has now indicated that persons with pending I-485 applications can
try submitting evidence of change of corporate ownership, and the CSC will
exercise their discretion as to whether or not to require a new I-140
Petition. The CSC now reserves the right to reject the additional evidence
of the merger and require a new I-140 petition. A high-level source at INS
Headquarters has informed The Law Office of Sheela Murthy, P.C. that this
issue, as with others in which there is inconsistency among the Service
Centers, may ultimately have to be resolved by Headquarters policy.

© Copyright Law Office of Sheela Murthy

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2. Bipartisan Bill Addresses Broad Range of Immigration Issues

A new bill in the Senate, titled the Family, Work and Immigrant Integration
Amendments of 2000, touches upon many issues of key concern to the immigrant
advocate community. Senators Bob Graham (D-FL) and Gordon Smith (R-OR)
introduced this bill, numbered S. 2668, in late May.

S. 2668 includes the following provisions:

Extension to the filing deadline for NACARA (Nicaraguan and Central American
Relief Act);

NACARA parity for persons from certain other countries not currently
included;

Adjustment of status for certain Liberian refugees;

Restoration of Section 245(i) (the penalty fee provision allowing otherwise
eligible but out-of-status persons to complete their green card process
within the U.S. rather than having to travel out and be subject to the 3- or
10-year bar);

Advance in the “registry” date (see articles on this subject in the May 11,
2000 and April 19, 2000 issues of the MURTHYBULLETIN);

Additional visas in the family-based categories;

Protections for unaccompanied or orphaned children apprehended by INS;

Restoration of some public benefits for legal immigrants;

Eligibility for tourist and student visas for family members of permanent
residents;

Relief from per-country limits on employment-based immigration;

Increased portability of H-1B visas;

Encouragement to INS to process cases more quickly, and;

Ability to recapture unused immigrant visas from prior year.

According to the American Immigration Lawyers Association (AILA), Senators
Graham and Smith introduced their bill to highlight the need for Congress to
move on these key issues, and the Senators hope that the various items in
the bill will be attached as amendments to other bills.

Please encourage your employers and U.S. citizen friends to support S. 2668’
s reforms by calling their Senators. While they are at it, they should
express their support for S. 2045 (the H-1B bill discussed in prior issues
of the MURTHYBULLETIN which also includes measures to alleviate
employment-based green card backlogs) as well. On the House side, the
companion bill to S. 2045 is H.R. 3983, also discussed previously in the
MURTHYBULLETIN.

© Copyright Law Office of Sheela Murthy

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3. Clarification on Work Authorization for I-485 Applicants

In this article, we clarify the rules regarding working for another
employer, after a person obtains the EAD card based on filing the I-485
Adjustment of Status application, when the basis for the I-140 Immigrant
Petition approval is a labor certification and an offer of a full time
permanent job by a U.S. employer. Some of you have contacted the Law Office
of Sheela Murthy for guidance as to whether you can work for a different
employer than the one who sponsored the labor certification and the “green
card” application. The simple answer, as mentioned below, is: “No, a person
is required to continue to work for the employer that sponsored the green
card, even after obtaining the green card approval.”

Some of the uncertainty surrounding this issue stems from public reaction to
an INS announcement in July of 1999 that it would now be possible for
persons in L-1, L-2, H-1B or H-4 status who had filed applications for
adjustment of status to permanent residence (I-485) to maintain their H or L
status while the I-485 was pending. We discussed this change in the June
1999 MURTHYBULLETIN. One implication of this change means that it is now
possible to use an H or L visa, rather than an advance parole document, to
travel while the I-485 is pending. The ability to maintain H-1B or L-1
status is also a great help to persons who get married while their I-485 is
pending, because they are now able to bring their spouses quickly to the
U.S. in H-4 or L-2 status, rather than having to wait for approval of their
own I-485 application and then have the spouse obtain a consulate interview
for a permanent visa to “follow to join” as a dependent.

In connection with the July 1999 changes, the INS also discussed the
requirements for maintaining one’s H-1B or L-1 status while the I-485 was
pending. One example was that if a person uses an employment authorization
card (EAD) to engage in what INS called “open market employment,” (i.e.
working for someone other than the sponsoring employer) then the person
would not be maintaining the H or L status, but would simply be an I-485
applicant, and would need advance parole to travel. This simple statement
caused a whole lot of misunderstanding, because many people quite reasonably
took it to mean that they were able to freely change jobs. We therefore
issued a clarification, explaining that the INS had not changed the
requirement that a sponsored immigrant work for the sponsoring employer.

More recently, the INS issued a memorandum further discussing the
requirements for maintaining H or L status while the I-485 was pending. This
memorandum, discussed in the May 25, 2000 MURTHYBULLETIN, included a
reference to the example of a person working for an outside employer. Once
again, as before, our attentive readers asked questions such as the
following:“ Does this imply that someone who has an EAD and whose I-485
approval is pending can change employers? Please clarify whether the INS has
relaxed this rule.” The answer, in a word, is “no.” We provide further
clarification below.

Please keep in mind that in an employment-sponsored green card case, the
whole case is based upon the particular job offer from the particular
employer. Legally, this is considered a future job offer, meaning that the
beneficiary must intend to take that job after the I-485 is approved, and
the employer must intend to hire, or continue to employ, the person upon
approval of the I-485. Both the employer and the employee need to show their
good faith intent. Of course, in most cases, the sponsored immigrant is
already working for the employer in the meantime. In almost all cases, the
employer would expect him/her to be working for the company while the case
is ongoing, as well as after the I-485 is approved. However, some employers
may agree to rehire the person upon approval of the I-485 and allow him/her
to work elsewhere in the meantime based upon an EAD or another H-1B. Also,
many people, while continuing to work for the sponsoring employer, may take
a second job on the side or start their own business on the side. The EAD
can be used for those purposes as well.

In no way does the INS guidance change the rules about employment-sponsored
green cards. Sponsored immigrants are not free to say goodbye to the
sponsoring employer while their I-485 is pending and never come back to work
for them again. The labor certification is for a future job offer and in
order to avoid any accusation of fraud that may later result in loss of the
green card, the person does have to work for the sponsoring employer after
approval of the I-485. There is no set timeframe but most attorneys will
recommend staying with that employer for about one year **after** the I-485
is approved.

© Copyright Law Office of Sheela Murthy

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4. Government of India Takes Small Step Toward Allowing Dual Citizenship

Some of you call and email us regarding dual citizenship issues and the
impact of dual citizenship. In prior issues of the MURTHYBULLETIN, we
discussed some new rights and privileges granted by the Government of India
to Persons of Indian Origin (PIOs). While these changes are widely seen as a
significant move toward granting dual citizenship, no decision granting dual
citizenship has been made so far.

The Press Trust of India (PTI) has now reported that on May 16, 2000, India’
s External Affairs Minister, Jaswant Singh, announced to the Indian
Parliament that the office of the Chief Commissioner dealing with
Non-Resident Indian issues has been transferred from the Ministry of Finance
to the Ministry of External Affairs. The intent of the transfer is
reportedly to facilitate the participation of overseas Indians in the
development of the country, including such aspects as investment, education,
culture, technology and science. The Chief Commissioner’s office would also
act as a communication link between the myriad organizations of Indians
abroad and the Indian Government.

According to the same Press Trust of India (PTI) report, Minister Singh
stated that the government was not ready to make a final decision on dual
citizenship, though the issue was being examined in detail. Still the
transfer of the office of the Chief Commissioner seems to be a small step
toward a favorable consideration of this matter.

Though the MURTHYBULLETIN focuses primarily on U.S. immigration law, we
recognize that PIO and dual citizenship issues are of interest to many of
our readers. The Law Office of Sheela Murthy, P.C., will continue to post
updates as further information becomes available.

© Copyright Law Office of Sheela Murthy

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5. 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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Please note : In our last issue of MURTHYBULLETIN, we published a URL for
the Visa Fee Schedule for Indian nationals at the U.S. Department of State
website. We have learned that the address given us was incorrect and are
providing the corrected link for you here :

<http://travel.state.gov/reciprocity/index.htm>

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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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