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IMMNET  September 2003

IMMNET September 2003

Subject:

IMMNET LAW BULLETIN : VOL. IX(36) - September 05, 2003

From:

India Network Editor <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Thu, 11 Sep 2003 00:16:11 -0700

Content-Type:

TEXT/PLAIN

Parts/Attachments:

Parts/Attachments

TEXT/PLAIN (432 lines)

IMMNET LAW BULLETIN
VOL. IX, no. 36; September 2003, week 1
Posted : September 05, 2003

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

A Service of the India Network
Edited and Contributed by Attorney SHEELA MURTHY
Web: <http://www.murthy.com>
Phone : (410) 356-5440
eMail : [log in to unmask]

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

Dear IMMNET Subscribers:

MURTHYBULLETIN 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.

TOPICS in this EDITION of the IMMIGRATION BULLETIN :

1. Correcting Visa Revalidation Errors

2. PERM Now Expected by End of 2003

3. New Versions of Certain Forms from Oct 1, 2003

4. Philippines Airlines Requires Boarding Letter from GC Holders

5. Permanent Residents : What's Next?

6. What People are Asking This Week

7. MurthyChat and MurthyForum

8. Visa Dates, Labor Certification, and INS Service Center Processing Times

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

1. Correcting Visa Revalidation Errors

Many people opt for revalidating their visas through the U.S. Department of
State (DOS) to avoid potentially lengthy delays and other problems
encountered at the consulate abroad. Revalidation is available to certain
persons with E, H, I, L, O, or P visas, who seek to obtain a visa
revalidation (or extension) in the same category. More information on
revalidation <http://www.travel.state.gov/revals.html> is available at the
DOS WebSite <http://www.travel.state.gov/>. We have written about
revalidations previously in various articles available on MurthyDotCom.
Examples are: "Overhaul of "Contiguous Territory" Rule: Eliminated for Many"
<http://www.murthy.com/UDoverct.html>, from March 15, 2002, and "Travel
Advisory: Beware at POE & Revalidation Safe Alternative"
<http://www.murthy.com/UDtabepe.html>, December 14, 2001.

As with any process, mistakes may happen with revalidations. Typical errors
are: the validity dates on the visa, misspelled names, and granting the H1B
principal applicant an H-4 visa stamp while the H-4 applicant receives the
H1B stamp in his/her passport. Some minor mistakes may be inconsequential.
However, since a valid visa is needed to reenter the U.S. after foreign
travel, it is generally best to avoid anything that could create a problem
or delay at the Port of Entry. Fortunately, the DOS has a simple and
expeditious procedure in place to correct erroneous information on a
revalidated visa. This procedure only applies to visas revalidated in the
U.S. through the DOS. It does not apply to visas issued abroad at a
consulate.

The procedure essentially requires that the individual resubmit the passport
with the revalidated visa, as well as the forms used to apply for a
nonimmigrant visa. These are sent to the DOS, with an explanation of the
mistake, as well as documentation reflecting the correct information. There
is no fee for this service.

The packet must be sent in an envelope with the word "correction" on the
front to:

CA/VO/P/D-Visa Office
U.S. Department of State
2401 E Street, NW (SA-1, L-703)
Washington, D.C.  20522-0106

A prepaid, courier air bill envelope or self-addressed, stamped envelope
must be included for the return mailing of the passport with the corrected
visa. Of course, given the importance of the passport, it would be best to
use a traceable form of mailing. The current DOS estimation for processing
corrections is five (5) working days. In estimating time, it is necessary to
be mindful of the dates on which federal holidays fall. This five-day
processing time is far better than the usual revalidation processing time,
which is presently estimated at 10-12 weeks.

More details regarding corrections
<http://www.travel.state.gov/revalcor.html> are also available on the DOS
WebSite. Those seeking revalidation should double-check their visas for
accuracy when they are received from DOS. If there is a problem, it may be
best if corrected prior to departing the U.S. for any trip abroad.

 The Law Office of Sheela Murthy, P.C.

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

2. PERM Now Expected by End of 2003

For quite some time, one of the most frequent questions asked by clients and
immigration practitioners alike has been, "When is PERM going to start?" As
regular MurthyDotCom and MURTHYBULLETIN readers know, PERM is a complete
revision of the labor certification process. More information about PERM is
available in our articles, "PERM Projected for July 2003"
<http://www.murthy.com/ukperm.html> (Dec 27, 2002) and "PERM: Panacea or
Problem?" <http://www.murthy.com/ukpanace.html> (Feb 21, 2003).

In a teleconference between the Department of Labor-Employment and Training
Administration (DOL) and the DOL liaison of the American Immigration Lawyers
Association (AILA), the minutes of which were released in August 2003, the
DOL confirmed that PERM regulations, as well as labor certification backlog
reduction, are top items on their agenda. They projected that the final PERM
regulations would be published in late fall 2003. The implementation of the
regulation and the PERM program would then occur at the end of calendar year
2003.

It is difficult to be sure of the timing since, originally, PERM was to have
started fall 2002, then in April 2003, and then was postponed to an expected
date in August or October 2003, and now by December 2003. This December 2003
timeframe is just a prediction. DOL has indicated that the implementation of
PERM will depend upon the funding for labor certification backlog reduction.
Additionally, the budget process and timing with respect to funding issues
is difficult to predict.

DOL stated that PERM will continue to progress even if the backlog reduction
process is stalled. They have a timeline for perfecting the PERM technology
and will be beta testing. Details of the timeline were not released. We may
be able to obtain some additional insight into this aspect of the process,
as they will be requesting assistance in the beta testing. Therefore, there
should be some information available once beta testing is imminent.

Although the start date for PERM remains unclear, it does appear that the
PERM program is still a priority for DOL. Given that the predictions involve
timeframes that are only a few months away, the answer to the question of
"when" is hopefully closer. We will continue to inform MurthyDotCom and
MURTHYBULLETIN readers of PERM developments as more information becomes
available.

 The Law Office of Sheela Murthy, P.C.

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

3. New Versions of Certain Forms from Oct 1, 2003

Forms used in the immigration process are modified periodically. There is
usually a grace period during which both the new and the old forms can be
used. However, as of a publicized date, only the most recent forms are
accepted. All others are then rejected. Effective October 1, 2003, the new
versions of eight immigration forms listed below will need to be used.

Forms Effected

As of October 1, 2003, the Bureau of Citizenship and Immigration Services
(BCIS) will require that the most recent version of each of the following
forms be used: the I-140 (Immigration Petition for Alien Worker); I-824
(Application for Action on Approved Application or Petition); I-129S
(Nonimmigrant Petition Based on Blanket L Petition); N-470 (Application to
Preserve Residence for Naturalization Purposes); I-102 (Application for
Replacement / Initial Nonimmigrant Arrival / Departure Record (I-94)); I-526
(Immigrant Petition by Alien Entrepreneur); I-829 (Petition by Entrepreneur
to Remove Conditions); and N-336 (Request for a Hearing on a Decision in
Naturalization Proceedings Under Section 336 of the Act). Questions as to
which version of a form is most recent can be resolved by reviewing the BCIS
forms and fees page
<http://www.immigration.gov/graphics/formsfee/forms/index.htm> online. The
revision dates are printed on the bottom right of the forms.

Consequences of Using Outdated Versions of Forms

Cases received by the BCIS on or after October 1, 2003 must use only the
most recent versions of the listed forms. After October 1, 2003, any earlier
versions of these forms will be deemed obsolete. The BCIS will reject these
outdated applications and petitions. This means that the old forms can be
used for cases that will reach the BCIS on or before September 30, 2003. If
an application or petition is rejected, the petitioner or applicant must
make a new filing using the newer form, and the receipt date will reflect
the later filing rather than the original filing date. At best, this will
delay the case. In some time-sensitive situations, the delayed filing can
have serious consequences. For example, an I-140 filing to satisfy the
365-day requirement for obtaining an H1B 7th-year extension could result in
the person's having to leave the U.S. and remain abroad for one year instead
of being able to file the extension if the rejection of the file results in
her/his completion of the six years on H1B status in the U.S. and, thus,
ineligibility for the extension. It is, therefore, very important that
applicants and petitioners pay careful attention to the date on the version
of the form being used.

Why did BCIS Change these Forms?

The new forms are not the result of the creation of the BCIS. All government
forms only remain valid for a set period of time, and the government is then
required to review the forms, revise the forms, if needed, and issue the new
versions of the forms. Changes can also occur as the result of changes in
the law, technology, and/or procedures. Before issuing the new version of a
form, the BCIS asks for comments from the general public so that those who
have used the forms will have the opportunity to note anything that is
confusing or outdated. The grace period for the transition to the new
versions of the forms listed above has ranged from a little more than four
months to nearly six months.

Destroy Earlier Versions of Forms to Avoid Confusion

Hard copies of any outdated, blank forms should be destroyed to avoid any
accidental use. Those persons or employers who rely on immigration forms
software must ensure that they have installed the latest versions. This can
save valuable time and avoid problems with status and the possible accrual
of unlawful presence.

 The Law Office of Sheela Murthy, P.C.

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

4. Philippines Airlines Requires Boarding Letter from GC Holders

According to reports received by the American Immigration Lawyers
Association (AILA), permanent residents who are not in possession of the
plastic "green" card (which has, for decades, been pink and white and no
longer green in color at all) have been refused permission to board airlines
departing from the Philippines. These individuals had the I-551 "temporary
evidence" stamp in their passports. This stamp is temporary evidence of
lawful permanent residence, issued as proof of permanent resident status
until the issuance of the physical, plastic card. The I-551 is valid proof
that the individual is a permanent resident and authorized to work and
travel. No additional proof of status is required at the Port of Entry. This
notwithstanding, the airlines departing from the Philippines have been
insisting that such individuals have "boarding letters," which must be
obtained at the U.S. consulate abroad.

A boarding letter is a letter issued by the U.S. Embassy or Consulate,
directed to the transportation company and the Port of Entry officials. It
confirms that the individual named in the letter is a permanent resident and
that the individual's permanent residence has been verified by the BCIS. It
is typically used by individuals who, for some reason, do not have other
proof of permanent residence. This is usually because the physical card
identifying her/him as having permanent resident status has been lost or
stolen. The letter should not be necessary if one has proof of permanent
resident status, such as the I-551 stamp.

A boarding letter states that the transportation company may transport the
foreign national to the U.S. without danger of being subjected to certain
fines for bringing persons with improper immigration documents to the U.S.
Although no explanation of the airlines' reasons for requiring the boarding
letter has been provided, the likely reason is that the airlines fear
incurring these fines, which can be $3,000 per foreign national. They may be
concerned that the I-551 stamps, which are rather simple in appearance, may
be forgeries.

These airline policies could be problematic for people with I-551 stamps,
who have been correctly advised that the stamp is adequate proof of their
lawful permanent resident status for all purposes. The stamp is unique and
actually difficult to forge. At this time it is unclear whether the embassy
or consulate would be willing to issue the boarding letters for these
individuals, in light of the fact that they have valid and legally
sufficient evidence of lawful permanent resident status. At the very least,
it is an extra burden on the foreign national and the U.S. Embassy or
Consulate.

We certainly hope that this practice is not begun in other locations, and
that it can be resolved quickly. Anyone planning to travel through the
Philippines with only the I-551 stamp should understand that there is
potential for a delay and should possibly consider rerouting flights to
avoid this problem, or ensure the ability to obtain the boarding letter from
the consulate or embassy.

 The Law Office of Sheela Murthy, P.C.

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

5. Permanent Residents : What's Next?

For many MURTHYBULLETIN and MurthyDotCom readers, the focus of their lives
for years is obtaining the "green card," formally known as obtaining lawful
permanent residence (LPR) in the United States. They just want to complete
the immigration process and hold their I-485 approval notices in their
hands. For these people, nothing is better than reading the letters from
their respective lawyers with the magic words that say it all:
"Congratulations, you are now a U.S. permanent resident." In a series of
MurthyDotCom articles, we at The Law Office of Sheela Murthy plan to address
the questions that come after one has digested the good news and the
excitement of the green card approval.

In this article, we touch upon LPR status documented by the stamp in the
passport, the issues dealing with the physical card, itself, how to extend
the card upon its expiration, and how to obtain a replacement if it is lost
or stolen.

This article, in its entirety, can be found on MurthyDotCom
<http://www.murthy.com/prnext_1.html>.

 The Law Office of Sheela Murthy, P.C.

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

6. What People are Asking This Week

At The Law Office of Sheela Murthy, we regularly receive questions pertinent
to many of you. Whether through consultations
<http://www.murthy.com/consult.html> with our attorneys; the MurthyChat
<http://www.murthy.com/chat.html>, our free, weekly, online question and
answer session conducted by Attorney Sheela Murthy; or on the MurthyForum
<http://www.murthy.com/mforum.html>, our online bulletin board with regular
postings from attorneys in our Office, these questions represent the
concerns of many of our readers. This MURTHYBULLETIN feature provides a
sampling of these questions and answers, with further clarifications to
assist a broader segment of our readership. Previously published questions
and answers from this periodic feature are posted on MurthyDotCom's "What
People are Asking" <http://www.murthy.com/asking.html> page.

Question One : The Vermont Service Center (VSC) processing times for I-140s
list categories that I do not understand. They have them broken down as E11,
E12, E13, E21, E31 and so on. I have heard of employment second and third
preferences, which are called EB2 and EB3. What do the other numbers mean?
How do I know where my case stands?

Answer : The first digit in the categories used by VSC corresponds to the
preference. The second digit used corresponds to a subcategory within the
particular category. For example, E11, 12, and 13 are all Employment First
Preference cases (EB1). Within EB1, there are three subcategories. These
are: Extraordinary Ability (E11), Outstanding Professors and Researchers
(E12), Multinational Executives and Managers (E13). The E21 designation
refers to Employment Second preference (EB2) cases for members of the
professions holding advanced degrees or persons of exceptional ability. A
separate category exists for EB2 cases filed under the National Interest
Waiver provisions. Finally, E31, 32, and EW3 are third preference (EB3)
cases. The subsets are skilled workers (E31), professionals (E32) and other
workers (EW3).

---

Question Two : I heard that the H-1 "cap" is being reduced. I am going to
have to extend my H-1 status, do I need to worry?

Answer : No. While it is true that the H-1 "cap" is being reduced to 65,000
in FY2004, which starts October 1, 2003, this limitation only applies to H
cases filed for "new employment." People already in the U.S. in H1B status,
who are the beneficiaries of new petitions when they need to extend their
status, are not subject to the "cap." Those people who will be seeking to
obtain H-1 status for the first time, such as students and possibly those
are requesting consular notification even if they previously were on H1B
status, do have to be mindful of the cap.

 The Law Office of Sheela Murthy, P.C.

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

7. MurthyChat and MurthyForum

MurthyChat Schedule <http://www.murthy.com/chat.html> : The next MurthyChat
will be Monday, September 08, 2002 from 9:00pm - 10:00pm Eastern Time (USA).
Meanwhile, visit MurthyDotCom to access transcripts
<http://www.murthy.com/chattran.html> of past chat sessions or search
<http://www.murthy.com/chatdb.html> for answers to specific questions.

MurthyForum <http://www.murthy.com/mforum.html> : Consider joining those who
have discovered the value of this service, our message / discussion board,
which is visited daily by one of our attorneys.

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

 The Law Office of Sheela Murthy, P.C.

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

8. Visa Dates, Labor Certification, and INS Service Center Processing Times

The U.S. State Department Visa Dates <http://www.murthy.com/visadate.html>

Processing Dates for Labor Certification Applications
<http://www.murthy.com/labdates.html>

INS Service Centers :

California <http://www.murthy.com/pt_calif.html>
Missouri <http://www.murthy.com/pt_mis.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>

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

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 2003, THE LAW OFFICE OF SHEELA MURTHY, PC

MURTHYBULLETIN
Weekly Immigration Newsletter
THE LAW OFFICE OF SHEELA MURTHY, PC
Phone : 410-356-5440
eMail : [log in to unmask]
WebSite : www.murthy.com

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

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