VOL. XVI, no. 06; Feb 2010, week 1
Posted : 05.Feb.2010

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We know your immigration matters! ^SM

The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided 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 Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin

1. Analysis : H1B Memo on Employer-Employee Relationships and 3rd-Party Placements

2. Murthy Success Story : A Degree Earned in Three Years is Not Always a 3-Year Degree

3. Technical Difficulties with New Visa Form DS-160

4. NEW! Events @ Murthy : Mark Your Calendars
This Week : Monday, MurthyChat | Wednesday, Special MurthyChat

5. MurthyDotCom : Do You Know the Value of Our Articles?

6. Important Processing Times and Dates

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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.

Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.

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1. Analysis : H1B Memo on Employer-Employee Relationships and 3rd-Party Placements
©MurthyDotCom
News of the January 8, 2010 release of the U.S. Citizenship and Immigration Services (USCIS) memo, "Determining Employer-Employee Relationship for Adjudication of H1B Petitions, Including Third-Party Placements," spread quickly within the IT consulting community. A great many questions and concerns about this memo are coming into the Murthy Law Firm daily. Already, we have conducted teleconferences on the subject and responded to questions on the MurthyChat and MurthyForum. Employers want to know what this means for them. Employees need to know if they will be able to remain legally in the United States when it is time to extend their H1B status, and have questions about related matters. This Murthy Law Firm analysis of the January 8th memo discusses some helpful strategies and considers a possible challenge to the USCIS interpretation of certain concepts.
©MurthyDotCom
Employer-Employee Memo
©MurthyDotCom
Among other matters, the memo issued by the USCIS on January 8, 2010 targets third-party employee placements. This employment model typically is utilized by IT consulting companies. More information on the memo is available in our January 22, 2010 article, H1B Memo on Employer-Employee Relationships and 3rd-Party Placements.
©MurthyDotCom
Eleven Factors to Determine Employer Relationship
©MurthyDotCom
The memo lists eleven factors to be weighed in the determination of whether there is a genuine employer-employee relationship. No single factor is supposed to be required; the factors are supposed to be weighed by the USCIS in making a determination. Since the memo is fairly recent, it is too early to discuss any trends in the adjudication of H1Bs under this standard.
©MurthyDotCom
Employers Should Strategize to Address Matters Preemptively
©MurthyDotCom
Employers need to carefully plan a strategy in advance for effectively responding to the factors raised in the memo. It is unwise to wait for a request for evidence (RFE) and react. Employers need to consider how these factors relate to their businesses, and how they would document RFE responses asking for such proof. They may want to formalize some of their existing procedures. There are times when daily business and operations are conducted somewhat informally. This makes it difficult to prove what has occurred, and creates problems when trying to respond to RFEs.
©MurthyDotCom
Supervision and Regular Reviews of Employee / Consultant
©MurthyDotCom
The type of analysis and strategy discussed can be applied, for example, to the second factor listed in the memo. This factor for consideration asks, if the supervision of the H1B beneficiary is done off-site, then, how does the employer / petitioner maintain such supervision? The memo gives the examples of weekly calls, reporting back to the main office routinely, or site visits by the petitioner. The answer depends upon the particular company's operations. However, those companies that conduct weekly calls or have routine reporting systems might not be able to document the practice, if it has not been established as policy. They may wish to improve systems for documenting contact requirements, dates of calls, content of calls, and any follow up or outcome.
©MurthyDotCom
The same type of analysis applies to many of the other factors in the memo. Companies need to determine how their practices align with this memo and make sure they have any required documentation. Some companies may need to refine or augment their current procedures with respect to off-site employees.
©MurthyDotCom
Employers Need to Consider Employees' Fears
©MurthyDotCom
Consulting company employers should be aware that their consultants / employees are concerned about their ability to obtain H1B extensions. Steps need to be taken to enhance the chances of success under the new memo, thereby engendering the confidence of their employees. Of course, at this early date, it is impossible for anyone to make assurances of the likelihood of success. It is possible, however, to potentially increase the chances of satisfying the employer-employee requirements, as currently interpreted.
©MurthyDotCom
Murthy Law Firm Working Proactively on Strategies
©MurthyDotCom
The Murthy Law Firm is working with many of our employer clients to analyze and strategize their situations, in light of the new memo. Since this is an evolving area, some employers are choosing to file H1B extensions early. H1B petitions can be filed six months in advance of the expiration date, which would end the uncertainty on the part of the employee, assuming that the H1B extension is approved. If it is not approved, both the employer and employee have a few months to consider and implement possible alternatives. The Murthy Law Firm is also analyzing the memo for potential legal challenges.
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Conclusion
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We at the Murthy Law Firm invite employers with questions about the new memo to consult with us regarding what this means for their businesses. As new developments in this area come to the fore, we will share them with our readers. We are here to help address the issues and work to resolve them with the USCIS, or challenge them, if appropriate.
©MurthyDotCom
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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2. Murthy Success Story : Degree Deemed Equivalent to U.S. Bachelor's Degree
©MurthyDotCom
Many MurthyDotCom and MurthyBulletin readers have struggled with immigration issues created due to differences between the U.S. educational system and the educational systems of their respective home countries. This is a common complexity for those from countries, such as India, the United Kingdom, and Canada, where the bachelor's degree often involves a three-year course of study rather than the four-year standard of the United States. Attorneys at the Murthy Law Firm recently helped a client obtain a reversal of the denial of an immigrant petition for alien worker (Form I-140), which centered on whether the individual's degree was equal to a U.S. four-year bachelor's degree. We appreciate the generosity of our client for consenting to the use of this case example for the benefit of MurthyDotCom and MurthyBulletin readers.
©MurthyDotCom
The Problem : Three-Year Degree Equivalency Issues
©MurthyDotCom
The client, an IT consulting company, sponsored a labor certification for an Indian national employee. The labor certification set out the requirements for the position of senior programmer analyst. The position required a bachelor’s degree or equivalent in computer science, engineering, math, MIS, physics, or a related field.  
©MurthyDotCom
The beneficiary, an Indian national, held a Bachelor of Technology degree, earned after a three-year course of study. This degree had been obtained after the beneficiary earned a State Board of Technical Education Diploma. The U.S. Citizenship and Immigration Services (USCIS), Texas Service Center, denied the I-140 petition, following issuance of a request for evidence (RFE). This RFE asked for proof the degree was an equivalent to a U.S. bachelor’s degree, as required by the labor certification. The company replied to the RFE, utilizing only the three-year Bachelor of Technology degree. The USCIS denied the I-140 petition, due to a failure to demonstrate completion of a four-year degree that was equivalent to the U.S. bachelor's degree in one of the required fields listed in the labor certification.
©MurthyDotCom
Client Seeks Murthy Law Firm Help
©MurthyDotCom
The client consulted with the Murthy Law Firm to determine if there was a potential avenue to overcome the I-140 denial. We identified the fact that the Bachelor of Technology degree is typically a four-year program even in India. The sponsored worker in this case earned the degree in only three years. The evidence, including the foreign credential evaluation given to the USCIS and the RFE response, did not explain carefully enough how the client came to earn this degree in three years. The documents did not analyze and explain the exact nature of the individual's education to the extent needed. There had not been an explanation of the significance of the diploma obtained by the foreign national prior to admission to the Bachelor of Technology program. The solution to this case arose from a more complete understanding of the employee / beneficiary's educational progression and effective arguments outlined by the detail-oriented legal team at the Murthy Law Firm.
©MurthyDotCom
Motion Filed : Complete Explanation of Education
©MurthyDotCom
The Murthy Law Firm successfully challenged the denial in a motion filed with the USCIS. We used more detailed opinions by education evaluators, and our extensive knowledge and understanding of the Indian educational system. Our firm was able to win approval of this case by showing the USCIS that the employee / beneficiary's completion of the diploma at the accredited institution was equivalent to college-level coursework. This diploma was completed prior to the Bachelor of Technology program. The diploma was taken into consideration by the Bachelor of Technology program when determining the required coursework for this program. The client had been admitted to the Bachelor of Technology program at an advanced standing level, thus permitting completion of the four-year degree program in three years. This is similar to having college credits transfer or obtaining credits through advanced placement testing. We were able, therefore, to show that our client's degree, while completed in three years in this case example, was the equivalent of a four-year program, similar to a four-year degree program from an accredited U.S. university.
©MurthyDotCom
I-140 Petition Finally Approved
©MurthyDotCom
The motion we filed was granted and the I-140 approved, based on the documentation and analysis explained above. Our legal team was able to overcome the denial by explaining and fully documenting to the USCIS the nuances of this individual’s education. With a more complete presentation of the case, the TSC came to understand that our client had completed the education that satisfies the government’s definition of a foreign equivalent to a U.S. bachelor's degree.
©MurthyDotCom
Conclusion
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There is a great deal of subtlety and complexity in responding to foreign educational issues. We at the Murthy Law Firm have extensive experience in this area and have helped obtain approvals in many difficult cases. Of course, no law firm can guarantee approval in a case. A successful result in a case with similar issues depends upon the individual's background, education, the reason for the RFE or denial, and how the labor certification or PERM was drafted initially. To avoid problems, these matters must be analyzed carefully early in the case. When questions arise in the middle of a case, such as in an RFE, it is vital to provide complete documentation and analysis to overcome any concerns of the USCIS. If these issues result in the denial of an I-140 petition, it is possible to succeed in a motion to reopen, if the evidence shows that the USCIS was incorrect in denying the case.
©MurthyDotCom
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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3. Technical Difficulties with New Visa Form DS-160
©MurthyDotCom
Many applicants for nonimmigrant visas are required to use a new U.S. Department of State (DOS) application form. The nonimmigrant visa electronic application (Form DS-160) is being phased in for use at consulates worldwide. It is currently required for visa applications at the consulates in India. Murthy Immigration Services, Pvt. Ltd., (MISPL), in Chennai, India, assists individuals and companies with visa applications at the consulates in India. The legal team there has provided preliminary feedback on some technical difficulties encountered with the new form, as well as some helpful suggestions for completing the new form.
©MurthyDotCom
The new online Form DS-160, must now be used for visa applications at the consulates in India. The implementation of this new form was reported in our December 11, 2009 article, Expansion of DS-160 Nonimmigrant Visa Applications. Like any new system, there are generally some difficulties to overcome in the initial stages. As of this writing, MISPL has advised that many applicants in India are facing some difficulties in completing the online form. The system times out very quickly, and the server is often busy. There is an advisory at the top of the Consular Electronic Application Center page for the DS-160 intake. Applicants are advised that the system has been experiencing problems with intermittent connectivity and that they should save their work frequently. 
©MurthyDotCom
Solution - Keep all Data Handy for Online Form Completion
©MurthyDotCom
In an attempt to minimize difficulties due to the technical problems, MISPL suggests that applicants have all the necessary information required for the form in advance. It is easier - and takes less time - to complete the form by simply filling in all the information, rather than trying to locate the data while filling the form. This may be particularly important if one is assisting another individual in filling out the form.
©MurthyDotCom
Data Includes Biographic, Passport, and Trips to U.S.
©MurthyDotCom
The information required includes personal biographic data, such as date and place of birth, current address, as well as all names used by the individual, and the names and dates of birth of the applicant's parents. The form asks for details regarding the applicant's passport, as well as details of any prior U.S. travel and visas and the address for the intended stay in the United States.
©MurthyDotCom
Other Data Includes Visa Denials, Relatives, Criminal Violations
©MurthyDotCom
Individuals who previously have been denied visas or refused entry to the United States need the dates and details of those events. It is necessary to list relatives in the United States, as well as those who are U.S. citizens or permanent residents. Applicants must supply current employment information, as well as the history of employment in the past five years. In addition to the particulars of U.S. travel, it is necessary to provide the name/s and year of visit/s for all other foreign travel in the past five years. There are questions about past immigration and criminal violations, as well as other inadmissibility concerns. Thus, for many it takes time to gather all the required data in this expanded, detailed visa application form.
©MurthyDotCom
Conclusion
©MurthyDotCom
We thank our affiliate in Chennai for this practical information on the most efficient way to complete and submit the DS-160 online. The adjustment period for a new system is often accompanied by a bit of frustration. The technical problems, hopefully, will be addressed in the near future. Visa applicants should plan to devote more time to the visa application process than may have been needed in the past. Individuals who need guidance or assistance with matters related to their visa applications may wish to contact MISPL.
©MurthyDotCom
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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4. NEW! Events @ Murthy : Mark Your Calendars
©MurthyDotCom
The main page of MurthyDotCom has a new listing of calendar events. Check it regularly to be sure you are up on the latest goings on at the Murthy Law Firm.
©MurthyDotCom
NEXT WEEK! 
©MurthyDotCom
MurthyChat : Monday, Feb 08, 2010 | 9-9:30pm Eastern Time (U.S.).
Attorney Murthy answers your questions in real time! Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. Read more ...
©MurthyDotCom
Special MurthyChat Session : Wed, Feb 10, 2010 | 3:30-4p.m. (E.T.)
Topic : Matters on the Minds of Students Transitioning to Work
The Murthy Law Firm announces a special, topic-driven MurthyChat session. Depending upon its popularity, we have plans to address other topics in similar, future sessions. Among the matters to be addressed are: F-1 student issues, such as travel, Optional Practical Training (OPT), STEM extensions, and other subjects of interest to individuals currently present in the United States as students. Read more ...
©MurthyDotCom
UPCOMING . . .
©MurthyDotCom
Murthy's Corporate Teleconference : Wed, Mar 03, 2010 | 2p.m. (E.T.)
Topic : Filing H1B Cap Cases for FY11 & Updates on the Jan 08, 2010 Memo from USCIS
To register for our March teleconference in this series, Employers and their representatives should go to our teleconference page. Read more ...
©MurthyDotCom
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom : Do You Know the Value of Our Articles?
©MurthyDotCom
At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite.
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MurthyBlog : Follow the latest musings - professional as well as personal - of Sheela Murthy and the Murthy Law Firm. Whether it is our take on immigration reform, the latest governmental change that could impact the immigration debate, a report from Sheela's recent travels, or the profile of one of our valued employees, you will find the lighter side, and the more reflective side, of Sheela and our firm on the MurthyBlog. Check it out today!
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MurthyForum : Join this community of immigrants, who have discovered the value of our forum. This message / discussion board is visited daily by at least one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - MurthyForum - and the NEW MurthyBlog! Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved

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6. Important Processing Times and Dates
©MurthyDotCom
Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
©MurthyDotCom
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved