VOL. XV, no. 26; June 2009, week 4
Posted : Jun 26, 2009

. . . . . . . . . . . . . .

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.
. . . . . . . . . . . . . .

TOPICS in this Edition of the MurthyBulletin :

1. H1B Dependency : Analysis for Compliance

2. Change in Reentry Permit Biometrics Procedures

3. Computer Hacker now Cyber Security Consultant for DHS

4. H1B Cap : June 19, 2009 Update
Updated on MurthyDotCom Jun 24, 2009; 2:30pm (ET)

5. I-140 Premium Processing Resumes June 29, 2009
Posted on MurthyDotCom Jun 22, 2009

6. Announcement : Murthy's Corporate Teleconference - Wed, Jul 01, 2009

7. MurthyDotCom : Did You Know About the Affordability of Our Fees?

8. Important Processing Times and Dates

. . . . . . . . . . . . . .

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.

. . . . . . . . . . . . . .

1. H1B Dependency : Analysis for Compliance
©MurthyDotCom
In our effort to assist employers in complying with H1B requirements, MurthyDotCom and MurthyBulletin readers are provided with this discussion of issues related to H1B dependency. With the government's increased focus on employer enforcement, H1B-dependent employees are often targets of additional scrutiny. Thus, it is necessary for H1B employers to be aware of what is meant by the term "H1B dependent," and to establish protocols for compliance with the applicable requirements. Employers must accurately assess whether they are H1B dependent when filing their labor condition applications (LCAs). The relevant considerations are described here.
©MurthyDotCom
LCA Requirements for H1Bs
©MurthyDotCom
As many MurthyDotCom and MurthyBulletin readers know, H1B petitions, filed with the U.S. Citizenship and Immigration Services (USCIS), must have approved LCAs for the location/s of employment. The LCAs are approved by the U.S. Department of Labor (DOL). The DOL has enforcement power, all related to the terms and requirements of each LCA.
©MurthyDotCom
A public access file must be maintained by the employer for every LCA filed. Each LCA must reflect the employer's status as either H1B dependent or not H1B dependent. If an employer is H1B dependent, it is possible that the specific worker fits within criteria as exempt, and that the employer does not have to take the extra steps that would otherwise be needed as an H1B-dependent employer.
©MurthyDotCom
The choice of category with respect to H1B dependency is critical. It determines what, if any, additional obligations must be satisfied by the employer with respect to the LCA. The law imposes a series of obligations on the H1B-dependent employer, which are described in our NewsBrief entitled, Employing H1B Workers, updated October 10, 2007. Whether an employer is H1B dependent may be complex and can shift, based upon changes in workforce size and composition.
©MurthyDotCom
Basic H1B Dependency Criteria
©MurthyDotCom
The law provides a basic test for determining H1B dependent status. There are additional nuances to be reviewed, after reaching an initial conclusion of H1B dependency. Employers must be careful of this. If they indicate that they are H1B dependent on the LCA, then they are responsible for meeting the additional requirements for such employers. If an H1B-dependent employer fails to indicate dependency on the LCA, there are significant potential consequences.
©MurthyDotCom
The basic test is set out in terms of the size of the company, and number of H1B employees. The dependency levels are as follows.
©MurthyDotCom
Company Size; H1B Dependency:

• Companies with 25 or fewer full-time equivalent (FTE) employees in the U.S. are considered H1B dependent if they employ eight or more H1B nonimmigrants.

• Companies with 26-50 FTE employees in the U.S. are considered H1B dependent if they employee 13 or more H1B workers.

• Companies with 51 or more FTE employees working in the U.S. are categorized as H1B dependent if 15 percent or more of their total full-time equivalent employees hold H1B status.

Nuances : Full-Time Equivalent and Single Employer
©MurthyDotCom
As can be seen by the basic definition of H1B dependent, there are some nuances with regard to this determination. An FTE employee is determined based upon the employer's records, including the number of hours worked by the individual. The regulations contain instructions regarding this calculation. If this is a concern, the matter should be carefully reviewed with the assistance of a qualified immigration attorney. The consideration includes only persons directly employed by the employer, and excludes bona fide consultants and independent contractors. Full time is considered 40 hours of work per week or more, unless the employer can show that their standard work week is fewer than 40 hours. The minimum allowed is 35 hours per week, for this purpose. The work of part-time employees is aggregated, to determine the number of FTE employees.
©MurthyDotCom
In determining whether a group of companies is to be treated as a single employer for H1B-dependency purposes, the DOL's rules reference the Internal Revenue Code. Groups of companies that are treated as a single employer for IRS purposes will be treated as a single employer for H1B dependency purposes. This should also be reviewed and analyzed, if there is any uncertainty.
©MurthyDotCom
Two Categories of Exempt H1B Employees
©MurthyDotCom
If H1B dependent, an employer is subject to additional requirements, including recruitment of U.S. workers and attestations as to non-displacement of U.S. workers. There is an exception to this for a particular employee if the employee is considered exempt. Exempt H1B employees are those who are either paid an annual salary of at least $60,000, or who have at least a master's degree or equivalent in a field related to the job. Employers should be prepared to document eligibility for any use of the exempt employee exception, should the DOL question the use of these provisions. Employers who have received Troubled Asset Relief Program (TARP) funds are not eligible for this exception for exempt employees, as explained in our April 3, 2009 MurthyBulletin NewsBrief, USCIS Clarification on H1B Requirements for TARP Fund Recipients, available on MurthyDotCom.
©MurthyDotCom
To enjoy the benefits of the salary exemption, the worker must actually receive hourly or annual wages of at least $60,000 during the year/s covered by the LCA. If an employee works less than the full year, s/he must receive at least the pro-rated portion of the $60,000. This would be appropriate when the employment starts after the beginning of the calendar year. Employers must be careful in such cases. While, in general, an employer may not be obligated to pay wages to an H1B worker who travels abroad or takes an unpaid medical leave, the exempt worker must be paid at least $60,000 annually. Thus, even if an exception to the payment obligation might otherwise apply, in order to remain exempt from the H1B-dependent obligations, the employer must pay the exempt worker at least $60,000 for the year.
©MurthyDotCom
The other exemption applies to workers who have masters' or higher degrees (or the equivalent) in specialties related to their respective employment. Equivalency can only be shown by a degree that is equivalent to the U.S. master's degree (or higher). For this purpose, the DOL does not permit the exemption to be claimed based upon experience or expertise in the academic specialty. The degree must be in a specialty that is related to the intended employment. This is defined as a degree generally accepted in the industry or occupation as appropriate or necessary for the employment in question.
©MurthyDotCom
Changes in Workforce and Dependency Status
©MurthyDotCom
There are times when an H1B employer may change from not being considered H1B dependent to becoming H1B dependent. This can occur if there are changes in the size of the total workforce, the number of H1B workers employed, or a combination of these factors. If this arises, it is not necessary to re-file LCAs for existing H1B workers, as long as their LCAs were properly filed. The company simply needs to indicate the H1B dependency on any new LCAs that are filed. The law does not require that the public access file include any explanation for the change. However, employers must always be able to document that their LCAs have been correctly filed.
©MurthyDotCom
Conclusion
©MurthyDotCom
The status of a company as H1B dependent or not must be considered carefully. There are significant additional obligations placed upon H1B-dependent employers. Employers must appreciate the significance of the selections regarding H1B dependency on the LCAs, and must obtain appropriate guidance on these matters. The DOL takes the issue of H1B dependency seriously, and employers are likely to run into problems if they simply check boxes on the forms or sign incorrect forms without giving careful thought to the content. The Murthy Law Firm has worked extensively with issues of H1B dependency, and is ready to help employers understand and comply with H1B requirements for their own protection and the safety and status of their H1B employees. We wish to aid employers in maintaining the integrity and ethics of the legal system within which we all operate and from which we benefit.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

2. Change in Reentry Permit Biometrics Procedures
©MurthyDotCom
The Nebraska Service Center (NSC) of the U.S. Citizenship and Immigration Services (USCIS) issued an advisement in June 2009 regarding a change in procedures related to requests for rescheduling biometrics (fingerprinting) appointments for applications for reentry permits. Reentry permits are travel documents used by U.S. permanent residents (green card holders) who need to remain outside of the U.S. in excess of one year. The NSC has advised that all applications for reentry permits will be denied if the fingerprinting is not completed within 120 days of filing. The procedures for requesting expedited fingerprinting have not changed.
©MurthyDotCom
Biometrics in the U.S. Required
©MurthyDotCom
As noted in our January 9, 2009 NewsBrief entitled, Reentry Permit Applicants May Request Expedited Biometrics Appointments, the USCIS has required fingerprinting for applications for reentry permits since March 2008. Applications for reentry permits must be filed from within the United States and the subsequent biometrics appointment must also be completed inside the United States. The biometrics requirement for reentry permits was covered in our March 14, 2008 article, Biometrics Now Required for Reentry Permits and Refugee Travel Documents.
©MurthyDotCom
New Procedure for Rescheduling Biometrics
©MurthyDotCom
The NSC has informed the American Immigration Lawyers Association (AILA) that they will deny applications for reentry permits if biometrics are not completed within the first 120 days after filing. Applicants either have to appear at their scheduled appointments or request to be rescheduled. This request must occur before the appointment date. A request for rescheduling must be accompanied by a reasonable excuse for the inability to appear for the scheduled appointment. Rescheduled appointments are set within a maximum 30-day timeframe. Applicants should plan their travel accordingly, as the announcement is absolute with respect to the 30-day timeframe.
©MurthyDotCom
NSC Reviews Dates and Suggests Pre-Paid Express Envelope

The advisement stated that the NSC reviews all reentry permit applications initially for the departure dates of the applicants and attempts to arrange for fingerprint appointments prior to the scheduled departure from the United States. It suggests providing a pre-paid express mail envelope for faster transmission of one's fingerprint appointment notice.
©MurthyDotCom
Expedite Request Process Unchanged
©MurthyDotCom
In December 2008, the NSC established a procedure for granting requests to expedite the scheduling of biometrics notices for reentry permits. The procedure for requesting biometrics notices in fewer than 30 days is set forth in our January 9, 2009 NewsBrief, cited above. The normal processing time for the scheduling of biometrics for reentry permits remains at 30 days.
©MurthyDotCom
Reentry Permit Denials Likely for Overseas Applicants
©MurthyDotCom
NSC will deny an application for reentry permit when the applicant leaves the United States before completing fingerprinting, and does not either appear for the appointment or make a timely request to reschedule under the revised USCIS policy. Furthermore, applicants who do not follow up with their requests to the Application Support Center (ASC), to ensure that their appointments have really been rescheduled, are likely to have their applications denied. Fingerprinting must be completed within 120 days of the application. Applicants, therefore, can expect their cases will be denied if they make repeated requests to reschedule fingerprinting, resulting in failure to be fingerprinted within 120 days of filing their applications.
©MurthyDotCom
Overseas Travel Must be Carefully Scheduled
©MurthyDotCom
It is clear that the NSC has revised procedure for rescheduling biometrics in order to resolve cases without extended delays. The NSC specifically described a situation in which an applicant files a timely request to reschedule asking for more than 30 days, does not follow up on the rescheduled appointment, and then remains outside of the United States for 120 days. In this situation, the NSC will deny the application for the reentry permit. The ability to request additional review, via a motion to reopen (MTR), is limited and will be decided on a case-by-case basis. It is clear from the tone of the NSC announcement that mere inconvenience or normal travel difficulties are not sufficient for overcoming a denial.
©MurthyDotCom
Clearly, permanent residents planning extended travel should make all efforts to request reentry permits sufficiently in advance of their departure, so that fingerprinting can be scheduled prior to travel. If this is not possible, then the individual needs to plan to return to the United States in time for the appointment. Alternatively, s/he needs to return to the U.S. prior to the outside limit of one year abroad, so that a request for reentry may be made based upon the permanent resident (green) card. It should be noted, however, that there is always risk that the green card may be considered abandoned if one remains outside of the United States for extended periods. 
©MurthyDotCom
Conclusion
©MurthyDotCom
We at the Murthy Law Firm appreciate the effort made by the USCIS in advising foreign nationals and immigration law practitioners of the changes to the NSC's process for rescheduling biometrics notices related to applications for reentry permits. U.S. permanent residents should take care to plan their international travel in order to complete their biometrics appointments before leaving, whenever possible. Otherwise, to avoid one's green card being considered automatically abandoned under law, it is important to return within one year, at the latest.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

3. Computer Hacker Now Cyber Security Consultant for DHS
©MurthyDotCom
According to a Department of Homeland Security press release, former-hacker-turned-cyber- security-consultant, Jeff Moss, was sworn in on Friday, June 5, 2009 by the DHS Secretary Janet Napolitano to the Homeland Security Advisory Council (HSAC) to help bolster preparedness against potential cyber threats. President Barack Obama has emphasized the importance of securing digital infrastructure, calling it a national priority. Since taking office, President Obama has classified digital infrastructure as a strategic national asset, created the position of cybersecurity czar to coordinate cyber security policy, and has the military working to create a military command dedicated to cyber security, all to counter the growing threat of cyber attacks against networks.
©MurthyDotCom
Jeff Moss : Working Both Sides of Cyber Security
©MurthyDotCom
Jeff Moss has experience working both sides of cyber security. As a consultant, Mr. Moss tests companies' security systems for weaknesses against cyber attacks. But Mr. Moss is also the founder of Def Con - an annual hacker's convention held in Las Vegas, NV since 1993 and Blackhat - a cyber security conference for IT professionals. Over the years, these conferences have attracted government officials who recruit talented young hackers to combat cyber threats.
©MurthyDotCom
Recruits Offer Unique Insights and Expertise
©MurthyDotCom
At the HSAC swearing in ceremony, Secretary Napolitano said Moss and the fifteen other members that were sworn in offer, "unique insights and expertise" in order to "fulfill the Department’s core mission of securing the country against the many threats it faces." Among the other members are former FBI and CIA Director William Webster, former FBI Director Louis Freeh, Miami Mayor Manny Diaz, New York City Police Commissioner Raymond Kelly, Governor Sonny Perdue of Georgia, and Governor Martin O'Malley of Maryland.
©MurthyDotCom
Obama Administration Focuses on Cybersecurity
©MurthyDotCom
The Obama administration has been revamping the government's approach to cyber security. According to CNN, DHS reports the number of cyber attacks on public and private sector networks increased from 4,095 in 2005 to over 72,000 in 2008. In his speech announcing the creation of the position of cybersecurity czar, President Obama said, "Our technological advantage is a key to America's military dominance. But our defense and military networks are under constant attack. Al Qaeda and other terrorist groups have spoken of their desire to unleash a cyber attack on our country - attacks that are harder to detect and harder to defend against." The Administration appointed Mr. Moss to work with DHS to combat online threats President Obama characterizes as Weapons of Mass Disruption.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

4. H1B Cap : June 19, 2009 Update
Updated on MurthyDotCom Jun 24, 2009; 2:30pm (ET)
©MurthyDotCom
The USCIS cap count as of June 19, 2009 reports 44,500 regular cap cases. Read the full update on MurthyDotCom.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

5. I-140 Premium Processing Resumes June 29, 2009
Posted on MurthyDotCom Jun 22, 2009
©MurthyDotCom
The USCIS announced on June 22, 2009 that the premium processing service will resume for I-140 (Immigrant Petition for Alien Worker) cases. This service was suspended since July 2, 2007. MurthyDotCom and MurthyBulletin readers were informed of the likelihood that this procedure would be reinstated in our June 12, 2009 article, I-140 Premium Processing Expected. Read this article in its entirety on MurthyDotCom.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

6. Reminder : Murthy's Corporate & Public Teleconferences - Wed, Jul 01 & 15, 2009
Topic : Successful AOS Applications for EB Immigration
©MurthyDotCom
Because this topic, originally planned for our corporate listeners, is so popular and important, it will be replayed and open to the general public on July 15th. It will cover successful adjustment of status (AOS) applications for employment-based (EB) immigration. This includes current and potential issues with cases filed during the June and July 2007 VisaGate period, AC21 portability, and I-140 revocation, the nature and the movement of priority dates, and general I-485 filing strategies and procedures. Please note that space is limited.
©MurthyDotCom
Employers and their representatives : register for Jul 01, 2009 here. 
©MurthyDotCom
General Public : register for this FREE Jul 15, 2009 event by sending an eMail confirming your interest to publicevent@murthy.com.
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

7. MurthyDotCom : Did You Know About the Affordability of Our Fees?
©MurthyDotCom
Since Sheela Murthy opened for business in 1994, this firm has worked diligently to offer premium quality service at a cost that is considered a great value by our clients. Employing technology and advanced methods to streamline the work process, our fees are in line with other comparable law firms. It has always been our goal to serve the community well and AFFORDABLY. The Murthy Law Firm has a reputation for quality. Prospective clients should contact our office for accurate fee information to learn that superior service does not have to be out of reach!
©MurthyDotCom
MurthyChat : The next MurthyChat session will be Monday, Jul 06, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays of each month. Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions. 
©MurthyDotCom
MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
©MurthyDotCom
MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
©MurthyDotCom
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

. . . . . . . . . . . . . .

8. 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 © 2009, MURTHY LAW FIRM. All Rights Reserved