MurthyBulletin
VOL. XV, no. 05; Jan 2009, week 5
Posted : Jan 30, 2009; updated Feb 02, 2009

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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. U.S. Consulate Hyderabad, India : January 2009 Update

2. Company and Owner Both Liable for H1B Back Wages

3. 2009 Poverty Guidelines Released

4. Reminder : Murthy's Teleconference - Wed, Feb 04, 2009

5. MurthyDotCom : Did You Know about Our Corporate PreHire Consultations?

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. U.S. Consulate Hyderabad, India : January 2009 Update
©MurthyDotCom
The U.S. Consulate in Hyderabad, India, became operational in December 2008. Visa services remained unavailable, however, and potential applicants were routed to the consulate in Chennai. MurthyDotCom and MurthyBulletin readers were informed of the scheduled opening of the new consulate in Hyderabad in our December 10, 2008 article, Opening Soon: U.S. Consulate in Hyderabad, India. Murthy Immigration Services, Pvt. Ltd. (MISPL), located in Chennai, India, is the affiliate office of the Murthy Law Firm. Our attorneys there have been keeping abreast of matters related to the consulate in Hyderabad. From them, we have learned that visa services have been postponed and are expected to be phased in beginning late March 2009.
 ©MurthyDotCom
News on Developments in Hyderabad : 60-Day Timeframe
©MurthyDotCom
Attorney Senthil Kumar, of MISPL, participated in a program organized by the Andhra Chamber of Commerce on Tuesday, January 20, 2009, at which Vice Consul Lawrence Lane spoke on Current Issues Faced by U.S. Visa Applicants. The most up-to-date information available, according to Vice Consul Lane, is that the U.S. Consulate in Hyderabad will begin accepting visa applications in 60 days. He also reported that this new consulate initially expects to interview approximately 100 visa applicants per day. These applications will first be limited to those for more common visas, such as B-1/B-2 visitor visas, and will slowly expand to other categories of visas. No timeframe was given for the expansion to other visas.
©MurthyDotCom
Conclusion
 ©MurthyDotCom
We at the Murthy Law Firm will keep a close watch on developments at the new U.S. Consulate in Hyderabad, India as we know that many visa applicants from Hyderabad may prefer to apply for their visas at that location. We continue to caution our readers with time-sensitive travel not to wait to schedule their visa appointments, hoping to apply through the U.S. Consulate in Hyderabad, as it is in the start-up phase and things may move more slowly than anticipated.
 ©MurthyDotCom
 Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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2. Company and Owner Both Liable for H1B Back Wages
©MurthyDotCom
 The Administrative Review Board (ARB) of the U.S. Department of Labor (DOL) reaffirmed and approved on December 31, 2008 a decision by an Administrative Law Judge (ALJ) that awarded $39,666.47 in back wages, plus interest, to a physician employed in H1B status. Two significant matters in this case are: (1) the ARB found that it was appropriate to award wages beyond the termination of actual employment until the time when employer filed a notification and request with the USCIS to revoke the H1B petition; and (2) the back-wage award was granted against the H1B company, as well as against the company owner, individually. This problem is avoidable simply by paying workers, as required in the Labor Condition Application (LCA); or, if there is not sufficient work, filing an H1B amendment or terminating the H1B, as needed, in compliance with the DOL regulations.
 ©MurthyDotCom
Role of the DOL Wage & Hour Division
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The DOL's Wage & Hour Division (WHD) is responsible for investigating claims of underpayment or nonpayment of wages, and claims of LCA violations by H1B workers. In the case of Administrator, WHD, DOL v. Help Foundation of Omaha, Inc. and Anil K. Agarwal, a physician working in H1B status complained to the WHD regarding the employer's failure to pay the required salary. The WHD investigated and found that the employer had violated the Immigration and Nationality Act (INA) by failing to pay the required LCA wages.

Background of Claim
©MurthyDotCom
The employer in this case filed for and obtained an H1B petition approval for a physician, after having supported his request for a waiver of his J-1 two-year home return requirement. The underlying LCA, approved by the DOL, indicated that the prevailing wage for this occupation in Council Bluffs, Iowa was $118,222 per year, and that the position would be compensated at the rate of $125,000 per year.
©MurthyDotCom
Employer Fails to Pay Prevailing Wages
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This doctor worked for the employer for nine months, at which time he was terminated. The employer did not immediately notify the USCIS and request revocation of the H1B petition, nor did it offer payment for the doctor's return travel to his home country. Both of these measures are required when employment is terminated before the expiration of the H1B petition.
©MurthyDotCom
During the physician's nine months of employment, the employer paid wages totaling $49,000. This is the equivalent of an annual salary of $65,333.33. This wage level falls well below both the prevailing wage of $118,222 and the promised salary of $125,000.
©MurthyDotCom
Employer Notifies DHS of Employee's Termination
©MurthyDotCom
Eight months following the employment termination, the employer notified the USCIS of that fact. At no time did the employer offer to pay the cost of return travel. These failures, as explained below, would have resulted in an award of an additional eight months of back pay, had the parties not agreed upon the amount of back wages in dispute.
©MurthyDotCom
Employer Requests Hearing before an ALJ
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 The WHD's investigation resulted in a finding of violations and assessed back wages. The employer disputed these findings and requested a hearing before an ALJ. The ALJ ruled in favor of the doctor and ordered back wages in the amount of $39,666.47, with interest. The order was against the company as well as the individual owner. The employer appealed to the ARB. The ARB affirmed the decision of the ALJ. The ARB found that the appropriate back-wage period was extended by eight months, as the employer did not properly effectuate the termination of employment under the USCIS regulations for termination of H1B employees.
©MurthyDotCom
Employer Tries to Argue Part-Time Employment
©MurthyDotCom
 The company owner claimed that the doctor did not see enough patients to equal 40 hours and, thus, was not entitled to full-time wages. The employer claimed that the doctor had requested a part-time schedule, and was paid accordingly. The ARB did not accept these arguments.  
 ©MurthyDotCom
Employer Liable for Full Wages, per LCA
©MurthyDotCom
The ARB stated that it was the responsibility of the employer to provide enough patients for full-time employment, and that the LCA filed in this case indicated that the employment was on a full-time basis. This LCA included an attestation that the H1B worker would be paid the offered wage for the entire period of authorized employment. If this doctor was unproductive during certain periods of time, it was not due to his unavailability or unwillingness to work. Additionally, the doctor's testimony, the testimony of other clinic employees, and documentary evidence showed that he did, in fact, work a full-time schedule.
©MurthyDotCom
 ARB Expands Employer's Liability
©MurthyDotCom
In addition to the back-wage order entered by the ALJ, the ARB found that the employer owed interest on the back-wages award from the date of the employee's termination until the date of the WHD's finding. It also stated that the employer owed post-judgment interest from the date of the WHD finding until it made full payment of the back wages. The ARB further found that the employer was responsible for back wages until the date when the employer notified the USCIS/DHS of the termination of the doctor's employment. This was an additional eight months of back wages, because the employer did not fulfill its obligation to notify the DHS promptly after terminating the H1B worker's employment. However, this was not actually awarded, as the parties had agreed to the limit of the dispute as being the earlier award of $39,667, plus interest. Had this not previously been agreed upon, ARB opined that the employer could have been required to pay an additional eight months of wages.
 ©MurthyDotCom
Conclusion
©MurthyDotCom
The ARB's decision in this case emphasizes how important it is for employers of H1B workers to meet all obligations under the H1B and LCA documents. In this environment of heightened DOL investigation, any underpayment of the prevailing wages or nonpayment during bench time may lead to a significant award of back wages and interest penalties. As noted in this case, the judgments may be valid not only against the company, but also potentially against the company's owner/s, personally. Employers need to understand their obligations and set up appropriate systems to ensure compliance. The Murthy Law Firm can assist employers with matters related to H1Bs, including appropriate procedures for notifying the USCIS of H1B terminations and other changes in the terms of employment. We will continue to monitor DOL decisions to update MurthyDotCom and MurthyBulletin readers.
 ©MurthyDotCom
 Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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3. 2009 Poverty Guidelines Released
©MurthyDotCom
The Department of Health and Human Services (HHS) issues federal poverty guidelines annually. The 2009 guidelines have been published, and became effective as of the date of publication, January 23, 2009. The guidelines are determined each year, based upon the Consumer Price Index. These guidelines are important in the immigration context with respect to the "public charge" provisions. The guidelines are utilized to measure the sufficiency the income relied upon when filing a Form I-864, Affidavit of Support.
©MurthyDotCom
Affidavit of Support
©MurthyDotCom
The I-864, Affidavit of Support is required in almost all family-based immigration cases. It is also required in some employment-based immigration cases. Its purpose is to assure that the sponsored foreign national has sufficient financial support and will not become a burden, or a "public charge" of the U.S. government.
©MurthyDotCom
Required Income
©MurthyDotCom
The affidavit of support must demonstrate income levels of at least 125 percent of the applicable poverty level. The amount of income under the poverty guidelines varies according to the number of family members. If the sponsor has previously filed I-864s for other individuals, and has an ongoing obligation, this is also taken into account. If the sponsor's income is not sufficient, there can be alternatives. These include consideration of assets, as well as utilizing an additional joint sponsor who has more financial wherewithal. Case-specific issues regarding affidavit of support requirements should be discussed with an immigration attorney.
©MurthyDotCom
The 2009 poverty guidelines are as follows. The requirement for the affidavit of support is 125 percent of the poverty line. Thus, to calculate the amount, the following numbers must be multiplied by 1.25.

48 Contiguous States plus Washington DC

Size of Family Unit

Guideline

1

$    

10,830

2

 

 14,570

3

 

 18,310

4

 

 22,050

5

 

 25,790

6

 

 29,530

7

 

 33,270

8

 

 37,010

For family units with more than 8 members, add $3,740 for each additional member.
 

Alaska

Size of Family Unit

Guideline

1

$    

13,530

2

 

 18,210

3

 

 22,890

4

 

 27,570

5

 

 32,250

6

 

 36,930

7

 

 41,610

8

 

 46,290

For family units with more than 8 members, add $4,680 for each additional member.
 

Hawaii

Size of Family Unit

Guideline

1

$    

12,460

2

 

 16,760

3

 

 21,060

4

 

 25,360

5

 

 29,660

6

 

 33,960

7

 

 38,260

8

 

 42,560

For family units with more than 8 members, add $4,300 for each additional member.

©MurthyDotCom
 Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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4. Reminder : Murthy's Teleconference Series - Wed, Feb 04, 2009
 Topic : Crossing the Bridge to Employment - F-1 Students and the Transition to H1B Employment
 ©MurthyDotCom
 The February 2009 teleconference presented by the Murthy Law Firm will examine how employers can bring on new foreign national employees who have not worked in H1B status previously or who are now graduating from U.S. universities. Our attorneys will discuss the different options that may be available for employing a foreign national upon earning a U.S. degree who is in F-1 Student status, as well as matters of which to be aware regarding transition into the workforce. As the USCIS prepares to receive tens of thousands of H1B petitions for applicants subject to the "cap," we will review some of the important issues and options to consider. Led by Attorney Sheela Murthy, the February 2009 Murthy Law Firm Teleconference will discuss some of the requirements of Optional Practical Training (OPT), as well as the OPT STEM extension option and the nuances that arise when a company asks USCIS to change a foreign national's status in the H1B visa program. We will discuss how the law can answer your questions impacting this critical group.
 ©MurthyDotCom
Anyone interested in participating in the teleconference, who is not already on our list of Corporate participants, should eMail publicevent@murthy.com.  
Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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5. MurthyDotCom : Did You Know about our Corporate PreHire Consultations?
 ©MurthyDotCom
At the Murthy Law Firm, we know that you want the best representation for your foreign national employees' immigration cases. Like all good business owners, you also are concerned about cost. If you are a company representative with the authority to hire or research the best options for your company, you may schedule a FREE Corporate PreHire Consultation with one of our senior attorneys. Learn just how reasonable our fees really are and what you can gain by becoming a corporate client of the Murthy Law Firm!
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MurthyChat : The next MurthyChat session will be Monday, Feb 02, 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. 
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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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 Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved

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6. Important Processing Times and Dates
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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

 

  
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