MurthyBulletin
VOL. XIII, no. 10; Mar 2007, week 2
Posted : Mar 09, 2007

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"We know your immigration matters!" ^SM

The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. This bulletin is not sent unsolicited. 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. LC Substitution Regulation Restricts Payment for LCs

2. Employment-Based Visa Number Predictions

3. DREAM Act Reintroduced

4. Immigrants Have Lower Rates of Crime and Incarceration

5. MurthyDotCom : Did You Know about Our Legislation Page?

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. LC Substitution Regulation Restricts Payment for LCs
©MurthyDotCom
At the Murthy Law Firm, we have been following the proposed U.S. Department of Labor (DOL) regulation that addresses and prohibits labor substitution. Our most recent article on the topic is Labor Substitutions: Still Possible in February 2007, available on MurthyDotCom. The regulation is a general anti-fraud regulation, however, with provisions that extend beyond substitution. One important element of the proposed regulation involves a prohibition against payment by the employee of certain fees and costs related to the filing of a labor certification (LC). Included in the list of prohibited fees are legal fees and advertising costs. Costs related to the filing of a ”green card” are often shared between the employer and beneficiary. Therefore, employers who allocate green card costs to employees may wish file their cases before there are any changes in the regulations.
©MurthyDotCom
Background on the LC Regulation
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These provisions, and our opinion that the regulation is too broad in this regard, were reported in our February 17, 2006 MurthyBulletin article, DOL Proposes Elimination of LC Substitutions and Other Changes, also available on MurthyDotCom. Currently, the proposed regulation is being considered by the Office of Management and Budget (OMB), and the possible effective date is not known at this time. The OMB has 90 days to review a regulation and, after the review, the regulation could be approved, rejected, or returned to the DOL for further revisions. The regulation would have to be published in the Federal Register prior to becoming effective. While there has been much focus on the elimination of labor substitutions and the 45-day validity period for the filing of I-140s after LC approval, there has been less attention on the proposal regarding payments made in connection with labor certifications. These provisions could have a major impact on employers and employees.
©MurthyDotCom
Ban on Improper Commerce of LCs
©MurthyDotCom
The proposed regulation seeks to eliminate "improper commerce" in labor certifications. This includes the sale, barter, or purchase of labor certifications and is aimed at the black market. In exchange for payment, some employers and agents have brokered labor certifications or agreements to file them. There appears to be no justifiable argument against this section of the regulation. An LC or the employer's promise to file an LC should not be an item of commerce. This practice invites fraud and is contrary to the purpose of the labor certification.
©MurthyDotCom
All LC Costs to be Borne Exclusively by U.S. Employers
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The proposed regulation moves beyond the sale of labor certifications, however, into other types of payments. According to the text of the proposed regulation, as originally published, “An employer shall not seek or receive payment of any kind for any activity related to obtaining a permanent labor certification. Payment or reimbursement of the employer’s attorney’s fees or other employer costs related to preparing and filing a permanent labor certification applicant and obtaining permanent labor certification is prohibited.”
©MurthyDotCom
Broadly defined by the DOL, the prohibited payments include monetary payments, wage and employment concessions, and goods and services. Additionally, recruitment costs were specifically listed as an expense that would be restricted to employers in the DOL’s explanation of the regulation.
©MurthyDotCom
If approved, the regulation would apply to both PERM and pending LC cases filed before March 28, 2005. Since laws and regulations generally cannot be retroactive, however, it should apply only as of its effective date.
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Parties Must File PERM Cases Promptly
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Since the proposed regulation is not yet in effect, its terms do not apply at this time. Thus, this may be a good time to move forward with cases for which employers are not intending to pay all costs. There are many reasons for employers to share the cost with their employees, and there are many who hope the DOL will reconsider its position. A green card benefits both employer and beneficiary in a case. The allocation of the costs is a matter of reasonable business discretion. The costs covered for employees and the benefits offered vary from employer to employer. This is not a matter of fraud, however, unlike cases where an approved labor certification is sold to the highest bidder.
©MurthyDotCom
Arguments such as these, and others, were put forth in the comments to the proposed regulation. Because there is no way to know if the DOL will heed what many consider to be business reality, however, it is best to be proactive. In this situation, this means either filing cases now or budgeting and planning for coverage of all expenses related to the filing of PERM cases in the future.
©MurthyDotCom
Conclusion
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The recruitment and paperwork involved in the filing of a labor certification, even when assisted by an attorney, represents costs in terms of funds as well as time for any employer. These employers are making an additional investment that is not needed when a U.S. worker is hired for a position. At a minimum, the foreign national in such a case should be allowed to pay those costs that do not exist when employing a U.S. worker, that is, everything but the recruitment costs. An employer does not have any incentive to file a labor certification simply because the foreign national is picking up all or part of the cost. It is much easier and quicker to hire a U.S. worker, in most cases. An employer processing a labor certification is not motivated to do so simply because the attorney's fees or recruitment costs are covered. Parties will need to file promptly to avoid this issue, but it will be something for employers and employees to reckon with in the long run.
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2. Employment-Based Visa Number Predictions
©MurthyDotCom
We are often asked by our clients at the Murthy Law Firm to predict the movement of immigrant visa numbers. We have some useful information for MurthyDotCom and MurthyBulletin readers in this regard. Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division at the U.S. Department of State (DOS) was a guest speaker at a February 28, 2007 Washington D.C. Chapter meeting of the American Immigration Lawyers Association (AILA), which was attended by several attorneys from our firm. Mr. Oppenheim was kind enough to share his office’s visa number / Visa Bulletin expectations for 2007.
©MurthyDotCom
HISTORICAL BACKGROUND OF RETROGRESSION
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Mr. Oppenheim discussed the historical background that has led to the current retrogression situation. Retrogression is not something new or unfamiliar in immigration law, as long-time MurthyDotCom and MurthyBulletin readers may recall. For many, however, who may have become involved in the green card process since 2001, it is new and, of course, highly problematic. Employment-based (or EB) numbers were current from 2001 through 2005 due to a legislative "fix." This legislation authorized prior, unused immigrant visa numbers from several earlier years to be recaptured and put back into the immigration system. That quota of recaptured numbers was exhausted during Fiscal Year (FY) 2005. As a result, in FYs 2005, 2006 and 2007 we have witnessed severe backlogs in the EB3 categories for all countries and, starting in FY2006, in the EB2 categories for China and India.
©MurthyDotCom
PREDICTIONS FOR EB IMMIGRANT VISA NUMBERS
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Employment-Based First Preference / EB1
©MurthyDotCom
Mr. Oppenheim stated that the employment-based first preference (EB1) category is expected to remain current for all countries of chargeability, including India and China. This is likely throughout the remainder of FY2007 (ending September 30, 2007).
©MurthyDotCom
Mr. Oppenheim explained what he referred to as the “trickling effect” of unused visa numbers between EB categories. This trickling effect has resulted in the EB1 category's having remained current. The numbers in the employment-based fourth preference (EB4) and employment-based fifth preference (EB5) categories that are unused are transferred up to the EB1 category. Without this trickling affect, the EB1 category would not remain current for India and China.
©MurthyDotCom
This also has an impact on EB2, as unused EB1 numbers trickle down to EB2. There are not enough numbers for India and China, however, to allow the EB2 for these two countries to become current. But it has helped to move EB2 forward for these two countries, to some extent.
©MurthyDotCom
Employment-Based Second Preference / EB2
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The employment-based second preference (EB2) category is expected to remain at its current cutoff dates for nationals of India and China. These dates have been stagnant at April 22, 2005 for China and January 8, 2003 for India for a few months.
©MurthyDotCom
Employment-Based Third Preference / EB3
©MurthyDotCom
No forward movement is expected for the employment-based third preference (EB3) category. In fact, as predicted in the March Visa Bulletin and confirmed by Mr. Oppenheim, there is a strong possibility that the EB3 numbers that are not in the "worldwide" chargeability will further retrogress, or move backward. This is expected to occur in the summer of 2007. This backward movement is based upon excessive demand for the limited supply of visa numbers. This will adversely affect nationals of India and China.
©MurthyDotCom
Double Dipping
©MurthyDotCom
Another problem important to note is one of “doubling dipping” for visa numbers by some individuals. As explained by Mr. Oppenheim, if an employment-based beneficiary filed for adjustment of status in the U.S. and for consular processing overseas, that individual could acquire two visa numbers if both cases are approved. This would result in a wasted immigrant visa number. As a result of this scenario, the DOS and the USCIS are planning a system that would coordinate their visa number allocation, so that each will be aware if the other has already issued a visa number for a particular individual, to prevent waste of this kind.
©MurthyDotCom
CONCLUSION
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We appreciate Mr. Oppenheim's continued willingness to address matters related to visa numbers and the Visa Bulletin. [The most recent Visa Bulletin chart is always available to our readers on MurthyDotCom.] The lack of employment-based visa numbers is a source of great frustration for many and Mr. Oppenheim's predictions do not assuage that feeling. It is better to have an understanding of the reality of the situation, however, than to operate in ignorance or with unrealistic expectations. The shortage of visa numbers, once again, underscores the need for legislation in this area, to increase the numbers, change the counting of the numbers (from one per person to one per family), or to revamp the system entirely.
©MurthyDotCom
Many MurthyDotCom and MurthyBulletin readers anxiously await the Visa Bulletin each month. Those who are unfamiliar with the Visa Bulletin or visa numbers should review some of our past articles on the topics of priority dates, visa numbers and the Visa Bulletin, available on MurthyDotCom.
©MurthyDotCom
Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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3. DREAM Act Reintroduced
©MurthyDotCom
The Development, Relief, and Education for Alien Minors Act (DREAM Act) was reintroduced as proposed legislation, or a bill, in the U.S. House of Representatives at the end of February 2007. This bill addresses the situation faced by many students, brought into the U.S. many years ago by their parents or other relatives as undocumented immigrant children. These people have stayed out of trouble, have been consistently attending school, and assimilated into life in the United States. As these promising young people graduate from high school, they are often unable to obtain higher education, they are not authorized to work legally in the U.S., and they live in constant fear of detention by immigration enforcement authorities.
©MurthyDotCom
History of the DREAM Act
©MurthyDotCom
The DREAM Act was first introduced in 2001. It was first brought to the attention of MurthyDotCom and MurthyBulletin readers in our August 16, 2002 article, Senate Judiciary Committee Approves DREAM Act. Since 2002, at least four versions of the bill have been introduced in Congress. Unfortunately, each of them has failed. Last year, in the 109th Congress, it passed the full Senate in May 2006 as part of the Comprehensive Immigration Reform Act of 2006. Because that legislation was not enacted, however, the DREAM act is starting from the beginning in this, the 110th Congress.
©MurthyDotCom
Arguments for the DREAM Act
©MurthyDotCom
Each year many undocumented children graduate from U.S. high schools. These are the children who may be eligible for the benefits under the DREAM Act. Under current immigration laws, and through no fault of their own, many of these talented, promising young people are unable to pursue careers because of a lack of immigration status. This does not benefit the U.S., as it eliminates a readily available, proven talent pool of individuals who could become highly qualified doctors, engineers, artists, teachers, nurses, or enter countless other professions to which they aspire. The DREAM Act would provide an avenue for these youngsters to pursue their educational goals and, ultimately, become rightful citizens and productive contributors to this great country.
©MurthyDotCom
The legislature has long been struggling with the task of bringing the U.S. immigration laws up to date and engaging in a war over the Comprehensive Immigration Reform Act. While the enactment of the Comprehensive Immigration Reform Act is certainly of high importance, there are some groups, like the students who would benefit under the DREAM Act, who simply cannot wait for its completion. The DREAM Act is exactly the piece of legislation that would allow for a far-reaching solution for these young graduates, even without the enactment of the Comprehensive Immigration Reform Act.
©MurthyDotCom
What are the Potential Benefits under the DREAM Act?
©MurthyDotCom
If enacted, the DREAM Act would have a life-changing effect on qualifying immigrants. Most importantly, it would provide a path to future lawful permanent residence. Eligible students would be granted conditional permanent resident status limited to six years. They would be able to work, drive, attend school, and travel abroad for short periods. At the end of the six-year period in conditional permanent resident status, eligible students would be granted regular permanent resident status, if they maintained good moral character, avoided lengthy trips abroad, and fulfilled one of the following requirements: (1) graduated from a two-year college or competed at least two years towards a four-year degree; or (2) served in the U.S. armed forces for at least two years. In addition, the DREAM Act would make it more affordable to obtain higher education as it would repeal the federal law that discourages states from providing in-state tuition without regard to immigration status.
©MurthyDotCom
What are the Eligibility Requirements?
©MurthyDotCom
To be eligible to receive benefits under the DREAM Act, a student must be of good moral character and have been brought to the United States more than five years ago, when s/he was 15 years old or younger. The student would become eligible to apply for the benefits upon graduating from high school.
©MurthyDotCom
Current Posture
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It is important to note that the DREAM Act has not become law, yet, and is only just beginning the legislative process. As explained in our August 2, 2002 article, The Legislative Process – How a Bill Becomes a Law, available on MurthyDotCom, this is a highly complex, multi-faceted process, with many steps.
©MurthyDotCom
Promising – But Here's the Downside
©MurthyDotCom
According to most observers, the DREAM Act has never had as great a chance of succeeding as it does at this time. This is because the current, 110th Congress is newly controlled by Democrats, who generally support this type of legislation.
©MurthyDotCom
The downside or concern is that, if some legislators focus on breaking away portions of immigration legislation, the hope for Comprehensive Immigration Reform (CIR) then starts to erode. It is CIR that will help in the long run, rather than dealing with each section in a piece-meal fashion.
©MurthyDotCom
Future
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We at the Murthy Law Firm will continue to watch the DREAM Act and report on any significant progress. There have been many news reports in the popular press about very bright, young students condemned to dead-end futures because their parents or others brought them to the U.S. without documentation, and never obtained any immigration benefits for these children. Should the DREAM Act becomes a part of CIR, it could afford relief to those who work hard and contribute much to the richness of American life and culture.
©MurthyDotCom
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4. Immigrants Have Lower Rates of Crime and Incarceration
©MurthyDotCom
A recently issued study of the Immigration Policy Center (IPC), a division of the American Immigration Law Foundation (AILF), disproved a common myth that undocumented immigrants to the United States have higher rates of crime and incarceration than their U.S.-born counterparts. The stereotype seems to be applied particularly to young and poorly educated men from Mexico and Central America. It is often assumed that, because one is violating immigration laws, there is also a willingness or intent to commit a variety of dangerous crimes. "Illegal immigrant," as a term is often misinterpreted to mean that one is a career criminal. The study, which was limited to men, proves otherwise.
©MurthyDotCom
Lower Crime and Incarceration Rates
©MurthyDotCom
According to the AILF / IPC report, while the number of undocumented immigrants has doubled to about 12 million in the last thirteen years, the violent crime and property crime rates have significantly declined. In addition, the incarceration rate of the U.S.-born population was five times higher than the incarceration rate of the foreign-born in 2000. The report also provides comparative data on crime and incarceration rates for specific immigrant groups based on their nationalities, lengths of residence in the United States, and their levels of assimilation into U.S. society.
©MurthyDotCom
Assimilation Increases Crime Rates
©MurthyDotCom
The study reaches several conclusions based on statistical information. Strikingly enough, higher crime rates are associated with higher levels of assimilation (which involves higher English proficiency levels, better education, and acquisition of job skills). From a historical perspective, every period of increased immigration has been accompanied by perceptions of threat and pervasive stereotypes of newcomers as being prone to poverty and crime. This, in turn, “provides the underpinnings for public policies and practices.” In addition, television programming and movies propagate the perceived stereotypes. The misconception that immigrants are responsible for current crime rates is deeply routed in American society. The AILF/IPC Report provides statistical evidence, which overturns these misconceptions.
©MurthyDotCom
Conclusion
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People often react to issues regarding immigration based upon stereotypes. In this time of intense debate about immigration law and policy, which impacts both those who have come to the U.S. legally and those who have not, it is important to have facts, and not base policy on assumptions. One should avoid the violation of any laws - immigration or otherwise. At the Murthy Law Firm, our work involves assisting individuals, as well as businesses, universities and other employers, within the legal immigration framework. We find, however, that the immigration debate often fails to recognize some fundamental issues about not just the benefit, but the critical nature of the contributions of immigrants. The numbers and types of individuals who are allowed to immigrate legally vary based upon changing laws and policies. It is important, when considering these policies, to have an accurate picture of the reality of the situation.
©MurthyDotCom
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5. MurthyDotCom : Did You Know about Our Legislation Page?
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At the Murthy Law Firm, we are often asked questions indicating that there is confusion surrounding proposed legislation and new laws. We have a Legislation Page on MurthyDotCom, where we clarify these matters for our readers. We also provide an article on How a Bill Becomes a Law and instructions for contacting your congressional representatives  so that our readers may understand and become involved in the legislative process.
©MurthyDotCom
The next session MurthyChat will be Monday, March 12, 2007, 9:00pm Eastern Time (U.S.). 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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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.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved