MurthyBulletin VOL. XIV, no. 15; April 2008, week 2 Posted : April 11, 2008 . . . . . . . . . . . . . . "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. Mandamus Lawsuits Remain Effective in Immigration Cases 2. Simple Errors May Lead to Denials of PERM Cases 3. DHS Issues New No-Match Supplemental Proposed Rule for Employers 4. H1B Cap Reached for FY2009! Posted on MurthyDotCom Apr 08, 2008 5. Cap Gap Relief : OPT 29 Months for Students with Certain Degrees Posted on MurthyDotCom Apr 04, 2008; updated Apr 09, 2008 6. MurthyDotCom : Did You Know about MurthyTakesAction? 7. 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. Mandamus Lawsuits Remain Effective in Immigration Cases ©MurthyDotCom Recent developments in U.S. Citizenship and Immigration Services (USCIS) and Federal Bureau of Investigation (FBI) policies may soon limit writ of mandamus lawsuits. While some may think that mandamus cases are no longer as helpful, they continue to be an effective tool to resolve delayed immigration cases. The mandamus continues to provide a mechanism to obtain review of a long-delayed case, often leading to a speedy resolution. The following perspectives on this matter are for the benefit of our MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom USCIS and FBI Plan to Complete Name Checks by June 2009 ©MurthyDotCom The USCIS and FBI released a joint press release (PDF 27.8KB) on April 2, 2008 stating their plan to complete pending FBI name check cases by June 2009. The FBI claims already to have resolved all name check cases that were pending for more than four years. The two agencies intend to meet the June 2009 milestone by increasing their staff and resources and by improving their business processes. ©MurthyDotCom Case Load with FBI for Naturalization Cases is Large ©MurthyDotCom The USCIS has requested that the FBI complete more than 29,800 pending name check cases for foreign nationals who have applied for naturalization and completed the naturalization interview process. As reported in our January 11, 2008 MurthyBulletin article, Murthy Law Firm Successful in Mandamus Lawsuits, mandamus actions may benefit those with delayed N-400 and I-485 cases. If a foreign national's N-400 is delayed more than 120 days from completion of an N-400 interview, s/he may seek a hearing on the case by filing a federal lawsuit in a U.S. District Court. ©MurthyDotCom Aytes's February 2008 Memorandum and Mandamus Lawsuits ©MurthyDotCom As indicated in our March 7, 2008 article, New Developments in Mandamus Lawsuits, the USCIS issued a  February 4, 2008 memorandum by Michael Aytes, in response to the rising tide of successful writ of mandamus actions. This memorandum permits USCIS to approve an I-485 application that otherwise is approvable, but has been delayed for 180 days or more by the FBI name check process. ©MurthyDotCom This memorandum has caused U.S. senatorial and congressional offices to decline requests for assistance in expediting such delayed cases. With no way to send requests to the USCIS from other parts of the U.S. government, the only EXTERNAL way to expedite the processing of I-485 cases by the USCIS is to file a writ of mandamus lawsuit. While regular readers may recall a USCIS press release to the contrary, cited in our March 2, 2007 article, Policy on Expediting FBI Name Checks: Very Limited, the Murthy Law Firm continued in February and March 2008 to successfully resolve delayed I-485 cases using mandamus lawsuits. Several of these I-485 applications were approved quickly, after the filing of mandamus actions based upon the February 2008 Michael Aytes's memorandum, as USCIS approval was possible without the completion of name checks. ©MurthyDotCom Conclusion ©MurthyDotCom Despite the policy announced in the February 2007 press release, USCIS continues to approve some delayed I-485 applications after writ of mandamus lawsuits are filed. The Murthy Law Firm will continue to use these and other legal strategies to help our clients resolve difficult and long-delayed cases to obtain results when the government is not processing cases within its own established timelines. Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. Simple Errors May Lead to Denials of PERM Cases ©MurthyDotCom Everyone who has had contact with the U.S. immigration system knows that standardized government forms play an important role. It is necessary to use the correct forms, provide the proper information on the forms, and pay any appropriate fees for submitting those forms. The inaccurate placement of a checkmark on a form or a slight mistake in the information provided can make an enormous difference. In the world of PERM labor certifications, a body of law has been developed to distinguish between inadvertent typographical errors as opposed to omissions or substantive errors in filings. Typographical errors potentially can be corrected, although the process is difficult and lengthy. In a series of recent cases following the decision in the Matter of HealthAmerica, the U.S. Department of Labor (DOL) denied many PERM cases, since it was determined that the errors, although arguably typographical, in fact were substantive. This summary of some of those decisions is provided to help MurthyDotCom and MurthyBulletin readers and their attorneys avoid some of these problems to file better PERM cases and increase their chances of obtaining green card approval. ©MurthyDotCom Background on HealthAmerica Case ©MurthyDotCom This case was initially introduced to our readers in our August 11, 2006 article, BALCA Approves PERM Case : DOL Requests Return of Denied PERMs, available on MurthyDotCom. In that case, the Board of Alien Labor Certification Appeals (BALCA) reversed the denial of a PERM application in a decision issued in July 2006, Matter of HealthAmerica. In that decision, BALCA opined that the Certifying Officer (CO) abused his/her discretion in denying the PERM application simply due to a typographical error. Our readers were cautioned on the limited application of this ruling in our June 1, 2007 article, Further Analysis on LC Substitution Elimination Regulation, which provided an analysis of the regulation that went into effect on July 16, 2007. We then surmised that it still would allow for the denial of PERM applications involving typographical errors in some instances. Since the decision in the Matter of HealthAmerica, BALCA has issued a number of decisions in similar cases. This overview of the decisions should give our readers a more thorough understanding of which circumstances might more likely result in the denial of a PERM application due to various errors made on the labor certification (LC) form. It should also be noted that none of the cases referred to in this article was filed by the Murthy Law Firm, but summaries are available through published decisions or other sources. ©MurthyDotCom Typographical Errors versus Omissions ©MurthyDotCom Based on a number of opinions by BALCA, clearly unintentional typographical errors are treated with more flexibility than outright omissions. As indicated in many of the opinions, excusing omissions may be interpreted as rewarding hasty filings simply to secure a more favorable priority date. Opening the floodgates to accommodate careless omissions also would further congest the USCIS service centers. When an inference of careless neglect or misunderstanding exists, BALCA is less likely to reverse the CO’s decision. ©MurthyDotCom Failure to Mention Date of Education Completion : Fatal ©MurthyDotCom In a June 2007 case, BALCA upheld the denial of an LC in which the employer failed to provide the year the beneficiary's education was completed. In this decision, BALCA specifically stated that "[t]o allow employers to file incomplete or deficient applications knowing that they can later fix or complete them - while keeping the same priority date - might encourage employers to file such applications simply to lock-in a priority date." ©MurthyDotCom Failure to Mention Combination of Education and Experience : Fatal ©MurthyDotCom Similarly, in cases that fail to indicate acceptability of an alternate combination of education and experience, BALCA upheld the CO's denials. In these decisions, BALCA explained that the CO was effectively prevented from making a determination on two key points necessary for adjudication of the LC. Without this information, a CO can neither determine whether the alternative requirements are unlawfully tailored to the beneficiary's education and experience, nor can s/he determine whether the employer's job requirements corresponded to the actual minimum requirements. BALCA further stated that these were not "slight omissions" and constituted grounds for denial. ©MurthyDotCom Failure to Mention FEIN Number : Fatal ©MurthyDotCom The CO denied a case in which the employer omitted the FEIN number because it was not yet available. BALCA upheld the denial because the petitioner had not established itself as an "employer" at the time of filing. ©MurthyDotCom Missing DOL's Logo on PERM Filing : Not Fatal ©MurthyDotCom BALCA reversed the denial of the CO in at least one case in which the LC form submitted did not bear the Department of Labor (DOL) logo, noting that the employer did not have sufficient warning of the logo requirement on all forms, that there was no evidence of bad faith on the part of the employer, and that the denial would amount to an injustice and not satisfy the requirements of due process. These factors were consistent with the fundamental criteria established by the Matter of HealthAmerica. ©MurthyDotCom Generally, when an honest mistake is made and the employer proves compliance but for the typographical error, BALCA is less likely to uphold a denial. The circumstantial factors in the Matter of HealthAmerica are still relevant in determining what constitutes immaterial error; however, no bright-line rule exists in making this determination. ©MurthyDotCom Wrong Posting Date / No Name on W2 : Fatal ©MurthyDotCom BALCA upheld the denial of a number of PERM cases involving typographical errors. Among these was an instance in which the petitioner listed the wrong date for Sunday advertisements and another in which W2 forms requested by the CO did not bear the beneficiary's name. ©MurthyDotCom Incorrect DOL Office : Not Fatal ©MurthyDotCom An employer in one case erroneously listed on the posting notice the address of the NY certifying office rather than the Atlanta Processing Center. BALCA found that putting the wrong address on the posting notice should not result in a denial of the PERM application, as the NY office was still open at the time of the posting. ©MurthyDotCom Conclusion ©MurthyDotCom While the decision in the Matter of HealthAmerica still stands, it is important for employers to take every precaution to ensure that a simple mistake will not jeopardize the PERM filing and result in a denial. Because the circumstances of the Matter of HealthAmerica have very limited application, every filing should be carefully analyzed and individually prepared. The seeming simplicity of the LC form should not mislead employers and employees, as every question has a specific purpose. If your PERM case is, in fact, denied due to a typographical error, you should seek advice from an experienced, knowledgeable immigration attorney to discuss the options, including an appeal or a re-file and the likelihood of success with either option. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. DHS Issues New No-Match Supplemental Proposed Rule for Employers ©MurthyDotCom The U.S. Department of Homeland Security (DHS) issued a press release on March 21, 2008 announcing a supplemental proposed rule (PDF 224KB) on Social Security Administration (SSA) no-match letters. A no-match letter is a letter from the Social Security Administration that is issued when the information on an employee is inconsistent with the SSA's records. The controversy in this area swirls around the concept of whether an employer has constructive knowledge that an employee is not authorized to work once the employer has received a no-match letter. The supplemental proposed rule is an attempt to address three issues that caused a federal court to halt the implementation of the initial version of the rule. The proposed rule is summarized here to guide U.S. employers in understanding their obligations under the rule. ©MurthyDotCom Injunction Prevented Implementation of DHS Regulation Since Aug 2007 ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers may recall from our September 21, 2007 article, No-Match Letter Regulation is on Hold, the DHS was prevented from operating under the original no-match regulation issued August 15, 2007 by a U.S. District Court injunction. This court order enjoined the DHS from implementing the regulation. ©MurthyDotCom DHS Rule Attempts to Address Court's Concerns ©MurthyDotCom The DHS press release indicates that this supplemental proposed rule was developed in response to the U.S. District Court's restraining order and addresses the three issues discussed in the restraining order. One of the concerns raised by the court was whether the change in policy contained in the rule was reasoned and justified, that is, whether a no-match letter is, in and of itself, sufficient to put an employer on notice that a worker is not authorized to work. (There could be many reasons for a no-match letter that are not related to work authorization.) ©MurthyDotCom The other two reasons involve the authority of the DHS to create exceptions under the safe harbor provisions and whether the DHS complied with the Regulatory Flexibility Act. DHS claims that this new rule does not impose any new legal obligations on employers, but provides safe harbor or legal protection for employers who follow the procedures created by the no-match rule. The rule gives an employer 90 days to rectify the no-match issue before various civil and criminal penalties can be imposed if constructive knowledge of unauthorized employment is found. See our August 17, 2007 article, Liability for Employers who Receive No-Match Letters, available on MurthyDotCom, for more detail on these provisions and penalties. ©MurthyDotCom Conclusion ©MurthyDotCom Critics of the supplemental proposed rule state that it does not make any substantive changes. A summary of the opposition to the proposed rule is available through the National Immigration Law Center (PDF 224KB). If this DHS supplemental proposed rule survives judicial review in the courts, U.S. employers must be prepared to receive no-match letters and respond promptly to DHS or SSA. Employers, their HR managers, and other representatives are encouraged to educate themselves and prepare for these and other worksite enforcement actions if and when they are put into effect, as the cost of violation is onerous on most businesses. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. H1B Cap Reached for FY2009! Posted on MurthyDotCom Apr 08, 2008 ©MurthyDotCom The USCIS announced on April 8, 2008 that a sufficient number of H1B filings had been received to meet the Fiscal Year (FY) 2009 annual limit, known as the "cap." Also received were more than 20,000 cases requesting advanced-degree exemptions, meeting that cap for FY2009, as well. The announcement did not specify the date/s on which the regular and advanced degree limits were met. However, it must have been within the first five days of filing, which ended April 7th. This is indicated by the announcement of a lottery of cases filed between April 1 and 7, 2008, under revised procedures for FY2009. The date for the lottery has not been announced, nor has the total number of cases received. ©MurthyDotCom We at MurthyDotCom will provide more information on the lottery and H1B cap as it becomes available. Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Cap Gap Relief : OPT 29 Months for Students with Certain Degrees Posted on MurthyDotCom Apr 04, 2008; updated Apr 09, 2008 ©MurthyDotCom Only 3 days after it was submitted by the U.S. Department of Homeland Security on March 31, 2008, the Office of Management and Budget finished reviewing the interim final rule (PDF 2.9MB) on Optional Practical Training (OPT), about which we reported in our  April 4, 2008 article Potential Extension of F-1 OPT Validity Period. The new rule was published in the Federal Register on April 8th. This brings much-needed relief to students with degrees in science, technology, engineering, and math, extending the total OPT time from 12 to 29 months. In addition, any student who is beneficiary of a pending H1B petition at the time the OPT authorization is scheduled to expire will be able to extend status until the beginning of the fiscal year. Read more on this topic on MurthyDotCom.  ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about MurthyTakesAction? ©MurthyDotCom Aside from our excellent legal services and the online resources we provide, Sheela Murthy and our other attorneys at the Murthy Law Firm are also involved in the active pursuit of knowledge and the exchange of ideas. We regularly contribute to and attend meetings and conferences. We take part in initiatives to improve the condition for immigrants and to aid the U.S. companies that would like to employ them. Learn about some of our efforts and involvement by clicking Community in the left-hand margin of any page. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, April 21, 2008, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Monday 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 © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 7. 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 © 2008, MURTHY LAW FIRM. All Rights Reserved
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