MurthyBulletin VOL. XIV, no. 17; April 2008, week 4 Posted : April 25, 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. Recent BALCA Opinions on Labor Certification Cases 2. What If I Don't Want the Change of Status to H1B after its Approval? 3. Korea Could Join Visa Waiver Program 4. Chertoff's Testimony on Homeland Security Appropriations 5. Reminder : Murthy Corporate Teleconference Series - Wed, May 07, 2008 Topic : Demystifying the PERM LC Process - The Basics of a Successful Green Card Case! 6. MurthyDotCom : Did You Know about Our Online Glossary? 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. Recent BALCA Opinions on Labor Certification Cases ©MurthyDotCom The elements of a successful labor certification case have remained constant under case law over the years, as evidenced by some recent Board of Alien Labor Certification Appeals (BALCA) decisions. MurthyDotCom and MurthyBulletin readers will recall from our April 11, 2008 article, Simple Errors May Lead to Denials of PERM Cases, that BALCA's treatment of a typographical error remains consistent with its earlier decision in the Matter of HealthAmerica case. Likewise, issues such as the requirement to have a full-time, permanent position and the employer's obligations to conduct good-faith recruitment efforts have been further explained in recent BALCA decisions that are included here for the benefit of our readers. ©MurthyDotCom Full-Time, Permanent Position Requirement ©MurthyDotCom In Matter of Odonata Corp., BALCA upheld the Certifying Officer's (CO) denial of a pre-PERM case because the employer failed to establish that the position for a landscaper gardener was full time. The employee did not work during certain portions of the year, thereby confirming that the position was not for a permanent, full-time position. ©MurthyDotCom BALCA opined that the employer bears the burden of proving a position is both permanent and full time. The employer's claim that the position is for full-time employment will be accepted, unless there is evidence to the contrary. Here, the employer failed to meet that burden by specifically producing payroll information showing that the employee did not work full time. This opinion is consistent with an earlier decision (In re Vito Volpe Landscaping) that involved another landscaping position in which the employee only worked ten months each year. ©MurthyDotCom Good-Faith Recruitment Effort Requirement ©MurthyDotCom The employer is required to demonstrate having made a good-faith effort to fill the position with a qualified U.S. worker. An employer may not disqualify an applicant who meets the stated minimum requirements for the position, but does not meet an undisclosed requirement for the position. A PERM or any labor certification (LC) application will be denied if the employer rejects a U.S. worker who meets the stated minimum requirements for the job. In a 1990 case, BALCA rejected the contention of an employer that maintained it was necessary to reject an applicant who had a 'bad attitude.' Consistent with prior opinions, in Matter of Bistany's Oriental Rug Dealers, Inc., BALCA upheld the denial of a pre-PERM case for a rug repairer position that required no experience. The employer allegedly offered the position to an applicant, waited six weeks before contacting the applicant, and then asked additional questions in the recruitment process. ©MurthyDotCom In Matter of El Jalisco Mexican Restaurant, BALCA upheld the denial of a pre-PERM case in which telephone records showed that the employer’s attempt to contact applicants involved phone calls lasting less than a minute. BALCA found that this demonstrated a lack of good-faith. The length of these calls allowed the CO to draw a logical inference that the employer did not leave messages for the applicants. Furthermore, the employer did not attempt to contact the applicants by any other means. ©MurthyDotCom This decision illustrates the case-by-case approach that the CO is permitted to take in evaluating the employer's good-faith efforts to contact qualified applicants. The CO will evaluate each LC case for a final decision by determining whether the employer demonstrated good faith or undue delay when attempting to contact qualified applicants. ©MurthyDotCom Conclusion ©MurthyDotCom A PERM case requires thorough preparation and careful evaluation. A successful PERM case must meet all the exacting filing requirements under the DOL regulations, including the employer's good-faith recruitment. The case is best prepared and discussed with a qualified and experienced immigration attorney who can understand and explain the nature and the nuances of the entire LC process. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. What If I Don't Want the Change of Status to H1B after its Approval? ©MurthyDotCom Changing one's status to H1B often involves a lengthy and somewhat unpredictable process. When a potential H1B employer is subject to the annual cap and the uncertainties of lottery selection, many prospective employees consider alternative processes as backup plans. Most would like to stay in the U.S., potentially with valid employment authorization. Because foreign nationals often address their immigration status issues through multiple approaches, if an H1B petition filed on one's behalf is approved for change of status, the individual may no longer wish to change status due to a shift in circumstances or plans. In fact, such an approval may complicate matters for one who no longer wants the status to be changed. For our MurthyDotCom and MurthyBulletin readers who are affected by this situation, we explore some of the common scenarios that foreign nationals and their employers encounter and possible ways to overcome the approved change of status when it is no longer desired. ©MurthyDotCom Employee Unaware of Approved Change of Status to H1B ©MurthyDotCom One typical situation about which we at the Murthy Law Firm receive inquires involves a prospective employer filing an H1B petition for change of status on an individual's behalf, with a start date of October 1st. A beneficiary is often in L-1 (or other nonimmigrant) status at the time of filing, which would take place on the previous April 1st. After the April filing, the beneficiary does not receive any communication from the prospective H1B employer. Thus, s/he assumes that the H1B petition was rejected in the lottery, or decides simply to continue in the L-1 (or other nonimmigrant) status. Therefore, the individual continues the L-1 employment (or otherwise acts in a manner consistent with the prior status) beyond the October 1st start date. Then, via some method, the individual learns that the H1B was approved for a change of status, effective October 1st. Sometimes this news comes as a call from the H1B-petitioning company, explaining that contact was not made earlier because there was no project on which the person could begin. Some employers incorrectly think that, by holding onto approvals, they delay the H1B status change and related obligations for both themselves and these employees. ©MurthyDotCom In a situation such as this, the status was changed and the individual was supposed to start the H1B job, effective October 1st. Any work for the L-1 employer after the change-of-status approval was no longer authorized. When there are extended delays and violations, the option of simply starting work with the H1B employer may be available, but, depending upon the exact situation, as explained below, it is best to clear any doubts regarding the individual's status. This is often accomplished by traveling outside the U.S. and returning in the desired status. ©MurthyDotCom While an individual in this situation may have been out of status for a number of months, s/he normally is not considered to be "unlawfully present" in the U.S. The reason for this is that s/he has an unexpired Form I-94, both from the L-1 employer and the H1B employer. (The term "unlawful presence" is a legal term with legal liabilities that apply. There is a difference between being "out of status" and being "unlawfully present," with different legal obligations. For additional information, see the MurthyDotCom glossary entry for "unlawful presence"). In many of these cases where status is changed but the individual wishes to remain in a prior status, the safest course of action is to leave the U.S. and return in the preferred status, so that there is no doubt as to one's status. This results in the issuance of a new I-94 card at the Port of Entry, in the desired status. ©MurthyDotCom Employee Has Multiple H1Bs with Different Employers for Change of Status ©MurthyDotCom Another common scenario involves a prospective employee who is being sponsored by multiple employers / petitioners for change of status to H1B. In such a situation, one may have multiple I-94s issued for the same start date of October 1st of any given fiscal year. In such a case, the employee simply has to decide for which employer s/he wants to work. Once the employment is begun, the individual must maintain status according to the terms of the specific H1B petition. Concurrent employment may be possible in some cases, but it requires a filing with the USCIS to that effect and should be analyzed separately. Return to a "dormant" H1B petition may also be possible if there are multiple H1B approvals, as explained in our May 3, 2002 article, Dormant H-1 Petitions Remain Valid, available on MurthyDotCom. ©MurthyDotCom F-1 OPT with H1B Pending Now Wants 17-Month OPT Extension ©MurthyDotCom Yet another variation that occurs involves F-1 students who have job offers. The prospective employer of an F-1 student normally has filed an H1B petition requesting a change of status for that F-1 student. The parties now want to take advantage of the April 2008 option announced by the USCIS to utilize the possible 17-month OPT extension provision. The employer needs to withdraw the H1B petition in order for the student to continue in F-1 status. Once the status is changed from F-1 to H1B, the individual would no longer be able to extend the OPT period, even if the H1B petition is approved for the future start date of employment. However, before withdrawing the potentially very valuable H1B petition, it is best to discuss the advantages and disadvantages with a qualified immigration attorney. ©MurthyDotCom Conclusion ©MurthyDotCom The scenarios presented in this article, with the H1B status approved for individuals who no longer wish to benefit from that status, are far from exhaustive. In fact, there are many similar fact patterns that are simply difficult to predict. Because each situation is unique, it is advisable to seek professional advice from a knowledgeable, experienced immigration attorney before making a decision as to the best course of action. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Korea Could Join Visa Waiver Program  ©MurthyDotCom U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff signed a Visa Waiver Program (VWP) Agreement with Korean Minister of Foreign Affairs and Trade Yu Myung-hwan. This agreement was announced on April 18, 2008 in a DHS press release and could lead to the inclusion of South Korea in the VWP in the near future. ©MurthyDotCom Agreement with South Korea is latest expansion of VWP ©MurthyDotCom As MurthyDotCom and MurthyBulletin readers will recall from our April 4, 2008 article, Visa Waiver Program Likely to Expand to Five More Nations, the VWP allows foreign nationals from the current 27 VWP nations to travel to the U.S. for 90 days or fewer without the need for a B-1 or B-2 visitor visa. The VWP only accepts nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants. ©MurthyDotCom Additional Requirements for South Korea for VWP Participation ©MurthyDotCom Before becoming a VWP country, South Korea will have to establish enhanced security measures. The DHS will put an electronic travel authorization system into place. The details of this authorization will be announced later in the year. There are also reporting requirements for lost or stolen passports, by which any prospective VWP country must abide. Other requirements include permitting U.S. air marshals on certain flights. ©MurthyDotCom VWP Purpose Limited to Short-Term Travel ©MurthyDotCom The VWP program does not replace the need for visas such as the H1B, L-1, J-1, F-1, etc. It also only allows a citizen of the VWP country to visit the U.S. for up to 90 days, with neither the possibility to extend status nor the ability to file for a change to another type of status. Therefore, while it is a significant privilege and makes visiting the U.S. much easier for those from eligible countries, it is in no way an open door to live or work in the United States. ©MurthyDotCom Recent VWP Agreements ©MurthyDotCom In recent weeks, the U.S. signed enhanced VWP agreements with the Czech Republic, Estonia, Latvia, Slovakia, Hungary, Lithuania, and Malta. These nations may soon join the current 27 VWP nations who currently enjoy the privilege of visa-free travel to the U.S., subject to the terms and conditions under the VWP. ©MurthyDotCom List of 27 VWP Eligible Nations ©MurthyDotCom The following 27 countries are included within the VWP program as of the time of this writing: Andora, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. This list changes, with both potential additions and deletions, depending upon a number of factors. An updated list is maintained on the USCIS WebSite at http://travel.state.gov/visa/temp/without/without_1990.html. ©MurthyDotCom Conclusion ©MurthyDotCom These steps toward including South Korea in the VWP will advance the United States' dual interests in promoting visa-security enhancements and facilitating travel between partner nations. As other nations can demonstrate eligibility under the strict VWP waiver requirements, they may be invited to the VWP. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Chertoff's Testimony on Homeland Security Appropriations ©MurthyDotCom U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff testified on April 10, 2008 before the U.S. House of Representatives Subcommittee on Homeland Security Appropriations, in support of the DHS budget request of $50.5 billion for FY2009. In his testimony, Mr. Chertoff reported to the House Subcommittee on the progress made in FY2008 with regard to U.S. border security, protecting the country's infrastructure, and enforcement of immigration laws. He also emphasized the importance of continued funding to ensure that the DHS "continues to efficiently align resources to lead a unified national effort in securing America." ©MurthyDotCom Current and Ongoing Priorities Established in 2007 ©MurthyDotCom Secretary Chertoff specified that the DHS has made significant progress toward meeting the top priorities established in 2007. These priorities include the DHS's goals to "protect our nation from dangerous people; protect our nation from dangerous goods; protect critical infrastructure; build a nimble, effective emergency response system and a culture of preparedness, [and] strengthen and unify DHS operations and management." In order to continue making progress in these areas, Secretary Chertoff requested $50.5 billion in funding, which is a seven percent increase over FY2008. ©MurthyDotCom Specific DHS Accomplishments Made in FY2008 ©MurthyDotCom In his testimony, Secretary Chertoff outlined the key accomplishments of FY2008. Among them are those aimed at the top priority of protecting our nation from dangerous people. ©MurthyDotCom The first accomplishment reported by Mr. Chertoff with regard to this goal is the erection of 287 miles of fencing at the southern U.S. border. It is projected that, by the end of 2008, the total fencing will cover 670 miles. The U.S. border is also now protected by increased air and marine support with a new branch of the Customs and Border Protection (CBP) in North Dakota and another to open soon in Michigan. ©MurthyDotCom The budget request would support a joint CBP / Coast Guard program and a continuation of existing marine patrol aircraft which, according to Mr. Chertoff, are "critical to intercepting drug traffic in the Caribbean and eastern Pacific." In addition, the DHS has instituted a new and secure documentation standards system, which is known to regular MurthyDotCom and MurthyBulletin readers as the Western Hemisphere Travel Initiative (WHTI), as reported in a number of articles, including Temporary WHTI Accommodation Ends Sep 30, 2007 (Sep 14, 2007). ©MurthyDotCom The DHS has also signed agreements with a few states to enhance security of their state drivers' licenses to serve as alternatives for entry at land and sea borders; instituted better biometrics collection systems; removed 240,000 undocumented foreign nationals and made hundreds of arrests as a result of criminal or work-enforcement operations; enhanced aviation security and data-sharing databases on potentially dangerous individuals seeking entry to the U.S., and worked on protection of U.S. and world leaders, as well as U.S. presidential candidates. In addition, Mr. Chertoff outlined current accomplishments with regard to the remaining four priorities mentioned above. ©MurthyDotCom Conclusion ©MurthyDotCom Mr. Chertoff indicated that, in order not to jeopardize the successes already made by the DHS, it is imperative that the DHS have sufficient resources to develop its many programs to keep our country safe. The $50.5 billion funding would be spent on developing the current programs as well as new programs that are planned. As of the time of this writing, the budget allocation has not been made and it remains to be seen if Congress approves a significant increase in the DHS budget request for FY2009. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Reminder : Murthy Corporate Teleconference Series - Wed, May 07, 2008 Topic : Demystifying the PERM LC Process - The Basics of a Successful Green Card Case! ©MurthyDotCom Our May teleconference for employers and their representatives will review the current PERM Labor Certification process, which is the most common way to sponsor a foreign worker for permanent residency, known as the "green card." The mechanics and mysteries of the PERM process will be explained, including how to present a properly completed case to the U.S. Department of Labor with the mandatory requirements completed to facilitate success. Based on our experience with the PERM Labor Certification process, attorneys at the Murthy Law Firm will share some recommendations and insights for completing this complex stage toward an employee's green card. ©MurthyDotCom Employers can find more information at : http://www.murthy.com/teleconference.html. ©MurthyDotCom Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about Our Online Glossary? ©MurthyDotCom At MurthyDotCom we know that legal terminology can be confusing to the layperson. If this weren't enough, the vocabulary that is specific to immigration law needs its own explanation. This is why we provide definitions particular to the immigration law context for our readers. Use our online Glossary of Terms to help you more fully understand our articles on MurthyDotCom and in the MurthyBulletin! ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, May 05, 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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