MurthyBulletin VOL. XIII, no. 21; May 2007, week 4 Posted : May 25, 2007 . . . . . . . . . . . . . . "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. To receive MurthyBulletin via eMail, follow this link to subscribe. To Unsubscribe, please go to the end of the eMailed MurthyBulletin and click the URL provided. This an Announcement Only list. Subscribers cannot post to the list. . . . . . . . . . . . . . . TOPICS in this Edition of the MurthyBulletin : 1. Labor Certification : Filing Reminder 2. Premium Processing Not Available for Substitution Cases 3. Immigration Reform Proposal : Senate Compromise 4. H1B Visa Applications Allowed Up to 90 Days in Advance 5. Employers Provided Conversion Option in some Pre-PERM Cases 6. MurthyBlog : MEDOVI Project - Women's Law Center 7. MurthyDotCom : Did You Know about our Consulate Page? 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. . . . . . . . . . . . . . . ©MurthyDotCom 1. Labor Certification : Filing Reminder ©MurthyDotCom MurthyDotCom and MurthyBulletin readers were advised May 16, 2007 of the finalization of a Department of Labor (DOL) regulation. The regulation terminates the labor substitution process and is discussed in more detail in our May 16, 2007 NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007. In addition to the elimination of substitution, the regulation also changes the rules regarding who can pay for a labor certification and the related advertisements. Once the regulation becomes effective, on July 16, 2007, and unless it is successfully challenged, legal fees and related costs associated with filing a labor certification will be the responsibility of the employer. This possibility was reported in our March 9, 2007 MurthyBulletin article, LC Substitution Regulation Restricts Payment for LCs, available on MurthyDotCom. ©MurthyDotCom Certain Payments are Employer's Expenses under PERM ©MurthyDotCom Under the PERM labor certification regulation, employers are required to disclose and specify any payment of any kind for submission of the labor certification application. The DOL views the provisions in the new regulation to be the logical outgrowth of this portion of the PERM regulation. Under the regulation, the DOL views the payment of the legal fees for the labor certification as being in the same category as an impermissible fee for hiring the beneficiary. The DOL considers the fees and costs (legal and advertising) related to labor certification to be purely the responsibility of the employer. ©MurthyDotCom Employer Must Pay even with Dual Representation ©MurthyDotCom The DOL position on legal fees and costs remains unchanged, even when there is a dual representation arrangement. Dual representation, which is common in immigration cases and is the standard in many firms, means that the attorney represents both the employer and the foreign national beneficiary towards the goal of helping with processing the PERM. Even in this situation, where the attorney equally represents both parties, the DOL views the legal fees to be the employer's expense that cannot be borne even in part by the foreign national. ©MurthyDotCom Employee Allowed to Hire Separate Attorney ©MurthyDotCom Under the regulation, a foreign national can pay his/her own separate attorney. This essentially seems to mean that, if one wants to hire and pay an attorney to advise him or her along the way, in addition to the attorney working on the labor certification, this may be done at the employee's expense. In most other cases, the employer must bear these costs. ©MurthyDotCom Effective Date of New Fee Payments - July 16, 2007 ©MurthyDotCom The regulation will not be effective until July 16, 2007. Thus, until that time, employers and foreign nationals are free to determine the allocation of legal and related costs for labor certifications as they see fit, as it was before this regulation became enforceable. Therefore, it may make sense for many to start their cases and cover the costs prior to July 16, 2007. ©MurthyDotCom DOL Processes Impacted by Employer Paying Fees ©MurthyDotCom The regulation covers the labor certification, only. It does not impact payment matters for the I-140 petition or the Adjustment-of-Status portions of a case. The USCIS has not taken a position like the DOL in terms of requiring employers to pay all the filing fees, other than the USCIS training fees in connection with filing H1B petitions. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 2. Premium Processing Not Available for Substitution Cases ©MurthyDotCom The USCIS has terminated premium processing for I-140 Employer Petitions for cases requesting the substitution of beneficiaries. This termination was effective on Friday, May 18, 2007, and is the result of the publication of the long-expected U.S. Department of Labor (DOL) regulation terminating labor substitution cases. More information on that regulation is available in our May 16, 2007 NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007, available on MurthyDotCom. ©MurthyDotCom USCIS Expects Many LC Substitution Filings until July 15, 2007 ©MurthyDotCom Since the filing of Labor Certification (LC) substitution cases will end on July 16, 2007, it is anticipated that there will be a great number of such filings between May 18th and July 15, 2007. The USCIS's premium processing program (PPP) provides expedited review of a case within 15 calendar days in exchange for a $1000 USCIS filing fee surcharge. The USCIS will be unable to meet premium processing deadlines for these cases and, therefore, will be unable to offer the service. Premium processing was previously available for those substitution cases where the original labor certification was available and sent with the I-140 petition filing. ©MurthyDotCom Eligibility to File Unaffected - Even if PPP is Not Available ©MurthyDotCom The preamble explanation of the regulation that eliminates labor substitution provides that all cases requesting labor substitution that are pending at the I-140 stage before July 16, 2007 will be unaffected. Thus, it should not be necessary to use the PPP to expedite a decision in a substitution case in order to "beat" the effective date of the regulation. It should only be necessary to get the case filed before the regulation becomes effective and eliminates labor certification substitutions. There is some debate on this topic, due to the wording used in the actual regulation. However, the DOL has advised, both in writing in the explanation of the regulation and orally at an AILA meeting, that it would be sufficient to file the substitution cases before July 16, 2007, and that approval prior to that date is not needed. ©MurthyDotCom PPP Continues for Many Nonimmigrant and I-140 Cases ©MurthyDotCom This USCIS decision does not impact the availability of premium processing for other types of eligible cases. This includes previously-eligible I-140 cases, as well as certain nonimmigrant cases. So, this change in the PPP will not impact the widely used premium option available for H1Bs, L-1s, and most other types of I-140 petitions, like the Extraordinary Ability, Outstanding Professor / Researcher, employment-based second or third preference petitions using labor certification, I-140s for other workers, etc. (Notable exceptions that cannot take advantage of the PPP are national interest waivers and, now, labor certification substitution cases). ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm hope that the PPP will be available in the near future for all I-140 petitions. This would enable employers and employees to make good use of this benefit that helps them to obtain expedited decisions and allows the USCIS to collect much needed revenue to provide better services overall. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 3. Immigration Reform Proposal : Senate Compromise ©MurthyDotCom On May 17, 2007, an agreement was reached between the Administration and certain senators from both of the major political parties regarding a proposed immigration reform bill. This proposal has drawn a great deal of media attention and is being hotly debated. The proposal itself is extremely lengthy, spanning hundreds of pages. MurthyDotCom and MurthyBulletin readers should keep in mind that the law will not change unless and until legislation is passed by both the Senate and the House of Representatives, and signed by the President. What follows is a summary of the key provisions of the proposed bill. It is important to understand that this legislation still is being debated. The provisions, therefore, are subject to change. Amendments and compromise are part of the legislative process. The changes this piece of legislation would bring about, if enacted in their current form or a variation of their current form, would be sweeping. They ultimately would change the entire immigration system as we now know it. ©MurthyDotCom Improved Border Security - Effective Date Triggers ©MurthyDotCom The bill contains various enhancements to border patrol and security. The benefits provisions, which span both temporary immigration categories (nonimmigrant) and permanent (immigrant / green card) provisions, cannot go into effect until certain security measures are met. In addition to direct border security, there are also provisions for workplace enforcement measures and employee verification. ©MurthyDotCom Border Enforcement ©MurthyDotCom The bill provides for increased hiring in areas related to border protection, as well as the purchase of technology enhancements. There are numerous other border enforcement provisions, ranging from biometric data improvements to the establishment of various studies and review commissions. ©MurthyDotCom Interior Enforcement ©MurthyDotCom Enforcement mechanisms extend beyond the border. The bill provides for an increased number of trial attorneys, USCIS adjudicators, attorneys, judges, and others who are involved in case adjudication. The interior enforcement mechanisms are also lengthy and extensive. They include: increased penalties for gang violence; changes to the definition of aggravated felony; increased penalties related to removal and illegal entry; reform of passport, visa, and immigration fraud offenses; and broader Department of Homeland Security (DHS) authority to cancel visas. ©MurthyDotCom Employment Verification System ©MurthyDotCom The proposal rewrites provisions relating to the illegality of knowingly employing undocumented foreign nationals. It has provisions to improve an employer's ability to verify the employee's identity and eligibility to work, and increase penalties for failures on the part of the employer. The government would establish an electronic eligibility verification system, with required employer participation. ©MurthyDotCom Also included within these provisions are allowances for the sharing of information between the Social Security Administration and the DHS. There are also measures to enhance the security of Social Security cards. ©MurthyDotCom NONIMMIGRANT PROVISIONS ©MurthyDotCom New Temporary Worker (Y Visa) Program ©MurthyDotCom The law would create a new Y visa in the category of temporary visas. This would replace the current H2A and H2B temporary worker programs, and would not go into effect until the enforcement triggers, described above, were satisfied. ©MurthyDotCom The Y visa would have a maximum admission period of two years, which could be renewed three times. However, the foreign national would have to spend one year out of the U.S. between each two-year period. There are annual numerical limits. ©MurthyDotCom If family members are joining, the individual must be able to show that s/he has income at 150 percent of the poverty level and has health insurance for the dependants. Persons who overstay this category are permanently barred from admission to the U.S. ©MurthyDotCom An employer must petition for the Y visa after obtaining a certification of the position from the Department of Labor. This requires recruitment of U.S. workers and payment of the prevailing and/or actual wage, as well as providing the same working conditions as those for U.S. workers. There are also provisions for seasonal agricultural workers. ©MurthyDotCom Changes for Students include Longer OPT ©MurthyDotCom The proposal would extend the period of Optional Practical Training (OPT) following graduation to 24 months, from the current 12 months. It would create an F-4 student category for students seeking advanced degrees in math, engineering, technology, or the physical sciences. Some students would be granted dual intent. ©MurthyDotCom H1B Changes : Increased Numbers ©MurthyDotCom This provision would increase the H1B cap to 115,000 for Fiscal Year (FY) 2008, and would permit the DHS to set the annual cap at up to 180,000 visas. It would alter the ability to obtain H1B extensions beyond the current six-year limit to some type of one-year extension for merit-based adjustment applicants. ©MurthyDotCom There are increased requirements that employers would have to meet in terms of non-displacement of U.S. workers and good-faith recruitment attestations. It also would limit the H1B workers permitted to employers with 50 or more employees to 50 percent of their workforce. ©MurthyDotCom L-1 Changes : Fraud and Abuse Protections ©MurthyDotCom The proposed law contains changes aimed at L-1 cases for companies establishing new offices in the United States. Such a case can only be approved if the beneficiary has not been the beneficiary of two or more petitions within the past two years. The employer must have an adequate business plan, the necessary office space to carry out the plan, as well as sufficient finances to move forward with the business upon approval of the L-1 petition. ©MurthyDotCom Conrad Program for J-1 Waivers ©MurthyDotCom This state program for J-1 waivers for physicians would be made permanent. It would also allow certain states that have used all of their 30 waiver slots to obtain an additional 20 slots in certain circumstances. ©MurthyDotCom GREEN CARD REFORM ©MurthyDotCom Family ©MurthyDotCom The family-based visa numbers would be increased to 567,000 until pre-May 2005 backlogs are eliminated. ©MurthyDotCom Employment ©MurthyDotCom The employment category is referred to as "merit." This sets three different worldwide ceiling levels. For the first five years after enactment of the proposal, the level would be set at a number that is believed to be 247,000. Of this number, 90,000 would be set aside for eliminating backlogs and 10,000 set aside for exceptional Y visa holders. ©MurthyDotCom For the following three or four years (until the first undocumented workers can adjust status), the level would be set at 140,000 with the same set aside for eliminating backlogs. Once undocumented workers can adjust status, the level increases to 380,000. There will be supplemental allocations for these individuals. ©MurthyDotCom Merit-Based System for Immigrants ©MurthyDotCom In an enormous revision of the current system, the proposal would do away with the entire employment preference system for EB1, EB2, and EB3, and would replace it with a merit-based point system. Labor certifications would end. In the point-based system, points would be assigned for employment, education, English and civics, and extended-family connections. Important factors for employment include whether the employment is a specialty occupation, a high-demand occupation, or is in the sciences, technology, engineering, or a health-related field. Higher degrees receive higher point values, with extra points for degrees in the sciences, technology, and engineering or health fields. ©MurthyDotCom Reducing Chain Migration ©MurthyDotCom Chain migration is the term used for one family member sponsoring the next, until the whole family is in the United States. This proposal would eliminate the following family preference categories: FB1 (adult, unmarried sons and daughters of U.S. citizens), F2B (unmarried sons and daughters over 21 of U.S. permanent residents), FB3 (married sons and daughters of U.S. citizens), and FB4 (brothers and sisters of U.S. citizens). It redefines immediate relatives to exclude parents of U.S. citizens and, instead, would establish a new preference category for parents of U.S. citizens, with an annual limit of only 40,000. ©MurthyDotCom It also would allocate 440,000 visa numbers for reducing pre-May 2005 family category backlogs. ©MurthyDotCom Legalization : Z Visa ©MurthyDotCom In what is a hotly-debated legal issue, the legislation would create a Z nonimmigrant visa category for persons who are in the U.S. in an undocumented status. These individuals would have to show that they have been in the U.S. since January 1, 2007. There are a number of detailed requirements, including payment of penalties. The details of this category will be analyzed more fully, if the legislation progresses. It appears that the goal is to clear out the backlog in both the family and employment categories prior to the time when any Z nonimmigrants would be eligible to obtain permanent residence. ©MurthyDotCom Conclusion ©MurthyDotCom Since this legislation is likely to go through many changes, it would not be constructive to provide any detailed analysis at this time. When and if the proposed legislation moves forward and the provisions are finalized, we at the Murthy Law Firm will analyze it for its potential impact on MurthyDotCom and MurthyBulletin readers. Again, it is very important to understand that legislation morphs through amendments and compromises. This is a natural part of the legislative process. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 4. H1B Visa Applications Allowed Up to 90 Days in Advance ©MurthyDotCom There are many people who will be seeking H1B visas at U.S. consulates abroad in order to start work on October 1, 2007. The USCIS fiscal year (FY) 2008 begins on October 1, 2007 and, thus, it is the start date for many first-time H1B cases. This increases the demand for interview slots for H1B visa applicants before the October 1st start date. To accommodate the greater demand, consulates are allowed to interview applicants in advance. For FY2008, the U.S. Consulate in Chennai, India, will allow H1B visa applicants to submit the visa application up to 90 days in advance, instead of the standard 30 days in advance of the H1B start date. ©MurthyDotCom Standard Practice is only 30 Days in Advance of Start Date ©MurthyDotCom The standard practice at the U.S. Consulate in Chennai is to interview H1B visa applicants up to 30 days in advance of the H1B petition start date. The H1B visa, once approved, is then issued to permit the H1B employee to enter the U.S. up to ten days before the date s/he is to begin the H1B employment. ©MurthyDotCom Increase to 90 Days Due to Expected Workload ©MurthyDotCom There is a U.S. Department of State (DOS) cable that authorizes consulates to accept H1B visa applications up to 90 days in advance of the petition start date. This is discretionary, based upon current and anticipated workload. Essentially, it is designed to avoid interview backlogs that would normally occur if a large number of applicants all were seeking appointments during the same 30-day window. The Consulate in Chennai has confirmed that this year they will accept the H1B cases up to 90 days in advance of the October 1, 2007 start date. ©MurthyDotCom Entry to the U.S. is Still 10 Days before the H1B Start Date ©MurthyDotCom The advance visa appointments for H1B visa applicants and the issuance of the H1B visa does not permit an individual to enter the U.S. more than ten days before the H1B petition start date. Visas granted during this period will not have advance validity dates. Only the visa appointments will be available 90 days in advance, rather than 30 days in advance. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 5. Employers Provided Conversion Option in some Pre-PERM Cases ©MurthyDotCom The Board of Alien Labor Certification Appeals (BALCA) issued a decision on May 21, 2007 that impacts pre-PERM labor certifications filed under the Reduction in Recruitment (RIR) procedure. BALCA considered whether the Certifying Officer (CO), who first grants a reduction in recruitment request, may then deny the RIR application if s/he finds that the application failed to document adequate consideration of U.S. workers or if there was unlawful rejection of U.S. workers. BALCA decided that the U.S. Department of Labor's CO cannot deny the RIR case outright in this situation. ©MurthyDotCom DOL Must Provide Option of Traditional Recruitment ©MurthyDotCom In this case, BALCA decided that the CO must first refer the application for supervised or "traditional" recruitment (TR), because the employer should not be penalized if s/he submitted an insufficient RIR package. Instead, the CO has the option to deny the RIR request and refer the application for traditional recruitment with instructions if there are special sources of recruitment, such as laid-off workers. This is true even when the reason for RIR denial is the rejection of a qualified U.S. worker, rather than just a finding that the recruitment effort itself was inadequate. ©MurthyDotCom Result - One Could Retain Earlier Priority Date ©MurthyDotCom If an employer filed an RIR labor certification under the old, pre-PERM system, which is only now being adjudicated, there is a risk that the certification will be denied if there are flaws in the request for RIR. Under this new BALCA case, however, the Certifying Officer cannot deny the RIR labor certification, but has to refer it for the traditional recruitment. Because of that, more people will have a chance to keep their original priority dates, so that they potentially are able to obtain their "green cards" sooner. ©MurthyDotCom Conclusion ©MurthyDotCom Most RIR cases have already made their way through the system, as the Backlog Processing Centers have cleared out over 80 percent of their cases, as of an update the Murthy Law Firm received in mid-May 2007. Many of the cases that are still pending are non-RIR cases, but some do remain; and there may be others on appeal that would benefit from this decision. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 6. MurthyBlog : MEDOVI Project - Women's Law Center ©MurthyDotCom As was recently announced to MurthyDotCom and MurthyBulletin readers, Attorney Sheela Murthy has begun a personal blog. An entry from her blog will be selected on a regular basis and included here. To keep up with the MurthyBlog in its entirety, find it at (http://www.murthyblog.com). ©MurthyDotCom MEDOVI Project - Women's Law Center ©MurthyDotCom The Murthy Law Firm and the Murthy Foundation are pleased to announce that we are funding (in part), the Multi-Ethnic Domestic Violence (MEDOVI) Project offered by the Women's Law Center of Maryland. The project offers legal services and outreach to foreign-born victims of domestic violence. This Blog is available at  (http://www.murthyblog.com/murthyblog/2007/05/medovi_project_.html). ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 7. MurthyDotCom : Did You Know about our Consulate Page? ©MurthyDotCom At MurthyDotCom we provide visitors with a centralized location for all the news from or about U.S. consulates abroad. While the consulates fall under the auspices of the U.S. Department of State, we know that many of you need information specific to the consulates, themselves. Our Consulate Page also provides links to the sites for U.S. Consulates in India, Canada, Mexico, and a list of all consulates worldwide, as well as the Indian Embassies in the United States. ©MurthyDotCom There will be NO CHAT on May 28, 2007 in observance of the Memorial Day holiday in the United States. The next session MurthyChat will be Monday, June 4, 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.  ©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 © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 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 © 2007, MURTHY LAW FIRM. All Rights Reserved
	Disclaimer : The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm or establish an attorney-client relationship. Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.