MurthyBulletin VOL. XIII, no. 22; June 2007, week 1 Posted : Jun 01, 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 : USCIS Filing Fees Skyrocket from July 30, 2007 Posted on MurthyDotCom May 29, 2007 1. Further Analysis on LC Substitution Elimination Regulation 2. Procedural Changes for Filing Certain I-140 Petitions 3. H1B Employment from Cap-Exempt to Cap-Subject Employer 4. Biometric Visa Program Transition to Ten Finger Scans 5. MurthyBlog : Attorney Murthy & Immigration Debates on CBS Affiliates 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. . . . . . . . . . . . . . . ©MurthyDotCom USCIS Filing Fees Skyrocket from July 30, 2007 Posted on MurthyDotCom May 29, 2007 ©MurthyDotCom It is expected that the USCIS will publish a regulation on May 30, 2007 increasing its filing fees significantly. The new fees will be effective as of July 30, 2007. The Q and A provided by the USCIS states that the new fees will apply to all cases postmarked or filed on or after July 30, 2007. ©MurthyDotCom [This article was posted as a NewsFlash! on MurthyDotCom May 29, 2007. It is available in its entirety at: http://www.murthy.com/nflash/nf_052907.html.] ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 1. Further Analysis on LC Substitution Elimination Regulation ©MurthyDotCom Visitors to MurthyDotCom and subscribers of the MurthyBulletin were informed on May 16, 2007 of the recent U.S. Department of Labor (DOL) regulation eliminating the substitution of labor certifications (LCs). This regulation seeks to implement all of the following: eliminate labor certification substitution cases; prohibit certain "improper" payments in connection with labor certifications; limit the validity of labor certifications to 180 days; and provide for other mechanisms meant to minimize or eliminate fraudulent practices. Based on the advance copy released, we at the Murthy Law Firm posted our initial analysis of this regulation in our May 16, 2007 NewsFlash, LC Substitution Elimination Reg Effective July 16, 2007, available on MurthyDotCom. Since the publication of the regulation in the Federal Register on May 17, 2007, we have had an opportunity to review it in further detail for the benefit of our clients and our readers. ©MurthyDotCom Payment of LC Fees by a Third Party ©MurthyDotCom As already reported, under this new regulation, the employer has to pay all relevant legal fees and costs related to the labor certification filing. Many foreign nationals about to start the process are concerned that their employers may be unwilling or unable to bear the entire cost of a labor certification and, thus, may not be able to sponsor a case. The regulation, however, provides for a "third party exception," where a third party "to whose benefit work to be performed in connection with the job opportunity would accrue" could bear the cost, if that third party is an entity with an "established business relationship with the employer." This exception potentially opens more opportunities for cost sharing in situations where, for example, the employer is a consulting company with multiple clients to whose worksites its employees are sent. The client of the employer would serve as a third party and could likely share the cost of the labor certification filing because it benefits from the employee's services and has a business relationship with the employer. The regulation does not give this as an example in its preamble explanation of the third-party arrangements. This interpretation, however, appears to be consistent with the precise wording of the regulation. ©MurthyDotCom Typographical Errors Could Result in LC Denial ©MurthyDotCom Our August 11, 2006 MurthyBulletin article, BALCA Approves PERM Case : DOL Requests Return of Denied PERMs, reported that the Board of Alien Labor Certification Appeals (BALCA) decided in Matter of HealthAmerica that a typographical error in the labor certification should not result in its denial. In the new regulation, the Certifying Officers are authorized to deny labor certifications if "the deficiency that caused denial resulted from the applicant's disregard of a system prompt or other instructions." While it may sound as if the Certifying Officers have been given complete discretion as to whether to deny labor certifications containing typographical errors or other minor deficiencies, the regulation does not appear to override the earlier BALCA decision. It still allows for the denial only if the online filing system has given the applicant error or warning signs that s/he disregarded and, nevertheless, filed his or her labor certification. ©MurthyDotCom Duplicate LC has Same Filing Date as the Original ©MurthyDotCom The new regulation sets new rules for requesting and obtaining duplicate labor certifications. It provides that the duplicate LC will have the same filing date and the same expiration date as the original. In the past, a duplicate could have a new filing date as of the date of its issuance. Since the LC validity is limited to 180 days, during which the employer or Petitioner has to file an I-140 petition, filing a request for a duplicate will not extend the validity period, as it will be the same as that of an original LC. ©MurthyDotCom Conclusion ©MurthyDotCom As we work further with this regulation and explore its nuances, any updates will be shared with our readers. The regulation potentially could be challenged on a number of legal grounds by employers and organizations affected by it, as it is controversial in some respects. We will continue to inform MurthyDotCom and MurthyBulletin readers on these matters. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 2. Procedural Changes for Filing Certain I-140 Petitions ©MurthyDotCom The USCIS issued new procedures on May 24, 2007 for filing I-140 petitions. These changes are the result of a recent U.S. Department of Labor (DOL) regulation that will become effective on July 16, 2007. This regulation was covered in our May 16, 2007 article, NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007, available on MurthyDotCom. The title of the new regulation is: "Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity." The new procedures at the USCIS relate to the labor substitution request, as well as a new 180-day deadline for filing the I-140 following the approval of a labor certification. ©MurthyDotCom Reason for USCIS Changing Certain I-140 Petition Processes ©MurthyDotCom The DOL regulation eliminates the labor substitution process. This impacts the I-140 procedure, as most substitution requests are made through the USCIS at the I-140 stage of a case. Also, the DOL regulation limits the validity of an approved labor certification to 180 days, so that an I-140 petition must be filed within that time. Previously, labor certifications were valid indefinitely. Thus, the USCIS has to modify its procedures to accommodate the new deadlines. ©MurthyDotCom I-140 Substitutions Must be Filed / Received before July 16, 2007 ©MurthyDotCom For those not familiar with the topic, labor substitution is a procedure by which the initial beneficiary of a labor certification is replaced by a new, substituted beneficiary. Put simply, it allows the employer to replace person A, named in the labor certification, with person B, if certain requirements are met. The DOL regulation eliminating this process becomes effective July 16, 2007. ©MurthyDotCom The USCIS will continue to accept I-140 petitions prior to the effective date of the regulation eliminating labor substitutions. They will reject any I-140 substitution requests that are filed on July 16, 2007 or after. (We note that July 16, 2007 is a Monday. The notice does not address weekend filings, but the USCIS is not open to receive filings on weekends. Therefore, substitution filings probably should be mailed so that they reach the USCIS on or before Friday, July 13, 2007.) These I-140s cannot utilize the premium processing service, as was explained in our May 22, 2007 MurthyBulletin article, NewsFlash! No Premium Processing for Substitution Cases, also available on MurthyDotCom. ©MurthyDotCom Substitution Must be Approved by July 16, 2007, if Pending with DOL ©MurthyDotCom While mostly made through the USCIS, there are a limited number of substitution requests that are made directly with the DOL. In the event that the DOL approves such a request prior to the effective date of the regulation, July 16, 2007, that labor certification will remain valid. A labor certification of this type would be subject to the same rules for expiration as all other labor certifications, as explained below. ©MurthyDotCom Labor Certification Expiration : 180-Day Limit ©MurthyDotCom The DOL regulation establishes a 180-day expiration date on labor certifications. This affects all labor certification cases for which an I-140 has not been filed before July 16, 2007. There are two categories of cases: those labor certifications approved before July 16, 2007 and those approved after July 16, 2007. As explained in our article on the DOL regulation, labor certifications that were approved before the effective date of the regulation will expire 180 days after the regulation becomes effective on July 16, 2007. Labor certifications that are approved after the regulation is effective will be valid for 180 days following approval. The USCIS will reject any I-140 filings made by employers after the labor certifications have "expired." In the event that they erroneously accept any such cases, they will deny the I-140 petition. ©MurthyDotCom Situations Allowing I-140 Petition Filings after 180 Days ©MurthyDotCom In all cases, it is necessary to meet the 180-day deadline for filing the I-140 petition after the labor certification approval. If this is not done, the labor certification will expire by operation of law and the employer can no longer use that approved labor certification. There are some cases for which it may be necessary to file more than one I-140 petition in a particular case. In such situations, if the first I-140 was filed within the 180-day limit, then the subsequent I-140/s petition/s could be filed even AFTER the 180 days have passed. ©MurthyDotCom Examples of such situations include amending an I-140 filing because there is a successor-in-interest situation (typically needed when there are corporate mergers / acquisitions) and a re-filing for the same beneficiary after a denial, revocation, or abandonment. In such instances, it is necessary to file the I-140 a second time. This second I-140 filing can be done even after the 180 days have elapsed, as long as the first I-140 filing was made within the 180-day deadline. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 3. H1B Employment from Cap-Exempt to Cap-Subject Employer ©MurthyDotCom The USCIS has issued a favorable opinion letter dated May 23, 2007, regarding the ability of an individual in H1B status through a cap-exempt employer to work for a cap-subject employer after the filing of the cap-subject H1B petition. The issue presented is whether one who is in H1B status, with a cap-exempt employer, who has a cap-subject H1B filed on his or her behalf by a new employer, can start working based upon H1B portability while the case is pending and BEFORE the requested start date on the new H1B case. The answer to this was, "Yes," with some qualifiers. This topic has been discussed within the immigration community for some time, and has been addressed in MurthyChat sessions, as well. This is, however, the first official, written USCIS opinion on the topic. ©MurthyDotCom Example of Switching from Cap-Exempt to Cap-Subject Job ©MurthyDotCom Mr. X is working in H1B status for university A; a cap-exempt employer. He obtains a new job offer from private business B, which is cap subject. The new employer, B, files an H1B petition on April 2, 2007, requesting a start date of October 1, 2007. October 1st is the earliest possible start date, because when one moves from cap-exempt university employment to cap-subject employment, s/he must be counted against the H1B cap. So, the question arises: "Can Mr. X use the H1B portability provisions in AC21 to start work for employer B between April and October 2007, even before the start of the new H1B petition?" ©MurthyDotCom Argument Allows for Employment before H1B Start Date ©MurthyDotCom The exact language of AC21 permits the beneficiary who has already been issued an H1B visa or was in H1B status to accept new employment upon the filing of a new H1B petition. It does not reference the need for the start date to be immediate or put any other limitations in place. Thus, based on a literal reading of the law or statute, the argument is that a person should be able to start employment upon the filing of the cap-subject case, even if the start date of the H1B petition is months away. ©MurthyDotCom USCIS Opinion Allows Employment under Certain Conditions ©MurthyDotCom The USCIS opinion letter concludes that the portability provisions do not confer H1B status to the individual. Rather, what is given is a narrower benefit of continued employment authorization. Thus, the USCIS concluded that, in the example given, the individual would be permitted to continue working IF s/he is covered by a valid labor condition application (LCA), filed by employer B during the entire period from April until October 2007. Additionally, s/he must otherwise be eligible for an extension of status, with no "break" in the I-94 validity period prior to October 1, 2007. That is, in the example, the I-94 with employer A would need to extend at least until the requested October 1, 2007 start date with employer B. ©MurthyDotCom LCA Must be Valid from before H1B Requested Start Date ©MurthyDotCom We note that an LCA must be in place during the interim between the filing of the H1B petition by employer B and the requested start date. This is not difficult. It just needs to be done, even though that is not the normal practice. Typically, if an H1B case were being filed with an October 1, 2007 start date, the LCA validity would start on October 1, 2007. (It may have been prepared with a slightly earlier start date due to cap filing logistics, but that is an unrelated matter for this example.) In this example, the LCA would have to have a validity covering the period before October 1st, in which the individual wished to work for the new employer. Since LCAs can only be valid for a maximum of three years, this means that one may need two LCAs in order to cover the entire three-year period requested for the H1B. ©MurthyDotCom When Does the H1B Employment Authorization End? ©MurthyDotCom A significant question not clarified in the USCIS opinion is, "What happens when the H1B petition through employer B is approved?" The AC21 H1B portability provisions at issue state that employment authorization shall continue until the new H1B petition is adjudicated. The regulations further state that, if the new petition is denied, such employment authorization shall cease. ©MurthyDotCom Thus, the common interpretation of this has been that, even if work is authorized between the time of filing and before October 1, 2007, that employment must cease after the H1B petition is decided. That is, clearly if the H1B petition is denied, the employment authorization ends. Even if it is approved, however, a standard reading would seem to indicate that the employment authorization would also end, until the October 1, 2007 start date. (So, if it is filed on April 2nd and approved on August 2nd, one would be able to work between April and August 2, 2007, but would have to cease working until October 1, 2007.) ©MurthyDotCom Anomaly Created by AC21 ©MurthyDotCom This interpretation creates an anomaly, however, wherein a person with a pending application has more privileges and benefits than an individual with an approved application. Thus, the attorney requesting this opinion argued that an alternative would be to read the law as terminating the employment only in those cases of a denial, since that is the only specific reference to ceasing employment authorization. ©MurthyDotCom The USCIS did not decide this point, but stated that they would consider it in a future rulemaking. They also indicated agreement with the argument that employment authorization should continue, since "it makes no sense" for a person with a pending petition to be in a better situation than one who has an approved petition. ©MurthyDotCom Conclusion - Favorable but Risky after USCIS Decision ©MurthyDotCom This opinion is a favorable step towards assisting those who are transitioning from H1B cap-exempt employment to H1B cap-subject employment. It does not, however, reach a conclusion on the question of what happens with respect to employment authorization between the time the case is approved and the time of its effective start date. This gap between approval and the start date could span several months. Thus, there remains some risk and uncertainty following approval of such an H1B petition. ©MurthyDotCom Additionally, the USCIS notes that, in drafting the AC21 portability provisions, Congress did not appear to contemplate the situation where H1B status would not be immediately conferred upon the H1B worker. That much seems clear, when a person would be allowed to work under the literal wording of the law prior to the earliest possible start date that can be requested. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 4. Biometric Visa Program Transition to Ten Finger Scans ©MurthyDotCom The U.S. Department of State (DOS) has announced the change in the standard for finger scans of the Biometric Visa Program (BVP) from two fingers to ten fingers. The requirement for most nonimmigrant and immigrant visa applicants to provide finger scans of each index finger, and to submit photographs at the time of the visa application, was reported in our January 21, 2005 article, DOS on the Biometric Visa Program, available on MurthyDotCom. The change to ten finger scans is designed to enhance security. ©MurthyDotCom Matching Finger Scans at Consulate and at the Border ©MurthyDotCom When an individual seeks to enter the United States, finger scans are used to confirm her/his identity. The inspector at a Port of Entry compares the finger scans taken at the border as part of the US-VISIT program with those sent by the DOS to confirm that the person seeking entry is the same individual who was issued the visa at the U.S. consulate abroad. ©MurthyDotCom Implementation of Enhanced Security with Ten Finger Scans ©MurthyDotCom Since the inception of the BVP, the technology has been sufficiently developed to allow for an accurate capture and comparison of ten finger scans, instead of only two. The new standard purports to raise the accuracy rate in matching finger scans in order to detect and thwart persons who are ineligible for visas or those seeking to enter under false identities. The new procedures requiring ten finger scans are already being used at some U.S. consulate posts and are scheduled to be universally implemented by the end of 2007. ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 5. MurthyBlog : Attorney Murthy & Immigration Debates on CBS Affiliates ©MurthyDotCom An entry from Attorney Murthy's personal blog will be selected on a regular basis and highlighted here. To keep up with the MurthyBlog in its entirety, find it at (http://www.murthyblog.com). ©MurthyDotCom Attorney Murthy & Immigration Debates on CBS Affiliates ©MurthyDotCom Last week, Attorney Murthy was on radio (Ed Norris Show) and then on television on the CBS affiliate WJZ-TV (Baltimore), debating today's hot immigration topics. Her focus was on the net gain to the United States where immigrants are concerned. She emphasized the fact that so many wildly successful entrepreneurs of technology and other businesses are immigrants, without whom the U.S. economy would be less prosperous than it currently is. ©MurthyDotCom Both Mr. Norris (of 105.7 HFS FM) and Mr. Kai Jackson (of WJZ-TV) have invited Attorney Murthy to return and continue with this ongoing debate. ©MurthyDotCom Blog on Radio Debate: http://www.murthyblog.com/murthyblog/2007/05/immigration_deb.html ©MurthyDotCom Blog on TV Debate: http://www.murthyblog.com/murthyblog/2007/05/another_immigra.html ©MurthyDotCom Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved ©MurthyDotCom . . . . . . . . . . . . . . ©MurthyDotCom 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 explaining. 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 articles, NewsBriefs, and NewsFlashes on MurthyDotCom! ©MurthyDotCom 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 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 © 2007, MURTHY LAW FIRM. All Rights Reserved
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