MurthyBulletin VOL. XV, no. 24; June 2009, week 2 Posted : Jun 12, 2009 . . . . . . . . . . . . . . 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. I-140 Premium Processing Expected : AILA Annual Conference 2009 2. Wage Challenges and Improper Fraud Findings : AILA Annual Conference 2009 3. Interagency Government Panel Updates : AILA Annual Conference 2009 4. Announcement : Murthy's Corporate Teleconference - Wed, Jul 01, 2009 5. Reminder : Murthy's Public Teleconference - Wed, Jun 17, 2009 6. MurthyDotCom : Did You Know about our Corporate PreHire Consultations? 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. I-140 Premium Processing Expected : AILA Annual Conference 2009 ©MurthyDotCom According to information released by high-ranking U.S. Citizenship and Immigration Services (USCIS) officials at the American Immigration Lawyers Association (AILA) Annual Conference in June 2009, the USCIS plans to fully reinstate the I-140 premium processing option in the near future. This option provides expedited case review and adjudication, in exchange for an additional $1,000 premium processing fee. The premium processing of I-140 petitions was suspended on July 2, 2007, when there was concern that the expected deluge of employment-based (EB) applications would make it impossible to provide this service. Many MurthyDotCom and MurthyBulletin readers will recall that the summer of 2007 was when the immigrant visa numbers became current. I-140 Premium Processing was reinstated on a limited basis thereafter, but has remained unavailable for most cases since July 2, 2007. ©MurthyDotCom Who Will be Eligible for I-140 Premium Processing? ©MurthyDotCom According to the information provided, I-140 premium processing procedures will be fully reinstated to allow the procedure for those categories of I-140 that were eligible before it was suspended. This topic was covered in our September 22, 2006 NewsFlash, Expansion of I-140 Premium Processing, available on MurthyDotCom. At that time, the premium processing procedure became available for I-140s in the following EB categories: EB3, EB2 (except National Interest Waivers), and EB1 Outstanding Professors / Researchers (not Extraordinary Ability or Multinational Executive Transferee). ©MurthyDotCom When Will I-140 Premium Processing Start? ©MurthyDotCom An exact date for I-140 premium processing to begin was not provided. It was indicated, however, that the timeframe would be toward the end of this summer (2009). It appears that the USCIS has been preparing for reinstatement of the I-140 premium processing by addressing the backlogs in I-140 cases. Anticipated improvements were reported to MurthyDotCom and MurthyBulletin readers in our May 8, 2009 article, USCIS Goal to Process I-140 Petitions within Four Months. The USCIS appears to be progressing toward this four-month goal, and has made improvement overall in I-140 processing times. Suspension of the process in 2007 was strictly due to an inability to provide the service because of caseload. If the I-140s are processed within four months, then in most cases employers are likely to not deem it necessary to incur an additional $1000 for the premium processing fee, unless there is another reason to do so. ©MurthyDotCom Current USCIS Policy on I-140 Premium Processing ©MurthyDotCom At the time of this writing, premium processing for I-140s is only available in limited cases. Eligibility is reserved for situations in which I-140 approvals are the only way for petitioners to become eligible for additional H1B time beyond the six-year limit. Details of the requirements are set out in our March 20, 2009 MurthyBulletin article, I-140 Premium Processing Expansion as of March 2, 2009. ©MurthyDotCom Pros and Cons of I-140 Premium Processing ©MurthyDotCom A detailed analysis of the I-140 premium processing option is available on MurthyDotCom in our July 28, 2006 article, Detailed Analysis of Premium Processing for I-140s (Part I and 2). We also advised readers of a situation in which I-140 premium processing could be detrimental. This situation involves children who are aging out by reaching 21 years of age. This is due to the fact that the time that the I-140 petition is pending helps to freeze the age of the child under the Child Status Protection Act, so that longer processing times can help an older child to obtain permanent residency with the parents. These matters are covered in our August 25, 2006 article Premium Processing I-140: Problematic for Children Aging Out, also available on MurthyDotCom. ©MurthyDotCom Conclusion ©MurthyDotCom There are many situations in which I-140 premium processing can be a valuable tool. We at the Murthy Law Firm look forward to its return, as many of our clients should be able to benefit. Developments will be reported to MurthyDotCom and MurthyBulletin readers, as they are made available. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. Wage Challenges and Improper Fraud Findings : AILA Annual Conference 2009 ©MurthyDotCom Each year, the American Immigration Lawyers Association (AILA) Annual Conference begins with a panel addressing the current, hot topics in immigration law. Many of these have been covered in the MurthyBulletin in articles available on MurthyDotCom. It is always good, however, to review developments as part of the larger picture. Following is a summary of current topics discussed by immigration lawyers on June 4, 2009, during this year's conference. ©MurthyDotCom Prevailing Wage Process to Change January 1, 2010 ©MurthyDotCom As of January 1, 2010 employers will have an avenue to contest prevailing wage determinations, which are required as part of the PERM labor certification process. These determinations dictate the required wage levels that must be offered for the position listed in the PERM labor certification. Beginning January 1, 2010, employers will have a mechanism for challenging the determination, if they believe it is inaccurate or does not reflect business realities. If the employer does not agree with the prevailing wage, then there is an appeals process through the Board of Alien Labor Certification Appeals (BALCA.) This will be an improvement. Currently, it is difficult to challenge the prevailing wage determinations of the government. ©MurthyDotCom USCIS Toll-Free Number Does Not Work ©MurthyDotCom Almost all of the AILA attorneys at the conference agreed that the U.S. Citizenship and Immigration Services (USCIS) toll-free (800) number does not work effectively. The USCIS is not likely to discontinue the toll-free number process, however, since there is a significant financial investment in this system. Thus, attempts must be made to make it work. ©MurthyDotCom One problem with the toll-free number process is that an individual must wait at least 30 days before escalating the case to the next phase of possible resolution with the USCIS. This process continues, often without resolution, month after month, and has been frustrating for many. It should be noted that, with various immigration deadlines, it is frequently impossible to wait out the resolution process in the hope of a favorable result. It is often necessary for the employer or individual to spend additional money to file motions to reopen, appeals, or other filings in an attempt to address the situation, to avoid creating additional problems or missing deadlines. ©MurthyDotCom H1B Cap Not Met for FY2010 ©MurthyDotCom As of this writing, the H1B cap has not been met for fiscal year 2010 (FY2010). This is an indicator that economic realties impact the number of H1B filings. It thus supports the contention that there is no need for an H1B quota, because filing levels self-regulate based on economic conditions. In a soft economy, H1B numbers are not exhausted, or at least not as quickly. The U.S. Congress needs to heed this fact and either eliminate the H1B quota altogether or increase the H1B numbers for use in a strong economy, so that highly-skilled professionals can available when needed to strengthen business, rather than short changing U.S. businesses, hampering their access to the foreign skilled / professional workers they need. ©MurthyDotCom Retrogression of Priority Dates Helps Other Countries ©MurthyDotCom The backlog of immigrant visa numbers in most categories in the employment-based arena is providing an opportunity for other countries, particularly European countries, to attract highly-skilled workers and create immigration options that will benefit their economies. These economies are likely to draw the best and brightest highly-skilled workers, who are not able to obtain permanent residency status in the United States for many years due to visa number retrogression. Retrogression is the result of too few immigrant visas to meet the demand of U.S. businesses. ©MurthyDotCom Fraud Detention and National Security (FDNS) ©MurthyDotCom The collection of the $500 fraud fee for new H1B or L-1 petitions is being used to invest in hiring more investigators. One recent phenomenon is that business practices that were standard and went unchallenged previously, now are being viewed as “fraud.” Many companies must revise their practices to meet current standards. This does not mean that these practices of employers or businesses are necessarily fraudulent. Many of them fit more within what would be considered technical violations or sloppiness.   ©MurthyDotCom Types of Onerous Evidence Requested of H1B Companies ©MurthyDotCom Both the USCIS and consular officers are making requests for photos of the premises, copies of contracts between all involved parties, and evidence of doing business including leases, licenses, and other proof. These requests are onerous for employers, as well as disruptive and harmful to both the employer and the employee when the H1B petition is often denied without valid justification. ©MurthyDotCom Fraud Summary Sheet May Be Improper ©MurthyDotCom The Fraud Summary Sheet that USCIS examiners use while processing H1B petitions is baffling, since it presumes fraud based upon criteria that seem superfluous on many levels. It presumes fraud if the employer meets two out of the following three criteria: has been doing business for fewer than ten years, has fewer than 25 employees, and/or has less than $10 million in revenue. Most well-established, bona fide companies started with these drawbacks. Even many large, well-known, highly-reputable companies are being issued intensive requests for evidence (RFEs) that seem to be without basis.   ©MurthyDotCom Conclusion ©MurthyDotCom The ability to challenge prevailing wage determinations is important, particularly during downturns in the economy. The DOL’s wage survey data, if gathered during a time when the economy was strong, does not necessarily reflect current business realities. The ongoing focus on fraud detection within the H1B context, and particularly in IT consulting companies, will likely continue to impact immigration strategies and practices in the upcoming year. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Interagency Government Panel Updates : AILA Annual Conference 2009 ©MurthyDotCom A panel comprised of senior government officials presented updates on key issues at the 2009 AILA Annual Conference, held in Las Vegas, Nevada. Following are updates from the U.S. Department of Labor (DOL) and the U.S. Department of State (DOS), summarized for readers of MurthyDotCom and the MurthyBulletin. ©MurthyDotCom U.S. Department of Labor Wants to Streamline ©MurthyDotCom William Carlson, Administrator of the Office of Foreign Labor Certification of the Employment Training Administration of the DOL, shared his update. The DOL wants to reduce the timeframe for providing documents to the public under the Freedom of Information Act (FOIA). Mr. Carlson mentioned that they would like to use technology for the required job order postings by the DOL and add transparency to the labor certification process. ©MurthyDotCom DOL's Processing of PERM Cases ©MurthyDotCom The DOL’s statistics provide insight into the backlogs and approval rates for PERM labor certification cases. The statistics reflect that, between October and December 2008, the DOL received far more cases than it adjudicated. During that timeframe, the DOL received over 20,700 applications; but completed only 4,571. The DOL reports having a pending labor certification caseload of 53,200, as of December 2008. Of these, 26 percent are undergoing audits. This type of backlog and high rate of audits is consistent with the information provided to MurthyDotCom and MurthyBulletin readers in our January 23, 2009 article, PERM Processing Delays. ©MurthyDotCom Results : Lowered Approval Rate ©MurthyDotCom Statistics on the outcomes of PERM applications were released by the DOL. The results were broken down into certified, denied, or withdrawn. The cumulative approval rate, since the program began in March 2005, is 76 percent. However, the approval rate for the last quarter of calendar year 2008 was 67 percent. It is not clear if the change is a result of the economy or of additional auditing. ©MurthyDotCom This statistic emphasizes the need to engage qualified immigration attorneys in the PERM process. It is a complex, highly-regulated procedure in which, under these recent statistics, one-third of the cases receive denials. The Murthy Law Firm is experienced with labor certifications, and the complex issues that often arise in these cases. Our attorneys are able to help both employers and employees under the law. ©MurthyDotCom U.S. Department of State Update Jeffrey Gorsky, Chief Advisory Opinions and Regulation at the DOS Visa Office, shared these helpful updates. The new initiatives of the DOS are the Form DS-160 for electronic student visa application and greater sharing of information among the various federal agencies. In the interest of transparency, the DOS will continue to share non-security related cables and memos. Additionally, the DOS Foreign Affairs Manual (FAM) is online. ©MurthyDotCom Visa records generally are exempt from FOIA requests. Consular officers are able to communicate directly with visa applicants and attorneys. The DOS Visa Office has a direct line of communication for attorneys on visa-related legal matters. We at the Murthy Law Firm regularly use this resource, when appropriate, to help resolve complex legal issues at the consulates for our clients. ©MurthyDotCom Security Clearance Delays by DOS and Waiver of Personal Appearance ©MurthyDotCom Concerns were raised over the visa delay problems faced by scientists. These delays are interfering with scientific conferences and causing disruption in the academic and scientific arenas in general. Mr. Gorsky expressed his concern and stated that strides have been made toward addressing these issues. The entire clearance process has been moved online, with no paper documents to be misplaced or cause delays among the involved agencies. ©MurthyDotCom A waiver of personal appearance for visa interviews is being instituted. The requirement for biometrics is now going to be only one per person, rather than one with each visa application. ©MurthyDotCom Pre-Emptive Security Clearance Not Possible at Consulate ©MurthyDotCom When asked about the possibility of obtaining an advance security clearance before departing the U.S. to apply for a visa, Mr. Gorsky responded that the DOS cannot process a visa application if the candidate is not before the consulate. The DOS workload makes it impossible for them to review and adjudicate cases when the candidate is not applying for the visa at the U.S. consular post abroad. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm appreciate the contributions of the senior government officials who attended and spoke at this year's AILA Conference in Las Vegas, Nevada, and their sharing of updates on various federal agencies. It is helpful that they acknowledge the need for FOIA requests to be accelerated for efficiency and in order to comply with the law. The DOS’s ability to address security checks for visa applications in a prompt manner is extremely important. There apparently is support from the current administration for these efforts and we hope to see improvements in the near future. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Announcement : Murthy's Corporate Teleconference - Wed, Jul 01, 2009 Topic : Successful AOS Applications for EB Immigration ©MurthyDotCom The topic of the next session in this teleconference series, specifically addressing the concerns of employers, enabling them to better help their employees going through the immigration process, will be successful adjustment of status (AOS) applications for employment-based (EB) immigration. This includes current and potential issues with cases filed during the June and July 2007 VisaGate period, AC21 portability, and I-140 revocation, the nature and the movement of priority dates, and general I-485 filing strategies and procedures. ©MurthyDotCom Employers and their representatives can find more detail and learn how to register here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Reminder : Murthy's Public Teleconference - Wed, Jun 17, 2009 Topic : Employment Immigration Options Including: EB1, EB2, EB3, EB4, and EB5 ©MurthyDotCom The topic of this teleconference, open to the general public, will discuss various employment-based immigration options. These will include EB1 Priority Workers (Extraordinary Ability, Outstanding Professor or Researcher, Multinational Executive or Manager), EB2 Members of the Professions Holding Advanced Degrees and Aliens of Exceptional Ability, National Interest Waiver, EB3 Skilled Workers, Professionals and Other Workers, EB4 Special Immigrants, and EB5 Investor. ©MurthyDotCom Those interested in participating may send an eMail to publicevent@murthy.com. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about our Corporate PreHire Consultations? ©MurthyDotCom At the Murthy Law Firm, we know that you want the best representation for your foreign national employees' immigration cases. Like all good business owners, you also are concerned about cost. If you are a company representative with the authority to hire or research the best options for your company, you may schedule a FREE Corporate PreHire Consultation with one of our senior attorneys. Learn just how reasonable our fees really are and what you can gain by becoming a corporate client of the Murthy Law Firm! ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, Jun 15, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays 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 © 2009, 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 © 2009, MURTHY LAW FIRM. All Rights Reserved
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