MurthyBulletin VOL. XV, no. 28; July 2009, week 2 Posted : Jul 10, 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. International Medical Graduates Eligible for EB2 Classification 2. ICE to Audit 652 Companies for I-9 Compliance  3. Proposal to Remove HIV as a Disease of Public Health Significance 4. H1B Cap : July 3, 2009 Update Updated on MurthyDotCom Jul 08, 2009 5. Announcement : Murthy's Corporate & Public Teleconferences - Wed, Aug 05, 2009 Topic : LC Primer 6. MurthyDotCom : Did You Know about Our Compliance Page? 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. International Medical Graduates Eligible for EB2 Classification ©MurthyDotCom An International Medical Graduate (IMG) educated in a country such as India faces an immigration hurdle because, unlike in the United States, s/he does not have to hold a bachelor's degree as a prerequisite to admission to medical school. The U.S. Citizenship and Immigration Services (USCIS) was issuing denials of I-140 petitions for these physicians on the theory that their educations did not meet the employment-based, second preference (EB2) standard of an advanced degree. MurthyDotCom and MurthyBulletin readers were alerted to this complication, in our December 12, 2008 article, Indian Medical Degrees NOT EB2 Advanced Degree, Per USCIS. In response to the resulting outcry and arguments from many of the affected IMGs, the USCIS issued revisions to the Adjudicator’s Field Manual (AFM) in June 2009. A summary follows. ©MurthyDotCom Basic Requirements ©MurthyDotCom In a PERM labor certification-based permanent residence case, the employer must obtain a labor certification approval from the U.S. Department of Labor (DOL). Thereafter, the employer must file the I-140 petition. It is at this point that the USCIS evaluates whether the case fits within EB2. In cases filed for physicians, the USCIS must determine if the individual is “a member of the professions possessing an advanced degree or foreign equivalent degree.” It is also necessary to demonstrate that, as of the date the labor certification application was filed, the individual met all the education, training, and experience requirements for the offered job. ©MurthyDotCom New Guidance on Equivalence to U.S. Advanced Degree ©MurthyDotCom The revised USCIS guidance explains that many countries do not have the same system for medical education as the United States. Many do not require a bachelor’s degree for admission, but have a single degree program. Foreign medical school programs are longer than the standard U.S. or foreign bachelors’ degrees. The AFM revisions now make it clear that an individual can satisfy the requirement of holding an advanced degree if s/he holds a foreign degree that is evaluated as equivalent to a U.S. master’s degree or higher. The USCIS can favorably consider credentials evaluations prepared by independent credentials evaluators. The USCIS is to consider these evaluations, along with their own review of the individual’s qualifications and other available credible resources regarding educational equivalency. It is also possible to meet the EB2 requirement if one has a foreign medical degree and has passed the U.S. Medical Licensing Examination (USMLE), steps I, II, and III. ©MurthyDotCom As mentioned, the other basic requirement for I-140 approval is that the individual is fully eligible for the position as of the time when the labor certification is filed. In order to establish this for a physician, it is necessary to demonstrate that s/he had an unrestricted license to practice medicine, or that s/he meets the requirements for full, unrestricted licensing in the area of intended employment. ©MurthyDotCom Fixing Wrongful Denials ©MurthyDotCom The guidance states that it is possible to file new, amended I-140 petitions for any case that may have been wrongly denied, based upon the revised USCIS guidance. However, the USCIS will not accept late motions to reopen / reconsider I-140 denials or revocations based upon the revised guidance. Hopefully, individuals who received such denials took appropriate action to contest those decisions when they occurred. ©MurthyDotCom Conclusion ©MurthyDotCom The USCIS guidance should serve to resolve the problems that arose regarding the EB2 category for IMGs. We at the Murthy Law Firm are pleased that the USCIS issued this revised guidance. Our attorneys are available to help IMGs with their immigration matters. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. ICE to Audit 652 Companies for I-9 Compliance  ©MurthyDotCom The U.S. Immigration and Customs Enforcement (ICE) issued a press release on July 1, 2009 announcing a substantial escalation of audits with regard to employers' records of hiring. These are known as Form I-9 audits. The press release states that ICE has issued Notices of Inspection (NOIs) to 652 businesses nationwide, informing the companies that ICE agents will be inspecting their records on the hiring of employees. ©MurthyDotCom Businesses Targeted by the I-9 Audits ©MurthyDotCom The press release indicates that the businesses were selected as the result of various leads and investigative measures. No list is available, as these are on-going investigations. As mentioned in the press release, this is a marked increase in audits of this type, as ICE issued 503 audit notices during all of the last fiscal year. These new audits may also be the result of information sharing between ICE, the U.S. Citizenship and Immigration Services (USCIS) and its office of Fraud Detection and National Security (FDNS), the U.S. Department of Labor (DOL), and other government agencies. ©MurthyDotCom Forms I-9 and NOIs ©MurthyDotCom A detailed discussion of Form I-9 requirements and notices of inspection (or NOIs) was made available to MurthyDotCom readers in our article from the September 16, 2008 edition of Murthy's Corporate Bulletin, Form I-9 Compliance & Working with ICE. As that article indicates, employers must complete an I-9 for each new hire. They have three days to produce documents and answer allegations after receiving a NOI from ICE. A discussion of ICE's role in investigations of noncompliance with I-9 regulations, and immigration laws in general, can be found in our June 5, 2009 MurthyDotCom NewsBrief entitled, I-9s, Indictments, and ICE Workplace Enforcement. ©MurthyDotCom Conclusion ©MurthyDotCom It is imperative that U.S. employers understand and comply with I-9 requirements. This is a matter that is NOT limited to employers of H1B or other foreign workers, but applies to ALL U.S. employers. In the current climate of multiple investigations and enhanced enforcement, employers must understand their hiring obligations for the I-9, as well as for requirements that relate solely to foreign workers. The Murthy Law Firm can efficiently assist employers with their compliance obligations. We have a legal department dedicated exclusively to these concerns. As always, prevention is the best cure, and it is far better to address matters proactively, rather having to prepare a defense when audited. We will continue to track the DHS's action with regard to I-9 requirements and audits. MurthyDotCom and MurthyBulletin readers will be updated on any activity that may affect them. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Proposal to Remove HIV as a Disease of Public Health Significance ©MurthyDotCom The Centers for Disease Control and Prevention (CDC), an agency within the U.S. Department of Health and Human Services (HHS), has published a notice of proposed rule making (NPRM) that would eliminate human immunodeficiency virus (HIV) as one of the communicable diseases of public health significance that makes an individual inadmissible to the United States. This proposed rule was published in the Federal Register on July 2, 2009. There is a comment period until August 17, 2009. The existing regulations remain in place until the effective date of any revised regulation. This will require a separate publication in the Federal Register. ©MurthyDotCom History of Ban on Admission to Those with HIV ©MurthyDotCom The U.S. government passed a law in 1987 that specifically banned entry to the United States for anyone infected with HIV or acquired immune deficiency syndrome (AIDS). In July 2008, the U.S. Congress repealed this statute. Prior to the repeal, anyone with HIV/AIDS seeking to travel to or immigrate into the United States had to obtain a waiver of automatic inadmissibility under the Immigration and Nationality Act (INA). An explanation of these waivers was included in our November 16, 2007 NewsBrief entitled, DHS Proposal to Permit B-1/B-2 Entry for HIV-Infected Visa Applicants, available on MurthyDotCom. However, this repeal did not eliminate HIV as a ground of inadmissibility. ©MurthyDotCom HIV Waiver Still Required Under Current Law ©MurthyDotCom Since the July 30, 2008 repeal of the 1987 law, HIV-infected individuals have still been required to obtain waivers of their inadmissibility from the secretary of HHS. The current law treats HIV/AIDS like any other communicable disease that poses a potential public health risk. Individuals who want to enter the United States on nonimmigrant or immigrant visas must first undergo medical examinations that include the test for HIV/AIDS. Any HIV/AIDS-infected person must then request a waiver that may be granted by the secretary of HHS, if it is found that the nonimmigrant or immigrant does not pose an individual public health risk. Thus, while the law no longer requires HIV to be a ground of inadmissibility, it leaves that determination in the hands of HHS as a regulatory matter. ©MurthyDotCom HIV is not a Communicable Disease Posing Significant Threat ©MurthyDotCom The CDC's proposed change to remove HIV would amend its regulations regarding the definition of communicable disease of public health significance. The regulations governing medical examinations for those seeking entry into the United States would also change, removing mention of HIV from the scope of such medical examinations. While recognizing that HIV is a serious health condition, the CDC's proposal notes that HIV is not a communicable disease that poses a significant threat for transmission through casual contact. As a result of the CDC's proposed change, individuals no longer would be automatically inadmissible based solely on the grounds that they are infected with HIV. ©MurthyDotCom Public Comment Invited for Proposed Rule The proposed rule is open for public comment, which must be received on or before August 17, 2009. The instructions for submission of comments are contained within the proposed rule. ©MurthyDotCom Conclusion ©MurthyDotCom This change reflects the significant advances in scientific understanding of HIV/AIDs. We at the Murthy Law Firm will keep readers apprised of any further developments. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. H1B Cap : July 3, 2009 Update Updated on MurthyDotCom Jul 08, 2009 ©MurthyDotCom The H1B cap count continues to inch forward, with an approximate count of 45,000 as of July 3, 2009. Readers may follow the progress on MurthyDotCom at: http://www.murthy.com/nflash/nf_040809.html ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Reminder : Murthy's Corporate & Public Teleconferences - Wed, Aug 05, 2009 Topic : LC Primer ©MurthyDotCom Our August teleconference, specifically for CEOs and HR managers with interest in the immigration process from the employer's point of view, will provide an overview of the PERM Labor Certification Process. This teleconference will review the standard procedures involved in filing a labor certification case as well as recent case law developments. Attorneys from the Murthy Law Firm will also discuss the potential impact of the new 9089 form and the implementation of the iCert system for labor certification cases. ©MurthyDotCom Employers and their representatives : register for Aug 05, 2009 here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about Our Compliance Page? ©MurthyDotCom In this post-9/11 world, immigration enforcement has been tied to national security concerns and caused a shift in focus to "enforcement first" as our nation's immigration policy. The result is stepped-up workplace investigations, audits of employer I-9 records, and raids of allegedly noncompliant worksites. These enforcement efforts on the part of U.S. government agencies are not limited to attempts to locate undocumented workers. Employers who are believed to be in violation of the requirements of employment-based immigration sponsorship are also targeted. We at the Murthy Law Firm are prepared to help your company avoid expensive fines and interruptions to production, through compliance with U.S. government requirements. More on this is available on our Compliance Page on MurthyDotCom. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, Jul 20, 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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