MurthyBulletin
VOL. XV, no. 29; July 2009, week 3
Posted : Jul 17, 2009
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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.
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TOPICS in this Edition of the MurthyBulletin :
1. August 2009 Visa Bulletin : EB2 China / India Jumps to 01 Oct 2003
2. iCert in Place for H1B LCAs
3. DOS Skills List : Need for J-1 Waivers Eliminated for Some
4. DHS to Withdraw No-Match Rule
5. H1B Cap : July 10, 2009 Update
Updated on MurthyDotCom Jul 13, 2009
6. Announcement : Murthy's Corporate Teleconference - Wed, Aug 05, 2009
7. MurthyDotCom : Do You Know the Value of Our Articles?
8. Important Processing Times and Dates
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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.
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1. August 2009 Visa Bulletin : EB2 China / India Jumps to 01 Oct 2003
The August 2009 U.S. Department of State (DOS) Visa Bulletin brought a bit of good news for some EB2 applicants. The cutoff date for India and China moved forward to October 1, 2003. For both countries, the cutoff date in this category had recently retrogressed to January 1, 2000. No explanation was provided for the change to October 1, 2003. Since the end of the fiscal year is approaching, however, it is likely that there are some unexpected "extra" immigrant visa numbers from different categories that can be shifted to EB2 for India and China. [The most recent DOS Visa Bulletin chart can always be found on MurthyDotCom.]
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Visa Bulletin Summary for August 2009
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Employment-Based, First Preference (EB1)
This category is current for all countries of chargeability.
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Employment-Based, Second Preference (EB2)
This category is current for all countries, except India and China. The cutoff date for both India and China moved forward by more than three years, to October 1, 2003.
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Employment-Based, Third Preference (EB3)
The EB3 category remains completely unavailable for all countries, as all numbers have been used for the current fiscal year.
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Employment-Based, Fourth (EB4) and Fifth Preference (EB5)
These categories and subcategories are current for all countries of chargeability. However, the Visa Bulletin indicates that there is heavy demand in the EB4 category. Thus, it may become necessary to establish a cutoff date in September 2009. It is also possible that this category could become "unavailable" during the month of September 2009.
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Explanation and Conclusion
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As mentioned, the DOS Visa Bulletin did not include an explanation of the change in EB2 for India and China. Shifts of this nature toward the end of the fiscal year, however, normally indicate an availability of immigrant visa numbers in other categories that could be shifted where they are needed; in this case to India and China. This is permissible under certain rules that allow visa numbers to move between categories and countries of chargeability to avoid wasting the visa numbers towards the end of a fiscal year, as they do not roll over to the next fiscal year.
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This is good news to some EB2 applicants from India and China. It should be noted, though, that it does not indicate that there really are enough immigrant visa numbers for all EB2 India and China cases with priority dates prior to October 1, 2003. It simply means that the best estimates indicate that the cutoff date had to move to that date in order to allow the approval of enough cases to use all the visa numbers by the end of the USCIS fiscal year, which is September 30, 2009. MurthyDotCom and MurthyBulletin readers receive an explanation and analysis of pertinent information in the DOS Visa Bulletin each month.
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2. iCert in Place for H1B LCAs
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MurthyDotCom and MurthyBulletin readers are reminded that, as of July 1, 2009, the system for obtaining H1B labor condition applications (LCAs) has changed. This change alters timing considerations for H1B filings, as currently every H1B petition must be supported by an approved or certified LCA. More information on iCert can be found in our February 20, 2009 article, New DOL System iCert for LCAs, and our May 13, 2009 NewsFlash, Old LCA System Remains Available until June 30, 2009- iCert Delay. Following are some experiences the Murthy Law Firm has had with the new iCert system, for the benefit of our readers.
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LCA Certification Processing up to Seven Days
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Under the regulations, the U.S. Department of Labor (DOL) has seven days to certify the LCA after filing. Our experience with the iCert LCA system indicates that, as of the time of this writing, the DOL is meeting this processing goal. We have found that the LCAs are being approved within approximately four to five days in most cases. The LCA is not to be confused with the much slower labor certification (LC) portion of the green card application process, also filed with the DOL.
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Readers are reminded that the longer processing time for H1B LCAs is yet another reason not to wait until the last minute to file H1B petitions. The LCA approval is needed in order to file the H1B petition.
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LCA Form Alert System Good - But Not Perfect
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The iCert system uses a revised LCA form. The questions must be completed in a specific manner. The system has alerts to advise the preparer of various issues with the submission, so that revisions can be made prior to filing. This alert system addresses a wide range of details on the form, but does not cover each and every peculiarity of the system. Thus, it is potentially possible, at this point, for a form to be accepted for filing, only to be rejected a few days later for a clerical problem. This should be resolved over time; with preparers learning the DOL's preferred wording and the addition of more alert triggers.
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DOL Communications upon LCA Receipt and Approval
The iCert system provides eMail notification to the attorney and employer upon the filing of the application, as well as upon the certification of the LCA. Thus, there is more communication from the DOL.
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Conclusion
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Given the addition of at least a few days in processing the H1B LCA, advance planning is important. Time for this is often a luxury, however, particularly in instances of layoffs and new employment. Important changes in immigration law and current procedures will continue to be made available to our MurthyDotCom and MurthyBulletin readers.
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3. DOS Skills List : Need for J-1 Waivers Eliminated for Some
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The U.S. Department of State (DOS) issued an important clarification for some foreign nationals who are subject to the J-1 two-year home residence requirement (HRR) based upon participation in programs included in the "skills list." Some of these individuals will no longer be subject to the HRR. This change is the result of the issuance of a new skills list, effective June 28, 2009. The new list eliminated certain countries. Individuals who were subject to the HRR under the prior skills list are relieved of that requirement if their countries have been removed entirely from the new skills list.
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Background
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Some individuals who hold or have held J-1 exchange visitor status are subject to two-year HRRs. This requires such individuals to return to their home countries for two years at the completion of their J-1 stays. Such individuals cannot change status in the United States, obtain H1B or L-1 status, or become permanent residents until the two-year requirement has been met. There are provisions for requesting waivers of the HRR.
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Not all J-1s are subject to this requirement. One of the reasons an individual would be subject is due to the DOS skills list. This is a list of subject areas determined to be in limited supply in one's home country. If an individual participated in a J-1 program included on the skills list for his/her country, then HRR would apply.
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Skills List Recently Updated
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The DOS recently issued an updated skills list, available on the DOS WebSite. The skills list contains a master directory of subject areas, followed by the countries and the particular subject areas determined to be in short supply within each country. This update was much needed, as the skills list had not changed since 1997 (PDF 381KB). As mentioned, some countries have been completely eliminated from the skills list.
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Who is No Longer Subject to HRR?
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Individuals who were subject to the HRR according to the old skills list, are no longer subject IF their countries have been completely removed from the current list. The removed countries are:
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Afghanistan, Azerbaijan, Bahamas, Botswana, Burundi, Central African Republic, Chad, Cote d'Ivoire, Croatia, Equatorial Guinea, Guinea-Bissau, Hungary, Jordan, Kuwait, Lesotho, Macedonia, Madagascar, Malta, Morocco, Pakistan, Panama, Papua New Guinea, Poland, Qatar, Sierra Leone, Singapore, Somalia, Sudan, Tunisia, Uganda, Western Samoa, and Zimbabwe.
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Individuals who became subject to the HRR under the old list remain subject to the HRR if their countries are still on the list. This is the case even if their particular subject areas, which were previously considered a shortage skill, have been removed from their respective country's list.
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No Change for Doctors and Government Funding
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This change does not impact those who are subject to the HRR due to the receipt of government funding. Similarly, it does not change the requirement for International Medical Graduates (IMGs) who obtained graduate medical education and/or training in J-1 status.
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Conclusion
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The revised skills list is helpful in facilitating the exchange visitor program. The clarification provided by the DOS will be a great relief to those countries who are removed from the list and whose nationals would otherwise have been subject to the HRR. However, it does not help those from countries where there were skill areas dropped from the list, if the country remains as having some needed skill areas.
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4. DHS to Withdraw No-Match Rule
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The U.S. Department of Homeland Security (DHS) issued a press release on July 8, 2009, stating that the embattled Social Security no-match rule will be rescinded. Instead, DHS will increase focus on the E-Verify system for work authorization verification. According to the press release, the administration supports a regulation would require employers to use E-verify in order to receive federal contracts. Long-time readers of MurthyDotCom and the MurthyBulletin may recall a discussion of the no-match rule in our August 17, 2007 NewsBrief entitled, Liability for Employers who Receive No-Match Letters.
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DHS to Focus on E-Verify
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Since October 2007, DHS and ICE have been unable to resolve the controversy regarding the no-match regulation. For reasons not explained in the press release, the DHS has decided to rescind the challenged no-match regulation and to focus resources on improving and expanding the E-Verify system. E-Verify is a free online system that compares information from employers' I-9 forms with federal government databases and is jointly operated by DHS and the Social Security Administration (SSA). An analysis of the E-Verify program was included in our May 30, 2008 NewsBrief, E-Verify Analysis - May 21, 2008 Update.
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This proposed federal contractor rule would extend the required use of E-Verify to all federal contractors and subcontractors, including employers who receive American Recovery and Reinvestment Act funds. Once adopted, this rule will apply to all federal solicitations and contracts awarded government-wide beginning September 8, 2009.
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DHS explains that it is continuing efforts to improve E-Verify, including reducing errors and expanding the database of records included within the system. There are ongoing initiatives to enhance the program in many respects, including fraud prevention and privacy protections.
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No-Match Rule has been on Hold
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The U.S. Immigration and Customs Enforcement (ICE), which is responsible for enforcing Employment Eligibility Verification regulations, issued the controversial proposed no-match rule, intended to go into effect on September 14, 2007. The proposed regulation was immediately challenged in a federal court case in California. As regular MurthyDotCom and MurthyBulletin readers may recall from the September 21, 2007 NewsBrief, No-Match Letter Regulation is on Hold, the Judge issued a temporary restraining order that prevented the no-match regulation from taking effect. The Judge made additional rulings that continued to prevent the implementation of the no-match rule, as reported in our NewsBriefs entitled, Federal Court Issues Preliminary Injunction on No-Match Program and DHS on the State of Immigration and No-Match Letters.
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Conclusion
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While the DHS's decision to withdraw the controversial no-match regulation may be a relief to many concerned employers, it does not reduce the need for employers to comply with Form I-9, Employment Eligibility Verification regulations. A discussion of the potential penalties for noncompliance with Form I-9 regulations is available on MurthyDotCom in our September 16, 2008 article entitled, Form I-9 Compliance and Working with ICE. Employers and their HR managers and other representatives are encouraged to educate themselves on their obligations under DHS, U.S. Citizenship and Immigration Services, ICE, and U.S. Department of Labor regulations. The Murthy Law Firm will continue to provide updates regarding E-Verify and other compliance matters to help employers and individuals with the complex and ever-changing immigration laws and regulations.
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5. H1B Cap : July 10, 2009 Update
Updated on MurthyDotCom Jul 13, 2009
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The H1B cap count moved backward slightly, with a count of 44,900 as of July 10, 2009. Keep up with the count as it happens on MurthyDotCom at http://www.murthy.com/nflash/nf_040809.html.
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6. Reminder : Murthy's Corporate Teleconference - Wed, Aug 05, 2009
Topic : LC Primer
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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.
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Employers and their representatives : register for Aug 05, 2009 here.
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7. MurthyDotCom : Do You Know the Value of Our Articles?
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At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite.
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8. Important Processing Times and Dates
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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.
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