MurthyBulletin
VOL. XV, no. 33; Aug 2009, week 2
Posted : Aug 14, 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. Sep 2009 Visa Bulletin : EB2 China / India Moves to Jan 8, 2005
2. iCert Glitch Causes LCA and H1B Delays
3. Court Imposes Penalties on Employer for Immigration Violations
4. Obama's Immigration Reform Efforts Likely Delayed until 2010
5. H1B Cap : August 7, 2009
Updated on MurthyDotCom Aug 12, 2009
6. Will Proposed H1B Restrictions Drive Indian IT Companies to Mexico?
Posted on MurthyDotCom Aug 07, 2009
7. Senate Passes Homeland Security Appropriations Bill
Posted on MurthyDotCom Aug 07, 2009
8. Announcement : Murthy's Corporate Teleconference - Wed, Sep 02, 2009
9. MurthyDotCom : Did You Know about Our Citizenship Section?
10. 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. Sep 2009 Visa Bulletin : EB2 China / India Moves to Jan 08, 2005
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The September 2009 U.S. Department of State (DOS) Visa Bulletin has some welcome news for the employment-based, second preference (EB2) applicants from both India and China. The cutoff date for both countries moved substantially forward, to January 8, 2005. No explanation for this change was included in the Visa Bulletin. Since September is the last month of the 2009 fiscal year (FY), however, it is likely that there were some immigrant visa numbers available in other categories that would otherwise have gone unused. Thus, there are provisions that allow the shifting of immigrant visa numbers between the categories to avoid wasting any numbers. This can provide a bit of relief for those in oversubscribed categories. [The most recent DOS Visa Bulletin chart can always be found on MurthyDotCom.]
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Visa Bulletin Summary for September 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 to January 8, 2005.
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Employment-Based, Third Preference (EB3)
This category remains completely unavailable for all countries, as all numbers have been depleted for FY2009.
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Employment-Based, Fourth (EB4) and Employment-Based, Fifth Preference (EB5)
As predicted in the prior Visa Bulletin, EB4 is unavailable for September 2009, due to heavy demand. EB5 remains current for all countries.
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Explanation and Conclusion
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As mentioned, the complex rules that govern the allocation of visa numbers allow for some movement of numbers between categories. Since all visa numbers have to be used by the end of the fiscal year, or be wasted, the shifting of numbers often occurs at the end of the fiscal year. The current fiscal year is FY2009, which ends September 30, 2009. It appears that unused numbers have been shifted to permit forward movement for EB2 India and China. As before, MurthyDotCom and MurthyBulletin readers are reminded that this does not mean there will be approvals for all EB2 India / China cases that are within the new cutoff date. It means that some additional EB2 India / China cases can be approved, if their priority dates are prior to the cutoff.
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The new fiscal year, FY2010, begins October 1, 2009. This means a new allocation of visa numbers and another year of monitoring the changes in the DOS Visa Bulletin.
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2. iCert Glitch Causes LCA and H1B Delays
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Many U.S. employers nationwide are experiencing problems obtaining labor condition application (LCA) approvals to file H1B petitions under the iCert program. The problem arises when the U.S. Department of Labor (DOL) cannot verify the employer's Federal Employer Identification Number (FEIN). This is occurring even when the employer or attorney has entered the FEIN properly on the LCA.
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Background on the iCert
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MurthyDotCom and MurthyBulletin readers learned of the DOL iCert program, currently in use for obtaining LCAs for H1B filings in earlier articles. On July 17, 2009, iCert in Place for H1B LCAs was published, explaining how the LCA is a necessary part of the H1B petition process. There are currently problems in obtaining LCA approvals, due to the DOL's inability to verify FEINs of some employers. There are no statistics available as to the extent of this problem. As of this writing, and based on our experience and feedback from colleagues, such LCA delays are common.
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DOL's Error Notice Provides Instructions on Employer Documentation
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The DOL has offered a solution. In order to help employers understand how to remedy this problem, the error notice generated due to FEIN problems has been modified. The error notice carries instructions regarding the documentation that the employer must transmit to the DOL's LCA helpdesk. These requests for resolution can be transmitted by eMail, fax, or regular mail to addresses provided in the error notice. The DOL will respond by eMail. According to the DOL, employers should only have to undergo the helpdesk verification process once. This effort should resolve an employer's problem regarding the FEIN for future LCA filings.
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DOL Does Not Provide Timeframes for Addressing FEIN Requests
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The DOL did not indicate any timeframe for addressing the requests for FEIN verification. MurthyDotCom and MurthyBulletin readers were advised previously of the need for advance planning, due to the iCert system's estimated seven-day processing period. The possibility of a FEIN delay adds to this processing time significantly. Based on the experiences of our firm with this problem, the DOL is taking six to eight additional calendar days to resolve the FEIN problem. However, this resolution does not result in an LCA approval. The resolution allows the employer to resubmit the LCA. This resubmission is, once again, subject to the seven day processing time. Thus, our readers are again urged to plan in advance for H1B filings, to the extent possible. H1B petitions can be filed as much as six months in advance of the requested start date. Of course, the ongoing uncertainty in the job market does not always permit such advance planning. By filing earlier, however, it is often possible to avoid last-minute delays.
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Conclusion
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Every new system encounters problems. We hope that the DOL is able to solve this one so that the incidents of wrongful rejections for FEIN numbers is reduced or eliminated. For now, to whatever extent possible, it is safest for employers to be aware of potential delays, and to plan accordingly. We at the Murthy Law Firm will continue to share information with our readers regarding the iCert system and other DOL matters, as it is made available.
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3. Court Imposes Penalties on Employer for Immigration Violations
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In the ongoing process of investigations and cases that occur with regard to immigrants and immigration processing, we at the Murthy Law Firm choose to share with our readers a recent case of the U.S. District Court, in which the court imposed monetary penalties and court supervision on the U.S. employer. The U.S. District Court sentenced Shipley Do-Nut Flour and Supply Company (Shipley Do-Nut) on August 7, 2009 in connection with charges of harboring undocumented immigrants. The company will be under court supervision for three years, will pay a fine of $250,000, and will forfeit $1.334 million to the U.S. Immigration and Customs Enforcement (ICE).
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Background of Shipley Do Nut since October 2008
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Shipley Do-Nut entered into a plea agreement in connection with these charges approximately one year before this sentence was handed down. The immigration-related charges and plea agreement in this case were reported to MurthyDotCom and MurthyBulletin readers in our October 3, 2008 article, Company's Officials Plead Guilty to Immigration Violations. The investigation of the company was part of ongoing enforcement efforts directed at employers of undocumented workers.
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Company Revises Immigration Compliance Procedures
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The allegations in this case claimed that 40 percent of the Shipley Do-Nut workforce was not authorized for employment. The plea agreement included revised immigration compliance procedures within the company's hiring practices. The company agreed to pay $1.334 million rather than to forfeit residential properties where undocumented workers were housed.
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Separate Charges against Supervisors and Company President
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In addition to the charges against the company itself, separate charges were brought against warehouse supervisory personnel for hiring or continuing to hire undocumented workers. These individuals received fines ranging between $1,000 and $2,000 and were given six months of probation. The president of the company also pled guilty to continuing to hire undocumented workers. He was fined $6,000 and given a similar probation period.
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Conclusion
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As can be seen from the Shipley Do-Nut case, the consequences for ignoring the immigration employment restrictions can be substantial. The price is high and, besides financial penalties for the company, certain key individuals are often fined and undergo probationary periods resulting in criminal records for those individuals. In today's enforcement climate the U.S. government has both the funds and the incentive to pursue employers over violations of U.S. immigration laws, it is safest to comply with all required immigration laws and procedures, including hiring practices.
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4. Obama's Immigration Reform Efforts Likely Delayed until 2010
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President Barack Obama announced in early August 2009 that immigration reform efforts must wait until 2010. He confirmed the intent of his administration to create a comprehensive overhaul of the immigration system. However, concerns such as health care reform and the surrounding controversy are taking priority over immigration reform currently.
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Obama's Unwavering Commitment to Immigration Reform
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According to widespread reports in the popular media, President Obama reiterated his commitment to immigration reform, both in a North American summit in Guadalajara, Mexico, on August 10, 2009, and in remarks to reporters at the White House a few days earlier. During his campaign, Presidential Candidate Obama proclaimed immigration reform to be a top priority.
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Possible Timetable for Immigration Reform
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The President's revised timetable for addressing immigration reform includes a draft of proposed legislation by the end of 2009. No action on this is anticipated until 2010, however, due to the other pressing matters faced by the United States at this time. Of course, as acknowledged by Mr. Obama, immigration reform is complex. It is controversial, and current economic problems make it all the more complicated. Previous immigration reform efforts supported by former President George W. Bush in 2006 and 2007 failed, as it was difficult to obtain a consensus on such a divisive issue.
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Conclusion
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While it is widely acknowledged that the U.S. immigration system is in need of an overhaul, there is no general agreement on a method for addressing the problems. There are many varied interests at stake, and widely divergent views as to immigration levels, requirements, penalties, and enforcement. The Murthy Law Firm will continue to follow significant developments in the area of immigration reform, to keep our readers informed.
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5. H1B Cap : August 7, 2009
Updated on MurthyDotCom Aug 12, 2009
©MurthyDotCom
The H1B cap count again shows no change, remaining at 44,900 as of August 7, 2009. Updates on the cap are posted on MurthyDotCom as they become available. Find the latest information at: http://www.murthy.com/nflash/040809.html
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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6. Will Proposed H1B Restrictions Drive Indian IT Companies to Mexico?
Posted on MurthyDotCom Aug 07, 2009
©MurthyDotCom
Legislation currently pending in the United States Senate may cause India-based information technology (IT) companies to step up their operations in Mexico, according to a recent article in Computerworld. Find our report of the Computerworld article on MurthyDotCom at: http://www.murthy.com/news/nk_mexic.html
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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7. Senate Passes Homeland Security Appropriations Bill
Posted on MurthyDotCom Aug 07, 2009
©MurthyDotCom
With the new fiscal year rapidly approaching, the U.S. Senate approved a $42.9 billion appropriations bill on July 9th to fund the U.S. Department of Homeland Security (DHS) in fiscal year (FY) 2010. The Senate passed the measure by a broadly bipartisan vote of 84 to 6, with 10 members not voting. Although this bill is ONLY PENDING at this time, readers might be interested in the Senate's current direction. Find our full report on MurthyDotCom at: http://www.murthy.com/news/nk_appro.html
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8. Announcement : Murthy's Corporate Teleconference - Wed, Sep 02, 2009
Topic : When USCIS Comes Knocking - the USCIS Office of Fraud Detection and National Security (FDNS)
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The topic of our September 2, 2009 session in this teleconference series is visits by officers from the USCIS Fraud Detection and National Security (FDNS) Office. In this overview, attorneys from the Murthy Law Firm will discuss the increasing frequency of such visits to H1B employers, employers’ options in responding to such visits, what to do if the officers want to speak with employees, the authority of the FDNS officers, and the potential consequences of such visits, among other issues.
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Employers and their representatives : register for Aug 05, 2009 here.
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9. MurthyDotCom : Did You Know about Our Citizenship Section?
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Many visitors to MurthyDotCom have the ultimate goal of living the American dream as citizens of the United States. To help them realize this dream we provide information on the naturalization process, namely, what one needs to do to acquire U.S. citizenship. This section of our WebSite includes the basic requirements to file for U.S. citizenship and 100 sample questions that could be asked on the requisite civics examination that must be passed for U.S. citizenship eligibility. Answers to all the sample questions are provided. PDFs of the USCIS study guides are also available for download. We at MurthyDotCom are pleased to provide our readers with this help in our Citizenship section.
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MurthyChat : The next MurthyChat session will be Monday, Aug 17, 2009, 9:00pm Eastern Time (U.S.), because Attorney Murthy was not available on the 3rd Monday in March. 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.
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MurthyForum : Consider joining those who have discovered the value of this service. Our message / discussion board is visited daily by one of our attorneys.
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MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!
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10. 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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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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