VOL. XV, no. 34; Aug 2009, week 3 Posted : Aug 21, 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. USCIS Service Center Inquiry Instructions - Aug 2009 2. Mayorkas Sworn in as New Director of USCIS 3. H1B Back Wage Assessment for Employee Sent Abroad 4. H1B Cap : August 14, 2009 Update Posted on MurthyDotCom Aug 19, 2009 5. Reminder : Murthy's Corporate Teleconference - Wed, Sep 02, 2009 6. MurthyDotCom : Did You Know about our USCIS Service Center 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. USCIS Service Center Inquiry Instructions - Aug 2009 ©MurthyDotCom The USCIS issued instructions (PDF 32.7KB) August 6, 2009 on how to follow up on cases pending at the USCIS service centers. These instructions should be followed by individuals and organizations inquiring about timelines and generic information. One should NOT rely on general information from the government for legal options, analysis of a particular situation, or advice on how to proceed in a particular immigration case. ©MurthyDotCom First Step : Call NCSC's Toll-Free Number ©MurthyDotCom The first step in the instructions is to call the National Customer Service Center (NCSC) at their phone number (1.800.375.5283). It is necessary to have the USCIS receipt number and other case-related, identifying information in order to make such inquiries. ©MurthyDotCom It is suggested that one keep the name and/or ID number of the person with whom s/he speaks, as well as the date and time of the call. One should also keep any service request referral number, if there is action taken on the case. ©MurthyDotCom Second Step : eMail Service Center after 30 days ©MurthyDotCom If the NCSC has not been able to resolve the particular matter within 30 days, then it is possible to send an eMail to the service center that has the case. In order to use the eMail service, it is necessary to have the information regarding the initial call to the NCSC; that is, the name and/or ID number of the representative, date and time of the call, and the service request referral number. If no service referral was made, it is necessary to indicate why the NCSC did not take this action. ©MurthyDotCom The eMail addresses for this purpose are as follows: ©MurthyDotCom California Service Center : csc-ncsc-followup@dhs.gov Vermont Service Center : vsc.ncscfollowup@dhs.gov Nebraska Service Center : ncscfollowup.nsc@dhs.gov Texas Service Center : tsc.ncscfollowup@dhs.gov ©MurthyDotCom Third Step : eMail to USCIS Headquarters ©MurthyDotCom If there is still no resolution in the case after 21 days of sending the eMail described in step two, it is possible to eMail the USCIS Headquarters Office of Service Center Operations. This eMail address is SCOPSSCATA@dhs.gov. The USCIS promises a response to these inquiries within ten days. ©MurthyDotCom Conclusion : General Information No Substitute for Legal Advice ©MurthyDotCom Potentially, the case follow-up procedures can be helpful for many situations. Each step requires a waiting time, however. In some situations, such as case denials with time-sensitive deadlines, it is not advisable to wait for NCSC action. There are deadlines (often only 30 days and sometimes 15 days) for challenging certain USCIS decisions. If a case is denied, or if one encounters serious problems otherwise, it is necessary to obtain proper legal advice and not assume that a call to the NCSC is all that is needed. ©MurthyDotCom It should be noted that calls to the NCSC are answered by individuals who provide general immigration information based on scripts. Responses to one's inquiry should be considered only as a general guideline, and not as a substitute for proper legal advice. We at the Murthy Law Firm sometimes speak with individuals who wish to make an immigration filing, because they think that the NCSC told them they could do so. They may have been told that, in order to do what they wish to do, it is necessary to file a certain form. However, NCSC does not evaluate whether one is legally eligible to file, whether it is the correct procedure for that individual or family, or if other considerations exist that may completely change the equation. Speaking with a knowledgeable lawyer for case-specific, individualized advice as to one's immigration options is a safer and, actually, much less expensive option in the long run. The NCSC should be used for case follow up and general immigration information only. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. Mayorkas Sworn in as New Director of USCIS ©MurthyDotCom Alejandro Mayorkas was sworn in as the new Director of the U.S. Citizenship and Immigration Services (USCIS) on August 12, 2009. Director Mayorkas, who was born in Havana, Cuba, has a long history of government service as a federal prosecutor in California. ©MurthyDotCom Career in Both Public and Private Sector ©MurthyDotCom Director Mayorkas's impressive career includes both experience as a federal prosecutor and as a partner in a major law firm. From 1989 until 1998, he served as an Assistant U.S. Attorney in the U.S. Attorney's Office for the Central District of California. In 1998, then-President Bill Clinton nominated him as the youngest U.S. Attorney at that time. He managed the largest U.S. Attorney's Office in the United States, which then had a staff of 240 Assistant U.S. Attorneys. ©MurthyDotCom Life as Private Sector Attorney ©MurthyDotCom After the January 2001 change of presidential administrations, Director Mayorkas joined the law firm of O'Melveny & Myers LLP the following July. In his role as a litigation partner, he focused his practice on complex civil and criminal litigation, as well as leading internal investigations. His clients include companies in a wide range of industries, including telecommunications, health care, consumer safety, sports and entertainment, aerospace, media, and real estate. ©MurthyDotCom Policy Views of Director Mayorkas Helpful, but Troubling ©MurthyDotCom While Director Mayorkas is an accomplished attorney and has demonstrated a commitment to community service, it is unclear what policy vision he will bring to his leadership role at the USCIS. As a U.S. Attorney, he was instrumental in improving the prosecution of hate crimes and other acts of discrimination. His experience as a federal prosecutor and his background in leading internal investigations of private companies appear to tie in with the USCIS's current trend toward investigating employers and targeting fraud within nonimmigrant and immigrant visa programs. However, the enforcement background is troubling in that the primary mission of the USCIS is service and issuance of immigration benefits, when appropriate. ©MurthyDotCom We at the Murthy Law Firm will continue to track changes to the USCIS's policies and key personnel. We consider it important to update our readers on significant changes in personnel, since the individual in charge of any service, bureau, office, agency, or organization is likely to impact its policy and implementation. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. H1B Back Wage Assessment for Employee Sent Abroad ©MurthyDotCom Many employers of H1B workers assume that their wage obligations end if the employees are not in the United States. In a July 30, 2009 decision, the U.S. Department of Labor (DOL)'s Administrative Review Board (ARB) enhanced an award of back wages to include salary for two months when the H1B employee was in Australia. As explained below, the ARB focused on the fact that the foreign national was taking a course that may have been related to his H1B employment, as opposed to taking a period of voluntary leave or vacation. The Murthy Law Firm was not involved in representing any parties in this case. This decision is shared with MurthyDotCom and MurthyBulletin readers because of its importance to many H1B employers, to assist them in understanding wage obligations that may be imposed by law. ©MurthyDotCom Role of the DOL Wage & Hour Division ©MurthyDotCom The DOL's Wage & Hour Division (WHD) is responsible for investigating claims of underpayment or nonpayment of wages owed to U.S. workers of all types. These investigations extend to employers of H1B workers. The purpose of these investigations is to enforce the provisions in the labor condition applications (LCAs) filed in connection with H1B petitions. ©MurthyDotCom Complaints Filed with WHD ©MurthyDotCom In the case of Michal Vojtisek-Lom v. Clean Air Technologies International, Inc. (PDF, 230KB), the ARB reviewed a decision awarding back wages to an engineer. He had been employed to help commercialize his own invention. Mr. Vojtisek-Lom was hired in 2000 as a mechanical / design engineer. His title was later changed to environmental engineer. He did not have a set schedule. He was free to pursue outside academic and professional interests, in addition to his work for the company. In 2005, the company terminated Mr. Vojtisek-Lom following certain disagreements. Mr. Vojtisek-Lom filed a complaint with the WHD claiming LCA violations. ©MurthyDotCom WHD Investigation and Standard Policies ©MurthyDotCom The WHD investigator testified that he was assigned to investigate Mr. Vojtisek-Lom's claim of improper payments. The agent stated that it is 'standard policy' for the WHD to investigate the year preceding the employee's complaint and, if any violations of DOL regulations are found, then to check an additional year before the complaint. Thus, the investigatory period began in 2003 and ended in 2005. As a result of this investigation, the WHD found that the employer owed $20,076.99 in back wages. ©MurthyDotCom Appeal Taken from WHD Findings ©MurthyDotCom The company did not appeal or contest the WHD findings. Mr. Vojtisek-Lom requested a hearing on his claims. The Administrative Law Judge (ALJ) held a hearing, including testimony from the agent and the company's fiscal manager, and found that the company had not paid all of the wages owed. However, the ALJ calculated the back wages owed from 2000 until 2005. This resulted in a finding that the company owed Mr. Vojtisek-Lom $46,955.37 plus interest. ©MurthyDotCom Appeal to the ARB : Back Wages Ordered for Time Spent Outside U.S. ©MurthyDotCom The company filed an appeal of the ALJ's decision to the DOL's ARB. The ARB found that Mr. Vojtisek-Lom's complaint was timely, because it was made within 12 months of the termination of his employment. It noted that, when an employer signs an LCA, it attests that the wage for the entire period of authorized employment will be paid. The ARB found that the company was required to pay back wages to Mr. Vojtisek-Lom for two months in 2000, when he was outside of the U.S. and taking a class in Australia. The company did not produce any payroll records for those two months, nor did it produce any writing or documentation that Mr. Vojtisek-Lom was in Australia for his own purposes or engaged in personal pursuits. The ARB included back wages for these two months as part of its award. ©MurthyDotCom Benching Versus Voluntary Absences ©MurthyDotCom The ARB noted that the Immigration and Nationality Act (INA) prohibits employers from benching H1B employees and withholding their wages. The key is whether such an H1B worker's nonproductive status is due to a voluntary absence from work, a condition or problem that renders the worker unable to work, or whether it is the result of a decision on the part of the employer or a lack of work for the H1B employee. If the nonproductive status is based on the employer's decision, then back wages may be owed to the H1B worker. ©MurthyDotComv Absence from U.S. May Not End Wage Obligation ©MurthyDotCom The principle set forth in this decision is particularly important during the current economic downturn. If an employer sees a decrease in business, it may not be possible to temporarily reduce the wage obligation by simply sending a worker to his/her country of origin. Based on the concepts set forth in this case, the employer may be found to owe back wages to an employee whose departure is at the behest of the employer, due to a lack of work assignments. ©MurthyDotCom Similar Benefits Owed ©MurthyDotCom The ARB found that the company did not pay Mr. Vojtisek-Lom for a two-week vacation. H1B employers are required to offer the same benefits to their H1B workers as those offered to their U.S. workers. This company gave paid vacation time to other workers, thus, two additional weeks of back wages were owed for Mr. Vojtisek-Lom's vacation. ©MurthyDotCom Conclusion ©MurthyDotCom This DOL decision emphasizes how important it is for employers of H1B workers to meet all obligations under the H1B and LCA programs. An employer's decision to send or encourage its H1B employees to leave the United States between assignments (or when there is a slowdown in business) exposes the company to DOL investigation and possible assessment for back wages, even for time the employee spent outside of the United States. Further DOL decisions will be monitored and reported to MurthyDotCom and MurthyBulletin readers so that they can better understand and plan in these situations. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. H1B Cap : August 14, 2009 Update Posted on MurthyDotCom Aug 19, 2009 ©MurthyDotCom The latest USCIS H1B cap count was updated on August 14, 2009 and made available to the public on August 19th. Check MurthyDotCom for the latest information. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Reminder : Murthy's Corporate Teleconference - Wed, Sep 02, 2009 Topic : When USCIS Comes Knocking - the USCIS Office of Fraud Detection and National Security (FDNS) ©MurthyDotCom 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. ©MurthyDotCom Employers and their representatives : register for the next teleconference here. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. MurthyDotCom : Did You Know about our USCIS Service Center Page? ©MurthyDotCom At the Murthy Law Firm, we receive many inquiries about the specific service centers. Because the service centers are somewhat unique in their procedures and in how they handle cases, we have prepared a page for each. Whether you wish to know about California, Nebraska, Texas, Vermont, or the National Benefits Center (Missouri), we have the information available for you, with convenient links to the processing times for each one. MurthyDotCom has information and analysis on the policies and procedures specific to each of the different USCIS service centers. More general news, that affects all of these centers and, perhaps, local offices, as well, is linked from this main page for the USCIS service centers. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, Aug 31, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays of each month, but since the first Monday in September is the Labor Day holiday, we will hold a chat session on Aug 31st, instead. 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 Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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