MurthyBulletin VOL. XV, no. 35; Aug 2009, week 4 Posted : Aug 28, 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. Investigations and Sluggish Economy Slow FY2010 H1B Filings 2. I-9 Audits of Employers on the Rise 3. New York Shuts Down Immigration Services Companies for UPL 4. Next Week : Murthy's Corporate Teleconference - Wed, Sep 02, 2009 5. MurthyDotCom : Did You Know about Our Compliance Page? 6. 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. Investigations and Sluggish Economy Slow FY2010 H1B Filings ©MurthyDotCom The substantial reduction in the number of filings for H1B petitions has generated questions from some H1B-cap watchers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year (FY) 2010. The answer to this is no. Cap-subject H1B petitions can be filed for the full FY, or until the numbers are all used. As of this writing, cap numbers remain available and overall usage remains light. ©MurthyDotCom Cap Numbers Still Available ©MurthyDotCom As indicated in our August 19, 2009 update on the H1B cap, approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap. A complete tracking of the H1B cap counts for the FY2010 filings is available on MurthyDotCom. We will continue to provide updated cap counts until the cap is reached or the end of the FY. ©MurthyDotCom Experiences from Previous Years ©MurthyDotCom The H1B cap became a significant issue in FY2004. As explained in our September 12, 2003 article, H1B Cap for Fiscal Year 2004, the cap decreased significantly in FY2004. As our NewsFlash! The H1B Cap Has Been Reached at the time indicated, the regular H1B cap for FY2004 was not reached until February 17, 2004. This meant that employers were able to file for H1B petitions under the FY2004 cap from April 1, 2003 until February 17, 2004, a period of more than ten months. Over the next years, the cap was reached earlier each year. In FY2005, it was reached on October 1, 2004. In FY2006, it was reached on August 10, 2005, and in FY2007, the regular cap was met on May 26, 2006. ©MurthyDotCom The cap limits continued to be a problem in FY2008 and FY2009. In those years, the regular cap was exceeded during the initial filing period. Cap numbers were allocated based on a lottery system. ©MurthyDotCom Closing Date for FY2010 ©MurthyDotCom The rate of filings for FY2010 is far different from that of the past couple of years. Thus, as of this writing, there are sufficient H1B cap numbers available. Also playing into the availability of cap numbers is the increased scrutiny of H1B petitions, particularly those filed by IT consulting companies. This has resulted in higher rates of denials and a general chilling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of the FY2010 which will be September 30, 2010. ©MurthyDotCom Conclusion ©MurthyDotCom The already slow economy may be held back further from recovery if the government overreaches as it focuses on violations. While enforcement of laws and tracking violators are important, employers should not be discouraged from filing proper H1B petitions for needed workers. In the long run, this has an adverse impact. In order to exhaust the regular H1B cap for FY2010, employers will have to file H1B petitions at a much higher rate. If the numbers hold out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the real-world needs of employers. Most companies cannot wait for several months for temporary workers to begin employment in H1B status, and cannot predict their needs months in advance. The rates of filings, however, are ultimately tied to the economy and the needs of U.S. employers. We at the Murthy Law Firm continue to accept new H1B filings for FY2010, and will do so as long as cap numbers remain available. Our attorneys are also available to advise U.S. employers on all of their questions regarding the H1B category. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. I-9 Audits of Employers on the Rise ©MurthyDotCom John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. The Wall Street Journal reported that Mr. Morton made this statement during a speech given in southern California on August 17, 2009. As many employers are aware, I-9 forms must be completed and retained by U.S. employers under specific requirements. ©MurthyDotCom 652 Companies Already Receive Notices of Inspection ©MurthyDotCom Chief Morton noted that ICE has already dramatically increased the number of Form I-9 audit notices issued to U.S. companies. These audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Chief Morton said that many more employers will be notified in the coming months that their I-9s and company records will be audited. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee's identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization. ©MurthyDotCom Range of Monetary Fines against Employers for I-9 Violations ©MurthyDotCom As explained in our September 16, 2008 article, Form I-9 Compliance and Working with ICE, fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form. ©MurthyDotCom Additional Penalties against Employers for Criminal Law Violations ©MurthyDotCom An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. If the use of fraudulent, stolen, or counterfeit documents is found to be prevalent at a U.S. employer, and the company appears to be involved in the falsifications, the company and its management run the risk of charges of conspiracy or, as seen below, of aiding and abetting in the use of false statements on Forms I-9. ©MurthyDotCom Company Directors Guilty of Felony Immigration Violations ©MurthyDotCom The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting in the use of a false statement on immigration employment forms (also known as Forms I-9). ©MurthyDotCom Our regular MurthyDotCom and MurthyBulletin readers may recall a discussion of these matters in our July 10, 2009 NewsBrief, ICE to Audit 652 Companies for I-9 Compliance. When entering their pleas of guilty, these two directors admitted to knowledge that workers at their company had submitted false names and social security numbers during their I-9 processes. The directors were the production manager and human resources manager for Yamato Engine Specialists 1990, Ltd. The company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions. ©MurthyDotCom Chief Morton's Views on I-9 Violations by Employers ©MurthyDotCom The ICE press release includes a quote from Assistant Secretary Morton: "ICE will continue to investigate and find employers who flout our laws and hire illegal labor, in order to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce." ©MurthyDotCom Obama Administration Strategy of Targeting Employers and Management ©MurthyDotCom The increase in ICE's I-9 audits is a result of the Obama Administration's new strategy of focusing its enforcement efforts on U.S. employers who have violated immigration laws. These employers are viewed by some as the source of demand for undocumented or unauthorized workers. This new strategy was reviewed in our March 1, 2009 NewsBrief, Obama Administration Increases Employer Investigations. It is also interesting to note how the Bellingham, WA raid, described above, shows this shift in strategy. ICE raids under the Bush Administration, resulted in unauthorized workers being detained and, often, removed from the United States. Many ICE raids in previous years did not focus on charges against managers, directors, or owners of the investigated companies, although there was some attention to such individuals. This particular investigation has now concluded with guilty pleas from two members of the company's senior management team. ©MurthyDotCom Conclusion ©MurthyDotCom In the current climate of multiple investigations and even criminal prosecution of U.S. employers violating laws in the hiring and retention of foreign workers, it is imperative that each employer understand and comply with the requirements of Form I-9 and other applicable immigration requirements. The Murthy Law Firm will continue to track changes to ICE, DHS's Fraud Detection and National Security (FDNS) office, and the DOL's enforcement focus, so that MurthyDotCom and MurthyBulletin readers can be informed of significant changes, as this  hot-button issue carries alarming consequences for many. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. New York Shuts Down Immigration Services Companies for UPL ©MurthyDotCom The New York State Attorney General's Office announced the shutting down of three New York businesses that had been providing fraudulent immigration legal services. Details can be found in an August 20, 2009 press release. This is reported to MurthyDotCom and MurthyBulletin readers to raise awareness of the problem of unauthorized practice of law (UPL) in the immigration field. ©MurthyDotCom New York Attorney General Taking Action ©MurthyDotCom Three companies are being sued by the New York State Attorney General, Andrew M. Cuomo, for providing legal services without authorization or accreditation. It is unfortunate, but all too common that individuals rely on such services for their immigration cases. Immigration legal representation can only be provided by licensed attorneys or, in limited situations, by representatives granted accredited status by the Board of Immigration Appeals. ©MurthyDotCom Common Problems Caused by Services Engaged in UPL ©MurthyDotCom A wide range of problems is created by those who engaged in UPL. Using their services sometimes results in a waste of money, at the least. The losses can be far more severe, however. These services sometimes are fraudulent, resulting in papers being filed with false documents or in nothing being filed at all. At other times, those offering the services are inept, filing cases improperly and providing incorrect advice. ©MurthyDotCom U.S. immigration law is complex, as regular MurthyDotCom and MurthyBulletin readers are aware. While a part of immigration law involves the filing of certain forms, the requirements go far beyond filling in the blanks. The U.S. immigration legal system consists of statutes, regulations, guidance, policy memos, and unwritten practices. On top of this, immigration law has a myriad of procedural requirements and strict deadlines. When these requirements and deadlines are not met, it can be difficult and often impossible to remedy the problems created. The errors in cases first handled by unauthorized "immigration consultants" often create undue complexities that would never have arisen under the care of a knowledgeable immigration attorney. ©MurthyDotCom The Victims of Incompetent or UPL Representation ©MurthyDotCom Foreign nationals affected by the companies, or others like them, that are being shut down and sued by the New York State Attorney General should consult with experienced attorneys to find out what options may be available to them. Immigrants have historically been victimized by those who seek to take advantage of their needs and unfamiliarity with this country. These unauthorized immigration services are just another example. Some of them proclaim on their websites that there is no need to spend money on lawyers, and portray lawyers as overpriced and unnecessary. The truth is that there is nothing as overpriced as useless, incorrect, and damaging advice that results in a denial or possible removal / deportation. ©MurthyDotCom Conclusion ©MurthyDotCom The Murthy Law Firm stands against the UPL and businesses engaged in similar activities because we care about helping immigrants, who are a vital part of this country. We have seen too many victims of UPL, hoping we can fix the messes left of their cases. Often, these individuals approach good, knowledgeable lawyers when it is too late to undo the damage. The price that is paid for using these services is sometimes financial ruin, separation of family members, and the ability to remain legally in the United States. We appreciate the strong position of New York, and we trust that other states will follow this example to protect the vulnerable immigrant community. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Next Week : 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 Aug 05, 2009 here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. 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 and regular 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 interruption 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, 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 . . . . . . . . . . . . . . 6. 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 ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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