MurthyBulletin
VOL. XV, no. 36; Sep 2009, week 1
Posted : Sep 04, 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. E-Verify for Contractors Legally Permissible
2. Policy Revision on Laptop Searches
3. Foreign Enrollment in U.S. Graduate Schools Drops
4. Announcement : Murthy's Corporate Teleconference - Wed, Oct 07, 2009
5. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
6. 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. E-Verify for Contractors Legally Permissible
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A U.S. District Court Judge recently denied a motion for summary judgment in a challenge to a regulation requiring all federal contractors to participate in the E-Verify system. This lawsuit was brought by the U.S. Chamber of Commerce, the Society for Human Resource Management (SHRM), the Associated Builders and Contractors, Inc. and the HR Policy Association. Judge Alexander Williams's August 25, 2009 decision is available online (PDF 74.9KB).
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E-Verify Mandatory for Government Subcontractors
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The details of the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services' (USCIS) E-Verify system, which is operated in conjunction with the U.S. Social Security Administration (SSA), were shared with MurthyDotCom and MurthyBulletin readers in our July 17, 2009 NewsBrief entitled, DHS to Withdraw No-Match Rule and in our May 30, 2008 NewsBrief, E-Verify Analysis - May 21, 2008 Update. DHS Secretary Napolitano issued a July 8, 2009 press release stating the Obama Administration's support for the new regulation which requires federal contract awards to be granted only to companies that participate in the E-Verify system. This regulation, which has now survived legal challenge, requires not only that federal contractors participate in E-Verify, but certain subcontractors, as well.
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New Regulation Effective September 8, 2009
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The new E-Verify regulation goes into effect September 8, 2009. E-Verify compares information from each employee's Form I-9 with information from the SSA's databases, to confirm the individual's work authorization. To reduce the occurrence of errors, E-Verify has been enhanced with access to DHS's naturalization records, as well as the U.S. Department of State's passport records. These additional sources of data may help reduce mismatches of naturalized U.S. citizens, born in foreign countries. The regulation will only apply to federal contractors and subcontractors who are awarded new federal contracts that contain a federal acquisition regulation (FAR) E-Verify clause. E-Verify is currently authorized by the U.S. Congress on a temporary basis, which must be renewed each year.
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Conclusion
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This impact of the E-Verify regulation on government contractors will have to be assessed over time. As contracts for new projects are awarded, or others renewed with the addition of the FAR E-Verify clause, greater numbers of employees will be screened by the E-Verify system. There are fears that mismatches and incorrect results will threaten the continued employment of individuals, and potentially be disruptive to various projects. Incorrect E-Verify results are expected to affect both U.S. citizens and those foreign nationals employed in the United States. Information on E-Verify will be made available to MurthyDotCom and MurthyBulletin readers, as it is made available.
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2. Policy Revision on Laptop Searches
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Secretary Janet Napolitano of the U.S. Department of Homeland Security (DHS) has announced new DHS policy guidance on laptop searches and searches of other electronic equipment at U.S. ports of entry. Secretary Napolitano's announcement was included in a press release posted on August 27, 2009.
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Small Percentage of Laptops Searched
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In her announcement, the Secretary reported that, between October 1, 2008 and August 11, 2009, approximately 1,000 out of the 221 million travelers through U.S. ports of entry underwent laptop computer searches. Of these 1,000 searches, only 46 were categorized as in-depth searches of the contents of the computers. Some searches were brief and only included a request by a U.S. Customs and Border Protection (CBP) agent for the traveler to turn on the laptop, to ensure that it was, in fact, a working computer.
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Searches at Border Crossings are Legal
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As reported to MurthyDotCom and MurthyBulletin readers in our September 5, 2008 NewsBrief, CBP Policy Allows for Laptop Searches upon Entering the U.S., U.S. federal courts have upheld CBP's authority to check the contents of computers and electronic devices transported through border checkpoints. While U.S. courts require some minimum level of suspicion of criminal conduct or wrongdoing before a laptop may be confiscated, the simple search of a laptop and its contents (which is not destructive) does not require any suspicion at all.
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New DHS Directives on Search of Electronics
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The Secretary's press release also discusses new directives (PDF 4.7MB) on border searches of electronics that were issued by CBP and U.S. Immigration and Customs Enforcement (ICE). Both directives explain the circumstances under which CBP and ICE agents search laptop computers and other forms of electronic media. Travelers should be aware that both CBP and ICE have the right to search any form of electronic media, which CBP and ICE define as any item that may contain information, including computers, floppy and compact disks, DVDs, drives, tapes, mobile phones, personal digital assistants or PDAs, BlackBerry smart phones, cameras, and music players (including iPods and MP3 players).
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Protections for International Travelers
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While these directives largely continue existing policies, there have been a few changes made based on complaints from the traveling public. CBP agents are required, when national security and law enforcement needs allow, to conduct their searches of electronics in the presence of the traveler. This does not mean that the CBP agent has to allow the traveler view the computer or device's screen, but it does mean that the traveler should be in the same room. In addition, if a laptop or other electronic device is to be retained by CBP or ICE for decrypting or additional inspection, the agents are asked to have this inspection completed within 30 days, whenever possible.
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Conclusion
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As MurthyDotCom and MurthyBulletin readers have been cautioned in a previous article on this subject, any traveler entering the United States must understand that the electronics carried through U.S. ports of entry may be searched and possibly seized. A traveler must be responsible for and know the contents of her or his electronic devices. Individuals who allow others to use their computers or other electronics should take extra precautions to ensure that their equipment is not used for anything illegal and does not hold any potentially illegal content.
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3. Foreign Enrollment in U.S. Graduate Schools Drops
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The Council of Graduate Schools (CGS) issued an August 20, 2009 press release (PDF 91.2KB), reporting a decline in offers of admission from U.S. graduate schools to prospective foreign students. This is the first decline in the rate of offers to foreign students since 2004. While the overall decline was three percent from the 2008-2009 level, students from individual countries were affected in varying degrees. These findings, which are based on a survey of U.S. institutions of higher learning, are available online (PDF 243KB) along with results from surveys conducted during the last four years.
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Changes in Enrollment of Students from India, South Korea, and China
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Decreases in the number of Indian and South Korean students offered admission to U.S. graduate schools registered at 16 percent, after dropping only two percent each in 2007-2008. While these significant reductions affected the overall decline in foreign student enrollment, the number of offers of admission to students from the People's Republic of China grew at a rate of 13 percent. The CGS press release indicates that this was the fourth year in a row of double-digit growth in the number of students from China offered admission to U.S. graduate schools.
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U.S. Domestic Applications Rise
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While the number of foreign students declines, U.S. graduate schools have seen a sharp increase in the number of applications filed by persons already present in the United States. The CGS report found that 75 percent of responding graduate schools had an increase in applications by U.S. candidates. This increased domestic demand is likely linked to the current economic recession and high rate of unemployment. Some undergraduate students who are completing their degrees may choose to pursue graduate school, rather than attempt to enter the job market when unemployment is so high. Individuals who have been laid off also are pursuing additional education in order to compete for limited employment opportunities.
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Impact on U.S. Economy
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As regular MurthyDotCom and MurthyBulletin readers may recall from our November 29, 2002 article, Update on Student Visas in the Aftermath of 9/11, the increased security requirements of 2001 and 2002 led to a sharp decline in the enrollment of foreign students at U.S. colleges, universities, and technical schools. At the time of that article, the National Association of Foreign Student Advisors (NAFSA) reported that foreign students contributed almost $12 billion to the economy during academic year 2001-2002. While it is certainly good to increase the educational level of our domestic workforce, there is a significant economic contribution made by foreign students in tuition and related expenditures, as well. Generally, a foreign student is required to pay tuition at the much higher out-of-state rate, even when attending a state school.
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Conclusion
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The Murthy Law Firm is always pleased to share the latest information for students on immigration. Many individuals present in the United States as H1B workers, permanent residents, and naturalized citizens initially came to the United States as foreign students. These individuals make up a substantial part of the skilled and technical workforce in the United States and, thus, help sustain and improve the U.S. economy.
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4. Announcement : Murthy's Corporate Teleconference - Wed, Oct 07, 2009
Topic : When USCIS Comes Knocking - the USCIS Office of Fraud Detection and National Security (FDNS), Part 2
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The topic of our October 07, 2009 session in this teleconference series continues our look at visits by officers from the USCIS Fraud Detection and National Security (FDNS) Office. Because of the interest in this important matter, attorneys from the Murthy Law Firm will continue discussion of 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. Don't miss Part 2 of this timely topic!
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For those employers who were unable to hear Part 1, or who would like to hear it again, we will replay that teleconference at 1:00pm (ET). Hear Part 2 at 2:00pm (ET).
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Employers and their representatives : register for Oct 07, 2009 here.
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5. MurthyDotCom : Did You Know about Our Page for Employers and Employees?
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At MurthyDotCom we know that many immigrants come to the United States chasing employment opportunities. On the other side of this equation are the U.S. employers who are looking for the best, brightest, most willing job applicants to fill positions in their companies. At the fulcrum is the U.S. government. Among the government agencies affecting this match are the U.S. Department of State that determines whether to grant a visa to a worker bound for the United States; the Department of Homeland Security, whose dual role is to grant benefits as well as secure borders; and the Department of Labor that seeks to protect the U.S. workforce, while facilitating employer access to the non-U.S. workers they require. See our page dedicated to Layoffs, Mergers & Acquisitions in response to the current economic uncertainty and our Compliance page designed to prepare readers for I-9 audits and other government scrutiny of their practices and recordkeeping. Find other relevant news effecting employers and immigrant workers on our page for Employers and Employees on MurthyDotCom.
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MurthyChat : The next MurthyChat session will be Monday, Sep 21, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays of each month, but there will not be a session on Sep 07, in observance of the Labor Day holiday. 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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6. 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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