MurthyBulletin
VOL. XV, no. 38; Sep 2009, week 3
Posted : Sep 18, 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. October 2009 Visa Bulletin : FY2010 Quota Begins
2. iCert's Employer Tax ID Requirement Causing H1B Delays
3. I-9 Audit Forces Company into Layoffs
4. Reminder : Murthy's Corporate Teleconference - Wed, Oct 07, 2009
5. MurthyDotCom : Did You Know about our Corporate PreHire Consultations?
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. October 2009 Visa Bulletin : FY2010 Quota Begins
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The U.S. Department of State (DOS) has issued the first visa bulletin for fiscal year (FY) 2010. The October 2009 Visa Bulletin reestablishes cutoff dates in EB3. It also continues the early 2005 cutoff dates for EB2 applicants from India and China. This is potentially helpful for many EB2 adjustment-of-status (I-485) applicants from India and China with cases filed during the 2007 summer rush. [The latest DOS Visa Bulletin chart is always available on MurthyDotCom.]
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Summary of Visa Bulletin
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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 India is January 22, 2005. China has a cutoff date of March 22, 2005.
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With the movement forward of EB2 priority dates, both in September and October of 2009, we at the Murthy Law Firm are pleased to report that our office is receiving many I-485 approvals daily for some of our clients whose priority dates are current this month. Of course, given the volume of cases filed in the summer 2007, even these approvals represent only a fraction of the cases that are pending and potentially eligible for approval.
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Employment-Based, Third Preference (EB3)
The EB3 category has newly established cutoff dates, due to the new allocation of visa numbers for FY2010. The cutoff date for India is April 15, 2001. China's cutoff date is February 22, 2002, and Mexico's is May 1, 2002. All other countries of chargeability have a June 1, 2002 cutoff date. These dates reflect the high demand for visa numbers in this category. This demand far exceeds the available supply.
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Employment-Based Fourth (EB4) and Employment-Based Fifth (EB5) Preference
EB4 and EB5 are current. However, both the EB4 certain religious worker category and the EB5 pilot program category are unavailable. This unavailability is due to the expiration of these employment-based categories on September 30, 2009 under the law. This could change if either (or both) program is extended by Congress.
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Explanation and Conclusion
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The October 2009 Visa Bulletin, as mentioned, is the first of the 2010 fiscal year. Thus, there is a new allocation of visa numbers available. This allows for reestablishment of cutoff dates for categories depleted during FY2009. The visa numbers are not all immediately available at the beginning of the fiscal year. They are allocated throughout the year, according to requirements set by law. We are pleased to provide this analysis of the DOS Visa Bulletin to MurthyDotCom and MurthyBulletin readers.
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2. iCert's Employer Tax ID Requirement Causing H1B Delays
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MurthyDotCom and MurthyBulletin readers have been advised of ongoing problems resulting from the iCert system for Labor Condition Applications (LCA). The LCA is needed in order for an employer to file an H1B petition. The iCert system is plagued by a glitch that is wreaking havoc. The system denies the LCA if the employer's Federal Employment Identification Number (FEIN) cannot be verified by the U.S. Department of Labor (DOL). In these cases, the employer is required to provide verification of the FEIN, and may only use certain specified documents for this purpose.
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LCA Denials Due to Employer FEINs
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LCA denials due to the DOL's inability to verify the employer's FEIN number are extremely common. This problem is within the iCert system, as denials are issued even when the FEIN is valid and properly provided on the LCA.
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DOL's Solution to Submit Evidence of the FEIN
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The DOL has attempted to solve this problem by setting up systems for sending verification of the FEIN. This was reported in our August 14, 2009 MurthyBulletin article, iCert Glitch Causes LCA and H1B Delays, available on MurthyDotCom. The problem is that the employer needs to provide proof of the FEIN number through a specified list of documents. Sometimes employers do not have these documents immediately at hand, and this creates further delays.
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Acceptable FEIN Documentation : Locate Them in Advance!
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The acceptable proof of the FEIN number is limited, essentially, to official documentation bearing the FEIN. This includes: IRS documentation assigning the FEIN, preprinted tax coupons or tax returns with a preprinted label, bank documents with the FEIN, and other official or government documents showing the FEIN. One suggestion to employers who are filing LCAs, or may need to do so in the near future, is that they locate the acceptable tax documents and have them available if and when needed by the DOL.
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Conclusion
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The problems described here continue to be prevalent. Employers need to plan ahead for their H1B filings in anticipation of LCA delays. They need to have the proof of the FEIN number, described above, so that it can be submitted quickly if requested or required, and further delays can be minimized. We at the Murthy Law Firm do hope that this problem will be fixed in the near future, and that LCAs can be processed in a prompt and reliable fashion, since the ability of H1B employees to work legally in the United States and for the employer to use the H1B workers' services are dependent upon the timely filing of H1B petitions and extensions.
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3. I-9 Audit Forces Company into Layoffs
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American Apparel, Inc., a publically traded, U.S. clothing manufacturer and retailer, recently announced layoffs of up to 1,500 employees following receipt of a Notice of Inspection (NOI) from U.S. Immigration and Customs Enforcement (ICE). The L.A. Times reported on September 3, 2009 that the company's layoffs will occur at its Los Angeles, California manufacturing facility. The layoffs are estimated to impact approximately 25 percent of the factory workforce. This matter is reported to alert employers, once again, to importance of addressing immigration compliance within their workforces.
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Dramatic Increase in I-9 Investigations
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As regular MurthyDotCom and MurthyBulletin readers will recall from our July 10, 2009 NewsBrief, ICE to Audit 652 Companies for I-9 Compliance, ICE issued more I-9 NOIs in July 2009 than in all of the previous fiscal year. This dramatic escalation of I-9 audits is one example of the federal government's immigration law compliance enforcement efforts directed at employers. Based on the reported timing of the NOI, it appears that American Apparel is one of the 652 companies initially targeted.
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ICE Identifies 1,600 Workers
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In the case of American Apparel, Inc., ICE identified 1,600 out of a total of 5,600 factory employees that may be undocumented or not authorized to work in the United States. The Wall Street Journal covered this on September 4, 2009. American Apparel stated that it would like to rehire the individuals once they are able to collect or obtain the documentation needed to properly complete the Form I-9. Of course, as anyone familiar with immigration requirements is aware, many people are not eligible to obtain the documentation needed to work in the United States.
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Employers Must Clean Up Files to Comply with I-9 and Other Laws
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Employers can no longer ignore the I-9 requirements. Generally, such government probes target industries that historically have had problems in hiring undocumented workers. This appears to be the case with American Apparel. From an enforcement perspective, the strategy appears to have worked. Thus, it stands to reason that, if government audits yield fruit, ICE will continue along this path.
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Employers who may not have been diligent about I-9 issues need to conduct an internal audit of their files to identify and address issues proactively, rather than have ICE locate any serious infractions in records. The Murthy Law Firm assists employers of all sizes in independent, internal I-9 audits. We also help employers to establish proper procedures and policies for ongoing compliance with I-9 requirements.
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Fines for I-9 Violations
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As explained in our September 16, 2008 MurthyDotCom article, Form I-9 Compliance and Working with ICE, fines for I-9 violations vary from $110 for single, minor or technical violations up to $3,200 for a serious first offense. A third offense can lead to a fine of up to $16,000. As the example of American Apparel demonstrates, a company with 1,000 or more employees that may not be authorized to work in the United States could lead to fines reaching into the hundreds of thousands, or even into millions of dollars. Employers who can demonstrate good-faith efforts to comply with the law are more likely to be assessed the lower fine levels, if violations are uncovered.
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Criminal Law Violations Possible
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ICE also uses I-9 audits to search for counterfeit documents and instances of fraud. As noted in our August 28, 2009 NewsBrief, I-9 Audits on the Rise, I-9 investigations have led to criminal prosecution of those in management responsible for I-9 completion or those who have condoned or assisted in the use of fraudulent documents in the hiring process. ICE has charged employers with knowingly hiring, retaining, and harboring workers who are not authorized for employment in the United States. If ICE finds a pattern of fraudulent, stolen or counterfeit documents at an employer's facility, it may lead to charges of conspiracy in addition to the violations discussed above.
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Conclusion
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The current climate for companies, regarding their immigration-related hiring practices is that compliance is imperative. Otherwise company CEOs and other officers may find that they face investigations and, in egregious cases, criminal prosecution for noncompliance. Employers must educate themselves on the requirements of the Form I-9, and any other applicable immigration-related employment matters. It is necessary to make this investment in one's business to avoid problems faced by companies such as American Apparel, Inc. The Murthy Law Firm will continue to track changes in ICE's enforcement of I-9s and will update MurthyDotCom and MurthyBulletin readers.
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Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved
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4. Reminder : 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 Corporate PreHire Consultations?
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At the Murthy Law Firm, we know that you want the best representation for your foreign national employees' immigration cases. Like all good business owners, you also are concerned about cost. If you are a company representative with the authority to hire or research the best options for your company, you may schedule a FREE Corporate PreHire Consultation with one of our senior attorneys. Learn just how reasonable our fees really are and what you can gain by becoming a corporate client of the Murthy Law Firm!
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MurthyChat : The next MurthyChat session will be Monday, Sep 21, 2009, 9:00pm Eastern Time (U.S.). 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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