MurthyBulletin VOL. XV, no. 40; Oct 2009, week 1 Posted : Oct 02, 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. I-485 Interviews More Common : Non-Current Priority Dates Included   2. USCIS Service Center Operations Update : September 2009 3. Personal Assets Forfeited and Other Penalties for Employer Violations 4. Next Week! Murthy's Corporate Teleconference - Wed, Oct 07, 2009 5. MurthyDotCom : Do You Know the Value of Our Articles? 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. I-485 Interviews More Common : Non-Current Priority Dates Included ©MurthyDotCom The U.S. Citizenship and Immigration Services (USCIS) has been issuing many interview notices for I-485 adjustment of status (AOS) applicants. The AOS applicants must appear at their local USCIS offices for detailed questioning regarding their I-485 applications. Many of the important concerns raised by the prospect of an AOS interview are addressed here for the benefit of our MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Why is the USCIS Interviewing Me? The USCIS is pre-adjudicating I-485 applications, reviewing the applications even if the priority date is not current. As part of this review, the USCIS may wish to ask questions and go over documents face to face. The purpose is to determine if a particular application is appropriate for approval, even if an approval has to wait because of the priority date. ©MurthyDotCom What Triggers an AOS/I-485 Interview? ©MurthyDotCom Only a small percentage of employment-based I-485 applications have personal interviews. There are many things that can lead the USCIS to require an interview. Some appear to be randomly selected. Certain types of applications always have interviews. These include cases with any criminal history, even if the matter does not prevent the approval of the I-485 AOS application. Cases with past immigration violations of a serious or extended nature are also often slated for interviews. ©MurthyDotCom Interviews can be the result of questions regarding the validity of the job offer that forms the basis of the case. This may occur in cases involving labor certification substitutions (due to concerns about fraud). Questions about the validity of the job offer may be prompted in "future employment" situations when the beneficiary has not worked for the employer sponsoring the permanent residence (or "green card"), as well as in cases involving a beneficiary's residence that is not within commuting distance of the stated job location. Interviews may also result from issues over a spousal relationship, particularly if the spouses do not live together. ©MurthyDotCom Are Interviews Always Bad? ©MurthyDotCom While the idea of an immigration interview creates anxiety for most people, it can be a positive experience, resulting in a case approval or recommendation for approval. The Murthy Law Firm has helped many clients through the interview process successfully. Of course, the interview is a time when the USCIS is eliciting information to decide on the validity of a case for approval. This should be taken seriously, and no one should assume a case will breeze through to approval. It is possible for things to go wrong due to flaws in filing the case, prior immigration violations, loss of the job, a criminal history, or other problems or complications. Denials may arise from training issues or other situations on the end of the specific USCIS examiner. ©MurthyDotCom What is it Like? ©MurthyDotCom Interviews at the local USCIS offices are conducted by adjudications officers. It is necessary to pass through a metal detector and screening process when entering the building. Use common sense with respect to the contents of bags and pockets. Recently, some USCIS offices have prohibited the carrying of camera phones. ©MurthyDotCom Usually, the interview notice is handed to a designated person or placed in some type of tray or bin upon arrival. Make sure to bring this notice. Applicants remain in a waiting area until the notice is retrieved and the case is called. Appointment interviews sometimes run on schedule, but applicants should be prepared for the possibility of an extended wait. ©MurthyDotCom An interview occurs in the adjudicator's personal office. The applicant's complete (hard copy) file should be with the adjudicator for the interview. The applicant may be accompanied and represented by an attorney. The applicant will be asked to swear to tell the truth at the outset of the interview. It is very important to remember that, although the setting may seem casual, all statements are made under oath. ©MurthyDotCom Be Prepared ©MurthyDotCom Bring all the documents that the adjudicator may need to review. While the adjudicator should have the file with any documents previously submitted, s/he may ask to see originals of documents submitted earlier as copies. The specific documents that are needed vary by case. These should be organized, so they can be easily handed to the officer upon request. ©MurthyDotCom The applicant should have a good understanding of her/his case, including any potential issues and problem areas. Given the length of time it takes most cases to reach the interview stage, problem areas should have been discussed with one's attorney during the course of the case. If this has not been done, or if new concerns have developed, it is important to sufficiently review the matter with an attorney in advance of the interview. ©MurthyDotCom General Process ©MurthyDotCom The general procedure for I-485 interviews is for the adjudicator to review the complete application and verify the information provided. The adjudicator will go through the questions and make certain red-pen indications that the information is correct or will make changes, as needed. S/he may have the applicant initial certain parts of the form. The applicant will be asked questions to determine her/his eligibility for adjustment of status. The exact questions depend upon case-specific details. Attorneys may assist their clients in preparing for the questions that should be expected in their particular cases. ©MurthyDotCom Will I get a Decision that Day? ©MurthyDotCom There are a number of possible outcomes following an interview. It is possible, if everything is in order and the priority date is current, for a case to be approved immediately. It is also possible that, even if everything is fine, the adjudicator will recommend approval, but the recommendation will need to be reviewed by a supervisor. This may happen if an adjudicator is new or is being reviewed, or when there is an overall office policy to double check cases. ©MurthyDotCom Of course, many I-485 applicants do not have current priority dates at the time of the interviews. Thus, even if everything goes perfectly at the interview, the case cannot be approved. The adjudicator may indicate a recommendation for approval. The case is then supposed to remain pending until a visa number is available. The adjudicator may be unwilling to reveal the recommendation. ©MurthyDotCom The adjudicator may request more documentation. S/he may print out a request for additional evidence to be submitted by a certain deadline. This will be handed to the applicant and/or accompanying attorney at the interview. These requests can range from matters that are fairly simple to the very complex and problematic. If the adjudicator identifies a serious problem, the USCIS may issue a Notice of Intent to Deny (NOID). This normally is transmitted by mail, and has a short deadline. If the applicant cannot overcome the problem, the case will be denied. ©MurthyDotCom If there is something wrong with the case that cannot be overcome by any evidence, then the adjudicator could issue a denial. The denial and NOID can be issued even if no visa number is available. Visa numbers are only needed for approvals.  ©MurthyDotCom Do I Need an Attorney? ©MurthyDotCom There are some complex cases for which an attorney is absolutely needed. In other cases, it is more a matter of personal choice. Some individuals fear that bringing a lawyer may look strange or make the USCIS think there is a problem. This is not the case. Attorneys routinely appear at interviews for even very clean and straightforward cases. ©MurthyDotCom A consultation with one's attorney should help in identifying concerns and making sure the right documents are at hand. There have been instances of adjudicators taking inappropriate actions. This creates problems in even the best cases. One such example was discussed in our March 6, 2009 NewsBrief, Improper Denials of I-485 on Priority Date Issue. It is impossible to anticipate every possible misunderstanding of law and procedure and it would be very difficult for an applicant to adequately address such a situation. After the fact, it may be possible to fix an inappropriate denial by filing a motion to reopen (MTR). This is not always fast and simple, however, and the long-term cost may exceed the initial savings of attending the interview without an attorney. ©MurthyDotCom Conclusion ©MurthyDotCom Preparation is the key to the interview process at the USCIS. Most cases have strengths and weaknesses. Given how long it has taken for many of these cases to reach the interview stage, there are often long histories and places where problems can arise. Applicants should be aware of possible problem areas in their cases in advance. If an issue is identified in advance through discussion with a knowledgeable, experienced immigration lawyer, the applicant sometimes may take steps to strengthen the case. It is advisable to seek proper legal guidance on each I-485 case. The Murthy Law Firm advises and represents individuals all across the United States on I-485 AOS interviews. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. USCIS Service Center Operations Update : September 2009 ©MurthyDotCom It was fortunate for all in attendance to have Barbara Velarde, Chief of the USCIS Service Center Operations as guest speaker at the  September 23, 2009 Washington DC Chapter meeting of the American Immigration Lawyers Association (AILA). A number of attorneys from the Murthy Law Firm were present and some of the key points made are provided here for the benefit of our readers. ©MurthyDotCom Case Processing Targets ©MurthyDotCom Ms. Velarde discussed the USCIS's backlog elimination efforts, stating that a surge of assets (personnel) had been allocated to certain types of backlogged cases in order to meet goals. Targets have been met for backlog reduction. ©MurthyDotCom USCIS reinstated the I-140 premium processing service and is experiencing greater utilization of this service than expected. The higher rate of usage appears to be connected to the forward movement of the cutoff dates in the U.S. Department of State Visa Bulletin (DOS). ©MurthyDotCom The USCIS also met its target for use of FY2009 immigrant visa numbers, made available through the DOS. In addition to these I-485 approvals of cases for which immigrant visa numbers were available, the USCIS has also pre-adjudicated 170,000 cases at the USCIS service centers. These cases await visa number availability. ©MurthyDotCom Fewer Case Filings with the USCIS Result in Staff Reduction ©MurthyDotCom The USCIS is receiving fewer cases. Accordingly, it is reducing the number of USCIS workers, both contract workers and direct employees. The staff brought on for the backlog reduction effort was temporary. ©MurthyDotCom H1B Unemployment : No Grace Period ©MurthyDotCom As many MurthyDotCom and MurthyBulletin readers know, there is no legal grace period in H1B status following employment termination. Given the current economy, there have been suggestions that a grace period would be appropriate if an individual's job is terminated with little or no notice. Ms. Velarde advised that this issue has been discussed at the USCIS headquarters level. At this time, however, it is not under consideration. ©MurthyDotCom H1B RFEs on 75% of New H1B Cases / Consulting Company Issues ©MurthyDotCom The USCIS reports issuing RFEs on approximately 75 percent of the H1B petitions filed for the FY2010 cap. Many of these were the result of TARP funding and the late issuance of the new H1B forms. It was suggested that a way to reduce the number of RFEs for non-consulting positions, is to make it clear in the filing that it is onsite employment. We at the Murthy Law Firm have seen situations in which the USCIS has wrongly assumed that a position involves consulting work. The USCIS suggests using large font, bold letters with terms that specify the nature of the employment. ©MurthyDotCom Withdrawals of H1B Petitions by H1B Employers ©MurthyDotCom The rate of H1B petition withdrawals by H1B employers has been high. The Vermont Service Center (VSC) reported thousands of withdrawals in one month. At this point, the USCIS has "touched" or started processing about 96 percent of the H1B cap cases filed for FY2010. This means the cases have either been approved, denied, or are awaiting RFE response. ©MurthyDotCom H1B Memo Expected but Contention on End-Client Letters ©MurthyDotCom The USCIS is apparently working on a new memo regarding various H1B matters. It has been reviewed and undergone multiple drafts. One key source of internal contention involves end-client letters and contracts in the consulting company context. ©MurthyDotCom Inconsistencies Between CSC and VSC ©MurthyDotCom Apparently, USCIS Director Mayorkis is focusing on efforts to address inconsistent standards and procedures between the various USCIS service centers. The bi-specialization change has helped to address this problem to some extent. Recently, in order to identify problems with inconsistency, the California Service Center (CSC) transmitted a sampling of cases to the VSC to see if there was a difference in the decisions that would have been made. Clearly there needs to be a more uniform application of existing laws and policies. Denials at CSC are all reviewed by a supervisor. ©MurthyDotCom Further examples of differences between CSC and VSC appear in the length of the requests for evidence (RFEs) issued. CSC tends to issue RFEs on H1B cases that are short, perhaps a single paragraph. VSC issues lengthy RFEs, often spanning as much as five pages of text. They are working to address some of the extraneous requests in the RFEs. ©MurthyDotCom EB1 Filings Increased by 400 Percent ©MurthyDotCom Reportedly, the number of EB1 Extraordinary Ability (EA) filings has increased by 400 percent. The USCIS believes that this may be due to the slow movement of priority dates. Accordingly, individuals should expect many more EA denials, since the USCIS believes that most of the EA applicants are not likely not going to qualify for the EA category. ©MurthyDotCom Conclusion ©MurthyDotCom We at the Murthy Law Firm thank the USCIS and Ms. Velarde for taking the time to address these matters with us. We agree that there is a significant need to work toward consistency in case adjudications. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. Personal Assets Forfeited and Other Penalties for Employer Violations ©MurthyDotCom MurthyDotCom and MurthyBulletin readers have been provided with a series of articles on employer compliance with immigration laws and policies and on government investigations. We strive to keep employers informed of the risks involved in failing to comply with immigration requirements. This is a report of a recent case involving a business owner faced incarceration, as well as forfeiture of business and personal assets. The Murthy Law Firm was not involved in any aspect of this case. While the case involved undocumented workers in a painting business, the potential consequences for employers who knowingly violate immigration-hiring provisions extend to all types of employers. ©MurthyDotCom Knowingly Hiring Undocumented Workers ©MurthyDotCom The owner of a Maryland painting company was found to have knowingly hired undocumented workers over the course of three years. The number of such workers alleged to have been hired was up to 24 at one time. Some of the workers were housed in properties belonging to the business owner. The workers were also transported using company vehicles. ©MurthyDotCom Sentence and Forfeiture of Over $1 Million in Company and Personal Assets ©MurthyDotCom The company was investigated by U.S. Immigration and Customs Enforcement (ICE). This investigation led to charges of hiring undocumented workers and money laundering. The owner was sentenced in September 2009 to six months' time in a half-way house, as part of a three-year probationary period. The U.S. District Court also entered an order that required the company owner to forfeit more than $1 million in company and personal assets. ICE announced this forfeiture in a press release. ©MurthyDotCom Seven Properties Forfeited ©MurthyDotCom In this case, the company owner forfeited five bank accounts, ten vehicles, and seven properties. The Federal Court found that all of these assets were proceeds from or were paid for with proceeds from the company. Since the proceeds were generated through employment of undocumented workers, they were subject to forfeiture. The government also has authority to order forfeiture of property, when that property was used to carry out a crime. An example of this is discussed in our October 3, 2008, NewsBrief, Company's Officials Plead Guilty to Immigration Violations. ©MurthyDotCom ICE and IRS Cooperate to Punish the Company and the Owner ©MurthyDotCom In the painting company case, ICE agents worked in cooperation with agents from the U.S. Internal Revenue Service's (IRS's) Criminal Investigations office. The money laundering charges arose because the company owner paid his undocumented workers in cash. The company did not report these earnings to the IRS, providing the basis for the separate money-laundering charges. (Money laundering is, essentially, a scheme to hide the source of illegally obtained funds, such that the funds appear to be generated legitimately.) This case is another example of inter-agency cooperation and information sharing that is a hallmark of the new push for employer-focused immigration and labor law enforcement. ©MurthyDotCom Owners Can also be Personally Liable for H1B Violations ©MurthyDotCom U.S. federal agencies are increasingly seeking the forfeiture of both corporate and personal assets when an employer is found to have violated immigration-related employment provisions. Often, H1B investigations involve back-wage claims, improper liquidated damages clauses, and improper payroll deductions. Thus, owners of companies who may have committed H1B violations need to be aware that negative findings by a federal agency may threaten their personal assets. An example of this was reported in our January 30, 2009 NewsBrief, Company and Owner Both Liable for H1B Back Wages. ©MurthyDotCom Conclusion ©MurthyDotCom Employers uncertain as to whether they are in compliance can consult with the Murthy Law Firm regarding their questions, and should consider having an internal audit of their practices. We will continue to monitor federal investigations and update our readers on compliance expectations and the consequences of violations. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Next Week! 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 ©MurthyDotCom 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! ©MurthyDotCom 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). ©MurthyDotCom Employers and their representatives : register for Oct 07, 2009 here.  Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. MurthyDotCom : Do You Know the Value of Our Articles? ©MurthyDotCom At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite. ©MurthyDotCom MurthyChat : The next MurthyChat session will be Monday, Oct 05, 2009, 9:00pm Eastern Time (U.S.). The MurthyChat is held on the 1st and the 3rd Monday 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.  ©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
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