MurthyBulletin VOL. XV, no. 41; Oct 2009, week 2 Posted : Oct 09, 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. New H1B Cap Filings Allowed under USCIS FY10 Quota 2. Overview of Immigrant Visa Allocation Process 3. USCIS Contractor Owes Over $1.5 Million in Back Wages 4. Announcement : Murthy's Corporate Teleconference - Wed, Nov 04, 2009 5. MurthyDotCom : Did You Know about our Corporate PreHire Consultations? 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. New H1B Cap Filings Allowed under USCIS FY10 Quota ©MurthyDotCom It has been several years since the USCIS fiscal year has begun without the H1B cap first having been met. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010 (FY10). These filings can continue, as long as the cap numbers are available. Some of the confusion surrounding this matter is addressed here for MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Misconceptions Regarding FY10 H1B Cap Filings ©MurthyDotCom Incorrect assumptions and misunderstandings about the FY10 H1B cap abound. The Murthy Law Firm receives questions from many individuals who wrongly assume that all FY10 H1B petitions had to be filed by September 30, 2009, before the FY began. This is not the case. H1B petitions can be filed throughout FY10, until the cap numbers are all depleted. It is really simple now that FY10 has begun and the H1B cap numbers have not been exhausted. ©MurthyDotCom Start Date for FY10 New H1B Filings Can be from October 1, 2009 ©MurthyDotCom The issue of the start date for H1B employment that can be requested in any new H1B petition is also simple at this point. For any petition filed under the FY10 cap on or after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 is the start of the new FY, and the H1B numbers are still available, filings may request an immediate validity date. The start date for H1B work can be as much as six months in the future, depending upon the needs of an employer. This future start date is an option, not a requirement, once the FY begins. ©MurthyDotCom For the past several years, the reason that cap-subject cases have had to request future start dates is that the cases were being filed before the FY began. That is, since H1B petitions can be filed six months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. Since we are now beyond October 1st, and cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future. ©MurthyDotCom USCIS Update on H1B-Cap Cases as of September 25, 2009 ©MurthyDotCom We at the Murthy Law Firm continue to provide our readers with updates on the H1B cap. The movement of the cap continues to be slow. The advanced-degree cap remains unchanged, with 20,000 cases received, but the USCIS is still accepting advanced-degree cases. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months. The increase may be the result of some re-filings of cases that were denied earlier, or of more employers filing cases, since the start date for work now can be immediate. This is more in keeping with the business needs of most employers. ©MurthyDotCom Conclusion ©MurthyDotCom Employers in need of H1B workers can continue to file H1B petitions for FY10 until the end of FY10 or until the cap is reached, whichever occurs first. FY10 ends September 30, 2010. We will continue to update MurthyDotCom and MurthyBulletin readers on the H1B cap counts as they are issued. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. Overview of Immigrant Visa Allocation Process ©MurthyDotCom The movement of dates in the U.S. Department of State (DOS) Visa Bulletin generates many questions from readers of MurthyDotCom and the MurthyBulletin. The DOS recently provided an explanation of the visa allocation process for immigrant visas that may prove to help in visualizing this otherwise conceptually difficult aspect of immigration law. A summary is provided here for our readers. ©MurthyDotCom Visa Number Availability Based on Country of Nationality and Priority Date ©MurthyDotCom In order to approve an application for adjustment of status (I-485), there must be a visa number available in the particular category. This, in turn, depends upon the country of chargeability and the priority date of the case. [Those who are not familiar with these issues covering visa numbers should review our past articles, available by searching MurthyDotCom.] Thus, once the U.S. Citizenship and Immigration Services (USCIS) has reviewed a particular I-485 application, a request is submitted to the DOS for a visa authorization. ©MurthyDotCom I-485 Application may be Approved Only When Priority Date is Current ©MurthyDotCom If the USCIS makes the request for a visa number to the DOS when the priority date of a particular case is current, and an immigrant visa number is available, the authorization is transmitted and the USCIS can approve the I-485 application. This is all tracked through the DOS Immigrant Visa Allocation Management System (IVAMS). ©MurthyDotCom I-485 Considered Pending When No Immigrant Visa Number is Available ©MurthyDotCom If an immigrant visa number for a particular individual is requested from the DOS by the USCIS, but none is available, the request is moved to the "pending" file with the DOS. Data from this pending file is used by the DOS to calculate the appropriate cutoff dates for the backlogged categories in the Visa Bulletin each month. [The most recent Visa Bulletin chart is always available on MurthyDotCom.] As explained, the cutoff dates are based on estimates of the demand for the limited supply of immigrant visa numbers. This pending file also includes information regarding demand for immigrant visa numbers at the U.S. consulates abroad. These cases are subject to the same numerical restrictions set by under law. ©MurthyDotCom DOS Authorizations as Immigrant Visas Become Available ©MurthyDotCom Cases placed in the pending demand category are processed as immigrant visa numbers become available. The DOS communicates with the USCIS regarding the A numbers of the cases for which visa numbers have been authorized. These cases are then processed to completion and green cards are then issued by the USCIS. ©MurthyDotCom Conclusion ©MurthyDotCom This explanation sheds some light on the interaction between the USCIS and DOS with respect to the movement of immigrant visa numbers. This is a tangible process, with actual visa numbers tracked, issued, and assigned to particular green card cases as part of the approval process. We at the Murthy Law Firm would like to thank the DOS for clarifying this relationship. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 3. USCIS Contractor Owes Over $1.5 Million in Back Wages ©MurthyDotCom The U.S. Department of Labor (DOL)'s Employment Standards Administration (ESA) issued a September 30, 2009 press release announcing the assessment of over $1.5 million in back wages against a U.S. Citizenship and Immigration Services (USCIS) contractor. The 272 contract employees at issue worked at the Vermont Service Center (VSC.) The contractor, SI International SEIT, Inc. (SI International) agreed to pay a total of $1,559,978 in back wages, following an investigation by the ESA's Wage & Hour Division (WHD). The Murthy Law Firm was not involved in any aspect of this case. We report this public information to alert employers to the importance of ensuring you and your company are prepared for government scrutiny of  employment records and practices, in the event of an investigation. This case demonstrates how pervasive employment and wage violations of all types have become, and that all employers have to be aware of the laws that govern employees and employment practices. ©MurthyDotCom It is important to note that these were contracted employees, and the noncompliance was on the part of the direct employer, which subcontracted employees to the USCIS. There are no claims of wrongdoing by the VSC or the USCIS. ©MurthyDotCom Role of the DOL Wage & Hour Division ©MurthyDotCom As regular MurthyDotCom and MurthyBulletin readers will recall from our August 21, 2009 NewsBrief, H1B Back-Wage Assessment for Employee Sent Abroad, WHD is responsible for investigating claims of underpayment or nonpayment of wages owed to U.S. workers (including H1B and other nonimmigrant workers). WHD's authority to investigate back-wage claims extends to companies that employ workers under federal service contracts subject to the McNamara-O'Hara Service Contract Act, as was the case with this investigation. ©MurthyDotCom Misclassification Leads to Underpayment ©MurthyDotCom The WHD's investigation found that SI International had classified many of its employees incorrectly, which resulted in failure to pay the proper prevailing wages, as required by the McNamara-O'Hara Act. The McNamara-O'Hara Act uses prevailing wage considerations and requirements similar to the requirements familiar in the immigration law context. The McNamara-O'Hara Act requires that contractors and subcontractors performing work under federal service contracts pay their employees no less than the wage rates and fringe benefits found for that classification of work in that general location. The problem here stems from misclassification of the workers, so that the wage rates paid were lower than what was appropriate for the actual job performed. The DOL press release cited above quotes Secretary of Labor Hilda L. Solis as stating, "I am pleased that these workers finally will be properly compensated for the work they performed for SI International." ©MurthyDotCom Wage Level Challenge - Current Investigation Trend ©MurthyDotCom This WHD investigation into the misclassification of workers is not unique. The Murthy Law Firm has noted that WHD has, with increasing frequency, challenged classifications of H1B workers, particularly in the IT and computer / software consulting industries. Typically, this involves situations in which employers classify the workers in the lowest of the four levels, as level 1, with an entry-level wage. Similar problems can occur even for level 2 classifications, if the workers should have been classified at level 3 or 4, and paid appropriately. WHD is now investigating these matters, and may review a variety of documentation to determine the true nature of the job. This review may include an employer's help-wanted advertisements, marketing materials, and other immigration filings that relate to the job requirements (such as labor certifications and I-140 petitions). The WHD may also look at an employer's contracts and purchase orders to see how the company describes employee skills and abilities. If this is not consistent with the wage level being paid, then there could be back wage issues for misclassification. ©MurthyDotCom Background on Wage Level Classification ©MurthyDotCom As discussed in our April 10, 2009 NewsBrief, H1B Compliance: Wage Level Issues, many H1B employers rely on wage data available online, rather than obtaining a prevailing wage determination in advance of filing their cases. When doing so, they must utilize the wage for the position in the applicable location, and at the correct wage level. Employees must be properly classified within the four classification levels, from entry level to senior level. Employers need to retain documentation to justify the basis of the classification, should it be required for defense in the event of an investigation. ©MurthyDotCom Risk to Business : Back Wages and Bad Press ©MurthyDotCom As the size of the repayment in the SI International investigation demonstrates, a finding that one's company misclassified workers can lead to substantial back-wage obligations. In addition to the immediate financial impact, these problems can result in bad publicity, suddenly sullying a reputation that may have been carefully constructed over time. The best way to protect against such a situation is to honestly assess your compliance with all applicable immigration and wage requirements. This assessment may best be performed by an outside party, who can audit employer documents and give an independent analysis regarding compliance. The Murthy Law Firm is available to perform such audits for companies upon request. See our section on Government Investigations. ©MurthyDotCom Conclusion ©MurthyDotCom The SI International agreement with the DOL emphasizes how important it is for employers to meet all wage and other obligations under the law. In this environment of heightened DOL investigations, employers need to take a hard look at their past and current practices. They cannot afford to ignore red flags when lower level wage classifications are used with regularity. We will continue to monitor DOL investigations and related decisions to update MurthyDotCom and MurthyBulletin readers. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Announcement : Murthy's Corporate Teleconference - Wed, Nov 04, 2009 Topic : Consular Processing H1B/L-1 Nonimmigrant Visas and EB Immigrant Visas ©MurthyDotCom The topic of this teleconference in our series for employers and their representatives is an overview of consular processing for H1B/L-1 visas as well as for employment-based (EB) immigrant visas. The session will also address some consular matters specific to employees of IT consulting companies. As many employees are now planning to travel during the holiday season, this is a timely discussion for employers who may be concerned about their employees' consular processing. Attorneys from the Murthy Law Firm will discuss basic requirements for consular processing, special issues for IT consulting companies, and some of the most frequently asked questions about consular processing. ©MurthyDotCom Employers and their representatives : register for Nov 04, 2009 here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. MurthyDotCom : Do You Know How We Can Help You? ©MurthyDotCom While we at the Murthy Law Firm provide the immigrant community with a wealth of free information on our WebSite, we also want MurthyDotCom and MurthyBulletin readers to know how our firm is prepared to help you with your U.S. immigration matters. We have a page dedicated to explaining how we can assist in various nonimmigrant and immigrant cases. This page also provides links to other areas on MurthyDotCom that offer client service information. We have the facility for companies and individuals to request free pre-hire appointments with an attorney, as well as a method for obtaining a quick fee quote for services. People who inquire are usually surprised at how competitive our fees are! ©MurthyDotCom MurthyChat : Because Attorney Murthy has other obligations for the remaining Mondays in October, the next MurthyChat session will be Monday, Nov 02, 2009, 9-9:30pm Eastern Time (U.S.). In response to your requests, we will then return to providing the MurthyChat EVERY MONDAY night. 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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