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Announcement  : Career-Building Opportunities at the Murthy Law Firm
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The Murthy Law Firm is pleased to announce that we are entering a phase of planned expansion. We are currently seeking attorneys for our increasing client volume and growth into new areas of practice. If you are interested in being part of a dynamic practice on the cutting edge of U.S. immigration matters, read more about available positions on our team and the application process on MurthyDotCom at http://www.murthy.com/jobs.html.

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1. LC Backlog Elimination Update - October 2007
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As regular readers of MurthyDotCom and the MurthyBulletin are aware, the U.S. Department of Labor (DOL) has largely completed its work at the Backlog Elimination Centers (BECs, also known as Backlog Processing Centers or BPCs). The DOL announced its having met the September 30, 2007 deadline for completing the processing of labor certification (LC) cases, as reported in our October 19, 2007 article DOL Backlog Processing Centers Wrap Up LC Cases, available on MurthyDotCom. There are, however, some lingering cases that have been reviewed, but still are awaiting action from the sponsoring employer. This leaves some remaining questions for those cases, as the BECs transition into a shutdown phase planned for December 31, 2007. The DOL issued Frequently Asked Questions (FAQs) (PDF, 28KB) to respond to many concerns, which are outlined here for the benefit of our MurthyDotCom and MurthyBulletin readers.
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BECs to Shut Down by December 2007

The BECs have completed almost 99 percent of their cases, according to their own estimation, and are awaiting employer responses on the unadjudicated cases. Their eMail addresses continue to be valid, info@dal.dflc.us (Dallas) and info@phi.dflc.us (Philadelphia). They have started a transition and shutdown that will continue into December 2007.
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At this time, and through the final closure of the BECs' offices, status information on the remaining cases is still available online at http://pds.pbls.doleta.gov. The DOL urges employers and their attorneys to respond to deadline requests within the allotted timeframe, and, if possible, in advance of these deadlines, so that all work can be completed before the BECs cease operation.
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Contact DOL if Delay in Receiving LC Approvals
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There are some cases that are showing on the status system as having been approved, but neither the employers or attorneys in these cases have received the certified LCs. The DOL advises that it can take up to three weeks to receive the certified LC by mail. If that time has passed and the certified LC has not arrived, then the employer or attorney can inquire through the eMail addresses provided above. The eMail should carry the subject line "Post-Certification Issue."
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DOL Will Not Reopen Denied, Closed, or Withdrawn Cases
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Cases that were given final disposition at the state or regional level, including denials, closures or withdrawals, would not have been sent to the BEC during the transition to the BEC system. Only cases that were still pending final disposition were transferred for the BECs' action. If no action was taken on a denial of a case of this nature, then the appeal period would have expired.
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If the attorney or employer does not respond to a request in a timely manner regarding a case that was transferred to the BEC, the case is closed. The DOL will not consider reopening these cases under the pre-PERM system.
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Missing Cases or Cases with No Information are Considered Closed
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There are some cases that were sent to the state DOL offices years ago, but neither the applicants nor the attorneys in those cases have heard anything about these cases from the BEC. The DOL explains that there could be a number of reasons for this, including a denial, closure, or withdrawal at the state or regional level prior to the establishment of the BEC. Additionally, the BECs had a system of notifications that applied to all cases they received. This system included 45-day continuation letters that inquired as to whether the employers wished to continue with these cases and contained notifications related to case processing. In July 2006, the DOL published procedures for employers and attorneys to follow if they had not received the 45-day letter. In September 2006, the DOL established another procedure for employers and attorneys to follow if they had not been contacted in any way by the BEC. Both of these procedures had timeframes in which to contact the BEC about a case. These timeframes have expired. If there has not been any contact or follow-up, then the BEC has no record of the case, and it would be necessary to file a new case with the DOL under PERM procedures.
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Track Appeals at BALCA at OFLC
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There are some cases that were denied at the BECs and then appealed to the Board of Alien Labor Certification Appeals (BALCA). If one's case is still pending with BALCA when the BECs close in December 2007, the DOL's Office of Foreign Labor Certification (OFLC) will track the case, and act on it accordingly.
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Conclusion
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We at the Murthy Law Firm appreciate the DOL having provided this update as they wrap up their pre-PERM cases that have been pending for years. Many people continued those cases, particularly if they needed the earlier priority dates due to visa backlogs and retrogression. Now, with the BECs shutting down by December 2007, all LC cases will be processed much faster, although with much later priority dates.
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2. USCIS Releases New Form I-9 for Employment Eligibility
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The U.S. Citizenship and Immigration Services (USCIS) issued an update on November 7, 2007 announcing a revised Employment Eligibility Verification Form I-9, now available for use. All employers must complete a Form I-9 for every employee hired in the U.S., regardless of the employee's citizenship and immigration status. As MurthyDotCom and MurthyBulletin readers will recall from our October 26, 2007 article New Form I-9 for Employment Verification Not Imminent (and updates posted on October 31, 2007 and November 8, 2007), the USCIS has been providing somewhat inconsistent information to the general public concerning its intent to revise Form I-9. With the issuance of this most recent notice, however, the USCIS has resolved a degree of uncertainty on this matter, and has now made the new Form I-9 available for use by U.S. employers.
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Significant Changes in the New Form I-9
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The USCIS has removed five documents from List A of the List of Acceptable Documents. These are Certificate of U.S. Citizenship (Form N-560 or N-561); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (I-151); Unexpired Reentry Permit (Form I-327); and Unexpired Refugee Travel Document (Form I-571). These documents were removed because they do not have sufficient anti-fraud and anti-counterfeiting features. In addition, one document was added to List A, which is an Unexpired Employment Authorization Document (Form I-766). The Employment Authorization Documents (EAD) with photographs that are currently in circulation are now included as one item on List A (Forms I-688, I-688A, I-688B, and I-766).
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When Should Employers Start Using New Form I-9?
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The USCIS "encourages" employers to begin using the new Form I-9 immediately. Employers are not, however, required to start using the new form until its publication in the Federal Register, which is expected in the near future. Once they are using the new form, employers are not permitted to accept any documents that are not on the List of Acceptable Documents for the new Form I-9. While employers do not need to complete new forms for existing employees, they must use the new form for all new or returning employees who require re-verification.
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Conclusion
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The USCIS has indicated that the new, revised Form I-9 is a "further step in USCIS's ongoing work toward reducing the number of documents used to confirm identity and work eligibility." It also appears that some employees may be negatively affected by this change. We at the Murthy Law Firm will update our readers on this topic as new information becomes available.
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Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved

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3. Senators Request Longer OPT Time for Students
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Nineteen U.S. senators sent a letter, to Department of Homeland Security (DHS) Secretary Michael Chertoff on November 8, 2007, requesting an extension of the period of Optional Practical Training (OPT) given to a foreign student following his/her graduation from a U.S. university or institution of higher education. The current F-1 OPT period is 12 months; the senators' letter requested that this be increased to 29 months. The primary reason for this request is to facilitate the transition from student to H1B worker, and to address problems that have arisen from the insufficient H1B annual cap allotment. It is important that MurthyDotCom and MurthyBulletin readers understand that this is a proposal and NOT a change in the law at this time.
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H1B Quota Experience in FY2008 and Reason for Request
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The senators' letter explains the problem experienced during Fiscal Year (FY) 2008 with respect to the H1B cap. In FY2008, the USCIS received more cases on the very first day than the H1B cap permitted for the entire fiscal year. The first day for an eligible employer to submit an H1B cap-subject case for FY2008 was Monday, April 2, 2007. The USCIS continued to accept H1B petitions on April 3, 2007, because the regulations state that, if the H1B cap limit is reached on the first day cases are accepted, filings are allowed to continue on the second day. A random lottery then is held to determine which cases will be assigned the limited H1B cap numbers. In FY2008, about half of the cases filed on April 2nd and 3rd were rejected due to the shortfall of cap numbers. The USCIS was no longer able to accept any regular (not advanced-degree) H1B cap-subject cases on April 4, 2007.
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Many students are awarded degrees in May and June each year. For the most part, employers and potential employers of 2007 graduates, however, were unable to file H1B cases for these recent graduates. Students who had exhausted OPT during their studies were unable to remain in the U.S. to put their knowledge and skills to use in the workforce. The lack of H1B numbers also impacted 2006 graduates, who otherwise would have transitioned to H1B status in FY2007. Many of these individuals also could not obtain the coveted H1B cap numbers, and, as stated in the letter, they were lost to competing countries, while U.S. employers lost the investment they had made in these professionals.
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Request for Interim Solution to Extend OPT to 29 Months
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The senators are concerned that the lack of H1B cap numbers for professional workers is a threat to U.S. competitiveness. They state that the long-term solution must come from Congress, and they are committed to making this happen. In the interim, however, they are requesting that the DHS exercise its authority to change the regulations regarding F-1 OPT by extending the period from 12 to 29 months. This would allow students to more smoothly transition from school to OPT to H1B, based upon employer sponsorship.
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Thank the Senators Who Support this Measure!
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The letter was signed by a bi-partisan group of nineteen U.S. senators who deserve our gratitude. They include: Joseph Lieberman (D-CT), John Cornyn ( R-TX), Maria Cantwell (D-WA), Charles Schumer (D-NY), Daniel Inouye (D-HI), Orrin Hatch (R-UT), Robert Bennett (R- UT), Patty Murray (D-WA), Patrick Leahy (D-VT), Susan Collins (R-ME), Chuck Hagel (R-NE), Lamar Alexander (R-TN), John Kerry (D-MA), Daniel Akaka (D-HI), Gordon Smith ( R-OR), and Mary Landrieu (D-LA).
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Conclusion
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This proposed change would go a long way towards bridging the "cap gap." The cap gap is the time between the expiration of the OPT (and the 60-day grace period) and the start of the new USCIS fiscal year on October 1st. The H1B start date cannot be earlier than October 1st in cap-subject cases and, if the OPT and grace period expire before that time, the foreign national has a problem living and working legally in the U.S. due to a gap in status.
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The proposed 29-month timeframe also would permit employers to try to obtain cap numbers during two successive cap years, thus increasing their chances of successful H1B petitions for their foreign national employees. While the H1B cap needs to be increased for the future, the 29-month OPT would be a good interim remedy. Additionally, even if the quota is increased, it may be needed if the demand still exceeds the quota, and cap-gap issues continue. 
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4. DHS Proposal to Permit B-1/B-2 Entry for HIV-Infected Visa Applicants
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The U.S. Customs and Border Protection (CBP), an agency of the U.S. Department of Homeland Security (DHS), issued a proposed rule in the Federal Register on November 6, 2007, which would authorize issuance of nonimmigrant visas to certain HIV-infected foreign national applicants without the need for a waiver. This change would allow HIV-infected individuals to come to the U.S. for short visits if they met all other visitor visa requirements. This rule is meant to streamline the visa issuance process and would authorize these nonimmigrant foreign nationals to enter the U.S. as visitors for a period not to exceed 30 days. The rule also provides for a mechanism to assure these visitors depart once their short stays in the U.S. are over.
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Current Law Requires Waiver for Foreign Nationals with HIV
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Individuals infected with HIV are currently inadmissible to the United States. This is because HIV has been designated one of the "dangerous contagious diseases" that makes foreign nationals inadmissible to the U.S. These individuals must file waiver applications and obtain approvals of those waivers before nonimmigrant visas may be issued. These are reviewed on a case-by-case basis. In determining the waivers, various factors including risk of harm to society, reasons for the inadmissibility, and nature of the reasons for travel are reviewed and considered. Additionally, persons with HIV must establish that the danger to public health is minimal, that the possibility of transmission of the infection is minimal, and that any costs to U.S. government agencies will not be incurred without their prior consent.
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Other instructions clarify that nonimmigrant visas and short-term admission can be granted to persons with HIV who establish that their entry into the U.S. for up to thirty days would confer a public benefit that outweighs any risk to public health. A sufficient public benefit can include attending academic- or health-related activities, conducting temporary business, or visiting close family members.
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30+ Days for Nonimmigrant HIV Applicant Still Requires Waiver
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Persons with HIV seeking to enter for other reasons, like tourism or for longer periods, need waivers under the standards discussed above. In addition, blanket waivers are available for attendees of some designated international events such as AIDS-related conferences and symposia, or other events that may require the attendance of large numbers of HIV-infected individuals.
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Proposed B-1/B-2 Visa Issuance of 30 Days or Less for HIV Applicants
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DHS is proposing to allow foreign nationals infected with HIV to enter the U.S. as visitors (for business or pleasure) for a temporary period not to exceed thirty days. The proposed rule is meant to simplify admission of these visitors and to minimize costs to the U.S. government. In order to assure that there would not be any risk to public health, the DHS proposes conditioning the grant of a visa on the visitor's compliance with certain aspects of his/her activities while in the U.S., such as using proper medication when medically appropriate, avoiding behavior that can transmit the infection, and showing intent to leave the United States after 30 days. One must show that her/his condition is in a controlled state, that there is no anticipated need for additional medical care in the U.S., that s/he has an adequate supply of any needed medications, and that the visit is not going to create a cost to the U.S. or any state or local government agency without prior written consent.
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Visa applicants who do not meet the specific criteria of eligible applicants, or who do not wish to consent to the conditions imposed by this rule, may still elect to file a waiver application, which is available under current visa rules and regulations for people infected with HIV.
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Public Comment Invited for Proposed Rule
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The new rule is open for public comment, which must be received on or before December 6, 2007. Specific instructions on how to submit comments are available in the Federal Register. We at the Murthy Law Firm remind readers that this is only a proposed rule that will not go into effect until it is published in the Federal Register in its final form.
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5. VSC FAQs on Expedite Procedure
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The Vermont Service Center (VSC) changed its procedures for requesting expedited action as of November 1, 2007. The end of the fax system and its replacement with the need to call the National Customer Service Center (NCSC) was reported in our October 26, 2007 MurthyBulletin article, VSC New Procedures on Expedite Requests, available on MurthyDotCom. The VSC has now provided the American Immigration Lawyers Association (AILA) with more details regarding the new procedure.
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Request Transmitted from NCSC to VSC
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The NCSC accepts expedite requests, under the procedures discussed in our earlier article. The NCSC decides if the requests meet the limited expedite criteria and, if so, electronically sends these requests to the VSC.
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Expedite Not Guaranteed after NCSC Review?
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Once the VSC receives a request, the final decision is made as to whether expedited treatment is appropriate. The NCSC will accept any request that meets at least one of the published criterion. The decision-making process and individuals involved in that process at VSC have not changed.
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Timeframe of 8-10 Days for Expedited Treatment
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Decisions on expedite requests will be made within eight to ten business days. The final decision will be communicated either via eMail or regular mail. The VSC will strive to initiate requests within five business days for additional information in support of the expedite requests. This will be done by telephone, eMail or regular letter. Therefore, persons making expedite requests should provide all contact information. If more documentation is needed by the VSC, it can be submitted via fax, eMail, or regular mail.
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Conclusion
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We at the Murthy Law Firm thank the VSC for these helpful answers regarding the new procedures. Readers are reminded that the criteria for requesting expedited treatment are limited and are explained in our earlier article on this subject, referenced above.
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6. MurthyDotCom : Did You Know about Our Travel Page?
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Immigrants, nonimmigrants, tourists, and students always have questions about when it is safe to travel and what documentation they should carry. With the beginning of holiday travel before us, it is important to be prepared. At MurthyDotCom we provide a Travel Page with links to articles as well as to U.S. consulate and embassy websites. Our articles on this topic range from transit to changes in security measures that may impact our readers as they move about the U.S. or reenter from a trip abroad. Whatever your question regarding travel, find your answers on MurthyDotCom!
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The next session of the MurthyChat will be Monday, Nov 19, 2007, 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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7. 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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