MurthyBulletin VOL. XV, no. 15; Apr 2009, week 2 Posted : Apr 10, 2009; updated Apr 13, 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. May 2009 Visa Bulletin 2. H1B Cap Not Reached : April 8, 2009 Posted on MurthyDotCom Apr 08, 2009; updated Apr 09, 2009 3. H1B Compliance : Wage Level Issues 4. Wage and Hour Division Hires More Investigators 5. Mandamus Lawsuits for H1B, I-140, and Other Delays 6. Status of H1B Cap Case Receipts Issued by USCIS Prior to April 8, 2009 7. Announcement : Murthy's Corporate Teleconference - Wed, May 06, 2009 8. MurthyDotCom : Did You Know about MurthyToGo? 9. 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. May 2009 Visa Bulletin ©MurthyDotCom The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates. The most recent DOS Visa Bulletin chart is always available on MurthyDotCom. ©MurthyDotCom Summary of Visa Bulletin ©MurthyDotCom Employment-Based, First Preference (EB1) This category is current for all countries of chargeability. ©MurthyDotCom Employment-Based, Second Preference (EB2) This category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China's cutoff date is still February 15, 2005. ©MurthyDotCom Employment-Based, Third Preference (EB3) This category will be unavailable for all countries, from as late as May 1, 2009 until September 30, 2009. ©MurthyDotCom The very limited EB3 "other worker" category will also be unavailable for all countries for the remainder of FY2009. ©MurthyDotCom Employment-Based Fourth / Fifth / Religious Workers and Targeted Employment These categories are all current. ©MurthyDotCom Explanation ©MurthyDotCom The April 2009 Visa Bulletin explains that the demand for visa numbers for adjustment of status cases from USCIS remains extremely high. Thus, the annual quota for EB3 visa category is expected to be reached in April 2009. In response to this high demand, the DOS has made the EB3 visa category for all countries unavailable for May 2009 and it is expected to remain unavailable for the rest of FY2009. EB3 visas will become available again, subject to a priority date cutoff on October 1, 2009. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 2. H1B Cap Numbers Still Available : April 9, 2009 Posted on MurthyDotCom Apr 08, 2009; updated Apr 09, 2009 ©MurthyDotCom This NewsFlash was posted on MurthyDotCom Wednesday, April 8th and updated on Thursday, April 9, 2009. MurthyBulletin readers are advised to check our website for up-to-date postings regarding the H1B cap. ©MurthyDotCom The USCIS announced on April 8, 2009 that the H1B cap for fiscal year (FY) 2010 has not been reached. ©MurthyDotCom Later that same day, USCIS answered a series of questions during an American Immigration Lawyers Association (AILA) Liaison call. It estimates that, by April 8, 2009, approximately half of the petitions needed to exhaust the general H1B Cap of 58,500 petitions were received. USCIS also stated that almost all of the 20,000 H1B petitions necessary to exhaust the annual advanced-degree cap (or "Masters cap") were received. When asked about the start of the 15-day time period for premium processing, USCIS stated that April 7, 2009 will be the beginning date for such petitions. The issuance of receipts for cap-subject H1B petitions that are accepted for processing began on April 8, 2009. ©MurthyDotCom Thus, as of this writing the USCIS is still accepting H1B cap-subject cases. We at the Murthy Law Firm will continue to closely monitor the status of H1B cap for FY2010, and will update readers as information becomes available. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved 3. H1B Compliance : Wage Level Issues ©MurthyDotCom The Murthy Law Firm is committed to keeping our readers abreast of the increasing enforcement efforts by the U.S. Department of Labor (DOL). Our March 20, 2009 article, Solutions to Help Employers with H1B Compliance, described the need to revoke H1B petitions for terminated workers, and to pay or terminate workers who may be awaiting assignments, or “benched.” As explained previously, employers may be required by the DOL to pay back wages to such employees. Another aspect of back wage assessments involves the use of incorrect wage levels or categories on the labor condition application (LCA). The DOL may, in certain situations, assess back wages for underpaying workers, even if the amount set out on the LCA has been paid. ©MurthyDotCom Importance of 'Safe Harbor' ©MurthyDotCom This H1B LCA is supposed to set out the higher of the prevailing or actual wage rate for the position. Employers may request a prevailing wage determination (PWD) from the State Workforce Agency (SWA) in advance of filing the H1B case. Many employers and attorneys do not do so, however, due to the amount of time required for such requests. If a PWD has been obtained from the SWA, this creates a “safe harbor” for the employer, provided the employer properly described the job at issue. That is, the DOL indicates it will not argue with the wage determined to be appropriate by the SWA, provided that the description of the position given to the SWA was correct. ©MurthyDotCom Use of DOL Wage Surveys In most cases, there is no PWD upon which to rely. Usually, the source of the wage selected is the Occupational Employment Statistics (OES) wage data, available on the DOL website. There are also provisions for the use of other appropriate wage surveys. Since the PWDs performed by the SWAs are based upon the DOL’s wage data, the end result should be the same either way. However, problems can arise due to the choice of wage levels, as well as job categories. ©MurthyDotCom The DOL wage surveys provide four levels of wage, essentially entry level to senior level. As would be expected, the wages increase - often substantially - as the level increases. Thus, the DOL often reviews and challenges the selected wage levels, if they believe they are too low. The DOL may question this matter more closely if all workers are categorized as entry level. Thus, employers must make properly-based, defensible selections of appropriate wage levels. ©MurthyDotCom DOL Looks Beyond the LCA ©MurthyDotCom When reviewing the issue of wage level, the DOL may look at other statements made by the employer with respect to the particular job, to see if it is consistent with the selected wage level. A typical starting point would be the advertisements used to recruit for the specific positions. If the ad says that the job requires, for example, a master's degree and certain experience, and describes complex job duties, then the DOL is unlikely to accept the assertion that this is an entry level job. ©MurthyDotCom In addition, DOL may review an employer's contracts, marketing materials and other written materials. These may include purchase order agreements or specifications for projects that specify a number of years of experience required by the complexity of duties or other factors that would lead to higher wage levels. DOL investigators may choose to interview current and former employees, inquiring as to the minimum requirements to be hired by a certain employer or how the employer presented the worker to secure projects. Some DOL investigators have compared job requirements in PERM applications to those listed for the same worker in H1B petitions, noting differences that lead to higher wage levels. While there often is room for argument in these matters, the employer must be aware that significant discrepancies between the wage level selected and other statements regarding the job create potential exposure to liability for back wages. ©MurthyDotCom Risk of Several Years' Back Wages ©MurthyDotCom If the DOL determines that the wage level was not properly assessed, it can order the payment of back wages for the discrepancy. This can represent a substantial sum, when many or even potentially all of an employer's workers have been misclassified and paid incorrect wage levels for a number of years. Beyond the increasing level of enforcement by DOL, the U.S. Citizenship and Immigration Services (USCIS) listed underpayment of wages to H1B workers as one of the most common violations found in a report issued September 2008, reported in our October 24, 2008 article, H1B Benefit Fraud & Compliance Assessment Signals Changes, available on MurthyDotCom. ©MurthyDotCom The situation is the same for wrongly categorizing the job to one that has a lower wage. However, we find that this is a less frequent problem than the wage level selection. ©MurthyDotCom Possible Solutions ©MurthyDotCom The DOL has a detailed explanation, and a worksheet (PDF 113KB) for determining wage levels. Employers should make their wage level selections consistent with this information. The selection of a wage level should be consistent with the other statements made in advertisements, marketing materials, purchase orders, contracts, and other immigration filings. The employer must be able to explain the choice, if challenged on this matter. If there is time, the SWA prevailing wage determination provides a safe harbor. ©MurthyDotCom An employer with concerns about the selected wage levels for existing H1B cases may request SWA prevailing wage determinations, even after a case is filed or approved. If this determination matches the level selected, then it may be used to support an argument that the selection was appropriate. If it appears that the wage level may have been inappropriate, the employer may need to make wage adjustments. The back wages can be assessed only for the difference between the wage paid and the proper wage. It is not uncommon to see wages paid that are between two levels. Sometimes, a slight boost is all that is needed. While this represents an expense that may be difficult for an employer, it is preferable to having to pay back wages, penalties, interest, and other required payments. ©MurthyDotCom The DOL has some discretion with respect to which penalties to pursue, and, regarding back wage issues, the length of time for which they may be assessed. An employer that reviews and makes adjustments so that all current wage levels are proper is likely to be viewed more favorably by the DOL. This may reduce the likelihood and extent of the DOL's review of past wages and assessments for prior years. Of course, any such favorable discretion also depends on the nature and extent of other violations. ©MurthyDotCom Conclusion ©MurthyDotCom As stated in previous articles on this subject, available on MurthyDotCom, employers must take H1B compliance seriously. Simply listing a DOL salary survey amount on an LCA, and paying more than that minimum, is not a protection from a DOL investigation if the job category or salary level is inappropriate. The DOL can independently assess what is considered to be the proper wage level for a company's employees, as discussed above, and make findings of back wage obligations. The best defense to such findings is to either obtain PWDs from a SWA or to assess the proper wage level carefully based on the same factors that the DOL will consider. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 4. Wage and Hour Division Hires More Investigators ©MurthyDotCom The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) recently came under criticism in a report entitled, Wage and House Division's Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft (PDF 318KB). Issued by the Government Accountability Office (GAO), this report found that the WHD's current system discouraged wage complaints and did not properly pursue those that were filed. In response to the GAO report, the WHD plans to hire more investigators and increase oversight. While the report in question did not directly include issues related to H1B wage violations, this expansion of staff is relevant. It is the WHD that is responsible for investigating employer compliance with regard to the H1B labor condition application (LCA) requirements, including wage payments for H1B workers. ©MurthyDotCom DOL Response to GAO Report : Hire More Investigators ©MurthyDotCom Following the issuance of the GAO report finding deficiencies in the WHD's investigations of general wage violation claims, DOL Secretary Hilda Solis stated that she takes GAO's report seriously, and announced that WHD is hiring 250 more investigators. The DOL expects that WHD can strengthen its commitment to enforcing labor laws designed to protect U.S. workers by bringing in more investigators. ©MurthyDotCom Employer Compliance Likely to Increase with More Investigators ©MurthyDotCom While the planned expansion of the WHD arose out of wage payment issues, separate from immigration and LCA concerns, the WHD's authority includes LCA violations. Thus, this should be seen as another indication of the current focus on employer-based enforcement. The importance of paying all workers, U.S. and foreign, the wages required by law cannot be over emphasized. Common violations were brought to the attention of MurthyDotCom and MurthyBulletin readers in our November 21, 2008 article, Common Employment Violations. Matters of increased LCA enforcement were covered in our October 24, 2008 article, H1B Benefit Fraud & Compliance Assessment Signals Change. ©MurthyDotCom Conclusion ©MurthyDotCom The message is clear: employers need to be aware of laws pertaining to wages, both generally and in connection with any H1B workers, and must establish practices that comply with those laws. The H1B concerns extend beyond wages, though these are obviously an important part of H1B compliance. Employers must get proper advice from employment as well as immigration attorneys, in order to structure and operate their businesses in compliance with applicable laws and regulations. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 5. Mandamus Lawsuits for H1B, I-140, and Other Delays ©MurthyDotCom We at the Murthy Law Firm have previously reported to our readers the usefulness of writ of mandamus actions in long-delayed adjustment of status (I-485) and naturalization cases. The writ of mandamus can also be an appropriate tool for other types of case processing delays. Many employers are experiencing long delays in U.S. Citizenship and Immigration Services (USCIS) processing of I-140 and I-129 petitions like H1Bs or L-1s for foreign workers. Regular MurthyDotCom and MurthyBulletin readers may recall from our NewsBriefs, New Developments in Mandamus Lawsuits (Mar 7, 2008) and Good News on Mandamus Lawsuits for Delayed Naturalization Applicants (May 9, 2008), that mandamus lawsuits may resolve unreasonable delays. Mandamus actions have also proven to be successful for I-140 and I-129 delays, and are described here for the benefit of our readers. ©MurthyDotCom Security Checks Delay H1Bs ©MurthyDotCom Increasingly, there are problems with lengthy delays in adjudicating certain I-129 petitions for H1B workers. These delays are not addressed by utilizing premium processing. One significant problem created by this is that H1B workers who are the beneficiaries of H1B extension requests with their current employers run close to or beyond the 240 days of additional employment authorization permitted based upon the pending H1B cases. Unless these H1B workers also have pending I-485 applications and Employment Authorization Documents (EADs), they may be forced out of their employment until the USCIS completes whatever background checks are underway. Other significant problems and uncertainties are created when it is not possible to get a decision within a reasonable period. ©MurthyDotCom Mandamus Lawsuits and H1B Delays ©MurthyDotCom The Murthy Law Firm successfully resolved delayed I-129 cases by filing writ of mandamus lawsuits. While a mandamus lawsuit cannot compel the USCIS to approve an I-129 petition, it can request that a Federal Judge order the USCIS to take action by approving it, denying it, or issuing a request for evidence (RFE). Once an RFE has been issued and responded to, it is expected that the USCIS will adjudicate the I-129 in a reasonable timeframe. Mandamus cases can be filed by employers who find that their I-129 filings simply are not being ruled upon within reasonable timeframes. ©MurthyDotCom Mandamus Lawsuits and I-140 Delays ©MurthyDotCom Similarly, the Murthy Law Firm has filed writ of mandamus lawsuits that have resulted in approvals of delayed I-140 petitions and, if eligible, the Adjustment of Status (I-485) applications based upon the particular I-140 petition. This has even included approvals for the I-485 applications filed by the spouse and children of an employee. While these I-140 petitions have been delayed for unnamed background investigations, the filing of a mandamus lawsuit has proven to be a successful mechanism for resolving a majority of the cases when there is no justification for further delay. ©MurthyDotCom Conclusion ©MurthyDotCom While the USCIS has a duty to ensure that a petition is based on a valid job offer in the correct category, it is not allowed to unreasonably delay selected petitions or those filed by a particular employer. Yet, this appears to be what is happening to some H1B-petitioning employers. The USCIS is increasing fraud detection efforts and investigating more cases. This is an appropriate government role. It is important to maintain integrity in benefits programs. If the review cannot be performed in a reasonable period, however, this is a failure in the system that must be addressed. Cases need to be decided in a timely fashion so that "good cases" can be approved and "problems" can be addressed. The writ of mandamus provides an avenue to force a decision in the event of long-delayed cases. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 6. Status of H1B Cap Case Receipts Issued by USCIS Prior to April 8, 2009 ©MurthyDotCom On April 3, 2010, a NewsFlash on MurthyDotCom stated that the USCIS incorrectly issued receipt notices for some H1B FY2010 cap cases. Pursuant to new information announced by the USCIS during an April 8, 2009 teleconference call with the American Immigration Lawyers Association Liaison, the USCIS Service Center Operations team clarified that receipts previously issued remain valid in light of the fact that the H1B cap was not reached within the first five business days in April. This is a reversal of the USCIS's initial statements of April 3, 2010, when it was expected that receipt notices issued prior to April 8, 2009 would be withdrawn and that no one should rely on a receipt issued during this initial timeframe. We will continue to follow this and all other H1B cap issues and provide MurthyDotCom and MurthyBulletin readers with the most up-to-date information. ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 7. Announcement : Murthy's Corporate Teleconference - Wed, May 06, 2009 Topic : H1Bs, Public Access Files, and I-9 Compliance ©MurthyDotCom The next topic in this teleconference series, specifically addressing the concerns of employers, enabling them to better help their employees going through the immigration process, will address the H1B process, including: LCAs, wages, public access files, how employers must comply with rules and regulations, the types of records that need to be made available and to whom, retention of records, relocating employees, events that can trigger investigations, and recommendations for successfully navigating active Department of Labor investigations. ©MurthyDotCom Employers and their representatives can find more detail and learn how to register here.  ©MurthyDotCom Copyright © 2009, MURTHY LAW FIRM. All Rights Reserved . . . . . . . . . . . . . . 8. MurthyDotCom : Did You Know about MurthyToGo? ©MurthyDotCom If you prefer your news on the go, the Murthy Law Firm provides two means of accessing the latest topics in U.S. immigration news. Mobile on MurthyDotCom is available to anyone using a cellular phone with a built-in web browser or PDA with wireless capability, like the Treo from PalmOne or Windows Mobile devices. For those who have PDAs without wireless, we have created a channel on AvantGo. This service enables subscribers to download weekly headlines and brief synopses of our MurthyBulletin articles for FREE with a simple HotSync to your desktop PC. Use MurthyToGo so that you are never out of touch! ©MurthyDotCom MurthyChat : Attorney Murthy will be speaking at a conference in Tel Aviv and will not be available for the MurthyChat on April 20th. The next MurthyChat session will be Monday, May 04, 2009, 9:00pm Eastern Time (U.S.). The chat generally occurs on the 1st and 3rd Mondays 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 . . . . . . . . . . . . . . 9. 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
	Disclaimer : The information provided at this site is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm or establish an attorney-client relationship. Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.