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IMMNET  September 2003

IMMNET September 2003

Subject:

India Network Immigration Law Bulletin LAW: VOL. IX(37)

From:

editor <[log in to unmask]>

Reply-To:

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Date:

Sat, 20 Sep 2003 08:00:08 -0400

Content-Type:

TEXT/PLAIN

Parts/Attachments:

Parts/Attachments

TEXT/PLAIN (598 lines)

IMMNET LAW BULLETIN
VOL. IX, no. 37; September 2003, week 2
Posted : September 12, 2003

A Service of the India Network
Edited and Contributed by Attorney SHEELA MURTHY
Web: <http://www.murthy.com>
Phone : (410) 356-5440
eMail : [log in to unmask]

-----------------------------------------------

Dear IMMNET Subscribers:

MURTHYBULLETIN is a free eNewsletter covering all aspects of U.S.
immigration law. It contains the latest updates on work visas, Green Cards
and tracks changes in the law and procedure. Recommended reading for all
those interested in immigration law matters, including HR managers, foreign
employees, U.S. employers, and students.

This Bulletin and past editions, as well as numerous other articles are
available at our website.

This Bulletin is not sent unsolicited. The information provided below 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 Law Office of Sheela Murthy. This Bulletin
does not intend to establish an attorney-client relationship. Please be
advised that if you have a case specific question / situation on an
immigration matter, you should consult with an attorney who concentrates in
the area of immigration law.

TOPICS in this EDITION of the IMMIGRATION BULLETIN :

1. From Attorney Murthy : 9/11 Remembered

2. H1B Cap for Fiscal Year 2004

3. H1B Training Fee Eliminated from Oct 1, 2003

4. DHS Watch : Watch List Consolidation Not Complete

5. Incidental Benefits of Homeland Security Efforts

6. BCIS Now Prefers to be USCIS!

7. Latin Grammy Winners Unable to Obtain Timely Visas

8. DHS Watch : FAMS and Explosives Unit under ICE

9. Did You Know? More on the New Delhi Consulate

10. Visa Dates, Labor Certification, and INS Service Center Processing Times

-----------------

1. From Attorney Murthy : 9/11 Remembered

It is difficult to believe that two years have passed since a beautiful
September day dawned in 2001, only to set as the single most deadly day in
history for terrorist attacks. The shock, the pain, and the loss remain
clear in our minds, as though it was yesterday. We remember with those who
suffered losses as a result of the attacks on the World Trade Center, in the
skies over Pennsylvania, and at the Pentagon. But along with the anguish,
there also came a new resolve. Our patriotism was reborn. Our duty as
citizens of the world, crystallized.

While terrorists attempted to envelope us in fear and divide us as a people,
they succeeded instead in uniting us as a country. As Americans we breathe
free. In the past two years we have debated one another about civil
liberties vs. security; about the limits of our responsibility as a world
leader; about right and wrong; good and evil. As Americans, we are free to
agree or to disagree. And if we disagree, we are free to voice our opinions
without fear of retribution.

For so many in the world, freedom is still only a dream. For them, the
United States remains a beacon of hope. For them, the words at the Statue of
Liberty <http://www.murthy.com/statue.html> are more than mere words. We
have grown strong as a country through the strength of immigrants who
followed that beacon to our shores. As a nation of immigrants, united, we
face the future, as we work to make it brighter in the years to come.

 The Law Office of Sheela Murthy, P.C.

-----------------

2. H1B Cap for Fiscal Year 2004

As regular readers of MurthyDotCom and the MURTHYBULLETIN know, the H1B
"cap" is set to return to 65,000 in fiscal year (FY) 2004 (October 1, 2003
to September 30, 2004). This is an enormous decrease from the current cap
level of 195,000. Accordingly, many current and potential H-1 workers are
concerned about what this all means for them. In order to make an
evaluation, it is necessary to understand what the cap is, and to examine
prior years, in order to predict what is likely in FY2004.

What is the Cap and What Happens if it is Reached?

The "cap" is the limit on the number of H1B petitions for "new employment"
that can be approved in a particular fiscal year. Once this cap is reached,
H1B petitions for new employment can be filed, but must contain a start date
for employment that is in the following fiscal year. Exactly what this means
depends upon whether one is in the U.S. and, if so, when that person's
status ends.

Once the cap is reached, one who is located outside the U.S. will not be
able to obtain an H1B petition approval until the following fiscal year. For
one already in the U.S., the consequences depend upon his or her status and
the status expiration date. Once the cap has been reached for the year, it
will not be possible to change status to H-1 in that fiscal year. For one
whose status ends prior to the next fiscal year, it will not be possible to
change status even when the new H1B numbers become available. The reason for
this is that the expiration of the status creates a gap and a change of
status requires that the individual have continuous status. This leaves some
people stranded, without a way to change their status to H1B. Obviously, it
also impacts employers, who cannot hire the workers needed during the time
between the cap having been reached and the start of the next fiscal year.

Who is Subject?

The first important matter is to understand whether the cap applies to a
particular case. It only applies for NEW employment. Individuals in H1B
status, who previously have been counted against the cap, are not counted
against the cap again when they file to extend H1B status, whether through
the same or a new employer. This is, therefore, not an issue for almost all
of those who are already in the U.S. in H1B status. (The only exception to
this is for individuals previously employed by organizations not subject to
the cap, who then seek to change to a non-exempt employer.) There are
limited cap exemptions for petitions filed by a rather small group of
employers. This exemption includes certain institutions of higher education
and their affiliates, non-profit research organizations, and government
research organizations.

The cases subject to the cap are those filed by employers not included under
the listed exemptions for new employment. This filing may be for individuals
who have never held H1B status, whether they are in the U.S. or abroad. It
also includes individuals who held H1B status but left those jobs and
departed the U.S. and seek to reenter through a new employment offer. A
typical example of a cap case would be students seeking to change to H1B
after graduation. As will be explained below, this is a very important issue
for students, given that graduation for most of them typically occurs in
May.

When will the Cap be Reached?

There is no way to predict precisely when the cap will be reached. We can
only look at prior years to approximate the timeframe. The number of H1B
filings has been lower in the past two years than in prior years. Estimates
based on these years are rather optimistic in terms of how long it will take
to reach the cap. If the economy improves, the cap could be reached much
sooner. For example, in FY2000, the substantially higher cap of 115,000 was
reached in March 2001. If the demand returns to the levels they were in
2000, and the H availability remained at 65,000, the cap could be reached
well before the end of the second quarter.

FY2003 (October 1, 2002 to September 1, 2003)

At the end of August 2003, the CIS [See "BCIS Now Prefers to be USCIS!" in
this 12 Sept 2003 edition of the MURTHYBULLETIN and available on
MurthyDotCom.] issued H1B usage statistics for FY2003. In the first three
quarters of FY2003 (October 1, 2002-June 30, 2003), 56,986 H-1 cases had
been counted against the cap. CIS statistics show that almost 16,000 more
cap cases are pending. Accordingly, if the usage remains the same in FY2004,
the cap will be met before the end of June 2004. Without knowing the filing
dates of the pending cases, we cannot estimate the latest possible time to
file a cap case in FY2004. However, it is clear that, if the filings remain
at the same levels, the cutoff will occur before the end of June 2004.

Overall, the number of filings was slightly higher in FY2003 than FY2002.
However, the petitions in the third quarter were 15% higher than in the
third quarter of FY2002. The cause of the increase is not clear. The number
of filings reflects economic realities, both good and bad. When the economy
is good, more employers seek new employees and more H1B petitions are filed.
However, when the economy is slow, petitions are filed as people move from
job to job. This does not affect the cap. The ability to file one-year
incremental extensions beyond the normal six years under certain
circumstances also impacts the number of cases filed, but not the cap.

FY2002 (October 1, 2001 to September 30, 2002)

In FY2002, a total of 79,100 cap cases was filed. This was a significant
decrease from the prior year and is below the current FY2003 levels.
However, even with the lower numbers, the demand exceeded the number of H1B
cap cases that will be available for FY2004. In FY2002, there were 60,500
cases approved in the first three quarters (ending June 30, 2002) and 18,000
cap cases pending. Thus, the filings would again indicate that the numbers
will run out before June 2004.

FY2001 (October 1, 2000 to September 30, 2001)

The number of filings in FY2001 was far greater than in FY2002 and FY2003.
By the end of the second quarter in March 2001, approximately 72,000 cap
cases had been approved. If the demand were to increase to these previous
levels, it is predictable that the numbers would run out halfway through the
fiscal year; by sometime in February, or even earlier. Hopefully, if the
economy improves and there is a shortage of workers in any field for which
the H1B is appropriate, the numbers will again be increased to allow aptly
skilled workers to provide talent in the way that IT workers fueled our
technology-based economic boom.

How are H1B Numbers Counted?

The cap year is based upon the date the foreign national is authorized to
begin employment. Thus, cases filed at the end of a fiscal year may end up
counting against the next year's numbers. Since there are still a few weeks
left in the current fiscal year, people concerned about the cap may decide
to use premium processing in an effort to obtain a decision within this
fiscal year. Of course, the employment start date would also have to be
within the current fiscal year.

In the past, Legacy INS would announce that it had enough petitions approved
and pending to meet the cap. The petitions would be adjudicated in the order
received and counted against the cap. They would adjudicate all pending
petitions and count them against the cap as they were approved. Cases with
Requests for Evidence (RFEs) essentially would be taken out of the queue
until the RFE response was filed. Petitions pending when the cap was
announced, which did not meet the cutoff, would be adjudicated with a start
date of October 1 of the next fiscal year. This would affect whether they
could be processed as change-of-status cases. If a person could not maintain
status through to the following fiscal year, a change of status could not be
granted and consular processing would be necessary. Any case filed later
would need to have a start date in the next fiscal year.

Previous Special J and F Rules

In the past, when the cap was reached, special benefits were extended to F
and J nonimmigrants who filed before the cap announcement, but did not make
the cap in the particular year. These individuals had their durations of
status extended, and then their requests to change status could be approved
in the next fiscal year. Of course, they were not authorized to work during
the time that their H1B petitions were pending, until the change of status
was approved, usually on October 1 or after the start date of the new FY.

This is why the cap issue is particularly important for students. Since
graduation for most students is usually in May, and they generally obtain
one year of Optional Practical Training (OPT), many wait until the end of
their OPT to have their employers file the H1B petitions. This could take
them beyond the point of the cap announcement or, at least, beyond the
period when they will make the cap cutoff for the fiscal year.

What about Premium Processing?

It is not clear how the cap count and premium processing will work together.
Premium processing did not exist during the years when the cap was reached.
Since cases are counted against the cap as they are adjudicated, though,
premium processing may be the best way to proceed, especially as the cap
cutoff date approaches. If many are willing to spend the extra $1000 for
premium processing, however, then the potential to benefit from premium
processing may dwindle.

Other Changes

In addition to the change in the cap, the $1,000 employer-funded training
fee only applies to cases filed before October 1, 2003. For more information
on this topic, see our article, "H1B Training Fee Eliminated from Oct 1,
2003," also in this 12 Sept 2003 edition of the MURTHYBULLETIN, and
available on MurthyDotCom.

What to Do?

Individuals who are subject to the cap should be mindful of potential
problems. They should urge their employers to file their cases as early as
possible in FY2004. One may file the H1B six months before the employment
start date. As indicated above, premium processing may be an option to
increase the potential for obtaining an approval prior to the cap being
reached. In past years, Legacy INS issued reports of estimates regarding the
cap, as the filings mounted. If CIS continues with this practice, the
MURTHYBULLETIN and MurthyDotCom will, likewise, update our readers.

We urge Congress to raise the cap to allow for sufficient availability of
H1Bs to employers seeking talent and skill from foreign nationals. While we
support the need to protect U.S. workers, the fate of the U.S. economy
depends upon having professional workers who are best suited to these
positions. When U.S. companies cannot find sufficient numbers of U.S.
workers, they must search for the appropriate talent worldwide to ensure
that their companies prosper and the economy continues to grow. Limiting
this ability does not serve anyone in the long run. It hampers our economy
and thereby harms the overall well-being of our country and our people.

 The Law Office of Sheela Murthy, P.C.

---------------------

3. H1B Training Fee Eliminated from Oct 1, 2003

It appears that the employer-paid training fee of $1,000, required for most
H1B filings, will end on September 30, 2003. The law states that the
Attorney General shall impose a separate fee on employers filing H1B
petitions in the amount of $1,000 for filings before October 1, 2003.
Exceptions to the filing fee are contained in the law. There are no
provisions for this fee to continue for filings received by BCIS (or USCIS)
on or after October 1, 2003. [See "BCIS Now Prefers to be USCIS!" in this 12
Sept 2003 edition of the MURTHYBULLETIN and available on MurthyDotCom.]

There has been, and continues to be, some confusion on this matter, as some
attorneys have stated that the fee would be returning to the pre-2000 level,
which was $500. The basis for this assertion is not clear under law. The
history of the provision is that the American Competitiveness and Workforce
Improvement Act (ACWIA) in 1998 established a training fee of $500 for most
H1B petitions. The training fee was meant to fund technical training for
U.S. workers primarily in the areas of engineering, science and mathematics
to provide U.S. businesses with the necessary skilled workers. In 2000, the
law was amended to increase the training fee from $500 to $1,000 and to
extend the provisions to apply to H1B petitions filed and received by Legacy
INS (now CIS) before October 1, 2003.

Of course, should Congress see fit to do so, the provision could be changed,
extended or reinstated. The decision as to what action to take on this
matter is likely to be tied to efforts to increase the H1B "cap," as the two
issues tend to be interconnected. More information about the cap reduction
is contained in our article "H1B Cap for Fiscal Year 2004," also in this 12
Sept 2003 edition of the MURTHYBULLETIN, and available on MurthyDotCom.

 The Law Office of Sheela Murthy, P.C.

---------------------

4. DHS Watch : Watch List Consolidation Not Complete

DHS Deputy Secretary Gordon England has indicated that the consolidation of
a dozen government watch lists is still incomplete. These watch lists have
been stored on computers and in programs that were not designed for the
networking of information. This has made it difficult to merge the data.
This information was released in a GovExec.com <http://www.GovExec.com/>
article published in late August 2003.

Such problems do not mean that security checks are incomplete. What it means
is that security checks are slow, as multiple databases are involved. The
lack of a comprehensive watch list may mean that security checks will
continue to be slow until the consolidation has been accomplished. DHS
continues to make progress on the consolidation plan. It is unclear,
however, whether Mr. England will still be with DHS when the project has
concluded. President Bush has nominated Mr. England to return to his
position as the Secretary of the Navy, a position he held for two years
prior to moving to DHS in early 2003. Mr. England is not expected to leave
his current position until a replacement is selected and installed.

 The Law Office of Sheela Murthy, P.C.

---------------------

5. Incidental Benefits of Homeland Security Efforts

In mid August 2003, GovExec.com <http://www.govexec.com>, online companion
to "Government Executive," a monthly business magazine for federal
executives and managers of governmental departments and agencies,
highlighted several industries that may benefit from homeland security
efforts. Since a downturn in the economy generally means more restrictive
immigration laws and attitudes, any good news for U.S. businesses is good
news to immigration, since it helps to create more jobs and boost the U.S.
economy overall.

Security Technology Providers

The Department of Homeland Security (DHS) has proposed a rule that would
limit the legal liability of security technology providers, should the
products or services fail to prevent future terrorist attacks. Various trade
associations have come together to submit comments in support of extending
the length of time the products are free from liability. They are also
commenting on related issues, such as: shortening the review periods needed
to receive "qualified anti-terrorism technology" and "approved product for
homeland security" designations; retroactivity of the regulations;
broadening of designations; product confidentiality; and more financial
support from the government in the event of lawsuits. Any steps the DHS
takes to protect these businesses supports further development of
anti-terrorism technologies. Since many of these technologies will require
workers skilled in information technology (IT), these developments may
decrease the ranks of unemployed or underemployed IT professionals in the
wake of the dotcom bust and the aftermath of 9/11.

Private Airport Security Firms

Currently, private airport security firms only conduct screening at five
airports throughout the U.S. Employees of the Transportation Security
Administration (TSA) conduct screening in the remaining airports. In the
next year, more airports will be eligible to opt out of the federal
screening program and use the existing or new private airport security
firms. Before September 11, 2001, this security was handled by individual
airlines. These private airport security firms are not a part of the
airlines, but are independent businesses.

As long as these firms adhere to the U.S. Department of Transportation (DOT)
non-discrimination guidelines, discussed in our February 1, 2002 article,
"DOT Issues Guidelines for Airport Screeners"
<http://www.murthy.com/UDdotair.html>, the expanded use of private screeners
should have no negative affect on the travel process. Historically, however,
private airport security firms have had a higher employee turnover rate than
the TSA, and this does raise concerns over whether the private firms will
consistently continue to train their new employees as they are hired. We
would also encourage these private screeners to consider employing trained,
former TSA employees from any airports they take over, in order to ensure
that they immediately have a qualified staff in place. This will also help
to avoid further swelling unemployment rates.

U.S. Defense Firms

The Bureau of Customs and Border Patrol (CBP) is considering the use of
unmanned aerial vehicles (UAVs) to patrol expansive sections of the U.S.
borders. The CBP will award a contract to a defense firm able to meet their
specifications for temporary UAVs, though the CBP has not determined whether
these aircraft will be used in the long term. Use of the UAVs will also need
to be approved by another government agency, the Federal Aviation
Administration (FAA). It is unclear, however, what UAVs will do to stop
people who are illegally crossing the border. The production of UAVs should
again create new employment opportunities.

 The Law Office of Sheela Murthy, P.C.

---------------------

6. BCIS Now Prefers to be USCIS!

Just when people may have thought they had memorized the names and acronyms
of the various new governmental entities involved with immigration, there
appears to be yet another change. The term "bureau" has been eliminated from
the names of the various entities which, for reasons of their own, find it
unsuitable. So now we have the U.S. Citizenship and Immigration Services
(USCIS or CIS), the Customs and Border Protection (CBP), and Immigration and
Customs Enforcement (ICE).

In the case of the former BCIS, it appears that the "B" was dropped, but
"US" for United States has now been added. We have heard that the former
BCIS is being referred to as "CIS" more often than "USCIS," but the latter
term has started appearing on official information received from them. This
change does not seem to have any substantive affect, as on filing fee
checks, for example. Filing fees will be accepted at this time whether
checks are made out to USCIS, BCIS, or DHS.

We hope that the matter of entities and their names has been resolved, so
that attention can be focused on reducing backlogs and other more
significant matters that directly impact businesses, families, and
individuals undergoing the immigration process!

 The Law Office of Sheela Murthy, P.C.

---------------------

7. Latin Grammy Winners Unable to Obtain Timely Visas

A dozen Cuban acts nominated were unable to obtain visas in time to attend
the 2003 Latin Grammy Awards. Two of the twelve acts had won in their
categories. A spokesperson for the U.S. Department of State (DOS) was
questioned in the days leading to the September 3rd awards ceremony
regarding whether the Cuban musicians would receive their visas in time for
the awards ceremony. The DOS spokesman replied that the Cuban performers
would likely not receive their visas in time to attend the ceremony because
they had applied for the visas too late to complete the necessary security
checks. Various news accounts lay the blame for the performers' absence with
the Cuban government for holding up the paperwork; the Latin Recording
Academy for caving to pressure from anti-Cuba groups by issuing the
invitations too late; the DOS for taking too long; and the performers,
themselves, for waiting too long to apply for their visas. This ceremony was
televised on CBS from Miami, Florida in prime time.

As security checks and mandatory interviews for visas has slowed processing
times, those seeking visas may be tempted to think that their wealth, fame,
or critical acclaim will enable them to receive their visas quickly and
easily. The example of these Cuban musicians, however, shows that the
consulates do place security above all other concerns. Neither one's
celebrity nor giving officials short notice will help a person to obtain a
visa to enter the U.S. Efforts were made to accommodate these groups,
however, there are no exceptions to the security checks, which are
particularly stringent for citizens or nationals of certain countries. Cuba
is one of the seven countries designated by the U.S. government as a state
sponsor of terrorism, and there are stringent security checks required for
citizens or nationals of all of those countries.

DOS stressed the need to apply well in advance of the travel date, to avoid
such problems in the future. We take this opportunity to remind our
MurthyDotCom and MURTHYBULLETIN readers that visa applications should be
submitted as early as possible to avoid delays that could result in their
missing important events. Otherwise, the conference, wedding, or awards
ceremony one is planning to attend might have long since ended before the
visa is finally granted, if it is granted at all.

 The Law Office of Sheela Murthy, P.C.

---------------------

8. DHS Watch : FAMS and Explosives Unit under ICE

DHS Secretary Tom Ridge announced on September 2, 2003, that the Federal Air
Marshal Service (FAMS) and the Explosives Unit will become part of the
Bureau of Customs and Immigration Enforcement (ICE). Previously, FAMS and
the Explosives Unit were part of the Transportation Security Administration
(TSA).

This change is a further effort to improve homeland security. According to a
statement by Michael Garcia, Acting Assistant Secretary for ICE, the Air
Marshal Service will have better investigative resources once within ICE.
The change is designed to enhance ICE's law enforcement capabilities, and to
assist ICE in detecting threats to national security. ICE is the
investigative arm of DHS and is intended to unify the enforcement efforts
with regard to U.S. immigration and customs laws as well as protect national
security by detecting and preventing violations by criminals and terrorists.

 The Law Office of Sheela Murthy, P.C.

---------------------

9. Did You Know? More on the New Delhi Consulate

The New Delhi Consulate <http://newdelhi.usembassy.gov/> has useful
information online regarding the visa services they provide. This week, we
focus on their nonimmigrant visa (NIV) services.

- Information on NIV fees, stated in rupees and to be paid in two separate
demand drafts for the application fee and the issuance fee:
<http://newdelhi.usembassy.gov/wwwhnivvf.html>
(This does not include the courier passback system fee
<http://newdelhi.usembassy.gov/wwwhnivc.html>.)

- General information on the application process :
<http://newdelhi.usembassy.gov/wwwhnivap.html>

- Description of the types of NIVs issued by the New Delhi consulate :
<http://newdelhi.usembassy.gov/wwwhnivtv.html>

- NIV photograph requirements :
<http://newdelhi.usembassy.gov/wwwhnivph.html>

- Though most applicants are no longer able to use the dropbox system, there
is an explanation of the process for those who are still eligible:
<http://newdelhi.usembassy.gov/wwwhnivdb.html>

If an application is refused, one may generally reapply after three days if
there is new information that may change the outcome.

Did you know that The Law Office of Sheela Murthy, P.C., could provide you
with so much information on consular services at the U.S. Consulate, New
Delhi, India?

MurthyChat Schedule <http://www.murthy.com/chat.html> : The next MurthyChat
session is Monday, Sept 15, 2003 from 9:00 p.m. to 10:00 p.m. Eastern Time
(USA).

MurthyForum <http://www.murthy.com/mforum.html> : Consider joining those who
have discovered the value of this service, our message / discussion board,
which is visited daily by one of our attorneys.

MurthyDotCom - MurthyBulletin - MurthyChat - and MurthyForum - Your ultimate
U.S. immigration resources on the Internet all start with MURTHY!

 The Law Office of Sheela Murthy, P.C.

---------------------

10. Visa Dates, Labor Certification, and INS Service Center Processing Times

The U.S. State Department Visa Dates <http://www.murthy.com/visadate.html>

Processing Dates for Labor Certification Applications
<http://www.murthy.com/labdates.html>

INS Service Centers :

California <http://www.murthy.com/pt_calif.html>
Missouri <http://www.murthy.com/pt_mis.html>
Nebraska <http://www.murthy.com/pt_neb.html>
Texas <http://www.murthy.com/pt_tex.html>
Vermont <http://www.murthy.com/pt_verm.html>

-----------------

This Bulletin is not sent unsolicited. The information provided above 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 Law Office of Sheela Murthy.

-----------------

Copyright 2003, THE LAW OFFICE OF SHEELA MURTHY, PC

MURTHYBULLETIN
Weekly Immigration Newsletter
THE LAW OFFICE OF SHEELA MURTHY, PC
Phone : 410-356-5440
eMail : [log in to unmask]
WebSite : www.murthy.com

-----------------

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