Immigration Visa Lawyer Blog

There is no doubt that the H-1B visa program has experienced a recent evolution. The USCIS has announced a significant modification in the manner it will review and approve H-1B visa petitions for highly skilled workers. Only the experienced practitioners will now be able to represent their clients and get their H-1B visas approved. If you are an employer or employee and desire to get your H-1B visa filed during the upcoming H-1B visa cap or currently have an H-1B visa and wish to have it extended, you must pay close attention to these advice bits.

Get the Most Out of Your Immigration Lawyer

It is highly advisable to engage your H-1B visa attorney as early as possible. The first step in the process begins with an open dialogue regarding the circumstances surrounding the services of the foreign national in the company, his duties and assignments, the work environment and the location of the work itself. If the foreign national performs work at a third party site, meaning at a location other than the headquarters of the company, then you must alert your immigration attorney of this fact. If the work is being performed at the offices of the petitioning company, then a different kind of petition will have to be presented. In addition, if there have been significant changes in the duties of the foreign national, then these facts will have to be discussed. The most prevalent complaint clients normally levy against their lawyer is that their counsel does not act as a true partner. Having practiced in immigration law for nearly 17 years, I can also tell you that the most complaint attorneys advance against their clients is that they do not share critical information with them and do not allow them the opportunity to present viable and creative solutions to their cases. Hence, it appears that there is disconnect between counsel and client in many cases; a problem which can easily be alleviated by open and early communication about the employer's practices and issues. I would strongly advice employers to engage their counsel as early as possible, preferably six months prior to the filing of the H-1B visa petition in order to gain the most out of their attorney's representation.

You Get What You Pay For

Employers often complain that attorney fees are too burdensome in the days of bad economy. However, it must be stressed that hiring an attorney "on the cheap" carries grave consequences. The days of filling the forms and pushing the alien's credentials to the USCIS are over. In order to obtain approval for an H-1B visa requires careful study of the circumstances surrounding the employees' retention, location, pay and performance of their job. These issues require careful analysis of the relevant facts and law and to evaluate alternative strategies that would lead to approval.
Many lawyers charge a meager fee for filing an H-1B visa petition. The employer simply purchases the attorney's "signature" on the immigration forms. This practice is wrought with failure as employer, in today's environment, truly needs counsel and advice, not filing papers. Hence, the competent lawyer gets a reasonable fee for her work which the employer must be prepared to compensate accordingly. Some H-1B visa petitions may require more work, others do not.

H-1B Visa Petitions For Employees Working Onsite

If the H-1B visa worker will be performing services at the offices of the petitioning company, the USCIS is now requesting proof that the employer has such work in the continuity and scale requiring the services of the foreign worker. In other words, if the foreign national will be working on an in-house project, there must be documentation proving that the hours requested in the petition are proportional to the immediate and foreseeable future work demand. This can be proved by presentation of project details, deliverables, contracts or the existence of clear document (such as a business plan) which identifies the work to be performed. If several workers are being requested to work on such in-house project, then the documents proving the demand for such workers must coincide. Counsel should be in a position to advise the employer to document the requirement in a scientific and realistic manner. The USCIS will not approve petitions based on speculative work, therefore, the documents must bear semblance to realistic or probable expectations. In addition, the employer must be to show that it is well capitalized to cover the wages of the workers as well as other expenses/costs of project in a practical manner. These are scientific issues that require careful preparation and documentation.

H-1B Visa Petitions For Employees Working Offsite

The USCIS has introduced the Donald Neufeld Memo in which it created a mechanism based in common law to determining whether the petitioning company posses "control" over the actions of the foreign worker to form an employer employee relationship. The H-1B visa petitioning employer must now prove that it active in the supervision and evaluation of the worker's activities at the third party worksite. If the company does not currently have such programs in place, it is time to begin documenting one with the help and assistance of its immigration lawyer. This fact underscores the importance of engaging competent legal counsel early in the process. I wrote a blog entry on instituting a program for compliance with the January 2010 Neufeld Memo which is worth reading in this regard. It is important to stress that the aforementioned process is not intended to create a fictitious program to comply with recent USCIS adjudicatory postures. However, it is good practice to engage in closer management of the petitioning company's employees anyway and to do so in a systematic and organized manner. Hence, it should not be viewed as a scheme to create phantom programs. It is critical that the petitioning employer only presents true fact to the USCIS as misrepresentation has grave civil and possibly criminal liability. It is for that reason that the petitioning employer must engage the services of experienced legal counsel to navigate through this new area.

Conclusion

The process of filing an H-1B visa petition has become more complex requiring open and early communication with competent and experienced immigration counsel. We have assisted many employers to analyze their practices carefully and to make adjustments and modifications which will lead to H-1B visa approval. Early planning pays off.

Immigration Reform Must Be Fair To All Immigrants
In advance yet another rally for immigration reform set to descend upon Washington D.C., we are all again reminded of the need to amend the fractured structure of agencies and laws that makes up modern immigration system in America. Many of the most vocal and courageous advocates for change in the immigration system are the representatives of foreign nationals from Central and South America. It is indeed true that undocumented aliens from the countries south of the United States boarder do make up the largest contingent of aliens who will be effected by comprehensive immigration reform. However, we need to remember that in order for immigration reform to be truly comprehensive, its effects must be fair and just too all foreign nationals of all visa statuses from all continents.
Fairness for those who have followed the law
Permanent and temporary work visas are distributed according to a myriad of complicated laws and regulations. Many employers and employees who seek to utilize these avenues of immigration have spent years of their lives and thousands of dollars obtaining and maintaining their valid immigration status. While it is in the best interest of the United States to find a path to citizenship for the hundreds of thousands of undocumented workers who do the toughest jobs in this country, it is my hope that their gain does not come from a loss for those aliens who have attempted to immigrate by adhering to the rigorous immigration laws on the books today. A truly comprehensive immigration reform must strive to keep smart workers, hard workers and families together.
What Should Immigration Reform Look Like?
As much as the term Comprehensive Immigration Reform (CIR) is used in the media and around dining room tables, the nuts and bolts of such reform are still a mystery. The central tenants of such reform seem to be registration with the government, a path to citizenship for undocumented workers with caveats for the payment of taxes, tight boarder enforcement. But undocumented workers are only a part of the immigration landscape. Adjustments need to be made to the traditional three avenues of permanent immigration: 1) asylum/refugee status, 2) employment based; and 3) family based immigration.
In general, reform should establish clear guidelines for permanent immigration though these avenues. Asylum/ refugee law as well as family based immigration have a deep and rich history of case law that must be drawn upon in order to fashion legislation that ends in a fair result for foreign nationals as well as maintaining order and security within the United States. A balance must be struck between efficient adjudication of asylum claims with the need to hear the merits of each case. Furthermore, a system that eases the path to citizenship for undocumented workers would decrease the instances of foreign nationals seeking less than traditional marriage partners in order to obtain a green card.
As for employment based temporary and permanent immigration, clear guidelines are long overdue. There has been troubling recent pattern of erosion of the openings for employment based permanent and temporary employment. For example, the Department of Labor has recently taken over the determination of the prevailing wage for permanent immigration petitions from the states. This process has had the practical effect of adding 15 days to one additional month of time before a green card may be petitioned for. Similarly, the USCIS and department of labor have recently tag teemed to increase the wait time and burden of proof for a valid H-1B petition. What is needed is needed from a reformed employment based system is clarity of the parameters and decisive enforcement rather than inconsistent obligat5ions and enforcement of the immigration laws.
Stand up and be heard
In order for Comprehensive immigration reform to truly be comprehensive, representatives from all immigrant communities, representatives from immigration reliant businesses as well as immigration professionals need to make their voices heard. I urge all persons with as stake in the battle to stand up and be heard in Washington D.C. as well as the local level. Only if every party has a seat at the table of reform can fair legislation for all foreign nationals and for United States citizens be won.

Here is the problem: an F-1 student working for an employer on OPT will run out of OPT upon graduation in May. The employer may wish to continue to employ the student after graduation on H-1B. The employer should file an H-1B cap petition on April 1st to ensure the beneficiary gets in under the cap. However, the worker cannot begin working until October 1st which is the beginning of the fiscal year. Does the H-1B beneficiary have to return home between graduation and October 1st? According to a recent rule issued by USCIS, the answer is an unequivocal, no.

The H-1B cap is "reset" each fiscal year (which is Oct. 1) and the regulations allow a company to file within six months of the start of the fiscal year. Hence, April 1, 2010 is the first date to file a fresh H-1B petition. The beneficiary will be subject to the cap and depending on many factors, including the economy, she may or may not make the cut. However, if the petition is approved, the beneficiary will not be authorized to accept "gainful employment" until FY 2011, or October 1, 2010. Hence, any period of "gainful employment" undertaken by the student/employee after the OPT expires and before Oct. 1st, 2010 would normally be considered unauthorized employment.

However, under a rule issued in April 2008, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested. This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be "timely filed"; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered "filed" once it is accepted for processing by USCIS.

In the context of the H-1B lottery, the petition may have been submitted on April 1st, but it will not be accepted for processing until after the H-1B lottery has been conducted. If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency's new "cap gap" rule.

April 1, 2010 marks the opening day for filing H-1B visa cap petitions for the 2011 federal fiscal year. The previous year's cap was met on December 21, 2009 at a time when the economy was recovering at a relatively steeper rate. Feedback from the USCIS during November of 2009 indicated a sudden surge in the filing of cap-subject H-1B visa petitions.

What is the Job Prospect of Highly Skilled Workers?

While industry pundits predict a slow economic recovery, the information technology field and certain manufacturing jobs are expected to make the corner in 2010 and 2011. Especially the hiring of IT professionals possessing the "right skills" is set to experience growth this year. A recently released report by Foote Partners states two important and logical observations: 1) during the downturn in the economy many companies lost good higher paid talents. These firms will try to re-acquire these talents again as the economy swings back; and 2) as the economy slowly recovers, firms will be more aggressive to "reshuffle" its IT workforce and with that comes the hiring of brighter and more technically savvy employees. These reasons will cause employers to retain more skilled labor and to seek foreign workers when they are unable to meet their requirements from the available pool of US workers.

The "Foreign Student" Element

Another force which will affect the way the 2011 H-1B visa season will be shaped is the graduation of an unusually higher population of foreign students during 2007 and 2008 academic years. The US experienced a peak in the enrollment of foreign students from India and Asia in those years. Several recent studies show that the foreign student population in the US had declined and then leveled off without growth in 2007. But a steady increase began in 2008, mostly in students seeking advanced degrees. These students will be looking for permanent employment in late 2010 and 2011 and thus will make an impact on 2011 cap season.

Will The Cap Be Met on April 1, 2010?

The H-1B visa cap is not likely to be completely met by April 1, 2010. Despite the surge in economic activity late 2009, the first quarter of 2010 experienced a regression in employment prospect. For instance the Bureau of Employment Statistics reported an increase of unemployment in January 2010. This volatility in the market place causes low confidence in corporate outlook and postponement of spending. In other words, corporations are not yet ready to embark on big projects because of the uncertainty in the short term future. While confidence in the long range remains strong, yet corporate CEOs are keeping their change in their purses on the short range.

The market will show stability in the second quarter and at the time corporations will hurry up to securing highly skilled workers. Hence, I see the cap to reach before Halloween this year.

Temporary Work Visas: A good Economic Policy for both Temporary Employment and Permanent Immigration

A recent paper published by an ecconomic think tank asked if L-1 Intracompany transfer work visas and H-1B temporary visas for specialty workers were a means to the end of permanent immigration or just low priced labor. The paper assumes the truth of the premise that the only economic and social value of the L-1 and H-1B worker program is to attract the world's best minds to permanently immigrate to the United States by holding out the carrot of dual intent visas. The think-tank's answer to this misguided question is that the L-1 and H-1B visa programs are a source of both permanent immigration and inexpensive labor. However, the true answer to this hypothetical is that neither permanent immigration nor inexpensive labor is the true economic benefit to the United States derived from these temporary work visas. Rather, the economic benefit of these temporary visa programs is an exchange of talent, ideas and mutually beneficial economic opportunity.

The Myth of LPR Status verses the Guest Worker

The first error of this article is that it attempts to juxtapose legal permanent resident status (LPR or Green Card status) with guest worker status. Legal Permanent Resident Status allows qualified aliens to live and work freely in the United States for a virtually unlimited duration. Becoming an LPR or obtaining a Green Card is the hope and dream of millions of foreign nationals around the world. Many times, obtaining a Green Card is a large step on to road to naturalization and citizenship.

Guest worker status, by contrast, is non-existent in the United States. There is no provision under the laws of the United States for a "guest worker" visa. There are temporary visas for persons without bachelor's degrees, both skilled and unskilled, who wish to work temporarily in the United States. However, these visas do not apply to H-1B and L-1 visa beneficiary's who must provide evidence of obtaining at least the equivalent of a bachelor's degree before entry. As a result of this misguided comparison, the effect of comparing the very real LPR status with the very mythical "guest-worker' status has the probative value of comparing an apple to a Sasquatch. Furthermore, there are adverse socioeconomic, political and xenophobic connotations that are encompassed within the term "guest worker" where it has been previously used in Europe.

Citing a Sixty Minutes television story from seventeen-years ago, the article proceeds to paint a picture of college educated aliens being held in servitude under squalled conditions. Any complaint could mean being fired, with the accompanying loss of visa status culminating in deportation. The grand majority of the picture painted by this article is untrue. Most L-1 and H-1B workers live in middle class housing in good neighborhoods. Additionally, H-1B employers who release their employees for less than straightforward purposes are obligated to pay for the employee's travel expenses home. These temporary visa programs provide a good standard of living for the foreign nationals involved.

The Myth of H-1B and L-1 Visas as an avenue to immigration verses fleeting employment

Citing misleading percentages and deriving congressional intent from a campaign advisor to John McCain, the article paints a picture of failure of the temporary visa programs because so many participants never receive Green Card status. However, when attention is focused on the realities of the arduous bureaucratic journey between temporary worker and LPR status, it is a wonder that as many talented temporary workers eventually obtain a Green Card as actually do.

Here is a short explanation of the bureaucratic gauntlet that must be run before an Alien may obtain an employment based Green Card. The petition for H-1B and L-1 visa workers must be almost entirely paid for by the employer. The cost to apply to the Federal Government for such a visa is usually in the thousands of dollars, excluding attorney's fees. There is a possibility that the initial petition is approved, denied or the government can request more evidence (RFE) to support the petition. Responding to an RFE costs the company even more time and money. If approved, the company gets to bring the worker over if the company pays the worker the prevailing wage. Today's prevailing wage as determined by the Department of Labor is essentially as high and usually higher than what any American in their right mind could afford to turn down in this struggling economy.

A worker awarded an H-1B or L-1 visa can apply for a Green Card after enduring the tag-team and up to eight year wrestling match for Labor Certification called the PERM process. Under this process, the Department of Labor and the USCIS team up to look for any technical deficiency in an Alien's Green Card application. The PERM process requires the employer to advertise the job opening in newspapers, the internet and to its own employees before offering the job to the Alien. If approved by the DOL, the alien is able to apply for a Green Card before the USCIS, who then double checks the alien's attestations made in the PERM process. If approved at this stage, the average bachelor's degree holding H-1B and L-1 applicant waits an additional eight years until a visa is made available to him or her. Because of all of the obstacles placed between an H-1B or L-1 visa holder and LPR status, many employers and aliens never get around to, try and fail, or lose interest in obtaining LPR status.

Finally, the article complains that O-1 visa holders, for aliens with outstanding abilities, make up so few of the eventual LPRs. The reason for the small number is because not many O-1 visas are given out in the first place. It is in fact very difficult to live up to the qualifications needed for any visa that is available for aliens with extra-ordinary abilities. Therefore, the process between temporary worker and Green Card holder has the effect of blocking as many talented aliens from Green Card status as possible, a difficult burden to overcome.

Continue reading "Temporary Work Visas: Good Economic Policy for Both Temporary Employment and Permanent Immigration" »

USCIS is critical of some H-1B specialty occupations so the H-1B lawyer must be detailed in crafting the job description and submit extensive documentation to have a chance at success.

Many U.S. employers utilize the H-1B visa program as the primary method of hiring professional level foreign employees. An H-1B visa allows foreign workers to work in the U.S. in a specialty occupation for a total of six years. A specialty occupation is one that normally requires a college degree. There is no requirement that the employer demonstrate a need for foreign labor due to a shortage of qualified U.S. workers. This is what differentiates the H-1B program from other immigrant cases. The employer simply needs to show that the position offered is in a "specialty occupation." However, matching the job title with the relevant academic credentials can be tricky and poses traps for the unweary.

For example, generally a computer programmer will qualify as a specialty occupation so long as the employee possesses at least a four-year bachelor's degree. However, a credit analyst can qualify with minimal education (no degree) plus work experience. Whether USCIS requires a four-year degree, master's degree or qualifying work experience may not seem uniform and can lead employers to question whether starting the H-1B process is worthwhile.

In Columbus, Ohio farming is a part of life. The modernization of farming has created the need for highly qualified individuals to run the day-to-day aspects of the farm. Many of these individuals have gained their experience not in school, but through years of experience. USCIS has been highly skeptical of farm manager positions even though they are clearly specialty occupations in that only those individuals who have attained a college degree (or its equivalent) could be considered for the job. In reality, USCIS will generally not approve an H-1B petition for a farm manager unless the worker has a college degree. This is sad fact of life expecially for a foreign worker who has been a farm manager on a modern farm overseas for their entire life.

Furthermore, Columbus, Ohio is weathering the great recession in part because of its many thriving tech business. These businesses require qualified managers to run the business and implement policy just like the Ohio farm. However, USCIS treats Business Manager and Marketing Analysts much different than Dairy Farm Managers. H-1B petitions have been approved for Business Managers who have no college degree but who possess lengthy experience in the field. Marketing Analysts are the same.

As a general rule, if the occupation is little known, or is relatively new, expect to submit extensive documentation to convince USCIS of the true need for an H-1B worker. The H-1B petition must carefully define and describe the duties and responsibilities of the job. Our law firm has served the needs of countless organizations in processing H-1B visas. Contact one of our experienced lawyers at 1-877-479-4USA (4872).

Yesterday was a good day for immigrant entrepreneurs. Senators Kerry and Lugar introduced in the US Senate the Startup Visa Act of 2010. This new legislation proposes the establishment of a new 2 year non-immigrant visa for foreign entrepreneurs if they proved that a US investor had invested or is in the process of investing at least $250,000 into her startup enterprise. The Startup Visa Act also creates a new employment based sixth category (EB-6) if after the initial 2 year period the alien entrepreneur can show that she has created at least five full time jobs for US workers other than her family members, secured $1 million in additional investment funds or realized $1 million in business income.

Hence, this proposed legislation would create a nonimmigrant and immigrant visa categories to encourage those foreign entrepreneurs who have a concept worthy of enticing a US investor to spend at least $250,000 initially in their businesses. Hence, this law is not intended to attract capital into the US as the alien entrepreneur EB-5 program does. The EB-5 program requires the alien to show an injection of capital into the US from legal means. On the contrary, the Startup Visa Act of 2010 does not require the alien to come up with any cash at all. Hence this proposed statute attracts entrepreneurs with "good concepts" or "good business ideas." In today's economic environment, US investors are only enticed by feasible concepts backed by strong potential. Senators Kerry and Lugar believe that there still exists sufficient good will in America that would recognize hopeful business concepts brought in by foreign entrepreneurs, and that it is in the US' best interest to create a path to citizenship for those aliens who introduce them.

Continue reading "The StartUp Visa Act of 2010 Good News for America - An Immigration Lawyer Perspective" »

Ohio healthcare industry vigorously participates in the H-1B visa program. After all, the Appalachian Region, an area rich in healthcare workers serving in H-1B visa status, begins in Southern Columbus, Ohio and extends on south into the States of Kentucky and Tennessee. The Appalachian Region contains remote rural poverty stricken areas where H-1B healthcare workers provide valuable services to those communities. The US Department of Health and Human Services have recognized many pockets in southern Ohio as "underserved areas" where immigration is encouraged. Many healthcare workers whether they are Physicians, Dentists, Occupational or Physical Therapists, or Speech Pathologists begin their immigration journey by serving in one of these remote rural known shortage areas in H-1B visa status. In fact our firm represents several major healthcare organizations who place healthcare workers of all kinds in several such areas. If you talk to human resource professionals in these firms they will tell you that they are constantly looking for qualified healthcare workers to take up positions in these remote and underserved areas. They do not focus their search on foreign H-1B visa workers, they will be just as happy to locate and place any healthcare worker in a medical facility located in the Appalachian Region or in any other such known shortage areas.

These placement firms provide a much needed "missing link" in that they constantly search for qualified and dedicated healthcare workers in the medical or allied medical fields and place them where they are needed the most. Often times they fill these positions with H-1B visa healthcare professionals. This process has been ongoing in the US for decades and worked very well. Congress and the USCIS have encouraged the placement of foreign H-1B visa workers at such organizations and exempted such positions from the annual H-1B visa cap. For instance, the American Competitiveness in the Twenty First Century Act of 2000 expressly exempted positions in which H-1B visa workers may be "working at" a cap exempt employer. An example of a cap exempt employer is a non-profit organization affiliated with an institution of higher learning, as the vast majority of US hospitals are. Congress and the USCIS did so in recognition that immigration is needed more in the healthcare area. Hence, the culture of placing tens of thousands of H-1B healthcare workers at healthcare facilities by staffing firms is part of the US standard operating procedure.

Now comes Mr. Donald Neufeld of the USCIS and on January 8, 2010 issues a memorandum aimed at regulating H-1B visa workers placed at third party end client locations. The memorandum focuses on the element of "control" in the relationship between company and H-1B visa worker. For that end it establishes an eleven prong test to determine whether there existed sufficient employer employee insignia to support the issuance of an H-1B visa where the worker performs his duties at a location outside the premises of the healthcare placement firm. In essence, under the January Neufeld memorandum if the company lacked control over the H-1B visa healthcare worker's daily activities, end product, did not provide its trade secrets in the performance of the her duties, did not routinely evaluate her work, the H-1B visa may not be issued.

One cannot help but notice the clear contradiction between earlier memoranda issued by the USCIS on the same issue. Immigration law watchdog groups such as the American Immigration Lawyers Association is on record threatening to sue the USCIS for issuing a memorandum that alters longstanding legal interpretations without engaging in the "notice and comment" regulations issuance process required in the Administrative Procedures Act. So, will the January Neufeld Memo act to prevent the placement of H-1B visa healthcare workers at much needed underserved areas such as the Appalachian Region?

Continue reading "Columbus H-1B Visa Lawyer on Impact of January 2010 Neufeld Memo on Healthcare H-1B Visas Issuance" »

Shortly after the issuance of the 2010 Neufeld Memo, our firm began to assemble resources to assure that our clients comply with the additional requirements introduced by Associate USCIS Director, Donald Neufeld in a memorandum he signed early January 2010. To be candid, the numerous H-1B visa Requests for Evidence issued by the USCIS in the two years earlier provided clear antecedents to understanding what the memo was intended to accomplish. Having processed thousands of H-1B visa petitions on behalf of our clients nationwide in Columbus, Ohio and in Washington, DC, we knew that unless the Neufeld Memo is set aside or revoked the H-1B visa program has just experienced a major evolution. This entry is intended to identify systemic internal adjustments that certain companies must undergo in order to have their H-1B visa petitions approved.

Will the H-1B Visa January 2010 Neufeld Memorandum Survive Legal Attack?

At a "Collaboration Session" hosted by the USCIS in Washington DC on February 18, 2010, the legal and business communities strongly denounced the issuance of the Neufeld Third Party H-1B visa memorandum as contrary to law and to the economic welfare of the US. The American Immigration Lawyers Association, headquartered in Washington, DC is on record stating that the aforementioned memorandum does not comport with the legislative intent of the Immigration laws and regulations and that it violates the "notice and comment" rulemaking mechanism introduced by the Administrative Procedures Act. Others in the legal community stated that the application of the January 2010 Neufeld Memo has transcended or bled through nonimmigrant visa petitions, other than the H-1B visa program. They claim, for instance that L-1 visa petitions are now being adjudicated applying the criteria set forth in the January 2010 Neufeld Memo. It remains to be seen whether the Neufeld memo will survive a legal challenge as an illegal attempt by the USCIS to alter longstanding interpretations of the H-1B visa regulations. Unless this controversial memorandum is successfully challenged, the legal and business communities must, pro haste, implement certain internal adjustments in order to go on with business of retaining highly skilled international labor.

What Does the Neufeld Memo Require an H-1B Visa Petitioner to Show?

The Neufeld Memo amended the Field Adjudicator's Manual by introducing Eleven (11) prong criteria to establish whether there existed a true employer employee relationship between the petitioning employer and the Beneficiary when her worksite is located at a third party end clients. These criteria have their foundational basis in the common law doctrine of "Master and Servant." This doctrine establishes criteria for determining whether an employer employee relationship existed between parties. During the recent Collaboration Session held on February 18, 2010, the USCIS stated that they intended to make things easier for petitioners to understand what the USCIS is after when it adjudicates H-1B visa petitions. When examining the eleven (11) requirements set forth in the Neufeld memo, it is important to note three important fundamentals:

1. The Memo only applies to H-1B visa petitions filed where the beneficiary's worksite is located at a third party end client;
2. The Memo's requirements will apply to H-1B visa extensions, transfers as well as new petitions; and
3. The employer need not establish that it meets all of the eleven prongs introduced in the memo; however, the more prongs are met, the stronger the H-1B visa petition becomes in the eyes of the USCIS.

The eleven prong criteria ask whether the petitioning employer

• Supervises the beneficiary.
• Maintains such supervision if the beneficiary is off site. Is the supervision in the form of weekly calls? Site visits? Reporting back to main office?
• Has the right to control the work of the beneficiary on a daily basis;
• Provides tools, instrumentalities needed for the beneficiary to perform the duties;
• Hires, pays and has the ability to fire the beneficiary;
• Evaluates the work product of the beneficiary;
• Claims the beneficiary for tax purposes;
• Provides the beneficiary of any type of employee benefit;
• Provides the beneficiary with proprietary information in order for the beneficiary to perform the duties of the her employment?
• Has a line of business that is directly in line with the end product that the beneficiary produces; and/or
• Has the ability to control how the work product is accomplished?

How To Comply with the January 2010 Neufeld Memo

In our law firm, we have quickly assembled a mechanism which assures compliance with the Neufeld Memo. In fact, we have received several approvals on H-1B visa petitions where the beneficiary works at a third party end client site. We accomplished this by advising our clients to change the manner in which they manage their employees, in good faith, to meet the criteria. Here are examples of simple steps an employer must undertake as soon as possible:

Continue reading "US Immigration Lawyer Describes Program to Comply with the H-1B Visa January 2010 Neufeld Memo" »

Revised Guidelines for H-1B Employers Accepting Funds under the Troubled Asset Relief Program or (TARP)

The USCIS has recently announced updated the filing guidelines for companies that employ H-1B workers and also accepted funds under last year's Troubled Asset Relief Program or TARP. Specifically, companies that have repaid their obligations to the Federal Government must no longer endure the burden of additional attestations when hiring new H-1B employees. This adjustment is a move in a positive direction and signals a possible return to economic progress following the recent struggles in the world economy.

Background of the relationship between TARP and the H-1B Program

On February 17, 2009, the Employ American Workers Act (EAWA) was enacted, placing additional H-1B related requirements upon employers that had accepted funds from the Federal Government under TARP. These additional attestations include a statement that no US worker has been displaced by the company for 90 days before and 90 days after the date of filing of the visa petition. Additionally, the company must attest that it has made a good faith effort to recruit a US worker for compensation that is greater than or equal to industry wide standard. Finally, the company must attest that it would hire any qualified US worker for the position. These attestations can be very burdensome and detrimental to employers in this category, seeking H-1B workers.

Which H-1B Workers Are Affected by the EAWA?

The EAWA only applied to new H-1B hires by a company accepting TARP funds. This rule does not apply to workers already working for the TARP accepting company in another visa status who will be changing status to H-1B. It also does not apply to persons seeking an extension of their H-1B status. Finally, the EAWA in large part does not affect consultants who are placed in TARP fund accepting companies, but who are actually employed by a separate consulting firm.

What has changed?

Companies that have paid back TARP funds prior to the filing of a Petition for a new H-1B worker are now permitted to indicate that they have not taken TARP funds on the Department of Labor and USCIS documentation. The USCIS has indicated that additional documentation may be submitted proving the company's obligation under TARP has been fulfilled, however additional documentation is not required.

Continue reading "Revised Guidelines for H-1B Employers Accepting Funds under the Troubled Asset Relief Program or (TARP)" »

On February 12, 2010 the USCIS invited the public to participate in a "Collaboration Session" to be held February 18, 2010 (today) to discuss the H-1B Visa Third Party Neufeld Memo. Even though the USCIS only give a 4 business day notice to publicly discuss such an important matter, the meeting drew participants from all sorts of the spectrum. The Law Firm of Shihab & Associates, Co., LPA participated in this meeting via teleconference. I can candidly report to you that USCIS took on strong beating from various business owners, lawyers, law-makers, and others. Most speakers urged the USCIS to repeal and withdraw this memorandum as contrary to law and downright hurtful to the US Economy.

I had expected the USCIS to give a presentation about this Neufeld memorandum that sought to define Employer-Employee relationship in the context of third party H-1B visa employment. After all the meeting was entitled a "Collaboration Session." A collaboration implies a working relationship, a teamwork, or a group effort. At the outset of the meeting, the USCIS announced that they wished to hear "concerns" from the public, without any other introduction.

First spoke Bruce Morrison, former Congressman from Connecticut. The Congressman said that he was one of the initial architects of the H-1B visa program. It was truly amazing to hear him say that the H-1B visa program was modeled after the H-1A program which created a non-immigrant visa category for nurses placed at third health care organizations by staffing agencies. He proceeded to say Congress had envisioned the H-1B visa program to be similar in that much needed high skilled professionals will be located and placed at third party workplaces through consulting staffing firms. Congressman Morrison stated that staffing agencies are viable businesses in the US providing a much needed service in augmenting the labor force of other employers. He added that the H-1B Visa Third Party Neufeld Memo directly flies in the face of normal employment practices in the health care industry; in the health care industry, staffing agencies normally place H-1B visa physicians at remote and underserved rural areas. With the Neufeld memo, he added, these staffing agencies may not be able to employ H-1B visa physicians since they too are now subject to the rules introduced in this memo. He concluded by urging the USCIS to abolish the memo as unwise.

Another speaker was very critical of the USCIS promulgating ad hoc rules which attempt to define whether there existed "employer-employee" relationships between the petitioning companies and the H-1B Visa beneficiaries, at a time when the IRS had already determined that such relationship existed. Since the IRS has rigorous tests to determine the nature of the relationship between parties and taxes the US employer on that basis, where does the USCIS get off to redefine this relationship as this memo attempts to do?

Other speakers from the business community strongly attacked the USCIS for promulgating rules which has the effect of chilling employers from hiring H-1B visa employees; a matter which will eventually hurt the US economy as more off shoring will result. Some business speakers stated that the USCIS has no clue what the business community faces and that staffing agencies are legitimate businesses who provide a valuable service in a legal manner.

One business owner thanked the USCIS for finally hosting a meeting like this to try to understand the truth of the real world.

One particular lawyer indicated that the authorities cited in the Neufeld Memo were not used correctly and there were many flaws in the interpretation of the cases included therein.

It did not appear that the USCIS expected this strong opposition. The officials stated that this memo had been in the works for almost a whole year and that it was intended to make things easier not harder for the community. They added that they had not anticipated as strong of an opposition from the communities as the blogs clearly expressed. In one instance, the USCIS officials indicated that they are willing to look at the memorandum and perhaps "tweak" it to fit its intended purpose better.

After almost two hours of hearing the USCIS getting hammered by the legal and business communities, one could not but help notice that the USCIS truly was acting a large vacuum when it came up with these rules. It remains to be seen what the near future will hold for this controversial memorandum. Will it survive the legal challenges? At least in the context of the health care industry, the memorandum clearly does not comport to prior rules issued by the USCIS itself. Prior memoranda of the USCIS clearly sanctions the third party placeemnt of healthcare workers at H-1B visa cap exempt facilities. The question remains, how will the USCIS reconcile these conflicting rules regarding the same exact scenario? Was the Neufeld memorandum intended for information technology companies? It certainly did not state so.

The USCIS is a very stubborn agency and will not backdown unless they are sued. I believe that a lawsuit will eventually force the USCIS to change its mind.

The Immigrant Investor Program, also known as "EB-5" was created by Congress in 1990 in an effort to stimulate the U.S. economy through job creation and capital investment by alien investors. The EB-5 category allowed alien investors the opportunity to obtain a green card for themselves, their spouses and their minor children by making a certain level of capital investments and associated job creation or preservation. The next ten years saw the greatest economic expansion in U.S. history. However, as many alien investors have recently found out, obtaining a green card through the EB-5 program has been a relatively thorny process. As the U.S. economy continues to stumble its way out of recession, Congress should direct the Department of Homeland Security to ease their scrutiny on alien investors and open the flood gates to the EB-5 program.

As a brief overview of the Immigrant Investor EB-5 Program, alien investors may obtain lawful permanent residency (a green card) by making a capital investment of either $500,000 or $1 million (the lower amount is for investments in rural areas with very high unemployment) in a new commercial enterprise located within the U.S. The new commercial enterprise must create 10 full-time jobs for qualifying U.S. workers within two years of the alien investor's admission to the United States. Sounds simple, right? Not so fast my friends.

Congress allocates approximately 10,000 immigrant visas per year to the EB-5 category (this includes visas for spouses and minor children of investors). However, less than 1,000 visas are issued annually. This is due to a number of factors, including program instability, the changing economic environment, and more inviting immigrant investor programs offered by other countries. This program was designed to infuse new capital into the United States, yet it has been highly underutilized.

One subgroup of alien entrepreneurs have been particularly stranded by Congress. Those EB-5 investors whose Forms I-526 (Immigrant Petition by Alien Entrepreneur) were filed and/or approved between January 1, 1995, and before August 31, 1998 have had their cases put on the shelf because final regulations to implement the 2002 EB-5 legislation have yet to be promulgated. These alien investors have had to file suit against the U.S. government to no avail. Until the regulations are promulgated, they will continue to wait in limbo. In light of the current economic downturn, Congress has the opportunity to finalize the regulations and allow these companies to operate in the U.S. As it stands, many such investors are turning away from the U.S. and bringing their business back to their home countries, abandoning the "American Dream."

Competition with other country's Immigrant Investor Programs (especially Canada and Australia) has also caused a lack of interest in the EB-5 program. From 1998 until 2007 the U.S. never issued more than 1,000 EB-5 visas. During the same time, Canada has never gone below 3,000 and almost reached the 10,000 cap in 2005. Unlike the EB-5 program, Canadian Immigrant Investor Program is a passive program: a qualifying investor is not required to open a business, or hire and manage employees. Rather, the investment itself is assumed to spur significant economic activity and create jobs. The 1998 AAO precedent decisions further restricted the EB-5 category. This clearly affected alien investors' attitudes on their decision to invest in the U.S. as opposed to other countries.

In 2005, USCIS announced its intention to re-invigorate the EB-5 program. This increased the visa applications and attracted new attention that the EB-5 program may be on the mend. There are still delays in EB-5 processing times. USCIS must establish a regulatory and administrative environment to promote investor confidence that the program can be relied upon.

Continue reading "The Immigrant Investor Program: A Pipe Dream?" »

Several scenarios may cause an H-1B visa holder to become unable to transfer her petition to another employer. If the H-1B visa worker is laid off, terminated, works less than the hours specified in her H-1B visa petition, or if she does not receive compensation for the work she actually performed, the H-1B visa holder may lose H-1B visa status. If the H-1B visa holder is deemed "out o f status" she will not be able to transfer her H-1B visa to another employer.

"Out of Status" vs. "Unlawful Presence"

Generally, if a person falls out of status, they could not get back into status and remain in the United States at the same time. Departing the US when the alien is "out of status" and "unlawfully present" will give rise to serious visa complications. Overstaying in the US beyond an alien's maximum allowable period causes the alien to become "unlawfully present." Hence, unlawful presence occurs when a person stays in the US beyond the date specified on one's Arrival/Departure record Form I-94 or I-797 visa approval notice.

Unlawful presence could trigger certain statutory bars from future immigration benefits; but such statutory bars happen only upon the alien's departure from the US, not when the person remains in the US. For instance accruing unlawful presence for more than 180 days AND departing the US causes the alien to be barred from receiving future immigration benefits for three (3) years. Accruing unlawful presence for more than one year AND departing the US causes the alien to be barred from receiving future immigration benefits for ten (10) years.

Being "out of status" is not the same as being "unlawfully present." As stated, unlawful presence occurs when the alien remains in the US beyond the validity date on her I-94 while being out of status occurs when the H-1B visa worker fails to adhere to the conditions of her status. Hence, it is critical that the alien makes the decision as to whether depart the US when she is out of status or unlawfully present carefully with an experienced immigration lawyer as mistakes at this stage maybe extremely costly.

Example:
An H-1B visa holder had an I-797 approval notice for Company "A" which expires on April 12, 2010 and she was laid off on September 1, 2009. If this H-1B visa holder was unable to transfer her H-1B visa by the date of this blog entry, then she will currently be deemed "out of status." Remaining in the US beyond April 12, 2010 will cause this person to become unlawfully present. If she remains unlawfully present after October 12, 2010 AND departs the US afterwards, she will be barred from receiving future immigration benefits for 3 years. If, on the other hand, she remains in the US after April 12, 2011 AND departs the US afterwards, she would then be barred from receiving future immigration benefits for a period of 10 years. But if she departs the US prior to April 12, 2010, she would not be subject to any bars and may conceivably return to the US immediately. You can now begin to see how serious unlawful presence can be.

Solutions

If an H-1B visa holder is deemed to have become out of status for any reason, she could not get back into status unless one of the following solutions are applied:

1) File an H-1B Visa Petition "nunc pro tunc:" If the H-1B visa holder finds an employer who is willing to file a petition requesting that her status be re-instated retroactively, within the sound discretion of the USCIS, then she could be able to get back into status without leaving the US. The petitioner and the H-1B visa holder will have to submit evidence showing that her visa violation was unintentional and "technical" in nature; that the circumstances of her going out of status were out her control; that she has not otherwise violated her status; and that she remains a bona fide nonimmigrant. The longer the out of status period, the less likely that the nunc pro tunc petition will be approved.

2) Consular Process an H-1B Visa Stamp Upon the Filing of an H-1B Visa Petition with a New Employer: In the example recited above, suppose this H-1B visa holder is finally able to find an employer who is willing to sponsor her on February 14, 2010, a nice Valentine's Day present. At this point, the H-1B visa holder is out of status but she had not accrued any unlawful presence (see above).

a. Not an H-1B cap Case: Note that this H-1B visa petition is not subject to the cap because the alien held an H-1B status or visa within the previous six (6) years.
b. H-1B visa Porting Unavailable: this person would not be able to join the new employer upon the filing of the H-1B visa, hence she would be unable to take advantage of the H-1B visa portability provisions of AC21, because the second requirement: that the H-1B visa petition was not filed prior to the expiration of her status.

Continue reading "Immigration Lawyer on Solutions for Out of Status H-1B Visa Holders" »

Did H-1B visa holders returned at the Newark International Airport have anything to do with the recent Neufeld Memo?

I always say that news agencies thrive on bad news! The same goes for the recent incident at the Newark International Airport where earlier this month certain H-1B visa and L-1 visa holders were returned apparently after Customs and Boarder Protection (CPB) officers determined that these H-1B visa holders were not eligible to enter the US.

The American Immigration Lawyers Association posted on its website that members informed it that some H-1B visa holders were returned by CPB officers when they attempted to enter the US late last month through the Newark New Jersey airport. The news hit the internet like a frenzy and I began receiving calls from clients with concerns that the CPB officers in fact were already implementing the third party Neufeld memo on arriving H-1B visa.

Apparently AILA reported that a meeting with CPB officers indicate those returned were employees of companies that had been under investigation for possible fraud. In other words, the USCIS had been investigating the employers and had placed the employees on the watch list which precipitated the CPB officers to question the arriving employee. Once these employees arrived, they were questioned further and were returned.

It is important to note that these situations happen every day and that the Newark International Airport is not singling H-1B visa holders in an effort to enforce the Neufeld Memo.

New Inspection Policy

One thing that was revealed in the recent communications with CPB officers is that a new policy was instituted at the Newark International Airport whereby H-1B and L-1 visa holders will randomly be detoured to a secondary inspection process and are further questioned about their employers. The information that was relayed through AILA is that if the CPB officers believed there were discrepancies in their answers that the employee will be asked to withdraw his request to enter the US by leaving voluntarily. If the alien refused to do so, then the CPB officers will initiate expedited removal.

This is obviously very concerning because now CPB officers are acting as Judge and Jury in understanding what our clients do and whether their answers raise any flags. I can enumerate many situations which may raise concerns for an untrained CPB officer. For instance, some of my clients are "roving employees" who travel from one end client site to another; as such they could cause concerns that they are not necessarily "working" at the main office of the petitioning employer. Some of my clients may appear nervous during a second inspection in front of an overzealous officer, a situation which may cause the CPB officer to think that the employee/client is hiding something. I have had clients in situation not involving H-1B visas where an overzealous and undertrained CPB officer really made life very difficult for an exhausted client who had been on an air vessel for 15 hours.

These situations underscore the need for more training for CPB officers so that they are aware of all the possible situations which a bona fide H-1B visa worker may be engaged in. In addition, more training is needed for the H-1B visa employee so that the know how to confront these situations better. More on this in the near future.

Continue reading "Immigration Lawyer Comments on H-1B visa Holders Returned at Newark International Airport" »

When I think about all the green card PERM applications that I filed on behalf of my clients throughout the past 17 years few steps come to mind that are worthy of special note. Earlier on in my career, I am fortunate to have been mentored by some of the best immigration lawyers in the country. One once told me, "when you draft a PERM application, remember to remind your client that his green card resides within the certain fields in the application form itself." Said differently, the manner in which the PERM labor certification application is planned earlier on is the most foundational cornerstone of a successful green card application.

A PERM application is intended to test the market to make certain that there are no US Citizens who meet the minimum qualifications for the position and who are willing to accept the particular job. Hence, it is essential that the actual minimum requirements for the position are identified and are reflected in the application. It must be noted that the recruitment campaign inherent in the PERM labor certification process is fictitious in nature; that is to say that federal regulations require the recruitment to be undertaken by the employer, however, no US Citizen will be in fact employed even though one may be found to qualify for the position.

A successful PERM green card application is one that creates an early partnership between counsel, the employer and the employee whereby the flow of information is maintained at the highest level to assure that the application reaches the optimum point in content. These cardinal rules prompted me to write this blog article on how experienced immigration counsel should plan out a successful PERM application:

1. Initial Meeting with Employer & Employee: This meeting is crucial to set forth the entire process, to identify the stakeholders in the process and their respective roles and to normalize expectations. This meeting must be undertaken at the initial steps in the PERM labor certification process.

2. Date Collection stage: This is another foundational stage which focuses on the position itself, the potential minimum requirements; remember a strong PERM application is one that reflect the true minimum qualifications about the position and these qualifications will be discovered through this step. Counsel should find out what skills the alien possessed prior to her employment with the employer. After all, it is this particular alien who was chosen for THIS opportunity and her particular background certainly played a role in her selection.

3. Case Workshop Stage: The case workshop is a "brainstorming" session undertaken by the lawyer, the employer and the employee. The objective of this session is to bring together all of the information gathered and to share what the law allows, what the employer was looking for, and what the employee may offer in the way of educational and professional credentials. The combination of this information will come to the forefront during the case workshop meeting. Counsel will lend his knowledge as to what the law will allow as far as the selection of the minimum requirements. The employer, on the other hand knows what particular skills are important to perform the duties of the position successfully. The employee knows what she is able to offer in the way of prior experience.

4. Drafting the Application: Once the PERM case workshop is complete, the immigration lawyer should now be armed with sufficient information upon which the PERM application will be drafted. Once the application is drafted, the lawyer is now able to propose the language for the advertisement which will be used in the recruitment campaign. One now should be able to see the value of the additional time spent earlier in the planning of the PERM labor certification process.

5. The Recruitment Campaign: There are certain recruitment steps undertaken in the PERM labor certification regulations. These steps are mandatory and must be undertaken. What we have control over is the actual language included in the advertisement. The law allows the employer to draft either broad or specific advertisement language so long as it is done in good faith. I personally prefer that the language of the to be as specific as possible so that the resumes received from US Workers maybe quickly evaluated and addressed.

6. The Audit File: Contemporaneously with the lawyer should prepare an audit file as experience shows about 37% of all PERM cases will be audited. It is best to make certain that all recruitment steps, prevailing wage reports and other relevant documents are placed together in one central place. It will make easier to disseminate to the US Department of Labor should there be an audit in the future.

7. Filing the PERM Labor Certification Application: A draft of the application must be sent to the employer and employee for review prior to filing. An experienced counsel will also have the application reviewed in house by another attorney to make certain that there are no typos or missing information. You can see that this is a critical process and one that does not allow room for errors.

These are the steps that must be taken in order to assure that the optimum application; one that captures the best information regarding the position and the employee's credentials. Without these steps, lawyers are left to guess these issues by looking at the employee's resume, a fact which, in my mind, will compromise the employees interests in the process.

Continue reading "Columbus PERM Attorney advises on How to Process A Successful PERM Application?" »