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February 24, 2015

H-1B Visa Audit Update: Navigating the Unprecedented World of an Absconded H-1B Employee

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A recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn't unique. The case law in this area seems to muddle the facts without clearly addressing an employer's obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer's obligations is in order.


When does the Employer's Obligation to Pay an H-1B Visa Employee Terminate?

The LCA obligates employers to pay H-1B employees an amount at least equal to the "prevailing wage" for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.


The Facts of Our Case

In our case, an H-1B visa employee filed a complaint against our client, her employer, with the DOL. She alleged that the employer failed to pay her in accordance with the LCA. After a lengthy (and faulty) investigation, the DOL administrator alleged that none of the payment exceptions applied to the employer. In making this claim, the Administrator relied on the holding in Gupta v. Compunnel Software Group, Inc. that the burden of proof (to show that the payment obligation exception applies) rests on the employer. In this view, the employer must show that it had work that the employee was unwilling or unable to complete.

Additionally:

  • The employee had an F-1 Optional Practical Training (OPT) work authorization, and its validity extended eight months into the start of her H-1B status.

  • While her OPT was still valid, she was placed as a consultant at one of the employer's vendor's work sites, but she lost this opportunity, arguably due to her own actions. This opportunity was going to extend into the approval period of her H-1B.

  • After her H-1B became valid, she absconded and was patently unavailable for employment because she was unresponsive to the employer's attempts to market her for a new employment assignment.

  • She moved to stay with her lover in Chicago (which is over 600 miles from her employer's worksite). They later relocated, married, and divorced after four years.

  • Finally, several years after her disappearance, she contacted the employer requesting some documentation. At this point the employer proceeded to effectuating a bona fide termination.

Because no case law provides relevant guidance, this case presents two pertinent legal issues in the H-1B program:

1. Whether the DOL has Jurisdiction over H-1B non-immigrant Employees with Concurrent Immigration Statuses

Generally, immigration statuses fall under the authority of the Department of Homeland Security (DHS). However, the H-1B program carves a separate function for the DOL, pertaining to approving the LCA for H-1B workers. An even more specific framing of the issue demands examining whether the DOL has jurisdiction over non-LCA related cases. The short answer is "no."

OPT is an employment authorization that is approved by the USCIS, an agency under the DHS, for a period of 12 months (or 18 for STEM students). USCIS has the authority to make all procedural and investigative decisions pertaining to OPT authorizations. Because the DOL does not have any authority here like it does in H-1B cases through LCA approvals, it does not have concurrent jurisdiction.

Thus, in our case, the DOL lacked the jurisdiction to assert any back wage liability on the employer because the employee's immigration status when she fled (OPT) fell only under DHS authority.


2. Whether the Obligation to Pay the Prevailing Wage still Rests on an Employer if an H-1B Employee Refuses to Avail Themselves to Employment by Patently Failing to Respond to the Employer

The DOL Administrator relied on the holding in Gupta v. Compunnel to set forth the argument that the employer was obligated to pay the employee. Under this test, the employer must first show that the employee had a job assignment--and then show that the employee did not avail themselves to that assignment. The case at bar presents a separate set of facts.

In our case, the employer placed its employees to work at its clients' worksite on a contractual consulting basis. An employee must interview with the employer's clients before any job placement can occur. This is a common practice. The H-1B employee instead disappeared and was unresponsive to recruitment calls.

The Gupta reasoning and holding should not apply to this case because it is impossible to show that the employee had a job assignment because it was impractical for the employer to compel the employee to pick up recruitment calls, given that she had basically disappeared. Also, to bend the facts of this case to fit around the test set forth in Gupta would be placing an undue burden on employers by forcing them to be responsible for employees' actions (or inaction).


Our View of the Matter

In the absence of applicable precedents, the letter of the law trumps. The text of the exemption statute reads:

If an H-1B nonimmigigrant experiences a period of nonproductive status do to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative)... then the employer shall not be obligated to pay the required wage during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.

In this case, the H-1B employee voluntarily placed herself in non-productive status by leaving her site of employment to be with her lover in another state, relocated (easily characterized as touring), and her actions (following her lover) and inactions (not picking up recruitment calls) were undoubtedly not related to her employment. Thus, we believe a payment exception should apply. A court's ruling on this case would be the first time the general issue is properly addressed.

February 21, 2015

The Errors in the Ruling Against Obama's Plan

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This article contains our discussion of the problems in Judge Hanen's ruling on President Obama's immigration executive action plan. (The judge placed an indefinite injunction on DAPA and the DACA expansion, thereby delaying their start. The DACA expansion was supposed to begin on the 18th of this month.) As we have made clear in another article, we expect this ruling to be reversed. This article contains the bulk of why we are confident that the administration will prevail in the end.

At the center of this case is the whether the administration is acting within its legal authority to expand DACA and create DAPA. But, the issue of standing (which in this case is whether the states the plaintiffs represent have been harmed by the action) must be settled first. A sheriff in Arizona recently tried to sue the administration on similar grounds but the case was thrown out because he couldn't prove that his ability to enforce law was harmed in any way. Judge Hanen, on the other hand, did grant the plaintiffs standing, in part by agreeing with their view that the states will have to pay to educate "illegal alien children" as a result of the administration's actions. This disregards the Supreme Court's ruling in Plyler v. Doe that it is a constitutional requirement to educate all children. Thus, this particular "harm" comes from nothing less than the Constitution. In general, we think that there is no true injury done to the 26 states on account of the executive orders. Further, when Mississippi sued the administration over the original DACA plan in 2012, the courts found that the state could not demonstrate any harm done to it either--and threw the case out.

Even if standing is assumed to be a non-issue, there are still problems with Hanen's ruling. The heart of it deals with an alleged violation of the Administrative Procedure Act. This act holds that some proposed or forthcoming executive rules must be published in the Federal Register, allowing for dialogue with the public before implementation, which can take many months. There is no wide agreement or clear-cut Supreme Court guidance on what needs to be put through the Federal Register, so his ruling isn't absurd. That he gets it wrong, however, isn't difficult to discover.

The publication requirement only applies to binding, new rules, which are called "legislative rules." It does not apply to "interpretative rules," which are just guidelines or clarifications of policy. The administration argued that the initiatives in question fall under "interpretative rules," and we share this view. Judge Hanen instead ruled that they fall under "legislative rules" and that granting work permits to undocumented immigrants under them is new policy. Thus, he concludes, they ought to have been put into the Federal Register. Because they were not, he has put an indefinite hold on them. We disagree with this view.

To begin with, granting DACA or DAPA isn't the same as conferring immigration status. It is an exercise of prosecutorial discretion, which Judge Hanen acknowledges the executive has. Though all undocumented immigrants are eligible for deportation, the executive's right to prosecutorial discretion gives it considerable leeway as to when--or even if--this takes place. For some reason or another, the government may be convinced that it isn't in U.S. interests to deport an undocumented immigrant, and when this happens it may be called "deferred action" (because the action of deportation is being postponed, perhaps indefinitely).

Deferred action programs (such as DACA and DAPA) are nothing more than dialogues between executive and immigrant, where immigrants get the chance to demonstrate that they meet the executive's criteria for not being a deportation priority. It may then respond that it's convinced, promising not to deport. But because this represents no real legal change, it could deport anyway. This is something it cannot do to those with valid status (and no violations). Changes in prosecutorial discretion have nothing to do with new U.S. policy--and everything to do with what the executive interprets is the best way to accomplish its task at promoting U.S. interests. Thus, deferred action programs fall under interpretative rules, and not legislative rules.

Once it is accepted that deferred action programs alone are only interpretative rules, Hanen's further objection concerning work permits for illegal immigrants falls apart. Current law (§274a.12(c)(14)) deems that those who are in a state of deferred action are eligible for work permits. While they may sound similar, referencing an existing law is very different from creating a legislative rule. It is difficult to see how Hanen arrived at his conclusion with all this in mind. Because the immigration plan did not need to go through the Federal Register, we find that Hanen's injunction is groundless.

February 21, 2015

Analysis of Injunction Against New Deferred Action

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On February 16th, a judge in Texas issued a temporary injunction against parts of the President's immigration executive action plan, including DAPA and the DACA expansion. This means that they cannot take effect until this court or a higher one eventually rules in favor of the Obama administration or puts a stay on his injunction (which would essentially cancel it). This also means that we had to update our post from February 6th, which talked about the changes' planned start on the 18th and how to prepare for them. However, the post's main point is still that the administration was expecting the programs to go on without serious difficulty. It did so knowing about the legal challenges, meaning that it likely viewed them more as political frustration than valid legal analysis. This is an assessment that we share.

Shortly after the initial announcement, a group of Republican Governors and Attorneys General from 26 states got together to file a lawsuit against it. While there are many potential reasons this group of Republicans could have spent so much time fighting the executive action, it is likely not based on a true understanding of economics or the law. (We have written articles on why we think the action is both legal and economical.) So, the fact that they succeeded in at least delaying it may come as an unfortunate surprise for the plan and the millions of people who would benefit from it. However, some analysis will show that this ruling is little cause for concern.

There are two keys to understanding the ruling. The first is the identity of the judge: U.S. District Court Judge Andrew Hanen. This judge is known for calling Obama's immigration enforcement policy "dangerous and unconscionable" and for saying that his administration "should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws." He has also taken the opportunity to issue general swipes at U.S. immigration policy in several rulings, even though the cases did not require his opinion on those matters. The second is the nature of the way the case wound up in his lap.

Because their suit is against the federal government, the plaintiffs were able to file it in any U.S. District Court in any of those 26 states. Thus, it should not come as a surprise that they chose to file in Hanen's court. When it became publicly known that the suit would go through him, several observers took considerable note. Some complained that it was an unapologetic case of "judge-shopping."

Hanen responded to this by suggesting that his district's inclusion of a border-town (Brownsville, Texas) makes him an ideal judge for case, in part by giving him valuable insights on the topic of immigration. "Talking to anyone in Brownsville about immigration is like talking to Noah about the flood," said Hanen. This fails to consider that there are many border towns and that Brownsville isn't the biggest crossing point. In fact, a neighboring judicial division covers almost twice as much border and contains two thirds of the Rio Grande Valley, which Fox News recently said is being "flooded" by an "endless wave of illegal immigrants." However, had the case been filed there, the plaintiffs wouldn't have gotten Judge Hanen.

Admittedly, the above isn't sufficient to show that Hanen's ruling is bunk, let alone that it will be reversed. So, we have examined the ruling in a separate article. Mindful of this analysis, we expect that the administration will ultimately win on appeal. In fact, the Circuit Appeals Court in New Orleans may soon put a stay on the injunction, allowing the plan to go ahead while the appeal is pending. Thus, we believe this to be only a minor setback. Those who will be eligible for DAPA and the DACA expansion should continue preparing to file. We published recommendations for doing so in the article from the 6th.

There are two closing points. The first is that there may soon be a spike in Notario activity, given that many undocumented immigrants were expecting to be able to file under these initiatives. A great deal of them may be confused as to where they stand, which is what the Notarios took advantage of at the start of DACA. We have an article about Notarios here. Lastly, this ruling does not affect the original DACA program. Those who were in the process of filing DACA renewals can go ahead as planned.

February 16, 2015

The Advantages of Using a Regional Center (for EB-5)

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EB-5 is an immigration option for those with the resources to invest in U.S. job creation. It allows an immigrant to be eligible for permanent residence if he or she invests at least $1,000,000 in the U.S.--and with it creates at least ten jobs. (The monetary requirement is half if the investment is made in a designated "Target Employment Area," which is either rural or suffering from an unemployment rate at least 50% higher than the national average.) There are two ways to do this: by going it alone with individual or "Direct" investment, or by using a Regional Center. We have said before that those who wish to immigrate in order to invest should use direct investment, while those who want to invest in order to immigrate should consider using a Regional Center. Both sides have their advantages, but the Regional Center option is viewed as a safer bet--with greater support from others--than the alternative.

A Regional Center is a government approved economic entity that takes in foreign investment and outputs domestic job creation. In contrast with EB-5 Direct, Regional Center immigrant investors do not need to be more than minimally involved in managing the investment. Most Centers boast several apparently effective schemes for protecting and returning investor money, each with varying levels of risk/potential reward. However, it is not possible for an immigrant investor to avoid risk altogether. (The government requires that the money be at risk for green card eligibility.)

Another key attraction of the Regional Center program, as opposed to EB-5 Direct, is its more inclusive definition of job creation. Under EB-5 Direct, all ten required jobs must manifest themselves as actual employees of the company or enterprise being invested in by the immigrant. These are called direct jobs. However, for Regional Center investors, "indirect" jobs may also be counted.

To be countable, an indirect job only needs to exist as a result of economic activity produced by the investment. These jobs often come from businesses that emerge in order to service the direct job creator. While obtaining a green card is easier with the ability to count indirect jobs, it is somewhat difficult to prove that their existence is due to the investment. But that's why successful Regional Centers often have access to state-of-the-art economic impact programs that can calculate indirect jobs based on the quantity and qualities of already created--or planned--direct jobs. However, the more a Center relies on indirect jobs, the weaker its ability to prove its connection to them becomes.

Getting the investment process started can be easy. Several websites host a list of approved Regional Centers and their contact information, like this one: http://www.eb5greencard.com/regional-centers/regional-center-list.php. Many Centers have quality websites and market themselves well, but unless an immigrant is sure that a particular one is a good financial bet, several precautions should be taken. It may be a good idea to hire an expert to evaluate its history, financial situation, and investment offerings. However, some things must be ascertained before a foreign national commits to invest. They are

  1. The reputation of project leadership;
  2. The Center's business plan and economic impact calculation methods;
  3. How long the average investor's funds are used;
  4. The immigration success rate of people that have used the Center;
  5. How it plans to extract the correct amount of money from the project (to be returned to investors); and
  6. What financial securities investors have.

While the immigrant's making a profit is very important, the main issue here is his or her ability to achieve unconditional permanent residence. In order for all of a Regional Center's immigrant investors to fulfill the requirements of the EB-5 program, there needs to be at least ten times as many jobs created as there are constituent investors. It is obviously possible for this to not happen, and there must be a plan for this event. These are matters that an immigrant investor and his or her immigration attorney should discuss before any concrete plans are made. The Law Firm of Shihab and Associates has never lost an EB-5 case--and is happy to assist new clients.

(It is also possible for an immigrant investor to start a new Regional Center. If this is done well, he or she should be able to "have cake and eat it too" by having control over the project while reaping most advantages of using a Regional Center. Check out our article on the subject here. In addition to this, we have two articles on EB-5 Direct here and here.)

February 10, 2015

Two Potential Issues with Alien Workers

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Something that all H-1B and EB-2/EB-3 immigrant sponsors must keep track of is compliance with labor condition application (LCA) regulations. The labor certification process is designed to protect U.S. workers in two ways. It makes sure that aliens aren't taking jobs that qualified U.S. workers are seeking and aren't working for less than the usual or "prevailing" wage in their position. In simple terms, U.S. immigration policy tries to give employers no economic incentive to hire foreign workers (except for qualifications and desire for the position). LCA enforcement is how this is accomplished, and the Wage and Hour Division of the Labor Department (WHD) will initiate investigations if it suspects any lapse in LCA compliance. Penalties for violations are mostly monetary--but may include the loss of a company's ability to hire foreign workers.

The plight of delinquent companies that knowingly violate LCA regulations isn't the focus here. There are many companies that apparently didn't know that they were in violation--and went on to contest their violations. (In fact, the only time the public hears about the details of one of these cases is if a violation is contested and the case goes to hearing.) Here are some common LCA issues employers sometimes stumble into.

  1. Employers can get in trouble for deferring paying labor-certified employees--as may happen during a contractual disagreement, even with full back-payment coming as soon as an agreement is reached. The WHD is all too eager to view things like this is as employers giving themselves more leeway with alien workers (than with U.S. ones). The payment arrangements detailed in the approved petition should be followed. If this isn't possible, any deferred payment should come with interest, at the very least.
  2. The specifics of the employment plan must be hammered out long before the employee is expected to start work. He or she must be prepared to carry out the agreement detailed in the approved petition--or redo the whole petition process.
  3. H-1B workers must be paid with U.S. currency. There have been cases where initial payments were made in foreign currency through overseas accounts. This has been found to be an LCA violation on several occasions.
  4. Not only must employers pay H-1B filing fees, they must pay all recruiting fees--if there are any--even if the recruitment happened overseas. The employer must bare nearly all the burden of receiving the foreign worker.

FDNS Investigations

H-1B and EB-2/EB-3 employers must also be able to show that a "bona fide" (or actual) employment relationship exists--and that everything is as it seems on the approved petition (in other words, that there is no fraud). Enforcement of this falls to the Office of Fraud Detection and National Security (FDNS) at the State Department. Its investigators visit and conduct interviews with workers as well as officers, sometimes without giving the officers enough time to prepare workers for said interviews. Extra care should be taken to prepare for them because they can be the deciding factor on how the government views a case.

Sponsor company owners or other higher-ups may be held personally liable for foreign labor violations. Sole owners, and/or those who controlled matters of staffing and salary (during the violations), are most vulnerable. (It can also be expected to happen to those who ignore corporate regulations, including but not limited to, intermixing corporate and private funds or working through many interchangeable business entities.) Thus, the following tips may prevent much personal difficulty in an FDNS situation.

  1. Consult immigration council as soon as FDNS interest in the company becomes clear. Determine the purpose of the visit, collect investigator contact info, and tell him or her that the company needs to have a conference with counsel before any personal information is given. (Investigators should be told that the company will get back with them within the next few days.)
  2. All the information supplied on form I-129 (and supporting documentation) should be easily verifiable by any investigator.
  3. Have a go-to person in charge of LCA and FDNS inquiries. This should be the person signing as the company representative on USCIS forms.
  4. There must be an established and readily communicable hierarchy of supervision, detailing who supervises the foreign worker, and who supervises that person, etc.
  5. Give foreign workers a protocol on responding to government inquiries, in part to ensure that they don't contradict each other to investigators. The workers may be contacted at home, so they should keep a "cheat sheet" of responses there.
  6. At the end of the investigation, request a private closing conference with the investigator. Offer to provide any additional information. Attempt to ascertain how he or she thinks the investigation went, and confirm that they have no further questions or concerns.

Above all, employers should share all LCA or FNDS investigation details with immigration counsel, such as The Law Firm of Shihab and Associates. Good counsel can be the key to getting through these situations violation-free.

February 6, 2015

Deferred Action Update

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Citizen and Immigration Services (USCIS) has released an official update on the President's immigration executive action plan's enforcement rollout. (These details were unofficially released with the plan's original announcement last November.) USCIS' posting of this update represents its expectation that the mentioned changes in immigration enforcement are here to stay--and that it is working to implement them. The publication mostly concerns its aspects addressing undocumented immigrants.

On February 16th, a judge in Texas put a temporary hold on these parts of the plan. We have a general analysis of the situation here--and a review of the problems in the judge's ruling here.


DACA Expansion

Deferred Action for Childhood Arrivals, the program that allows certain aliens--that are otherwise deportable--to defer the initiation of removal from the country, will soon be expanded and updated. Previously, it covered a very specific group of people. It was only for undocumented immigrants (1) born since June of 1981 (2) who were taken to the U.S. as children 15 or younger (3) that have maintained a continuous U.S. presence since June of 2007. The expansion has made it so that all undocumented immigrants can apply to defer action--regardless of current age.

Undocumented immigrants will still have to show that they came before the age of 16--but now only need to prove continuous presence starting January 1st 2010. In addition to this, all periods of deferred action will span three years instead of the former two. Concurrently granted employment authorization documents (EADs or work permits) will also cover three year periods. These temporal expansions will cover all future grants of deferred action. Those who wish to seek deferred action under the expanded requirements would have been able submit petitions starting February 18th, but the beginning of the program has been postponed until the legal proceedings finish.


DAPA

Inspired by DACA, Deferred Action for Parental Accountability will work the same way. Undocumented immigrants will be able to petition for deferred deportation in three-year increments, abiding by the same continuous presence requirement. (They too will be eligible for work permits.) The difference is that eligible people will instead consist of undocumented immigrants that had, at the time of the executive action's announcement, a U.S. citizen or permanent resident child. USCIS had planned on beginning to accept DAPA applications in "mid-to-late May," but this could be delayed due to the legal proceedings.


Recommendations

Petitions should be sent as soon as possible. This of course means that the required evidence must be gathered with the same haste. However, evidence of arriving before the cutoff age has been a somewhat difficult task for many seeking DACA, and it promises to be harder for those who arrived a longer time ago, as the expansion now allows. While it isn't much in terms of a legal shield, applying for DACA shows an alien's desire to follow the law (short of uprooting him or herself and moving to a land he or she hasn't called home for many years--if truly ever). While those granted deferred action are still "illegal aliens," if they receive the near-universal accompanying EADs, they no longer must work illegally. This benefit will not only reduce the risk of run-ins with law enforcement--but will bestow economic advantages as well.

Seeking deferred action can be considered a sign of cooperation with U.S. national security and immigration policy goals. While not outright stated, the inverse is probable: refusing to seek it (while also refusing to leave the country) is likely considered a sign of defiance. While unfair, the government may have an unspoken policy of "if you have nothing to hide you have no reason to avoid investigation." Thus, it is our overwhelming recommendation to seek deferred action as soon as possible. The Law Firm of Shihab and Associates stands ready to review new cases and submit at the opening of applications.

While the acceptance of DAPA petitions will not start for another few months, it is never too early to begin gathering the necessary evidence. It can be difficult to provide some of it, even that which proves the required familial relationship. It is also unclear whether there will be an age requirement for children referenced to obtain DAPA (though there will likely not be). In other places, two additional requirements have been mentioned: (1) passing a background check and (2) the payment of back-taxes. But, on these points this update is silent.

Some undocumented immigrants were brought to this country before the age of 16 several decades ago and have lived here ever since. Most of these people likely have U.S. citizen children by now, meaning that they are eligible for both DAPA and expanded DACA. For these people, it would likely be true that DACA is more desirable due to its lack of back-tax and background check requirements. However, it seems that the likelier someone is eligible for DAPA (via age), the less reliable his or her evidence of arriving before age 16 becomes. Decisions such as which program to apply under and how to fill its requirements are best left to competent immigration counsel.

January 26, 2015

Why We should Increase the H-1B Cap

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Once again, Congress is considering a bill to raise the H-1B visa cap. The sponsors of this bill are three Democrats and three Republicans, the group of six being spread out across the ideological spectrum. (The primary sponsor is Orrin Hatch, who is the 29th most conservative of the 100-person chamber, and one of the co-sponsors is tied for fifth most liberal.) One would thus think that the bill has high hopes. However, if things go the way they have the last couple of times a cap raise was proposed, the bill will be shelved before any serious progress can be made. It seems that there is a general fear that allowing more H-1B workers into the country amounts to outsourcing or otherwise harms U.S. workers. However, a plain consideration of all the evidence should lead one to support raising the H-1B visa cap.

The first point to consider is that the current H-1B cap of 65,000 (with an additional 20,000 for workers with master's degrees) is the same as the cap from the mid 90's. In other words, it's terribly outdated. The cap was first reached in 1997 and hit again in 1998. In response to this and increasing demand for IT workers, a law was passed to temporarily increase the cap to a height of 115,000 until returning to 65,000 in 2002. There were several reasons for instituting a temporary cap; one of those being the possible threat of Y2K related difficulties and outages, another being the experimental nature of Congress' intent. However, the higher cap accompanied the .com bubble's collapse and 9/11. Because of these and other issues, the political will and apparent need to import more specialized laborers was low at the end of the program, so the cap was not revisited.

H-1B visas are good for three years and one-time renewals are cap exempt, so the full effect of returning to the old cap wasn't felt until 2008. It may be a "cheap shot" to say this, but the reduction of H-1B workers in the country seems to have coincided with the financial collapse and the recession rather than a boon for U.S. workers. But this needs to be said, because there is significant opposition to increasing the H-1B cap on economic grounds.

This view is based on the claim that foreign workers "take" jobs from their U.S. counterparts, leading to unemployment and further strife. However, this view seems to ignore the labor certification process, which ensures that there is no U.S. worker attempting to get the job sought by the foreign national. It also makes sure that companies don't pay foreign workers less than they would for U.S. workers.

Some H-1B opponents seem aware of this--but are still unconvinced. They don't believe the labor certification process is effective--and instead argue that employers can still get away with paying less for H-1B labor. If this were true, one would expect H-1B petitions to increase during the recession. It would be a perfect time to replace expensive U.S. workers with cheap foreign labor. However, this did not happen, as H-1B petitions in fact decreased during this time. For fiscal year 2011's H-1B season (of petitions sent in 2010 for employment in 2011), it took almost ten months for the cap to be reached. In stark contrast, the cap was reached less than one week after the start of the most recent H-1B season.

When a company cannot hire an H-1B worker, in many cases it will not be able to proceed in the business plan or project that he or she would have worked on. The worker will likely instead work in a different country but in the same field, meaning that he or she will help a foreign company compete against an American one. If the U.S. were to allow this worker into the H-1B program rather than turning him or her away, there might be one more American innovation or marketable product. These things attract investment and create jobs requiring less specialized skills, which are ones that American workers can more easily fill.

The proposed legislation would increase the cap to 195,000 and uncap those with advanced degrees in STEM (science, technology, education and math) fields. It is our view that it should be passed right away. Under President Obama's immigration executive action plan announced last November, the labor certification process is being "modernized." It should provide greater protections for U.S. workers than the old process, so very few U.S. workers (if any) would be displaced by an increase in the H-1B cap.

January 22, 2015

Working in a "Critical Field" as a Cause for Visa Delays

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In the years since 9/11, there have been ongoing efforts to improve U.S. security and make the visa processing system more efficient. Several government agencies have teamed up to create new all-encompassing databases--and have been engaging in a continuous review of immigration and visa issuing practices. Along with new requirements in the system, such as interviews and other security checks, these things have caused ever-increasing delays in visa processing and issuing. Though apparently unexpected, this result is not surprising. However, one issue in all of this stands out as having the potential to cause much unforeseen and bewildering difficulty: the Technology Alert List (TAL) and export control.

The TAL has historically been a way for the U.S. to keep track of technologies developed within its borders that could be (violently) used against it--and to prevent them from falling into the wrong hands. The current TAL is in fact two lists in one: one is the list of "state sponsors of terrorism," and the other is the Critical Fields List (CFL). The CFL is an extensive set of fields of study and industry, each capable of producing what are known as "dual-use" technologies. The first use of a dual-use technology is for standard economic purposes, and the second is for war. The CFL consists of

Conventional Munitions;
Nuclear Technology;
Rocket Systems;
Chemical, Biotechnology and Biomedical Engineering;
Robotics;
Remote Sensing, Imaging and Reconnaissance;
Advanced Computer/Micro-Electronic Technology;
Materials Technology;
Information Security;
Laser and Directed Energy Systems Technology;
Sensors and Sensor Technology;
Marine Technology; and
Urban Planning.

At this point, the reader may be wondering how this can cause issues with visa processing. Considered alone, the CFL's connection to it is unclear. Export Control is the missing link in all of this. Products developed in the U.S., while sometimes not government property, always fall under its commerce authority. The government regulates them, and this regulation includes deciding whether foreign workers can come into its borders to work with these products.

When a foreign national (FN) starts the process of obtaining a non-immigrant visa at a U.S. Consulate or Embassy, the officers have the ability to check to see if the applicant's U.S. employment plans involve anything that might be dual-use. This is because they have the duty to check for legal inadmissibility to the U.S., and grounds for inadmissibility include an FN's attempting "to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information." This clearly includes the CFL. So, if the FN's plans in the United States involve something on the CFL, consular officers will undergo their procedure for when an FN is suspected of being inadmissible. This procedure is to create a Security Advisory Opinion (SAO).

In theory, this is only done when necessary. In practice, their policy is to always initiate an SAO unless the consular officers are 100% sure that the immigrant's plans in the U.S. aren't CFL related. If there is one created, the processing time for a temporary worker visa normally increases by at least 3-6 months, if the case isn't outright denied. Further, when the delay is due to an SAO, there is almost no way to tell. The only thing one can do about this is to take steps to avoid an SAO in the first place.

The first step is to know whether a non-immigrant's work in the U.S. could be construed as CFL related. A good way to evaluate this is to do the same thing as consular officers: just assume that it is (CFL related) unless there is a 100% chance that it is not. If it is, then the employer is advised to submit a report of technologies that the FN will be working with to the Department of Commerce, asking if they have dual-use purposes. (Not all things in the CFL are dual-use, after all.) Hopefully the answer is no, but if the answer is yes, options dwindle--but aren't exhausted yet.

If an FN with a pending visa has a CFL dual-use issue, additional evidence may be required to swing the case in his or her favor. It is advised to gather as much detail as possible on what the FN will be doing and to find U.S. sources to back this up as industry standard. This information could be brought to a visa interview and/or be included in the petition. Also, it would be very helpful to show that the dual-use aspects of the technologies the FN will be working with are already public information or able to be found in an academic course. If this is possible, then it can be shown that giving the FN trouble over CFL issues won't do the U.S. any good.

January 20, 2015

Understanding the Visa Bulletin, Part II: Detailed Explanation

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When a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition--and represents the FN's place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as "preference categories."

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five "pathways" to receiving permanent residence (or "a green card"). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of "lines." Some pathways aren't used very often, so they don't have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN's petition falls into a category that isn't at its limit--and he or she isn't of an oversubscribed nationality--the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

But for most FNs, there is a line to use their national pathway to permanent residence. This is where priority dates come into play. For each national pathway that has a line, the Visa Bulletin lists a "priority date cutoff," and only those that have priority dates before the cutoff date can petition for permanent residence. To continue the extended metaphor, the lines advance using a system similar to the one often employed in delis and the BMV/DMV. It is the one in which customers receive a number ticket and wait for it to be called out by a worker. If FN priority dates are the numbers on the tickets, the priority date cutoff would represent the number that one's assigned number must be lower than to receive service.

A pathway's cutoff is the priority date of the first immigrant that couldn't be given a green card due to a numerical limit. In a perfectly stable world, the priority date for each line would likely advance by one month in each monthly Bulletin. However, the real world is far from this ideal. In fact, sometimes a priority date cutoff will retrogress further into the past. When this occurs, some FNs who were able to petition for permanent residence have temporarily lost this ability--and will have to wait even longer.

This happens because of the government's goal with the Visa Bulletin. Instead of handing out green cards according to how long FNs have waited, the government's legal objective is to fill every category without violating numerical limits. FNs from oversubscribed nations filing in popular categories are sometimes made to wait longer so that other FNs from the same country--that are applying in less frequented categories--can get through. Those in the more popular categories can be replaced with FNs from other countries. However, those in the less popular categories often can't, getting them a fast green card at the expense of their countrymen.

This is also why some Filipinos and Mexicans have waited many years more than other groups in F cases but experience the same or less waiting time than them in EB cases, which is often none. It's true that the government could make the (somewhat few) EB Mexicans and Filipinos wait (longer) so their F counterparts wouldn't have to wait as long. But since all F categories are at their limits, FNs from other countries with family-sponsored cases would have to wait longer in the exchange. While not perfect, this would seem a little fairer.

However, it is the government's opinion that doing this would not be in the U.S.' best interests. The only possible use for the EB green cards saved (by making the EB Mexicans and Filipinos wait longer) would be for them to go to the non-oversubscribed national pathway of the EB category for somewhat less attractive workers. Theirs is the only EB category where this pathway has any waiting time. (It is the only one at its annual limit). But that pathway's priority date cutoff has already made it to 2014, so its ability to make use of extra green cards is minimal. Making EB Mexicans and Filipinos wait more than a negligible amount of time would cause disuse of EB green cards and make F green card distribution no fairer.

But more importantly, moving things around like this could create unwanted vacancies in other EB categories or violate other regulations. In truth, there is little the government can do to change how it handles immigration without a change in the law. It is true that the Visa Bulletin can appear like a bureaucratic nightmare. But when one considers the complexity and rigidity of immigration law, it looks more like an elegant mathematical formula.

January 18, 2015

Understanding the Visa Bulletin, Part I: Introduction to the System

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Immigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a "line" to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies' efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works--and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an "immediate relative" relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called "preference categories," with "first preference," etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher "preference") doesn't use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn't use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world's population, its effect is clear. People from those countries aren't going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered "oversubscribed"): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn't think that there's a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country--and how many are using the same preference category.

The DOS reports that there are around 115,000 EB petitions and over 4 million F petitions pending abroad. Added to this are many EB petitions pending for those in the U.S. on nonimmigrant visas. There are up to 800,000 people in the country on H-1B temporary worker visas, and likely at least half of them have domestic EB immigration cases as well. Trying to squeeze at least 4.5 million into 366,000 annually is going to take a long time, and new petitions are always coming in.

The somewhat unique system employed within the Visa Bulletin is effective at communicating what effect excessive demand for U.S. immigration has on waiting times. But importantly, it can't speak so well to how much longer those in line will have to wait--and it has an even smaller ability to predict how long future cases will take. However, given current law, the sense behind it becomes clear with a little explanation. In Part II we will discuss the finer points on how the Visa Bulletin's system is designed--and its effect on immigrants.

January 17, 2015

Grey Areas and Potential Pitfalls of Direct EB-5

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EB-5 is an option for employment based immigration to the United States. To gain permanent residence by it, immigrant investors must invest in U.S. economic development and save or create at least 10 jobs. Within it, there are two sub-options. An immigrant may (1) use a regional center or (2) undergo "direct" EB-5. When using a regional center, the process is more stable, but the immigrant has less control over the investment. Conversely, when using EB-5 Direct, the immigrant has more control, but the process is less clear-cut. In fact, it involves several legal grey areas and potential immigration pitfalls. However, EB-5 direct investors have an advantage: a greater apparent capacity to profit from their investment. The option is thus, perhaps rightfully, seen as high-risk-high-reward. In order to illuminate some concerns our law firm has with the process, we have compiled this list of things EB-5 direct investors should take into consideration before committing to investment.

1. When an immigrant is acquiring a company for direct EB-5, there are cases in which the business will need to grow by at least 40% in either employees or net worth for the immigrant to be eligible for permanent residence. This seems clear enough until one attempts to actually calculate the company's growth. The present total amount of employees and net worth can be easily calculable (the former more so than the latter). However, in order to show a change over time, one needs two points of time. It is obvious that the present is one of those times, but the other is guesswork. There are several potential options, including past tax returns and quarterly reports.

2. It is possible for immigrant investors to pool the investment with each other (if each immigrant invests at least the minimum amount and saves or creates ten jobs). It is also possible for non-immigrant foreign investors to be involved in this as well, so long as their invested funds are shown to have been lawfully acquired. However, it has not been officially specified what evidence the USCIS is looking for in this regard.

3. It is said in many places that immigrant investors need to create (or save, in the case of a "troubled business,") 10 jobs within two years of the start of conditional residence. But there is a significant caveat to this: when the two years have elapsed, the immigrant needs only to show that the jobs were created or that they can be expected to exist within a reasonable period of time. What is reasonable in this case? It is accepted as sufficient for the immigrant to show that the jobs will exist within one year of the end of the conditional two-years, but the upper limit of this reasonableness us unknown.

4. It is unclear how early the immigrant investor can liquidate (all or part of) the investment. In theory, he or she should be able to do so as the petition to remove residence conditions is pending. If at least 10 permanent jobs already exist (meaning the immigrant will not need to take advantage of the extra time mentioned in the prior point), the immigrant should be able to completely liquidate the investment. If the immigrant can show that the jobs will exist within a reasonable amount of time, he or she should be able to begin divesting. (This assumes the divestment won't delay the job creation.) These moves seem incautious at best, but in theory they shouldn't harm the immigrant investor's chance at permanent residence. In other words, they probably can be done--but shouldn't be if there isn't much to gain from it.

5. The immigrant investor can be paid a salary for his or her role in the business, but, put bluntly, the USCIS finds this suspicious. It appears the agency is quick to decide that the funds are divestment rather than being a fair salary. The minimum investment must be maintained throughout the conditional residence for permanent residence eligibility, so caution is necessary here. Immigrant investors that are taking a salary would thus be wise to have a lower one than average (for their role in a company of their size) and/or to not take a salary when the company is experiencing a loss.

6. When the investment is made in a Target Employment Area (rural or a place with 1.5 times the national unemployment rate), the minimum investment requirement falls to $500,000. However, when some of the investment is made in these areas while some is not, taking advantage of the lower minimum while not endangering one's pathway to permanent residence becomes difficult. The guidance given by the USCIS is not sufficient to apply to many circumstances, so immigrants should consult with an attorney before deciding that they can use the $500,000 minimum (rather than $1,000,000).

7. If an alien invests in a U.S. business on a non-immigrant visa and makes money from that investment, it is unclear if this money could be reinvested to count toward EB-5 requirements. Attempting to do so is not recommended if it can be avoided.

January 10, 2015

Buying a U.S. Business to obtain Permanent Residence through EB-5

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The EB-5 visa category is an immigration option for those who can afford to invest at least $1,000,000 in job creation or entrepreneurship in the U.S. (The investment requirement is half as much if it is to be made in a designated "Target Employment Area," which is either rural or suffering from an unemployment rate at least 1.5 times the national average.) There are two routes to accomplishing this: directly, or through a Regional Center. A simple way of differentiating them is that Regional Centers are for those who want to invest in order to immigrate, while the direct option is for people who want to immigrate in order to invest. EB-5 Direct is the method one uses when the investment is geared toward buying a business, and it allows more personal control over one's investment, giving the immigrant the chance to maximize his or her profit from the venture. However, without the guidance of a Regional Center, the process can be complex and difficult to navigate. Due to some unpredictable USCIS methods of evaluating EB-5 Direct cases, there are many ways an immigrant can err and potentially delay or lose their chance at the unconditional permanent residence that follows a successful EB-5 investment. This is an area where the right immigration council and make a huge impact in the client's favor.

For all forms of EB-5, in order to obtain unconditional permanent residence, an immigrant investor is given a two year period in the country (with up to an additional year in many cases) to show that their investment led to the creation or preservation of at least 10 jobs. One needs to only show the "preservation" of jobs if the company being bought is a "troubled business." (Out of its at least two years of existence, to be classified as "troubled," a business must have had at least a 20% net loss over the one year or two year period prior to the investor's I-526 priority date.) Things are difficult on the onset, as the immigrant investor must be able to know how the USCIS will view the acquisition of business assets. In most cases, unless the investor is purchasing a troubled business, he or she should try to avoid becoming a successor in interest of the company selling the assets.

Becoming a successor in interest means obtaining a company's tax liabilities (among other things). A buyer of all or "substantially all" goods of a business can be considered a successor in interest of that business. While the owner and the name of the business can change, the immigrant buyer can be viewed by USCIS as only continuing the prior business. In such a situation, proving that the immigrant investor is the source of any new jobs becomes more difficult. There have been cases where immigrant investors put the necessary amount of money at risk in starting a business and hiring at least 10 employees, only for USCIS to say that there was inadequate evidence of the employment criterion being met. It appeared that the USCIS suspected that the new employees of the immigrant investor were either carryovers from the prior business or just their replacements. In this sort of case, the net creation of opportunity for U.S. workers is not evident.

Worse, an investor can be treated by the USCIS as a successor in interest of the company that he or she is buying from, even when truly not one. However, there are some ways this can be avoided. The investor could

  • avoid buying all the assets of a company, allowing it to continue operating or be merged with or bought out by a third party;
  • purchase the assets from a different kind of company than one wishes to start;
  • purchase the assets from a company in a different physical territory; or
  • wait at least a year after the selling company closes to start the new one.

However, should the immigrant investor choose the route of investing in a "troubled business," this advice is reversed. Because he or she is aiming to show that the investment was the cause of a company's no longer being "troubled" and the subsequent preservation of its jobs, he or she should want to be seen as a successor in interest for that business. However, there are other difficulties. A big hurdle up front is proving that the company meets the definition of "troubled business." Further, and seeming somewhat unreasonable, the USCIS may argue that the preservation of at least 10 jobs hasn't been proved if the company loses even just one worker despite the investment. (Thus, the argument that even more jobs would have been lost isn't fail-safe.)

December 23, 2014

Problems with my Visa Stamping?

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The process of employment based non-immigrant visa stamping before a US Consulate abroad has experienced a revolutionary change--both procedurally and systematically--in the past decade by the US Department of State ("DOS"). These changes continue to evolve on an ongoing basis to improve security background measures and cross agency sharing of information. Such measures have caused consular processing to become more complex, and in some cases, time consuming. But on a positive note, the nonimmigrant visa application process itself has taken on a digital format. This digital format has streamlined the application process and caused an expeditious scheduling of the visa stamping interview. The DOS stated that its digital application process will enhance US national security and cause better cross agency communication. On another note, however, the revamped nonimmigrant visa application process and concerns for national security have caused a heightened consular practice and the issuance of letters of visa rejection pursuant to Immigration and Nationality Act (INA) section 221(g). In addition, some consular processes have exhibited heightened scrutiny of visa applications (especially in the H-1B and L-1 employment visa areas) which in some cases resulted in the consulate's return of the underlying visa petition to the US Citizenship & Immigration Service ("USCIS') with a request for revocation of the approved petition itself. In other cases, the visa application resulted in the launching of investigation by the USCIS field offices, or by the consulate itself.


What is a 221(g) Letter and What does it Mean?

When a non-immigrant avails herself to a consular stamping process, the US Consulate reviews the application and any other information available on the DOS intranet. Incidentally, that is the reason why our law firm always posts an additional copy of any nonimmigrant visa petition and any other responses to the Kentucky service Center for uploading on the DOS intranet. If the consular officer is not satisfied that she has everything in place to issue a visa, she is required by regulations to issue a letter explaining the reason for the denial, which invariably mirrors the language set forth in INA 221(g). The 221(g) refusal letter could also include a laundry list of documents that the consulate needs to make a final decision on the visa application. It is important to note that the applicant has one year to respond to the 221(g) letter with documents or information within one year from its issuance. Otherwise, the application will be deemed abandoned. In most cases, the visa applicant can submit the required information or documentation to the consulate by email.


What Happens if My Visa Petition is Being Requested to be Revoked by the Consulate?

One of the most devastating things for a foreign national is if the consular officer returns the visa petition to the USCIS with a request for revocation. This usually happens when the consulate feels that there was a mistake in the petition which the USCIS had not picked up on during the adjudication process. In such a situation, the foreign national applicant is not told that the petition is being returned for revocation. Normally, the petitioning employer receives a letter from the USCIS called a "Notice of Intent to Revoke" (NOIR). Unfortunately, months could pass between the consular interview and the receipt of the NOIR. Many foreign nationals lose their employment prospect in such situations, as many employers are not willing to wait out such long periods.

When a NOIR is issued, the employer is provided thirty (30) days to respond with evidence to overcome the attempt to revoke the approved petition. The bases for a NOIR could be simple or could be very complex requiring competent legal representation. Once the response to the NOIR is received by the USCIS it could be several more months before a decision is made. If the decision is favorable, the USCIS will send a letter to the consulate with instructions to issue the visa. If the visa is revoked, the employer has the ability to file an appeal to the revocation with the Administrative Appeals Office ("AAO") or to file a motion with the USCIS to reopen or reconsider. The employer can also seek a judicial review of the decision in federal courts.


What Happens if My Employer is Investigated?

If, during the visa application or interview process, the US Consular officer has doubts about some of the statements or documentation made in the underlying employment based visa petition, the consulate could undertake one of many several actions. The consulate could begin its own investigation by contacting local agencies, universities, employers, etc. to validate one or more statements made by the employer or applicant during the visa interview, or to validate a document attached to the visa petition. An example of that is a college diploma. The US Consulate could contact the local university where the diploma was allegedly issued to ascertain whether it was authentic. Another example is that the US consulate could contact the USCIS to request an onsite visit to the employer's premises to validate the number of employees or services offered by the employer as stated in the underlying petition. Such visits are normally unannounced and could be very disruptive to the employer's business.

These investigative efforts could take up to a year in some cases to be completed. If the result of the investigation is favorable, the US Consulate will issue the visa. But if it determines that the investigation uncovered fraud or misrepresentation in the visa petition by the US employer, it will then return the visa petition to the USCIS for revocation. It could also request that the US Solicitor's office launch additional investigations for possible sanctions. But if the investigation resulted in the finding of fraud on the part of the foreign national, it will deny the visa application with a finding of visa inadmissibility due to fraud or misrepresentation. Such a finding could have serious implications on the foreign national's ability to procure future entry into the US.


What Happens if My Visa Application is Denied?

There are numerous reasons why an employment based non-immigrant visa stamping application may be denied. Included are the following: (1) a finding by the consular officer that the applicant is not eligible for the visa requested, (2) an abandonment of the visa application by the applicant after a 221(g) letter is not properly or timely responded to, (3) because the underlying petition was withdrawn or revoked by the USCIS, or (4) because the US consulate determined that there was fraud or misrepresentation by the employer or foreign national in the underlying petition itself or in the interview process. Immigration lawyers understand that the decision of the US Consulate in most situations is absolute. That is to say, their decision may not be legally appealed. Unfortunately, too often, visa denials are the result of a consular officer's mistake or inexperience. The good news is that in some instances, the visa applicant can renew her visa application again if the denial's reasons are not serious in nature. Even if the denial was on serious grounds, the foreign national or ultimate employer may seek review of the denial by the Chief Consular Officer at the Consulate or by requesting an Advisory Opinion at the US Visa Office in Washington, DC. Such processes rarely lead to favorable results, however competent immigration lawyers can advise when such measures could be fruitful.

December 23, 2014

How to File PERM Applications for Traveling Employees

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This year marks the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department has not comprehensively examined or modified the PERM requirements and process since its inception in 2004. However, pursuant to President Obama's Executive Action on Immigration, the U.S. Department of Labor recently announced its plan to review the PERM labor certification program and relevant regulations, in an effort to modernize the program to be more responsive to changes in the national workforce.

As part of its review, the DOL has specifically stated it plans to seek input on the following, with aims of modernizing processes and improving efficiency:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility of efficiently addressing nonmaterial errors.

One factor that has led to the need for change of the PERM regulations is the advancement of technology and information dissemination. With a global workforce, it is now common to find employers headquartered in one state and employees working and residing in another. The relationship between the employer's location and the employee's location can affect the pre-PERM and PERM stages, the I-140, and the final green card application. As a result, it is essential that the employer, employee and attorney work together to create a clear definition of, and congruent expectations for, the job position (now and in the future).


Employees and Travel - What this means for PERM applications

At the initiation of the green card process, employers are looked to for a definition of job duties the employee will perform. With new trends, employees are traveling more, and what was once the traditional definition of worksite has become less clear. Traveling employees can be divided into four categories: telecommuters, roving employees, employees required to travel to non-worksite locations, and employees relocated for long-term placements. It is essential for all parties involved to understand the differences between these categories and the impact they may have upon the PERM and future applications. This clear understanding not only allows for more efficient PERM preparation, but also protects the employee from problems that may potentially arise years after the filing of the PERM application.


Four Types of Traveling Employees

1. Telecommuting employees

Telecommuting employees, or remote workers, are typically employees that work from home, and periodically report to an office. Although not typical in the U.S., workers who work 100% of the time from home are also included in this category. In this situation, it is important to identify whether the employer allows or requires the employee to work from the specified geographic location. If it is a benefit afforded to the employee by the employer, then recruitment should typically be performed in the state where the employer is headquartered, while apprising potential workers of the possibility of working from home. If the employer requires the employee to be working from home in a specific geographic location, it may be more prudent for the recruitment to take place in the geographic region of intended employment.


2. Roving employees

Roving employees are those whose job duties are characterized by frequent travel. They begin by working at the employer site, but then move around to other worksite locations. In these situations, recruitment should be done for the headquarter location. An exception may arise if the employer has other offices throughout the U.S., and the employee routinely works out of and reports to an office different than the headquartered location.


3. Employees required to travel

Employees required to travel are typically those that attend 2-3 conferences for short periods of time, travel to locations that do not constitute worksites, and do not necessarily engage in productive employment while on these assignments. In this case, the area of recruitment should be the permanent office location.


4. Long-term placements

If it is determined that the employee is one that has been relocated for a long-term project, but it is unknown whether the employee will still be assigned to the same geographic area several years from now, it has been generally agreed upon that all recruitment activities should be performed for the location in which the employer's headquarters is located. This is because, while the employee is assigned to long-term projects which may last for several years, the employment opportunity will always originate from the employer's headquarter location.

It is important to remember that each and every job opportunity is unique, and therefore must be analyzed independently to determine the best course of action in the recruitment stage. Regardless of the job duties required, it is essential that the employer apprise potential U.S. workers of the requirement for frequent of travel and or relocation to perform the job duties. Short-term non-productive travel, such as attending conferences, is inconsequential and disclosure in advertisements may not be required. International travel, however, even if only 2-3 times per year, should be disclosed to the potential employee, as international travel is more demanding than domestic.


Looking Ahead

With more than 70,000 PERM applications submitted this past fiscal year, and the change in the demand for and availability of qualified U.S. workers, it is clear that this area is ripe for improvement. Unfortunately, revised PERM rules aren't set to be finalized until spring of 2016, and as a result, employers must be able to navigate murky waters under outdated regulations. PERM applications require careful preparation, so as to ensure a smooth finish of the PERM process all the way through to the application for permanent residency.

December 23, 2014

The Uncertainties of the H-1B Cap

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Last month we discussed alternatives to the H-1B visa. One very important reason to consider all options for potential employees revolves around the uncertainties of the H-1B cap process, discussed below.

As the H-1B cap season for FY 2016 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa's available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced degrees (also known as the Master's cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past two years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within 10 days of the start of the filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master's cap will be selected first. Those that qualify for the Master's cap but were not selected are placed with all other petitions for possible selection in the 65,000 general cap. With over 172,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 3 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. Those not selected may have alternative visas available to them, though many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

Why has there been such a push for these visas? In addition to the need to fill positions in areas which there are not enough qualified U.S. workers, the recent scrutiny and subsequent denial rates in the L-1 visa have forced many employers to take the H-1B route. Additionally, with the ability to extend nonimmigrant status continuously while an immigrant visa is unavailable, many employees that seek to begin the permanent residence (also known as a Green Card) process will attempt to switch to H-1B status. With the recent proposal by the administration to allow H-4 visa holders (dependents of H-1B's) to gain work authorization, the number of H-1B cap petitions for those already in an employment based status will cause an additional increase in petitions this cap season.

Not all H-1B petitions are subject to this annual numerical limit. The H-1B visa follows the beneficiary, and as such, when one chooses to change employers, they are not required to resubmit and be counted under the cap again. Additionally, there are often options for those that have held H-1B in the past but are currently in a different status, or outside the country. Finally, certain organizations are not subject to the numerical cap. These cap-exempt organizations must be a non-profit or governmental research organization, or a non-profit affiliated with an institution of higher learning. The idea behind this exemption is that the employee will help to further the purpose of higher education or research.

There are many reasons for companies to seek international talent through the H-1B visa. First, the type of positions these employees hold are difficult to fill with qualified U.S. workers. This is one of the reasons recent administrations have pushed to increase U.S. education in Science, Technology, Engineering and Mathematics. While the United States workforce is getting up to speed in these areas, U.S. based companies still require professional services in order to thrive. Hence the use of the H-1B visa in these instances. Next, these international employees often provide their organization with a different world-view and way of thinking, driving innovation. Alternative approaches to common problems expose all employees to new ideas, creating a better business environment.

Though still a few months away, employers should prepare themselves and potential employees for the requirements associated with the H-1B visa petition, in order to provide their legal counsel with all necessary information in a timely manner. Our firm has assisted in preparing thousands of these petitions, and would be happy to lend our expertise to your business, whether seeking one or one hundred specialty occupation workers.

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