Immigration Visa Lawyer Blog

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. To the contrary, this proposed statute stands to attract entrepreneurs with "good concepts" or "good business ideas." In today's economic environment, US investors are only enticed by feasible concepts backed by strong and sound business 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?" »

United States Supreme Court Protects Aliens' Right to Judicial Review of Motions to Re-open.

The Supreme Court of the United States recently handed down a well reasoned and unanimous opinion defending an Alien's right to have a motion to re-open heard by the Federal Circuit Courts. The practical effect of this decision is to re-affirm what has become the general operating procedure for immigration practitioners in the federal court system. In fact, only two federal circuits felt compelled to comment on the issue previously, and in both instances upheld the right of a motion to re-open to be heard by the federal circuits. The legal conclusion reached is that motions to re-open removal proceedings are not purely a discretionary relief, but rather a right with a deeply rooted tradition in American jurisprudence.

Case Background

In the case before the Supreme Court, Kucana v. Holder 533 F. 3d 534 (January 20, 2009), Mr. Kucana, a citizen of Albania overstayed the time permitted on his visa while visiting on business. Seeking relief from removal, Mr. Kucana applied for asylum. The immigration iudge hearing his claim deemed him to be removable and ordered him to later appear at an immigration hearing to determine the merits of his asylum claim Mr. Kucana later failed to appear for the hearing, stating that he had overslept. The immigration judge ordered him removed from the country even though he was not present at the hearing. Mr. Kucana filed a motion to the immigration judge to re-open his case because he had overslept. The immigration judge denied his motion to re-open. His subsequent appeal to the Board of Immigration Appeals (BIA) was also denied.

Years later, Mr. Kucana again appealed to the BIA to re-open his case, arguing that the conditions in his native Albania had worsened and that his case should be heard in light of the new evidence. The BIA again denied his appeal.

Mr. Kucana then appealed to the Federal Circuit Court for the Seventh Circuit, arguing that the BIA had abused its discretion in not re-opening his case. The Seventh Circuit shockingly declined to hear the appeal stating that it lacked jurisdiction to hear discretionary rulings by the BIA.

Mr. Kucana appealed the circuit court's decision to the Supreme Court of the United States. The United States Attorney General, sensing the futility of the Seventh Circuit's position, declined to argue before the Supreme Court in opposition to Mr. Kucana. Instead, an amicus curie, or proponent of the Seventh Circuit's decision argued in place of the Attorney General.

Crash Course in Administrative Agency Law and the Immigration Court System

In order to appreciate the importance of judicial review of motions to re-open before the federal courts, it is necessary to understand the interplay between the immigration courts and the Federal Circuits.

The immigration courts are not the traditional federal court that you and I may think of as portrayed in the movies. In fact, the immigration court system is a branch of the Department of Justice, headed by the Attorney General of the United States. Both the EOIR Immigration Court (trial court) as well as the Board of Immigration Appeals (BIA or appeals court) are underneath the Department of Justice. This is part of the reason why Attorney General Eric Holder is the named opponent of Mr. Kucana in the case we are discussing here.

The Department of Justice is a federal agency. For the purposes of this discussion, a federal agency is an entity to which Congress gives powers enabling the agency to enforce laws on a specific subject. Federal agencies, such as the Department of Justice are often given leeway or "discretion" to create regulations that specify how the broad general laws of congress will be applied to specific situations. For example, the immigration courts are given discretion to overlook certain criminal convictions that an immigrant may have, and grant asylum to the Alien. This type of relief is "discretionary" and is left for the immigration court and the BIA to decide. Discretionary relief cannot be appealed out of the immigration court system. In other words, the BIA is the highest court that will hear appeals on discretionary relief.

Decisions on certain traditional rights, such as motions to re-open a case because of new evidence, can be appealed out of the immigration court system to the federal circuit courts and eventually the US Supreme Court. The federal circuit courts are an entirely different branch of the federal government, not controlled by the Department of Justice or the Attorney General. Although the federal courts normally do not interfere with the decisions made by federal agencies, the federal courts will hear cases that were decided by agencies when the agencies make decisions regarding certain fundamental rights or raise questions of federal law.

Continue reading "United States Supreme Court Protects Aliens' Right to Judicial Review of Motions to Re-open." »

It is generally understood that the H-1B visa allows foreign workers to come to the United States to engage in a "specialty occupation." It is an advantageous visa because it allows foreign workers to pursue their green card while working as a "temporary" worker in a technical job. However, many employees working in the H-1B classification may be surprised to learn that they have many rights which may not be known to them.

The H-1B worker's employer must give them a copy of the Labor Conditions Application ("LCA"). The LCA serves an important purpose in immigration law. It ensures that wages are not depressed for qualified U.S. workers and it keeps foreign workers from being exploited. This is accomplished by the employer making employment attestations including that it will pay the worker sufficient wages. The H-1B worker is given a copy of the LCA and a notice is placed in a conspicuous location notifying other workers that an LCA was filed.

Further, U.S. employers cannot discriminate against H-1B employees with regards to their pay. The employer must pay the H-1B worker at least the prevailing wage in the locality for the proffered job or the rate paid to other similar employees, whichever is higher. This again ensures that the worker will not be adversely affected by harsh employment practices concerning foreign labor. If the employer causes the H-1B employee to be placed on non-productive time, it must pay for that time. It also must pay for non-productive time due to the worker's lack of license or permit. The employer is also required to offer the H-1B worker the same fringe benefits as its other employees. These safeguards serve the purpose of fairness and equity and create a level playing field for foreign specialty occupation workers.

An H-1B worker may choose to leave the employer prior to any agreed upon date due to various factors including finding a more suitable job in America. The employer may not require the H-1B worker to pay a penalty for leaving, but may write a "liquidated damages" clause into the employment contract which is valid under state law. If the worker believes that the liquidated damages clause is unreasonable, the worker should consult an attorney to analyze the contract as such clauses are not always enforceable.

Finally, if an H-1B worker believes that the employer is violating the H-1B regulations, that worker may disclose such violations. The employer may not intimidate, threaten, blacklist, discharge, or in any other manner discriminate against the worker for disclosing such violations. This is another safeguard put in place by the immigration regulations to maintain the rights the H-1B worker.

The H-1B specialty occupation visa is one of the most sought after employment-based visas. Employer compliance with the H-1B requirements is extremely important for the integrity of the visa. The employer is required to keep public disclosure documents regarding the employer's compliance with the attestation requirements and all H-1B employees may examine them.

Continue reading "What are the H-1B Specialty Occupation Worker's Rights?" »

On January 28, 2010, Director Mayorkas issued a memorandum to clarify the rule regarding acceptance of H-1B visa petitions filed without a certified Labor Condition Applications (LCA). The new memo confirms that petitioners must wait at least 7 days after the filing of an LCA prior to submitting their H-1b visa petitions without the certified LCA. The idea is that LCAs are taking more than 7 days to adjudicate because of the FEIN validation process. Since the regulations otherwise require the US Department of Labor (USDOL) to adjudicate LCAs within 7 days, the USCIS is telling petitioners that you must now wait out the full 7 days period prior to submitting a petition that is lacking a certified LCA. The USCIS will need a copy of the e-mail confirmation that an LCA was filed to accompany the petition. Further, the USCIS advises petitioners not to submit the certified LCA until it issues an RFE.

Another point in this memorandum states that the USCIS will excuse late filing of a petitioner where the LCA was improperly denied or rejected by the USDOL. In such a case, the USCIS states that the delay in filing is not a fault of the petitioner and thus it must be penalized accordingly.

Since the Neufeld Memo was issued in January 8, 2010, I have been receiving e-mails and phone calls on a daily basis from clients who are worried and agitated. It seems that the concern is that this memo will somehow stop them from getting their H-1b visa approved. If you are a foreign individual and do not have legal knowledge, your source of information is normally what you read or hear. The internet is now riddled with articles on the doom and gloom brought forth by this memo. Some attorney websites harshly criticize the memo as being contrary to law and one that should be challenged legally. I have therefore decided to host a workshop on the Neufeld memo, its interpretation, what it means to our clients and their cases on February 20, 2010.

I currently serve as the Chapter Chair of the American Immigration Lawyers Association in Ohio. I have the privilege truly to serve the immigration lawyers in Ohio. In this position, I also serve on the Board of Governonrs for the national association itself. In this vein, I attended the Board of Governors meeting held in Puerto Vallarta, Mexico late Janaury 2010. In the conference, there were a lot of lawyers who denounced the USCIS's manner of "legislating by memoranda." That is to say, only Congress can legislate laws, not an agency of the Executive Branch of Government. An agency may issue regulations which interpret statutes, but may not do so by memoranda. The problem these lawyers cite is the fact that the Administrative Appeals Office ("AAO") has ruled on several various occasions that it is not bound by the agency's memoranda in interpreting laws. In fact, there is a recognizable body of US Adminstrative Law Jursiprudence which states that agency memoranda are no legally binding on the agency and are thus not enforeceable. Hence, if you try to appeal a denial of your case by the USCIS by arguing that it conformed to a certain USCIS memorandum, the appellate level office, namely the AAO could in fact agree with the denial citing their own interpretation of the law notwithstanding the memorandum.

So what does this leave us with? We are now coming upon the H-1b visa season. By April 1, 2010, the USCIS could very well receive upward tens of thousands of new H-1b visas towards the 2011 federal fiscal year. I would venture to say that about half of all H-1b visas will have some sort of interplay with the January 8, 2010 Neufeld Memo. So, what is this Neufeld Memo? Will it lead to the end of the H-1b visa program as we know it?

First and foremost, the Neufeld Memo applies to H-1B visas petitions where the employee-beneficiary works the majority of his or her time at a location outside the premises of the petitioning company. Put succinctly, the Neufeld Memo created objective criteria based on the common law doctrine of "master-servant" to test whether there exists a true employer-employee relationship between the company and the H-1b worker. The criteria look and examine the extent of involvement the company has with the daily affairs of the H-1b visa worker. If you look at the memo, it reads: "[t]his memorandum is intended to provide guidance, in the context of H-1B petitions, on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period." You can immediately pin-point the objective of this memorandum from the very outset.

Continue reading "H-1B Visa Filing Season Coming Head On with the Neufeld Memo" »

The USCIS has issued a new version of the Form I-140

The rumor mill has been turning regarding recent changes to the I-140, Immigration Petition for an Alien worker. Unfortunate tales of I-140 petitions being filed one-day-to-late have been popping up around the immigration law community. While I cannot dispute the accuracy of claims that perfectly sound I-140 petitions have been rejected for such an arbitrary reason as the movement of the location of a few check boxes on the Form, I am confident that such rejections were not the intention of the USCIS.

What is true is that the I-140 document was altered by the USCIS on January 31st, 2010. What is also true is that this alternation was not foreshadowed or publicized on the USCIS website or other relevant media. One is left to speculate why the federal government would abruptly alter such an important document without making it known ahead of time, and therefore cause a small panic for certain immigrants and petitioners alike. Whatever the reason may be, it is important to note that the old version of the From, I-140 will be accepted until March 2, 2010.

What has changed?

On the first page, under Part 2, a box has been added that allows a petitioner to indicate whether the I-140 has been submitted in order to amend a previously filed I-140 petition. There is also a box for the previous receipt number and the indication whether or not the petition is for a schedule A. I. or II. category. It would appear that this new box replaces the prior, USCIS suggested, practice of placing a bright piece of paper immediately under the I-140 petition that indicated in bold lettering that the instant petition was for an I-140 amendment. While it is obvious that this addition is welcomed and needed, it would have been courteous for the Service to indicate that such as change was forthcoming. Foreign nationals who have endured the immigration process long enough to file an I-140, and especially those who qualify for an amended I-140, deserve to have a little more consideration.

Under part 4, there have been two checkboxes added. First, there is a box asking if the instant I-140 is being filed without the original labor certification document. The checkbox seems to relate to the issue of amendment of the I-140 petition. The actual labor certification document is a unique document, printed on distinctive paper that includes an individual case number and security strip. Once this document is signed, it is submitted with the Form I-140. Logically, if you are filing an amended I-140 petition, the original Labor Certification Document has been filed with the previously filed I-140 petition, rendering it unavailable. Only the Department of Labor can issue an official duplicate copy of a Labor Certification Document. Conveniently, the new Form I-140 includes a checkbox that asks if the Petitioner would like the USCIS to request a duplicate.

Finally, the new I-140 ads a box for the employer to place an e-mail address and position title on the signature section of part 9 on page five. This is in keeping with the USCIS trend toward emphasis on electronic notification of the employer as to immigration matters.

Continue reading "Yes, the Form I-140 was updated, No, the I-140 that you filed yesterday will not be rejected" »

This article discusses the EB-1 visa category vis-a-vis outstanding professors and post-graduate researchers (EB-1-2 or EB-1-B) at U.S. colleges and universities, specifically addressing what is considered a "permanent" offer of employment under EB-1-B.

Fast Track Green Card for Qualified EB-1 Applicants:
Under the EB-1 visa category, one of the greatest advantages of filing an employment-based green card application under the first preference (EB-1) category is the exemption from the labor certification process. Qualified outstanding post graduate researchers and professors whose work has been internationally recognized can obtain a "fast-track" green card under the EB-1-2 visa category.

However, an obstacle in obtaining this green card is the requirement that the employment be one of the following:

1. A tenure or tenure-track teaching position; or
2. A "permanent" research position in the alien's field of expertise.

Post-graduate researchers or professors that are not tenured or tenure-track must submit evidence that the position is permanent. This raises difficulties for the alien under EB-1 as often times their positiion is renewable based on the availability of federal funding and grants to the department in which they are employed. In this situation, the offer letter will show that the job is only valid for say one year. This doesn't look like a "permanent" job offer now does it?

Luckily, USCIS understands this scenario and offers a method of proving that the proferred position is permanent. This article looks at what USCIS will consider a "permanent" job offer and provides concrete examples of how you can ensure success under the EB-1 program if you are a non-tenured researcher or professor.

EB-1 Eligibility for Outstanding Professors and Researchers:
The EB-1 category is available to an individual who is one of that small percentage who have risen to the very top of the field of endeavor, as shown by sustained national of international acclaim and recognized achievements. The Outstanding Professor/Researcher EB-1-2 category is for a professor or researcher who is recognized internationally as outstanding in the academic field, and who has at least 3 years of teaching or research experience in the field.

A professor or researcher must show that he/she is recognized internationally as outstanding through evidence of at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement;
2. Membership in organization that requires outstanding achievement;
3. Published material about the alien's work;
4. Participation, individually or on a panel, judging the work of others;
5. Original scientific or scholarly contributions to the field;
6. Authorship of scholarly books or articlesRecognized internationally as outstanding

Under modern business practices, many institutions rely on grants, renewed on a yearly basis, to continue to employ outstanding professors and researchers. This common budgetary scenario created problems with the United States Immigration and Citizenship Service ("USCIS") to show that the position is truly permanent. AAO case law in 2005 significantly affected EB-1 petitions for professors and researchers.

Current Law Under EB-1-2 Outstanding Professor/Researcher:
Under current Federal Regulations, a permanent research position requires a job offer of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination. Today, many employers often have "at will" contracts that do not include "good cause" provisions and that are year-to-year even though the employer and employee expect that the employee will continue in the employment for an indefinite or unlimited duration.

Continue reading "Columbus EB-1 Immigration Lawyer: What is "Permanent" Employment for Outstanding Professors and Researchers under the EB-1 Visa Category?" »

The processing of H-1B visas has taken on a considerable evolution during the past 3 years. Unless the H-1b visa petition is carefully planned by the immigration lawyer, an H-1b visa Request for Evidence "RFE" is inevitable.

If you examine the H-1b visa RFE issuance patterns, you will find out that larger corporations that employ thousands and thousands of employees, rarely receive RFEs for their H-1b visa petitions. The smaller the employer, the more likely an RFE will be issued. Furthermore, the USCIS is targeting employers who place H-1b visa workers at third party worksites more so than ones who employ their H-1b visa employees for an internal project.

Usually, there are two types of RFEs:

I. RFEs concerned with the actual position itself as to whether it rises to the level of a "specialty occupation." Such RFEs require the submission of evidence that the profferd position meets one of the following criteria that:

• A baccalaureate or higher is normally required for this type of position: normally the USCIS wants to see proof such as documentation from the Occupational Outlook Handbook, from a similar authoritative source or case law that had established that the position in fact has been determined as one requiring a bachelor's degree by industry wide practice or by administrative determination.
• The degree requirement is common to the industry in parallel positions: this particular criterion requires submitting a survey of similar positions with similar size employers requiring a bachelor's degree or higher.
• The employer normally requires a degree for like positions: if the employer can establish that it requires a bachelor's degree for all similar positions within its company and that a bona fide business necessity exists which causes it to require bachelor's degrees for the particular position, then the USCIS will agree that the position is a specialty occupation.
• The nature of the duties are so specialized and complex that the knowledge required is associated with a baccalaureate degree: this particular inquiry is satisfied by the submission of credible expert evidence which analyzes the position itself and concludes that it so complex that a formal education in the particular field is necessary to prepare the worker to perform successfully in this particular position.

Once the employer submits satisfactory evidence meeting any of the above enumerated criteria, the H-1b visa petition will be approved by the USCIS. My firm always tries to meet ALL of such enumrated criteria to be on the safe side as we would not want to put "all our eggs in one basket."

II. The second type of RFE is not focused on the position itself necesserily, but is mainly concerned with the relationship between the employer and the employeeThis second form of RFEs normally asks for the submittal of the following documentation:

• A listing of all previously sponsored H-1b visa petitions and case numbers
• Contract between the petitioner and the H-1b visa employee;
• Complete itinerary of activities of the H-1b visa worker;
• Contracts between the petitioner and the end client;
• Detailed description of the internal project if any;
• Federal Income Taxes;
• Quarterly Wage reports;
• Photographs of the Business Premises;
• Position Announcement;
• Lease agreement; and/or
• Occupancy permits, etc.

One could easily see that the second type of RFEs are primarily probing into whether the employer is a bona fide business entity. Furthermore, this type of RFE inquires as to whether the petitioner is "too far removed" from the end client and the actual worksite due to the existence of too many middle party contracts. Put succinctly, if there exists more than one contractor between the petitioning H-1b visa petitioner and the third party client where the H-1b visa worker actually works, the H-1b visa has a high likelihood of denial.

There is no regulatory rule of law which supports the view of the USCIS in this regard whatsoever. Such H-1b visas may only be approved if the petitioner can show a high level of involvement in the H-1b visa worker's performance on an ongoing basis. This may not be easy to establish for most employers who "contract" their "consultants" to third party employers, sometimes they hardly know what they do. I do not believe that the regulations in any way prevent this type of relationship to exist; after all, it was the petitioning employer who delivered the H-1b worker to the work place, albeit through a convoluted array of middle parties.

Why does the USCIS do this?

Continue reading "Immigration Lawyer Dissecting The H-1B Visa RFE" »

This is somewhat of an interesting question. As an immigration attorney I cannot but think about the experience that the nation will face this year. Will the nation actually consume all H-1b visas this federal fiscal year on April 1, 2010?

We know that the H-1B visa cap for Fiscal Year 2010 was consumed on December 21, 2009. Unlike prior years where the H-1b visa cap was consumed in its entirety by April 1, last year's experience raised eyebrows. It does not take a brain surgeon to realize that the H-1b visa cap experience of 2009 is directly related to the sharp decline of the US economy and the increase in unemployment figures reaching double digits in the same year.

A recent article appeared in the Chronicle of Higher Education entitled: "Number of Foreign Students in U.S. Hit a New High Last Year," stated that the population of foreign students in the US may have risen by an additional 671,000 students in the 2008-2009 academic year. Some of these students naturally attended Master 's Degree programs and will be poised to graduate in the 2010-2011 academic year. Since the law only requires H-1B visa positions to require a bachelor's degree for entrance into the particular position, and for the alien to possess the same, it is quite conceivable that some of these Master's Degree seekers maybe may have a competitive advantage as they seek employment in early 2010. If we pick a conservative number, say 10% of the additional student population of foreign born students and if we determine that this 10% or roughly 67,100 will be graduating in June 2010, it follows that the same number are excellent H-1B visa candidates seeking employment early in the year.

This is a purely logical and mathematical argument and does not take into account the economic realities of the employment market place in the United States. It is not a secret that foreign workers contribute positively in every segment of the US industry as reported by the US Census Bureau and fill a much needed demand in the technical market where H-1b visa workers normally work. If the number prediction quiz that we just went through holds true in 2010, then conservatively, we could have sufficient foreign workers on whose behalf H-1b visa petitions are filed, and whose petitions may exceed the available 65,000 cap H-1b visa on April 1, 2010.

One factor that we did not take into account is whether the US economy will be able to absorb 67,100 additional skilled workers within the next 60 days. One firm reports that the question should not be asked whether there will be additional technical jobs in 2010, but whether employers will be focusing more on finding workers to fill certain skill sets in 2010 than creating new positions. That is to say, with the abundance of available highly technical human resources, it is logical to suggest that employers are likely to look for better and brighter workers than "new workers." Foote Research, LLC, a research foundation that continuously predicts and monitors workforce trends, IT and business executive behavior at 1,980 North American employers, stated that "Investments focused more on skills than jobs in 2010." Foote Research argues that this may constitute a shift in the employment behavioral patterns of IT employers in 2010 leading to an "exchange" in the workforce not necessarily in the creation of "new jobs." If this holds true, better qualified and trained foreign labor force will be more apt to fill these positions in the next few months.

If this deductive argument holds true, it is likely that the increase in the enrollment of foreign students felt in 2008 and the evolving employment behavior and practices of employers expected to take place in 2010, that the USCIS may be faced with an avalanche of new H-1b visa petitions on April 1, 2010. Who knows, the cap may very well be met on the same day.