Immigration Visa Lawyer Blog

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and The Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

This article addresses the situation of an H-1B worker who has been terminated by their employer prior to the expiration of the H-1B validity period. The H-1B worker remained in the U.S. believing that since the I-94 has not expired, their status has not expired. The H-1B worker has been offered a position at another company but doesn't know what their status has been since being terminated. Fortunately, USCIS has issued guidance which appears to resolve this situation. This article outlines that guidance.

The Rule: an H-1B applicant for admission who is no longer working for the original H-1B petitioner is admissible at a POE, so long as certain conditions are met

The visa portabilitv provisions: H-1B Transfers. AC21's visa portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-IB employer upon the filing of a "nonfrivolous" petition by the new employer, as long as the nonimmigrant is in lawful status at the time of the filing and has not engaged in unauthorized employment since his or her last lawful admission. A "nonfrivolous" petition is defined as a petition that is not "without basis in law or fact."

New H-1B Employment: An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a port of entry, pursuant to the AC2l's portability provisions, as long as certain conditions listed below are met. If these conditions are met, the H-1B applicant is admissible to the validity date of the previous H-1B petition, plus 10 days. H-4 applicants for admission who are dependents of H-1B aliens employed pursuant to the portability provisions must meet these same requirements, as follows:

1. The applicant is otherwise admissible,
2. The applicant possesses a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner)
3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B nonimmigrant or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form 1-94, arrival departure record, or a copy of the previously issued Form 1-94, the applicant may present a copy of the Form 1-797, Notice of Action, with the original petition's validity dates.
4. The applicant presents evidence that a new petition was filed timely with a USCIS Service Center, in the form of a dated filing receipt, Form 1-797, or other credible evidence of timely filing that is validated through a CLAIMS [Computer-Linked Application Information Management System] query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-IB nonimmigrant's previous period of admission. The burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible for the visa portability provisions described in the AC21.

H-1B Worker Must Possess Evidence of New Petition: If the H-1B applicant for admission has changed employers but does not possess the receipt notice, Form 1-797, and a query of CLAIMS shows no evidence that a new petition has been filed, the applicant is not admissible in H-1B status and should be "processed accordingly." An H-1B worker will not be subject to expedited removal unless fraud or misrepresentation has been established.

Expired Original H-1B Petition: Similarly, if the original petition has expired, the applicant is not admissible in H-1B status unless he or she presents evidence that a new petition has been approved. Such H-1B aliens should also not be processed as expedited removals unless there is evidence of fraud or misrepresentation.

Extensions of stay. As noted above, AC21 provides for the extension of H-1B status beyond the six-year limitation in cases where an alien's immigrant visa petition or adjustment of status' application is pending due to the per country limitation on visas or to a lengthy adjudication process. Therefore, it is possible that an H-1B alien may exhaust the six-year limitation of stay, yet remain in status due to the AC2l's extension of stay provisions. As long as an alien in these circumstances remains in status with extension, he or she would not accrue unlawful presence.

Effect of a Pending Green Card Application: Because of H-1B visas allow "dual intent," if the H-1B applicant has an immigrant visa petition (I-140) pending and has otherwise remained in status, he or she may be readmitted to the U.S. in H-1B status, providing he or she is reentering within the authorized period of stay. Similarly, the memo notes, an H-1B alien who has an adjustment of status (I-485 green card) application pending is not required to present an 1-512, Advance Parole Authorization, after travel outside the U.S., and may choose, instead, to be readmitted in H-1B status, so long as he or she has not violated such status.

Continue reading "Columbus H-1B Immigration Lawyer: H-1B Portability at the Port of Entry for H-1B Employment with a New Employer" »

The Regional Center Pilot Program offers an exiting avenue to a fast track Green Card for foreign nationals who wish to invest $1,000,000 and in some circumstances only $500,000 into a business association that advances economic expansion, productivity, job formation and increased monetary investment into a definable geographic area of the United States. The main advantage of the Regional Center variety of EB-5 employment creation green card is that unlike in the traditional EB-5 category where it must be shown that at least 10 jobs will be directly created from the investment, regional center investors may take into account indirectly created jobs. This means that regional center business associations do not need to create a payroll position for all ten jobs that are created. Rather, under the regional center program, the jobs of supporting staff, service people and contractors may be counted toward the 10 new jobs requirement. As a result, the Regional Center model creates a very attractive vehicle for a business association to attract large amounts of investors and their capital to the United States.

Proving that a regional center meets EB-5 job creation criteria

The organizers of the regional center must first prove the viability of the investment both in regard to the probability of success of the business and immigration law aspects. This requires a highly professional economic impact study of the proposed investment as well as a comprehensive petition package, addressing all of the economic and legal aspects of the proposed regional center before the USCIS.

Below is a list of the major points that must be conclusively established in order to establish a regional center before the USCIS:

Managerial Framework of the Regional Center

The petition must clearly demonstrate the managerial and executive structure of the regional center. Additionally, the petition must demonstrate how the center will be advertised to entice investors, how management discovers and analyzes investment opportunities for the business organization, how management will structure the venture investment and how management will supervise investment actions.

Comprehensive forecast of local and countrywide impact of the center on household earnings

A detailed business plan and report on anticipated expenses must be included within the petition. The document must not only show the direct expenses such as construction costs, maintenance costs services, repairs and utilities, but the report must also show the economic impact of all of these activities on the income of the people of the region.

Professional report on how the regional center will generate both direct and indirect jobs

It is not sufficient to merely assume that a set amount of invested dollars will create the requisite 10 jobs per Green Card applicant. In order to secure certification as a regional pilot center, the organizers must have a professional economic study conducted by a reputable organization to ensure success of the application before the USCIS. In fact, such a report often makes or breaks the case for a regional center. The report must be supported by economically and statistically legitimate calculations such as viability evaluations, breakdowns of overseas and national markets for goods or services produced and graphical representations of the equations used to estimate jobs created per investor.

Plainly observable, physically adjacent area for the regional center

The regional center must have an intended area on which to impact financially. The definition of area varies by the type of investment and the population density of the surrounding land. For example a regional center based on investment in farming may have an identifiable region as large as several counties or sections of a state. A regional center based upon real-estate development however may only affect a relatively small landmass.

Continue reading "Columbus Immigration Attorney Discusses the EB-5 Regional Center Pilot Program Avenue to Permanent Residency Part 1: Establishing the Regional Center" »

This is the second of a two-part article discussing authorized deductions for H-1B specialty occupation workers. Part 1 addressed the rules for "authorized deductions" on H-1B workers' wages relating to the prevailing wage determination. Part 2 is a case study of a July 2009 Administrative Appeals Office decision regarding H-1B authorized deductions.

Case Study: Administrative Appeals Office (AAO) Decision on H-1B Autorized Deductions:
In 2009, the AAO issued a decision of denial revoking a previously approved H-1B visa on the basis that the deductions by the employer were not authorized. The H-1B petitioner in that case was a Filipino newspaper/entertainment promoter that employed the H-1B beneficiary as a public relations specialist and journalist. The issue was whether the beneficiary was being paid the prevailing wage taking into account the deductions which the employer believed were authorized. Failure to pay the prevailing wage violates the H-1B terms and conditions of employment and will have the effect leaving the beneficiary without valid H-1B status. Thus, care must be taken to strictly abide by the authorized deductions procedures indicated in Part 1.

On appeal, counsel for the petitioner explained that the beneficiary received free housing for ten months in 2003 and 2004, valued at $9,500.00 for each year. Counsel explains that as part of the beneficiary's wages in 2003 and 2004, the petitioner paid rent on behalf of the beneficiary. The beneficiary occupied only the master bedroom of a two bedroom whch was viewed as compensation in the amount of $9,500.00 for each year. Counsel further explained that "starting in November 2004, beneficiary began paylng his own housing." Thus, counsel for the petitioner contended that the beneficiary's salary, plus the residential expenses, which is $9,500.00 per year, was above the prevailing wage, and thus the petitioner did not violate the H-1B requirements.

General Rule: Deductions MUST be for the benefit of the employee
The AAO determined that housing and food allowances may be permissible deductions if tthey meet the benefit of the employee standard. The H-1B employee's housing must be principally for the benefit of the employee. According to the regulations, the employee's housing may not principally benefit the employer, such as requiring the employee to be "on-call." As a journalist, the petitioner may require that the beneficiary be "on-call" at all times to report on any news-breaking stories. The petitioner did not provide sufficient documentation to establish that the housing provided to the beneficiary meets the benefit of the employee standard. Thus, the deduction was not a permissible deduction of the beneficiary's wages.

Housing and Food Allowances Generally:
Housing and food allowances are examples of deductions that usually are principally for the benefit of the employee unless the employee is traveling on the employer's business. The rules also permit deduction of the cost of transportation from and to the alien's home country at the beginning and end of the assignment, unless the employer is liable for the cost of return transportation because it has terminated the H-1B worker. Translation and visa application fees associated with the case may also be lawfully deducted (such expenses are not considered the employer's business expense). The value of "in-kind" benefits, such as the value of a car, apartment, parking space, may also be lawfully deducted, provided each criteria is satisfied.

Impermissible Deductions on H-1B Worker's Wages
Matters that are considered impermissible deduction for the employer's "business expenses" include the following: (1) the cost of tools and equipment; (2) travel expenses to and from off-premises assignments; (3) living expenses when the employee is traveling on the employer's business; and (4) attorney fees and other costs associated with the preparation and filing of the LCA and H-1B petition (not including translation and visa application fees). Matters that do not meet each of the five criteria listed above are considered unauthorized deductions.

Continue reading "Columbus H-1B Immigration Lawyer: Prevailing Wage for H-1B Specialty Occupation Workers Authorized Deductions (Part 2 - Case Study)" »

Good news for International Students currently studying in Columbus, Ohio and nationwide: USCIS Regulations provide for relief to F-1 visa students present in the US on Optional Practical Training whose OPT cards expire prior to October 1, 2011 and who are also the beneficiaries of H-1B visa petitions filed by their employers.

It used to be that F-1 students presently working in the US on OPT cards that expired prior to the begging of cap subject H-1B visa (October 1), that they had to depart the US and avail themselves to a US embassy in their country, obtain an H-1B visa and return to the US to rejoin their employers. This was known as the "Cap Gap." Some years, the USCIS issued a rule allowing such students to remain in the US between the expiration of their OPT period and October 1. All that changed on April 2008 when the USCIS issued regulations that affirmatively to dealt with the problems caused by the cap gap.

Under these rules, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested . This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be "timely filed"; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered "filed" once it is accepted for processing by USCIS. Please note that a timely filed H-1B visa petition included any petition filed prior to the expiration of "Grace Period" which terminates 60 days after the expiration of the OPT card. In other words, an F-1 visa student whose OPT card expires on May 1, 2010 may take advantage of the cap gap rule during the grace period by having an employer file a bona fide H-1B visa petition prior to July 30, 2010.

If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency's new "cap gap" rule.

This is a very good question and can be answered by two words: Neufeld Memo. This article addresses the procedure for obtaining H-1B visa approvals for the duration of the three year H-1B validity period in third-party IT Consultant placment scenarios.

USCIS is Limiting the H-1B vlsa category in abrogation of the Law
There is a major problem plaguing the H-1B visa category: USCIS is issuing H-1B visas in one year increments for third-party placement scenarios. This is due to the fact that USCIS has effectively changed the law under H-1B without properly informing the public. It must be shown that a temporary H-1B worker will be employed for the full three year H-1B validity period. USCIS's failure to properly advise the public on this issue is yet another negative consequence that has been created as a result of the Neufeld memo.

The Problem: Industry Standards Paradox
An H-1B petition needs to establish that an H-1B beneficiary will be employed throughout the duration of the H-1B validity period requested. In third-party placement scenarios, the Neufeld memo requires that the petition contain purchase orders, work orders and end-client letters, among other required documents. In regards to Purchase and Work Orders, typically Purchase and/or Work Orders have end dates prior to the requested H-1B period, It is industry standard that these orders are issued in monthly increments. Without fail, USCIS has only been issuing H-1B visas in one year increments if proper evidence is not submitted showign that the project will continue for the full three year period.

If USCIS is presented with insufficient evidence to show that the beneficiary will be employed throughout the entire three year H-1B period, they will issue the H-1B for one year due to the purchase order validity dates. The paradox is that USCIS requires PO's in third-party placement situations to approve an H-1B petition, and that industry standards are to only issue them in monthly increments. Without more, USCIS will either deny a petition or simply issue approval for one year. It appears USCIS is asking for documents in order to further limit the H-1B visa category making it more expensive for employers and more time consuming for lawyers, vendors and companies alike.

The USCIS is fully aware that these projects typically continue for years, but if it is not shown clearly, they will issue only one year on H-1B. This is one of the most frustrating consequences that the Neufeld memo has created.

The Solution: End-Client Letter on Steriods!
Companies are now aware that an end-client letter is required in third-party placement scenarios to show not only the project details and duties, but also that the employer maintains control over the beneficiary. Through trial and error, employers have worked with end-clients and lawyers to draft air tight end-client letters. The letter used to be enough to obtain a three year H-1B approval. These days, it is not enough. An end-client letter now must contain a statment that the employee will be working on the project for the full three year H-1B validity period. The end-client letter has been the key to successfully opening the H-1B door. Now it requires even more to open the three-year door.

The end-client letter must state that the project is expected to roll out over the next three years. The H-1B petition will need to be supplemented by a letter from the ultimate end-client stating that although the PO's are issued incrementally, the beneficiary's role on the project will be needed throughout the H-1B period requested, namely: three years. It should not reflect the end date as the PO's accompanying it, a strategy which may make end-clients more confortable yet which will doom an H-1B beneficiary.

Bulking up an end-client letter is the only way to prove to USCIS that the beneficiary's project will continue for three years. A once bare boned letter now needs some juice. Simply drafting a line that states "The employee's role on this project will continue for the next three years" should be sufficient. Going into more detail about the continual renewal of Purchase Orders and reference to the subcontractor agreement between the petitioner and end-client or preferred vendor will only help show to USCIS the need for this employee throughout the entire three year period. Lawyers have had to analyze all the documents and make reference to them in detailed letters in support to show USCIS what they should be able to see for themselves. This has led to varying degrees of success. With a "bulked up" end client letter, the USCIS will clearly be able to see that the beneficiary will be working for a full three years and will have no choice but to approve.

Continue reading "Columbus H-1B Immigration Lawyer: Why does USCIS issue H-1B visas for ONE year when an H-1B Beneficiary seeks THREE years in Third-Party placement situations?" »

In what can only be described as a war on the H-1B petitions of consulting firms, the USCIS has recently developed new strategies for pushing, or more accuratly, pricing small tech firms out of the marketplace. Although contrary to the letter, intent and spirit of the law, the Neufeld memo has spawned a wave of RFEs on the H-1B petitions of H-1B workers in consulting firms. While each battle for H-1B consultants is difficult, the war for H-1B petitions may still be won with truth, documentation and expalnation. Below is a list of recent issues that the USCIS has raised on RFE, initial petitions and extensions and solutions for overcoming such problems.

Recent Trends in H-1B RFEs

The latest trick developed by the USCIS on RFE is to ask the Petitioner to prove that all three years of the requested H-1B time will be spent with the Petitioner. This question is asked because it is the practice of many end-clients, preferred vendors and consulting companies to only provide purchase orders for a few months at a time. Even though installation projects of large software systems may take up to five years, current standard operating procedure for tech firms is to only contract for a period of months into the future.

The best evidence to show that an H-1B worker will be placed at the notated site for the full amount of requested H-1B time is to draft and produce purchase orders that are commensurate with the H-1B time requested. This would require a shift in industry practices and thereby accomplish the USCIS policy goal of ensuring that H-1B workers spend no period of time on the bench. Perhaps it is time that tech firms and end clients retreat on this issuse in order to win the larger battle: to employ the world's top consultants. In the post-Neufeld landscape for consulting firms, longer purchase orders are a solution that must be considered and raised with preferred vendors and end clients.

In the absence of a long purchase order, a variety of evidence may be presented in order to show that the H-1B employee will not be placed on the bench. An itinerary of services including dates and locations of tasks to be completed is first and foremost on the list of required evidence. Additionally letters from middle vendors and end clients attesting to the project's probable time remaining for completion as well as proof of past time spent on such a project, should be included in such an RFE response.

Evidence Required in Initial Petitions

Due to the increased scrutiny of H-1B petitions for consulting firms, initial or first petitions for consultants should always include the following documentation in addition to the traditional list of acceptable proof of credentials and specialty occupation:

1. Schedule of services and site where the job is to be carried out;
2. Signed service contract specifying the circumstances and the period of employment;
3. Employment Offer Letter that plainly details the character of the employer-employee association and tasks to be undertaken;
4. Relevant portions of service contacts with third parties;
5. Agreements between third parties and the ultimate end-client;
6. A clear and professional job description for the Beneficiary's job.

Initial Evidence Needed for H-1B Extensions

Even those persons who possess approved I-140 documents and have been stationed on the same project for multiple years are now expected to prove the integrity of their continued employment through the production of additional initial evidence such as the following:

1. Pay stubs, Pay Sheet and W-2s;


2. Timecards;


3. Job agenda;


4. Instances of deliverables;


5. Dated employment evaluations.

Continue reading "The Neufeld Memo Bombards H-1B Petitioners: The USCIS Reveals New Weapons in the War on H-1B Consultants" »

H-1B visa employers in Columbus Ohio and nationwide can rely on a continuous supply of cap subject H-1B visas this federal fiscal year ("FFY"). Data released by the USCIS suggests that the H-1B visa cap is not likely to reach until early 2011 and possibly not at all this federal fiscal year.

The Law Firm of Shihab & Associates, analyzed data posted on the USCIS website relative to the number of cap subject H-1B visa petitions received by the USCIS since the FFY 2011 opened on April 1, 2010 and plotted the graph below. The date shows a surprisingly linear and consistent number of cap subject H-1B visa petitions received by the USCIS on a weekly basis. The slope of the graph has not changed drastically since April 2010 which suggests a consistent demand for H-1B visa workers in the Ohio and United States. Although data is not available for the federal fiscal year 2009 on the USCIS website, however, The Law Firm of Shihab & Associates, Co., LPA believes that the demand for H-1B visa workers in calendar year 2010 may be less than the previous years.

The same date was projected forward in the future to predict as to when the USCIS cap will be met this year. Based on the projections, it does not appear that the cap will reach this year at all. The "Regular" H-1B visa cap will is shown to reach in April 2011. While the Master's Degree cap subject H-1B visas will more than likely meet in December 15, 2010. It is a mathematical fact that once the "Master's" degree cap will reach in December that it will cause the demand for "Regular" H-1B visas to increase. Based on the foregoing, it is more realistic to expect the "Regular" cap to reach in February 2011.

Below is a list of the 2011 FFY cap subject H-1B visa cases received by the USCIS since April 2010.

This two-part article discusses authorized deductions for H-1B specialty occupation workers. Part 1 addresses the rules for "authorized deductions" on H-1B workers' wages relating to the prevailing wage determination. Part 2 is a case study of a July 2009 Administrative Appeals Office decision regarding H-1B authorized deductions.

Prevailing Wage for H-1B Specialty Occupation Workers:
An employer must pay an H-1B specialty occupation worker the prevailing wage or the actual wage paid to other similarly situated employees. The Immigration and Nationality Act (INA) requires that the foreign worker will not adversely affect the wages and working conditions of U.S. workers employed in similar positions. Per the DOL regulations, H-1B employees must be paid the prevailing wage rate for the occupational classification in the area of employment or the actual wage paid to similarly employed workers.

H-1B Worker Paid Below the Prevailing Wage: Authorized Deductions?
According to Federal Regulations for the H-1B classification, wage rate means the remuneration (exclusive of fringe benefits) to be paid, stated in terms of per hour, day, months or year. In addition, the required wage rate must be paid to the H-1B employee, cash in hand, free and clear, when due, except that authorized deductions may reduce the cash wage below the level of the required wage.

Question: What are "Authorized Deductions" under H-1B?
According to the regulations, "Authorized deductions," for H-1B purposes means a deduction from wages in complete compliance with one of the enumerated criteria below. These deductions allow an employer to pay an H-1B worker below the prevailing wageso long as each deduction is primarily for the benefit of the employee.

These deductions are considered "authorized" for H-1B purposes:

1. Deduction which is required by law (e.g., income tax; FICA); or
2. Deduction which is authorized by a collective bargaining agreement, or is reasonable and customary in the occupation and or area of employment (e.g., union dues; contribution to premium for health insurance policy covering all employees; savings or retirement fund contribution for plan(s) in compliance with the Employee Retirement Income Security Act), except that the deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition); the deduction must have been revealed to the worker prior to the commencement of employment and, if the deduction was a condition of employment, had been clearly identified as such; and the deduction must be made against wages of U.S. workers as well as H-1B nonirnrnigrants (where there are U.S. workers);
3. Deduction must be made in accordance with voluntary, written authorization by the employee (an employee's mere acceptance of a job which carries a deduction as a condition of employment does not constitute voluntary authorization, even if such condition were stated in writing);
4. Deduction must be for a matter principally for the benefit of the employee (housing and food allowances would be considered to meet this "benefit of employee" standard, unless the employee is in travel status, or unless the circumstances indicate that the arrangements for the employee's housing or food are principally for the convenience or benefit of the employer (e.g., employee living at worksite in "on call" status);
5. Deduction must not be a recoupment of the employer's business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of, and necessary to, the employment; living expenses when the employee is traveling on the employer's business; attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)).
6. Deduction must be an amount that does not exceed the limits set for garnishment of wages in the Consumer Credit Protection Act, and the regulations of the Secretary pursuant to that Act, under which garnishment(s) may not exceed 25 percent of an employee's disposable earnings for a workweek.

Any deduction that does not meet the above enumerated criterion will not be considered "authorized" and cannot be deducted from the H-1B beneficiary's wages to meet the prevailing wage requirement. The next article addresses a case study of these requirements in a real life example.

Continue reading "Columbus H-1B Immigration Lawyer: Prevailing Wage for H-1B Specialty Occupation Workers Authorized Deductions (Part 1)" »

Aliens applying for a green card in the United States through adjustment of status need to obtain an employment authorization document (EAD) to work in the U.S. Current regulations allow for aliens to obtain an interim EAD card when the original EAD application is pending for more than 90 days.

Question: How does one apply for an interim Employment Authorization Document?

The U.S. Citizenship and Immigration Services (USCIS) is required by federal regulations to decide an application for employment authorization I-765 (EAD) within 90 days from the date the EAD application is received. Generally speaking, the USCIS takes anywhere from 45-90 days to make a decision on a filed EAD. Under current regulations, if USCIS does not decide the application by the 90 day deadline, federal regulations instruct USCIS to issue an interim Employment Authorization Document (EAD), which is valid for up to 240 days. This allows the alien to work when USCIS has otherwise failed to meet its statutory and regulatory obligations.

As a Columbus Ohio Immigration Lawyers, our clients request clarification regarding the procedure for obtaining interim Employment Authorization Documents. Presently, interim EADs are issued by USCIS service centers. Since 2005, USCIS local offices no longer issue interim EAD cards. The local offices used to issue interim EADs upon an in person request by the application. This is no longer true. The below procedures govern the process by which an applicant can obtain an interim EAD allowing the alien to take up employment in the U.S. faster so that he/she does not have to wait for a slow moving bureaucratic governmental agency.

Procedure for Obtaining an Interim EAD Card:

1. Make an Info-Pass Appointment. If USCIS has not adjudicated the employment authorization application (I-765), or issued an interim EAD by day 90, an alien is required to make an Info-Pass appointment at the nearest USCIS local field office. Click here for further information on scheduling the appointment.
2. USCIS field office CLAIMS Evaluation. After the info-pass appointment has been scheduled, the USCIS local office will perform a Computer Linked Application Information Management System (CLAIMS) evaluation. This ensures that the original I-765 EAD application is still pending and unadjudicated, that there is no request for evidence (RFE) on file regarding the application (which effectively restarts or tolls the 90 day period), and the applicant has undergone his/her biometric fingerprinting.
3. The applicant must have completed a biometrics appointment. The CLAIMS verification will determine whether the applicant has undergone fingerprinting. If they have not, the USCIS local office will refer the applicant to obtain biometrics at the USCIS Application Center (ASC). The applicant must have his/her biometrics completed to obtain an interm EAD.
4. Case refered to USCIS Service Center. After the CLAIMS verification process is complete, the local office will contact the Service Center with jurisdiction over the applicant's U.S. residence. At this point, the Service Center will be responsible for adjudicating the interim EAD.
5. Call 1-800-375-5283 if the interim EAD is not issued by the Service Center by the time the applicant appears at the local office. The applicant may make a status inquiry via telephone to the Service Center while in the local office. All inquiries should be responded to within 30 days.

Question: What are the documents needed for obtaining an interim EAD

In order to obtain an interim employment authorization document the applicant should bring the following items to the USCIS Info-Pass appointment:

1. A new, completed Application for Employment Authorization (Form I-765);
2. The original Notice of Action (Form I-797) notice of receipt of the underlying pending EAD (I-765) application
3. The original Notice of Action (I-797) receipt notice for the underlying pending application which gives rise to the employment authorization such as a green card application receipt notice (I-485) and/or petition for alien relative (I-130 approval notice);
4. The applicant needs all present and past passports and Form I-94s;
5. Two passport-style photographs according to these specifications;
6. Proof of U.S. residency, such as state issued photo ID or driver's license (for proof of USCIS office jurisdiction); and
7. All current and expired EAD cards issued to the applicant.

Question: What happens when USCIS has issued an RFE on the pending application for employment authorization (I-765)? Can you still obtain an interim EAD?

A request for evidence (RFE) affects the applicant's eligibility for an interim EAD depending on the type of evidence requested in the RFE. If the RFE seeks "initial evidence", i.e., evidence mandated under federal regulations in order to obtain employment authorization, then USCIS will restart the 90 adjudication timeline. The evidence requested must have been required to obtain the EAD from the get go. Once the evidence has been gathered and the RFE has been responded to, USCIS will start the 90 adjudication clock over upon receipt of the response. Therefore, it is a must to make sure you submit all required evidence up front so that the 90 day clock does not get reset.

But, if the RFE seeks evidence not required under federal regulations, the USCIS will "toll" the 90 day deadline until it receives the RFE response, at which point USCIS will resume counting at the point that the clock was interrupted by the RFE. Tolling simply means that the 90 clock will be suspended at the point the RFE was issued (say at day 46). If the RFE is responded to 14 days later, the clock will be "tolled" for those 14 days and counting will begin again at day 47 upon receipt of the response to the RFE.

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