Immigration Visa Lawyer Blog

The Regional Center Pilot Program is a subcategory of the Employment Based Fifth Preference Immigrant category also known as EB-5 or the Alien Entrepreneur Program. The program was first instituted in 1992. Three thousand of the 10,000 total available EB-5 visas are set aside for aliens who invest in a US Citizenship & Immigration Service ("USCIS") designated "regional center" in the United States organized ''for the promotion of economic growth, including improved regional productivity, job creation, and increased domestic capital investment.''

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The advantage of creating a "regional center" is that it is pre-approved by the USCIS for investors to receive permanent residence on an expedited basis.

The alternative to a creating a regional center is when a foreign investor establishes his or her own enterprise for the purpose of investing capital which would lead to permanent residence. This is what is called an individual (in comparison to a regional) EB-5 application. Such foreign investor must show that he had invested or is actively in the process of investment of at least $1,000,000 (or $500,000 in a targeted employment area) into a new commercial enterprise which would employ at least 10 US workers. A foreign investor investing in a new commercial enterprise affiliated with and located in a regional center is not required to demonstrate that the new commercial enterprise itself directly employs ten U.S. workers; a showing of indirect job creation and improved regional productivity will suffice. Another advantage of creating a regional center is that it provides permanent residence to the foreign investor on much more expedited basis that would an individual EB-5 application. For instance, once the regional center is approved, a foreign investor could receive permanent residence in 6 months as compared to at least one year when an individual EB-5 application is sought.

The Process of Creating a Regional Center

III. Creating the Organizational Infrastructure of the Regional Center
It is imperative to retain the services of experienced legal counsel who would draft the corporate or organizing documents which would establish the legal entity or entities operating the regional center and the future investment opportunities. There are several issues that must be considered when selecting the most appropriate organizational structure that would achieve the regional center administrator's short and long term goals. The organizational structure must weigh the regional center's liabilities in the face of capital raising endeavor. There are potential securities regulations issue that must also be considered as well as the corporate matters. Ultimately, the corporate lawyer will not only draft the organizational structure of the Regional Center, she will also draft the agreements between the future foreign investors and the regional center administrators. There has been numerous incidences of litigation in this area, and the corporate counsel must carefully study the failures of others in order to avoid the same pitfalls.

A. The Geographic boundaries of The Regional Center

The first step in creating a regional center is identifying the geographic area which would encompass the boundaries of the planned commercial enterprise. Any jobs claimed to have been created either directly or indirectly by the planned commercial activity that forms the basis of the regional center must be located within the geographic boundaries of the regional center itself. In addition, the regional center planners must show that their planned commercial activities will benefit the area. While there exists a natural desire to enlarge the regional center boundaries to include as many "indirect jobs" as possible, there is also the desire to limit the boundaries of the regional center to maximize on the positive economic impact brought about the planned commercial endeavor. Hence, the delineation of the boundaries of the regional center must be undertaken with great care thereby balancing these opposing objectives.
Put in other way, the higher the population of the area encompassing the regional center, the less impact per capita will the regional center inure.

The boundaries of the regional center should not be gerrymandered to avoid pockets of high population concentration as the USCIS will look disfavorably at such application as lacking in genuineness. The choice of the boundaries of the regional center in this case must be done in consultation with a credible economic and legal counsel to study the benefits and costs of including some or all of the proposed dairy operations into one regional center.

B. The Economic Study

The regulations require the planners of a proposed regional center to present a credible economic study which has the following main components:

• How the regional center plans to focus on a geographical region within the U.S., and must explain how the regional center will achieve the required economic growth within this regional area;

• That the regional center's business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines;

• How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center's business plan; and

• The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

The planning and execution of an economic study is a major undertaking as the economic, business and legal objectives may not overlap and the parties representing these interests must work closely and in tandem to achieve the "point of equilibrium" of these competing goals. Once the economic study is complete and reviewed, the next step in the establishmnet of a regional center is to present it to the USCIS with the required immigration forms. The USCIS will review the proposal and may have several questions before approving the petition which would establish the regional center. Once the regional center is approved, it is now ready for foreign investors to apply for permanent residence through investing capital into the regional center directly.

It must be noted that subsequent to the approval of the regional center the USCIS expects the regional center administrators to stand in the shows of the USCIS in managing the regional center moving forward. The USCIS has recently expressed that it will withdraw approval from regional centers which will not comply with the regulatory directives relative to the basic EB-5 program itself insofar as they apply to regional cetners. The relevant points the USCIS identified recently include:
• Establish representative point of contact with USCIS;
• Documentation of due diligence relative to alien's source of funds;
• Documentation of evaluation, oversight and follow up of any proposed commercial activity that will be utilized by the alien investor to create new jobs.
• Inventory of all participating aliens, nationality, address in the US, etc.
• Categories of business activities within the geographic boundaries of the regional center;
• Documentation relative to each job creating commercial enterprise located within the commercial enterprise;
• Amount of alien investor capital and amounts of other domestic capital that has been invested together in each job creating commercial enterprise.
• Total aggregate of approved EB-5 alien investor petitions for each fiscal year.
• Total aggregate of "new" direct and/or indirect jobs created by the EB-5 investor through the regional center for each fiscal year from inception.
• Total aggregate "preserved" jobs by the EB-5 alien investors into troubled business if applicable.
• Notification of any fiscal year not having investors participating with explanation and plans to procure investments.
• Notification within 30 days of any material change.

C. The Permanent Residence Application Process

The process begins by filing an Immigrant Petition for Alien Entrepreneur with the USCIS at the California Service Center which has jurisdiction over the administration of the alien entrepreneur program.

As mentioned previously, the foreign investor can only file for his or her immigrant petition after proof of investment is submitted and after the regional center had been approved by the USCIS. Once the Immigrant petition is approved, the foreign investor is now ready to apply for permanent residence along with his immediate dependents.
Permanent residence is initially issued conditionally for 2 years after which the foreign investor must file again to remove the conditions. In the subsequent application, the foreign investor must prove that the terms and conditions on which the regional center was created continue and remain intact throughout the 2 year period. Once the USCIS is satisfied that such conditions are met, the foreign investor receives permanent residence for 10 years.

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)" »

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.

Much of this documentation was previously only requested on RFE, but now should be presented upfront as a matter of course.

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.

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.

Continue reading "Columbus Immigration Lawyer: Interim Employment Authorization EAD Processing for Long Pending EAD Applications" »

The Board of Alien Labor Certification Appeals (BALCA) overruled the US Department of Labor (USDOL) denial of a PERM application on the basis that the employer insufficiently provided notice of the inventives in its pre PERM filing Employee Referral Program.

The US Department of Labor Certifying Office has recently been focusing on the sufficiency of the Employee Referral Program provided by employers as one of the alternative recruitment measures employers are required to undertake prior to filing of the PERM application. In a recent decision, the importance of meticulous compliance with the format requirements included in the PERM regulations was again confirmed in the decision of Total Systems Services Inc. handed down by BALCA recently.

By way of background, employers wishing to file for permanent residence under the second or third preference employment based categories for one of its employees in a professional occupation, must first file application with the US Department of Labor attesting that it had searched the market and that there are not any US worker who is qualified, able and willing to occupy such a position. PERM regulations are intricate and complex and they require the employer to engage in rigorous pre PERM filing recruitment measures to demonstrate that it had in fact tested the labor market in good faith. There are four levels of recruitment steps: 1) the employer must publish and advertisement in a newspaper of general circulation; 2) the employer must post a job order with the State Workforce Agency having jurisdiction over the place of employment; 3) the employer must also choose from ten (10) alternative recruitment steps; and finally 4) the employer must post an internal notice of the filing of a PERM application.

The employee referral program is one of such ten (10) alternative recruitment steps that could be chosen by the employer in its pre PERM filing campaign. It is an inexpensive recruitment step that the employer can easily implement. Even if the employer did not have an existing employee referral program, it can establish one for the purpose of a pre PERM filing recruitment process. The regulatory provision governing the employee referral program is somewhat tacit and can be found under 20 C.F.R. § 656.17. It states: The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered." Emphasis added. Recently the USDOL has been critical of any such "employer notices" which do not specify the "incentives offered." Put in other words, any notice posted by the employer in a recruitment steps involving an employee referral program must clearly state what gain an employee will realize if he or she referred a successful candidate to the employer in connection with the job vacancy. If the notice did not clearly post such an incentive, the USDOL is recently denying cases on this basis.

The employee referral program preceded the creation of the PERM process in the pre PERM labor certification Reduction In Recruitment ("RIR") rules. Those who practiced immigration law prior to the enactment of the PERM regulations in 2005 recall the RIR program. At that time, the USDOL came up with ad hoc rules which basically said that pre labor certification filing recruitment activities will forgive a supervised recruitment process. Under the RIR rules, the employer was required to show three recruitment steps which included at least one print advertisement. There were no rules about the format of the recruitment activities. Hundreds of thousands of labor certificate applications were filed and approved through a culture of loosely implemented recruitment campaigns including employee referral programs. This culture somewhat survived the introduction of the PERM regulations despite the clear definition of the PERM regulations in this subject matter. Recent enforcement measures by the US Department of Labor relative to the employee referral program will now force employers to sharpen their pencils when they are drafting such a recruitment step.

In Total System Services Inc., BALCA examined the sufficiency of the employer referral program utilized by the employer as one of its pre PERM filing recruitment steps. In reversing the US Department of Labor denial, BALCA stated that the employer's employee referral program recruitment step was adequate. In this case, Total System Services Inc.'s PERM application was audited by the USDOL. The employer submitted proof of its recruitment activities including a notice pursuant to its employee referral program. The notice stated:

For the Project Manager position, you may refer a friend by submitting resume to Kerri Alexander, Human Resource Manager, 1600 1st Ave Columbus, GA 31902

The USDOL denied on the basis that the employee referral program notice did not "specify the incentives offered" pursuant to regulations. The employer filed a motion for reconsideration arguing that the employer had separate documentation which clearly described the program in details and provided monetary incentives. Such additional documentation was provided to the company's employees via the intranet. This documentation was originally offered in the response to the audit request. The Employer further argued that the regulation at 20 C.F.R. § 656.24(g)(2)(ii) allows it to present such documentation on reconsideration since it had previously been presented in the audit response. The USDOL denied the motion for reconsideration. Upon appeal to BALCA, the Board stated that any issue with the employer's program was cleared by the reconsideration. It determined that the US Department of Labor must had overlooked these submittals in the audit response.

Continue reading "PERM Update: In Total System Services Inc., BALCA Overrules CO's Denial of PERM Application on Issue of Adequacy of Notice Re Employee Referral Program" »

In order to recruit and retain the world's top talent in the professional and skilled trades, many businesses offer to sponsor the Green Card petitions of employees whom they wish to retain. Nine times (9) out of ten (10), sponsoring the employment based Green Card of a foreign national means that the US Department of Labor will scrutinize the job, the business and the alien through the PERM process.

Before the Process Starts: Know the Order of Operations for the PERM and Employment Based Green Card Process

Attorney's have a natural inclination to toss around legalistic words and acronyms. Among the usual suspects in the field of immigration law are the often used yet rarely defined terms such as PERM, Labor Certification (Labor Cert or simply LC), Green Card and Permanent Residency. Employers need to know that obtaining a Green Card through the PERM process involves three distinct applications/petitions made to two (2) different federal agencies over the course of one (1) to nine (9) years. Below, I have listed and defined the major road signs along the employment based Green Card journey in order to clarify the process and cut through the legal jargon.

Permanent Residency - This is the intended result and desired outcome of the employment based visa process. Permanent residency is perhaps best understood when compared to the temporary categories of visa (H-1B. L-1. E-2, B-2 and J-1). The major difference is simple, permanent residency allows the alien to live and work permanently, or at the least for a very long time with renewable intervals under good behavior.

All Green Cards come from the same source and give the same rights to the card holder, whether the basis for the green card is an employment based petition, asylum/refugee based petition or marriage/ family based petition. The federal government has decided that after a Green Card petition has been approved, the alien must wait a certain period of time until a green card will be made available to them. All Green Cards, regardless of their basis, are applied for using the I-485 Application Document.

Every category of petition has a different wait time. Within every category of petition, different countries have longer or shorter wait times. Notably, employment based applications from China and India usually have a wait time of five (5) to nine (9) years after they have been approved to file for a Green Card. The Department of State lists and updates the wait times for such Green Card petitions on a monthly basis.

Green Card - This is the official document which states the alien's permanent residency status. It is an ID card, currently pink in color but soon to return to a green hue, that the holder can carry to prove their immigration status. Status as a permanent resident does not disappear if the card is lost or stolen, although the alien should apply for a new card, as with any government issued ID.

Labor Certification - Labor certification is what the Department of Labor gives to the employer, proving that the employer has followed the steps to hire an alien and sponsor their work based permanent for an employment based visa. The Labor Certification is a double sided document printed on special paper with a magnetic strip. It must be applied for by filling out a Labor Certification Application either online or using a paper application. Essentially, with this document, the Department of Labor Certifies that the employer has looked for, but has not found an American worker who is equally as qualified, ready and willing to perform the job needed. With this document in hand, the employer can request permission to apply for a Green Card from the United States Ictizen and Immigration Service (USCIS). The permission is requested through the I-140, Petition for an Immigrant Worker document.

PERM - An acronym for the process that the employer must undergo before a labor certification application can be filed. PERM is short for the almost nonsensical and never used in spoken language, Program Electronic Review Management.

The PERM process requires that the employer first advertise the job opening to American Workers before hiring an Alien. Not just any advertisement will suffice, the regulations mandate a series of newspaper advertisements, postings with state employment offices, physical posting s and usually (3) of ten (10) various additional advertisements. Every advertisement must contain carefully crafted language to pass federal guidelines. Additionally, strict time frames must be followed for every step. It for this reason that the expert guidance of an immigration attorney is highly recommended in navigating the PERM process.

Continue reading "Columbus Immigration Lawyer Discusses the Steps in the Employment Based Green Card Process through PERM" »

The answer to the above question is unequivocally, NO. H-1B workers do not steal jobs from U.S. workers. In fact, an economy with a strong H-1B work force will create jobs for U.S. workers and help the U.S. maintain international competitiveness.

There is a common misconception that H-1B workers steal jobs from U.S. workers and undercut wages; however emperical evidence reveals a vastly different story. The H-1B specialty occupation worker program has drawn the world's best and brightest highly specialized workers into the U.S. labor market, strengthening the U.S. economy and promoting efficiency and stability into a wavering U.S. workforce. This article "debunks" the common myths surrounding the H-1B visa category and presents the truth about the H-1B program.

True or False?: H-1B Workers Steal Jobs from U.S. Workers
FALSE: H-1B specialty occupation workers do not steal jobs from qualified U.S. workers. Foreign born H-1B temporary workers fill a void in the U.S. labor market by allowing U.S. companies to hire highly skilled foreign workers. The petitioning U.S. company is required to pay the higher of either the prevailing wage or actual wage paid to similary situated American workers. Employment under the H-1B visa category is a volitional act made by U.S. employers who choose H-1B workers to help maintain a competative workforce domestically and abroad.

H-1B Specialty Occupation Defined
The H-1B visa category allows an employer to temporarily hire nonimmigrant workers in specialty occupations. Federal law defines specialty occupation as one requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum. This allows a U.S. company to hire highly skilled individuals to fill gaps in employment for temporary periods of time (in three year increments for up to six years, with exceptions) while the U.S. labor market struggles to produce qualified workers. Even in the wake of the "great recession" international competativeness in the U.S. economy depends greatly on the availability of H-1B workers from abroad.

True of False?: H-1B Workers Undercut the U.S. Labor Force by Providing Cheap Labor
FALSE: Under the H-1B Visa program, the U.S. employer is required to pay the H-1B worker the higher of either the "prevailing wage" for the occupation within the location of employment or the "actual wage" paid to similarly employed U.S. workers. In addition, taking into account the legal and governmental fees associated with filing the H-1B petition (which are estimated at around $6,000) and the cost to sponsor an H-1B worker for her green card (which can cost as much as $10,000), hiring an H-1B worker is not a "cheap" endeavor. Again, hiring foreign labor under the H-1B visa category is a choice made by a U.S. employer. This choice is often made with the understanding that hiring one H-1B worker from abroad can in fact create U.S. jobs. Here's how:

Opponents claim that H-1B workers depress wages and cause unemployment by taking jobs from American workers. However, H-1B workers keep American companies in the United States and create U.S. jobs through support staffing and the like. Bill Gates recently remarked in testimony before the U.S. House of Representatives, Committee on Science and Technology:

"If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well. For instance, Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities."

Add this to the fact that employers must show that they will pay the "prevailing wage" to H-1B workers and we begin to see the advantageous nature of the H-1B program. U.S. employers are under immense pressure to maintain profitability in the wake of the greatest economic downturn since the great depression. Competition is fierce both domestically and abroad. Hiring the best international talent vis-a-vis the H-1B visa program to work at U.S. companies to implement sophisticated company policy and procedures will keep the U.S. economy in first place among the world's major players. It enables companies to stay in the U.S. and hire support staff to see that these policies and proceedures and carried out. A U.S. labor market with high numbers of H-1B workers will ultimately grow the economy by increasing wages and reduced unemployment.

Continue reading "Columbus H-1B Immigration Lawyer: Do H-1B Workers "Undercut" Wages and Steal Jobs from U.S. Workers?" »

This article is an H-1B case study of concurrent H-1B filings. Here's the situation: a hypothetical H-1B worker currently works for a cap-exempt H-1B employer (Company A) and wishes to transfer her visa to a cap-subject employer (Company B) while maintaining employment at Company A. Company B files and obtains an approval of an H-1B cap petition to begin work on October 1, 2010. The question arises: when can the H-1B worker begin work with company B? Can she start immediately or does she have to wait until Oct. 1? What happens if she begins working at Company B before her petition is approved? If she begins working at Company B, does she have to withdraw her H-1B petition for company A?

Issue: Whether an H-1B beneficiary may continue to work for a cap-subject employer, after the H-1B petition has been adjudicated and approved, prior to the stated work period that commences on a future date of October 1 in the H-1B petition.

The Portability Rules for H-1B Employment
The H-1B visa allows workers to be employed by several employers concurrently, e.g., an accountant employed by Company A who also performs consulting work for Company B. If the H-1B worker has H-1B status from Company A and will continue to work for Company A while commencing new employment for Company B, then Company B must file an H-1B petition requesting extension of H-1B status of the worker. Under the H-1B portability rules, the H-1B alien worker is allowed to begin working for Company B as soon as the petition has been filed. This is advantageous as there is no requirement that the H-1B worker needs to wait for the actual approval of the H-1B petition. The H-1B worker may engage in part-time employment Company B so long as the LCA states that the position is part-time, assuming that the position is still a specialty occupation requiring a relevant bachelor's degree or foreign equivalent.

Hypothetical Scenario: Concurrent H-1B Employment
An H-1B beneficiary with an approved H-1B visa with a cap-except Company A has a validity date from say May 15, 2010 until May 14, 2013. The worker was not subject to the annual H-1B cap. The annual H-1B cap is set at 65,000, with an additional 20,000 visas for advanced degree graduates of U.S. universities. The law exempts nonimmigrant workers from the annual cap if they are employed or has been offered employment at an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 .

Company B has offered the H-1B employee a position with the company as an Accountant (a qualifying specialty occupation). Company B recently submitted an H-1B petition on behalf of the beneficiary with a start date of October 1, 2010 at the start of the 2011 fiscal year, since the beneficiary is now subject to the annual cap going from a cap-exempt organization (Company A) to Company B, a cap-subject employer. Company B's H-1B petition filed on behalf of the beneficiary is now approved by the USCIS.

The so-called portability provision under the law provides continued employment authorization to the beneficiary of an H-1B petition, who is working at the cap-exempt organization and whose employment period is covered by a valid LCA beyond October 1, provided that he/she meets all other requirements under the portability provision as set forth under the law. Meeting these conditions, the beneficiary may begin employment upon the filing of the petition with the cap-subject employer.

Such employment authorization continues until the new H-1B petition is adjudicated. Meeting all of the conditions under the applicable law, an H-1B visa holder may transfer employment once the new employer files on behalf of the H-1B candidate. This ability to port is a temporary benefit bestowed on the H-1B beneficiary under the law but does not confer H-1B status to the beneficiary. Hence, employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

While it is clear that if the petition is denied, the employment authorization ceases. The question arises, however, what happens when the petition is approved? The portability provision does not specifically provide an answer to this question.

Can the H-1B Employee Work for Company B Upon Approval?
In fact, the question was specifically brought up in a string of correspondence between Ms. Naomi Schorr with Kramer Levin Naftalis & Frankel, LLP and Mr. Efren Hernandez III of the United States Citizenship and Immigration Services ("USCIS") during 2007. In her letter dated April 27, 2007, one of the issues on which Ms. Schorr sought clarification from the USCIS was whether the H-1B beneficiary who has ported from a cap-exempt institution to a cap-subject employer, whose H-1B petition with the new employer has been approved and who meets all the conditions the law, could continue to work prior to October 1. In his reply letter dated May 23, 2007, Mr. Hernandez answered in the following:

"As you note, section 214(n) provides employment authorization until the H-1B petition is either denied or adjudicated. Congress appears to have not contemplated a situation in which H-1B status would not be immediately conferred upon the portability worker upon approval of the H-1B petition. By addressing the result of a denial but not an approval Congress seems to have assumed that the alien would immediately be covered by the approval and would no longer require the employment authorization conferred by 214(n), and thus drafted 214(n) so that the employment authorization it provides ends upon "adjudication." I agree that a result in which an alien with a pending petition is in a better situation than one with an approved petition makes no sense. A reading of 214(n) such as the one you suggest that continues employment authorization until H-1B status is available is a logical one, and USCIS will explore this position in future rulemaking."

Based on this string of correspondence, according to Mr. Hernandez it would be absurd to reach the decision that once the petition becomes approved, the H-1B beneficiary would have to stop working until October 1, when new H-1B numbers become available. Such a conclusion would seem to defy logic.

Meeting all of the conditions under the law, the H-1B beneficiary may work for Company B prior to October 1, provided that a new LCA is submitted that would cover this period from now until the start of the next LCA period in the H-1B application, i.e., October 1st.

Continue reading "Columbus Immigration Lawyer: H-1B Portability and Concurrent H-1B Visas" »

Almost all foreign nationals who seek permanent residence, commonly known as a Green Card, through the employment based avenues of permanent immigration must test the local job market via the PERM process. However, for foreign nationals holding a master's degree or a bachelor's plus five years of experience, there is a little utilized waiver of the requirement that the job market be tested by the expensive and time consuming PERM process. For certain highly educated foreign nationals whose area of expertise holds substantial intrinsic merit and the effect of their work would be national in scope, a National Interest Waiver of the PERM process may be available.

Requirements of a National Interest Waiver (NIW) of the PERM Process

The National Interest Waiver has the effect of bypassing the PERM process and placing the potential applicant directly into the I-140 stage of the Green Card process under the EB-2 preference category. While skipping the PERM process is beneficial for all foreign nationals applying for employment based permanent residence, foreign nationals from countries other than China or India will find themselves with a Green Card immediately available upon approval of an I-140 under EB-2. Additionally, foreign nationals from China and India can enjoy the faster processing time of the EB-2 preference category and the peace of mind that the job market does not need to be tested in this economy before they can apply for an employment based Green Card.

Who Qualifies for the National Interest Waiver?

Because of the obvious benefits of the National Interest waiver, the requirements that need to be met are rather stringent. First, the applying foreign national must possess at least a master's degree or its equivalent (Bachelor's plus five (5) years of experience). This educational requirement is the same for all second preference employment based petitions.

Secondly, the foreign national must meets the standards established by the Government that show the foreign national should be allowed to skip the PERM process in the national interest. The controlling case on this issue is the Matter of New York State Department of Transportation 22 I&N Dec. 215. In this case, the court defined three threshold criteria to be met in order to qualify for a National Interest Waiver. A successful argument of all three NIW threshold requirements will establish that the alien is not merely "exceptional" as all EB-2 applicants are, but rather that the aliens skills and achievements "greatly exceed" those of other aliens and similarly educated American workers.

Area of Endeavor Must have Intrinsic Merit: This means that the job that the alien will do must be in a field that has high importance for the national economy or security.

The Proposed Benefit will be National In Scope: This means that the benefits of the foreign national's labor must not be limited to a single geographic area. The effects of the alien's labor must be felt nationally.

The National Interest would be Adversely Affected if the Alien were not Hired: This requirement means that the national interest of allowing the Alien to skip the PERM process and be hired immediately would outweigh the national interest of protecting the jobs of American workers.

As simple as the above requirements seem, it takes a great amount of effort to mount a successful argument that a foreign national deserves to skip the PERM process. Support of the employer is a great importance as well. Common situations that may lead to a successful result include research positions, governmental security positions, complex engineering positions, high ranking business positions and even positions in coaching or music. Every applicant for a NIW must be a step above others with exceptional ability. While there are certain guidelines that can be followed to geach case must be evaluated on its own merits.

Continue reading "Columbus Immigration & Visa Lawyer Discusses a Waiver of PERM Process for purposes of the National Interest" »