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 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.

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)" »

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" »

The American Immigration Lawyers Association ("AILA") posted on its website processing times for the Administrative Appeals Office, the AAO. The AAO has authority to review certain applications denied by the US CItizenship & Immigration Service ("USCIS"). Decisions issued by the AAO have been controversial as the USCIS may or may not be bound by them as a "legal precedence" or "lawmaking authority" as the American legal system normally operates. Hence, practitioners in the field of immigration law have found the administrative appeals before the AAO as futile and time consuming process. Nonetheless, applicants and petitioners whose cases have been denied by the USCIS have the legal obligation to "exhaust their administrative remedy" before taking their cases to Federal Court to challenge the USCIS' denial. In other words, the Federal Court system may not accept a challenge to a USCIS decision prior to having them try to resolve the matter before the AAO. Hence, the AAO appeals step is viewed by many as a necessary step, though time consuming.

Below, please find the most recent AAO Processing Times. As can be seen, it may take more than a year to review an H-1B visa case denial. An EB-2 or EB-3 I-140 denial may take 2 years to appeal before the AAO. In comparison, an alien entrepreneur petition form I-526 denial will take 6 months to appeal before the AAO.

Continue reading "Columbus Ohio Immigration Lawyer on Administrative Appeals Office - AAO Processing Times As of May 1, 2010" »

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" »

H-1B Question: Can an H-1B Employer legally recoup by way of payroll deductions or otherwise the costs (whether they were expended for attorney fees or filing fees) it will incur in sponsoring or extending the H-1B alien's nonimmigrant H-1B petition?

The Law: Department of Labor Regulations
The US Department of Labor ("USDOL") regulations allow the H-1B employer to deduct certain expenses related to insurance, etc. Under Federal Regulations, all other deductions must meet each of the following criteria to be considered "authorized" under the USDOL rules: (1) the deduction must be reported as such on the employer's payroll records; (2) the H-1B worker must have agreed to the deduction in writing and such agreement must have been entered into voluntarily (the mere acceptance of a job which carries a deduction as a condition of employment does not constitute a voluntary agreement); (3) the deduction must be for a matter that is principally for the benefit of the employee; (4) the deduction is not a recoupment of the employer's business expense; (5) the amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and (6) the amount deducted does not exceed 25% of the employee's disposable earning.

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.

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.

In one of the first enforcement actions involving this provision, the DOL found that a company owed three of its H-1B employees compensation for the judgment amounts assessed against them for the $5,000 "investment fee" that the company sought to recoup when the employees resigned after less than one year of employment. USDOL v. Novinvest, LLC, 2002-LCA-24 (Jan. 21, 2003). The DOL argued that the $5,000 fee, purported to be a business expense used to "hire, train and process" the employees, was in fact an early termination penalty, which is not authorized. Analyzing state law, the Administrative Law Judge stated the company would have to satisfy two tests in order for the $5,000 "investment fee" to be an allowable deduction from the employees' wages. First, the company would have to show that the employees agreed to the policy that included the fee, the fee was intended to benefit the employees, the fee was not used simply to recoup the company's business expenses, the fee did not exceed the cost of the expenses covered, and the fee did not exceed federal limits set on the garnishment of wages. Second, the company would have to show that the fee represented liquidated damages according to state law.

H-1B Visa Costs
Federal Regulations expressly prohibits an employer from deducting from an employee any of the costs associated with the preparation and filing of an H-1b visa for an employee. An alien may pay for some of the filing fees and all of the attorney fees prior to the commencement of the employee/employer relationship. This is because the employer is only prohibited from deducting such fees and expenses after the commencement of the employee/employer relationship. However, prior to the commencement of such employer/employee relationship, the employer could pay for all of the attorney fees, the I-129 filing fee and the fraud fee of $500. Even prior to the commencement of the employer/employee relationship, the employer must pay for the H-1b visa filing fee.

Continue reading "Columbus H-1B Immigration Lawyer: Payroll Deductions for H-1B Workers" »

A popular alternative to the H-1B and L-1 visas for Canadian or Mexican nationals is the TN Visa. This visa allows temporary immigration to the United States for persons from Canada or Mexico who hold a baccalaureate degree or appropriate level of credential status, qualifying them as a professional. This visa has several advantages over other available options for citizens of the NAFTA treaty countries over and above the benefits of H-1B or L-1 visas. Due to the specialized documentation needed in order to properly apply for a TN visa, the representation of an experienced immigration attorney is recommended when applying for TN visas.

Qualifications

The TN visa is based upon the NAFTA treaty signed by Canada, Mexico and the United State. The purpose of this visa is to allow for the mobility of professionals between the three countries in recognition that the common borders of the NAFTA signatories lend themselves to multinational business across their shared boundaries. Therefore, professionals holding a baccalaureate degree or equivalent credentials may be eligible to apply, including those citizens of Canada who graduated from a three year degree program.

There are various statutory requirements that need to be proven in the TN visa petition. Generally, it needs to be shown that the applicant is indeed a citizen of Canada or Mexico and that he person is indeed a professional. Proof of a professional and lawful work engagement requires the careful drafting of a letter, explaining the purpose and length of stay.

Advantages of the TN Visa

There are several advantages of the TN visa over other the L-1 or H-1b visa:

1. There is no statutory limit on the length of stay in the United States;
2. A four year baccalaureate degree is not a hard line requirement, equivalency to a baccalaureate degree may be shown;
3. A three year baccalaureate degree may be used to meet the educational requirement in certain situations;
4. Part time employment is permitted;
5. Change of job location with the same employer does not necessarily require the filing of a new petition;
6. TN Visas may be processed at the port of entry instead of the central USCIS processing facilities;
7. The petition does not require the filing of an LCA.

Drawbacks of the TN Visa

There are two main drawbacks for the TN visa that need to be taken into consideration before applying:

1. There can be no dual intent for TN visa holders. This means that a TN visa holder will run into trouble in obtaining a Green Card while on TN visa status. There are also side effects of the "no immigrant intent" rule for TN visa holders, such as the inability to obtain in-state tuition in the US;
2. No Self Employment: TN visa holders cannot work for a company in which they hold an interest.

Continue reading "Columbus Immigration Visa Attorney Discusses the TN Visa for Canadian and Mexican Nationals Engaged in work Activities at a Professional Level" »

This articles provides guidance in understanding common issues involved in the H-1B visa extension. The main topics of discussion will be: the "240 day rule" for timely filed H-1B extensions, travel while H-1B extension is pending, and H-1B extensions beyond the six year limit.

H-1B Extensions:
The H-1B visa allows a foreign national to remain in the United States temporarily for a total period of up to six years in H status (with possible extensions). The H-1B visa is approved in three year increments. The H-1B visa extension can be filed by anyone currently in H-1B status in the United States and currently employed by a U.S. employer. An H-1B extension can be filed up to six months (180 days) prior to the expiration of their current status. It is currently taking USCIS approximately two (2) full months to adjudicate H-1B visa extensions. Thus, it is advisable to file the extension as early as possible within the 180 day period. Often times however, H-1B extensions are filed very close to the expiration date (i.e., less than two months) which creates a sort of "gap" in valid status. While this appears to be a problem, Federal Regulations offer a solution, which is discussed below in the "240 Day Rule" section. Finally, H-4 dependents (spouses and children of the H-1B visa holder) must have their status extended as well. Their petitions will be filed concurrently with the principal beneficiary.

The "240 Day Rule":
Occasionally, an H-1B extension is not filed until very close to the H-1B worker's expiration of status. If the expiry date is close, the H-1B worker may feel anxious that his/her visa may not be renewed before the expiration of their current approval notice. The worker may want to travel and need the extension approved before doing so. The Service's current processing times for H-1B extensions create a nebulous period between the expiration of current status and approval of the extension. Luckily, Federal Regulations have provide an out in such situations. The so-called "240 day rule" was implemented to allow an employee to continue to work for an additional 240 days after the expiration of the visa for the same employer so long as there is a timely filed (i.e. before the expiration of the current status) and pending H-1B visa extension application with USCIS. The benefit is clear; the H-1B worker will continue to work for the employer unabated. This is true even if USCIS issues a Request for Evidence seeking additional documentation of H-1B eligibility. However, if the petition is denied, the worker must cease employment as of the date of denial. Any period of work after such a denial would be considered unauthorized employment.

Assuming there are no problems with the extension, a new I-9 form must also be completed in the department in order for the H-1 holder to continue. With your extension receipt, you can write "240 day rule applies" on the Form I-9 and then reverify the I-9 at the end of the 240 days when you have received the H-1B extension approval notice. This is helpful for your Human Resources department as they often feel uncomfortable in maintaining employment without the approval notice in hand.

Travel with Extension Pending:
H-1B visa extensions should be made 3 to 6 months in advance of the intended start date to ensure timely USCIS processing of the request. Workers in valid H-1B status may travel abroad after the extension has been filed with USCIS but must return before the current H-1B expires or wait abroad for the extension to be approved. The approval notice can be sent to the applicant to obtain a new visa with which to return to the U.S. As a note of caution, certain consulates may require additional documentation in addition to the approval notice such as the completed petition and/or DOS forms (such as the new DS-160) to issue a new visa stamp. The U.S. Consulate in India is especially detailed and requires more information. Always check the consulate's website prior to scheduling an interview in these situations.

Extending the H-1B Visa Beyond the Six-Year Period
An H-1B worker may be nearing the end of his or her six year validity period on H-1B. All else being equal, an H-1B worker cannot extend their status past the six year period and is required to leave the U.S. for a year before returning on H-1B status. However, in October of 2000, AC21 was enacted enabling H-1B visa holders with approved I-140 petitions who are unable to adjust status to lawful permanent resident status (I-485) due to the per-country limitations, to be able to extend their H-1B visas until their application for adjustment of status has been adjudicated. If you have an employment based green card application filed on your behalf in EB-1, EB-2 or EB-3 categories and you are not able to file for adjustment of status because you are from a country where your priority date is not current, then you can extend your H-1B visa for up to three additional years. The approved I-140 is your ticket to the additional three years. If your I-140 is still pending, then you can only obtain one additional year provided that 365 or more days have passed since filing your labor certification or 365 days or more have passed since the filing of the I-140. Applicants from China or India often experience this scenario as the per-country limitations from those countries are quite small in comparison to other countries.

Continue reading "Columbus Immigration Lawyer: H-1B Visa Extensions and the "240-Day Rule"" »

When will the 2011 H-1B Visa Cap Reach this year? This is a question I am asked about constantly from my clients. Many of my clients are in what I call a "Transitional Mode." As the economy slowly picks up, many of my companies are eager to hire talents to work on projects but are squeamish to do so because the slope of market's recovery is not as steep as they had hoped.

The financial news media has announced that the recession is technically over, however the effect of the recovery has not been felt yet. Reflecting on numbers released by the USCIS, it appears thus far at least, that the H-1B visa cap consumption is very similar to 2009. So, the question remains, when will the 2011 H-1B visa cap be reached?

As of the date of this entry, there has been 4 releases by the USCIS relative to the numbers of the H-1B visa cap reached thus far. I took the liberty to plot these numbers on a graph and I was very surprise to find out that the H-1B visa cap consumption experience has been very linear so far. In other words, the slope of the graph representing the usage of the H-1B visa cap cases is a straight line. Please see graph below. In other words, the market place has been very consistent in the demand for foreign talent . It is my opinion that the demand for the employment of foreign talent is very similar to the demand for domestic talent. Said differently, employers do not favor foreign over US specialty workers as has been demonstrated by the H-1B visa cap experience 2009 and 2010. Please see my previous blog article on this subject. Hence, the slope of the graph representing the usage of the H-1B visa is also a true representative of the employment of US workers in specialty occupations.

Since the H-1B visa usage this year is remarkably linear, It is simple to use this data to project forward the current usage into the future. Obviously this assumes that the demand for highly skilled labor will continue on the same trend as currently experienced. Judging from analysis of financial trends employment of highly skilled labors will lag behind consumer confidence and spending in the market place. Using the slope of the H-1B visa usage so far and projecting forward shows that the H-1B visa cap should be consumed by January 2011.