Articles Posted in Employers

If you are interested in finding others in the immigration community and making professional connections, including potential H-1B employers and job-seekers, then please join the “USA immigration Jobs and Visas”group on LinkedIn.

In this group, members may post or browse through H-1B job listings on the group’s Bulletin Board. You may also post questions and participate in discussions on the Community Forum. Topics include employment-based and family-sponsored immigrant and non-immigrant visas, citizenship and naturalization, student visas, treaty investor visas, DACA, audits, litigation and appeals, and various other topics pertaining to immigration in the United States.

“USA Immigration Jobs and Visas” is hosted by Attorney Gus M. Shihab, President and CEO of the Law Firm of Shihab & Associates. Gus Shihab is the former Chapter Chair of the American Immigration Lawyers Association (AILA) in Ohio, and he has more than 22 years of experience representing corporations both large and small, as well as international investors in the employment and transfer of foreign talent before the U.S. Department of Labor and the U.S. Citizenship & Immigration Service. Mr. Shihab has been recognized by many independent organizations as a leading lawyer in the practice of immigration law. He was nominated for the Litigator’s Award in 2014 and is a life member of the Multi-Million Dollar Advocate’s Forum. Mr. Shihab is an AV rated lawyer, a professional recognition by peers, a designation given to only 5% of all lawyers in the United States.

gavel-952313-m.jpgIntroduced in a separate article, the new standard for avoiding wage liability to H-1B employees (without terminating them) created in Gupta vs. Compunnel raises a serious question. Now, to escape liability in this way, employers must first have “work assigned” to the employees in question. Because, the reasoning goes, the employees must be nonproductive due to “conditions unrelated to the employment,” and if there is no work assigned it could be true that the lack of assigned work is the true cause of their nonproductive status. If it is, then the employer’s case for escaping wage liability cannot be accepted (and the burden of proof for such a case is on the employer).

Thus, what may count as “work assigned” in this context becomes of consequence. Indeed, it was a central focus in a case recently argued by Attorney Gus Shihab on behalf of an affected employer: Administrator vs. Parsetek. Parsetek is a tech consulting agency in Virginia. Employee S.M. was hired by Parsetek with an effective and prevailing wage of $51,376 per year–but was never placed on work assignment due to her being unavailable for such, but was only given a bona fide termination many months afterwards. The case revolved around Parsetek’s wage liability in light of the Gupta standard despite her never having completed any work on its behalf.

In the first two months of her being with Parsetek as an H-1B, S.M. was interviewed for a three-year assignment that would have resulted in significant profit for Parsetek. However, nothing came of it. Parsetek claims that it was because she continuously asked to delay the start date of the assignment. Not long after that, S.M. informed Parsetek that she would be leaving Virginia to join her boyfriend in Chicago. This alone did not cause serious alarm because companies like Parsetek can place workers virtually all over the nation. So, it continued to market her to several end-client employers. This went on for seven months, with S.M. seeming to cooperate. However, her responses grew less and less frequent.

ring-the-bell-pictogram-1383851-m.jpgIn a February blog article, we covered the case of an H-1B employee who had “absconded.” Specifically, she made herself patently unavailable for work by fleeing the area and being unresponsive to attempts to assign work to her. In normal circumstances, there are easy solutions to this kind of problem. But with the Department of Labor’s (DOL) support, the former employee was able to construct a somewhat persuasive case that the employer owed her a great deal of money. Luckily, however, the judge disagreed. He instead agreed with the employer–represented by Attorney Gus Shihab. To explain the case, the situation that led to the government’s coming to side with the employee must first be presented.

To hire an H-1B worker, an employer must demonstrate (through a Labor Condition Application) that the foreign worker’s presence displaces no American workers. The goal is to limit the incentive one has in hiring H-1B workers to their skills and qualifications. Nonetheless, some groups are blaming H-1B workers for certain economic woes. Perhaps because of this, the government appears to be attempting to make the hiring of H-1B workers less and less attractive.

One consequence of Labor Condition Application requirements is that hiring H-1B workers comes with a high standard for avoiding wage payment liability. In order to be released from this liability, an employer must effectuate a “bona fide” termination (which is more complicated than a normal termination) or show that the employee was unavailable for work (or in “nonproductive status”) due to “factors unrelated the employment.” If neither of these are done for any period of time (and the employee has not resigned or forfeited H-1B status), an employer is obligated to pay the employee as if he or she had been regularly working (even if this is not the case). This pay must be at least the prevailing wage of people with the H-1B worker’s same occupation in his or her area.

visas.bmpThe H-1B visa program is very successful. Since its launch in 1990, it rose in usage until hitting its statutory cap of 65,000 new temporary workers annually seven years later. At the time, it was raised temporarily to accommodate the tech boom, but this higher cap was allowed to expire. Since 2003, it has sat at the original 65,000 with an additional 20,000 set aside for those with master’s degrees.

Congress may raise the cap as part of a comprehensive immigration reform bill, but this does not appear likely to occur for at least another few years. Despite the increased chance of failure due to being capped out, the amount of H-1B petitions received by the government continues to rise each year. It has thus become necessary to seek alternatives. Many employers will likely be unable to take advantage of these alternatives, but it is worth investigating.

Most of these visas are in some way superior to the H-1B (in that those eligible for both would likely be wiser to opt for the alternative). Unsurprisingly though, qualifying is a significant hurdle. But it is likely true that several employers who desire to use the H-1B program could just easily enough convert their foreign hiring for it to make sense to use one of these alternatives.

cgress.jpgSome bad bills that may adversely affect our clients (and immigrants in general) are being put forth by the House of Representatives. We do not believe that any of these bills stands a good chance of becoming law, but it is important for the public to know what Congress is up to.

The “Legal Workforce Act:” HR 1147

This bill would harm tens of thousands of qualified workers by requiring their prospective employers to put them through the clunky at best and unreliable at worst E-Verify system. The system is a way for U.S. employers to check to see if their potential hires are qualified to work in the country. Though the system has existed for almost 20 years, errors are alarmingly frequent. In 2012, one half of one percent of attempted uses of the system resulted in its erroneously reporting that a foreign national was ineligible to work. This seems small, but because this mandate would affect 30 million new cases each year, around 150,000 people can expect to lose a chance at employment because of it.

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

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

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

airplane-1445545-m.jpgThis year marks the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department has not comprehensively examined or modified the PERM requirements and process since its inception in 2004. However, pursuant to President Obama’s Executive Action on Immigration, the U.S. Department of Labor recently announced its plan to review the PERM labor certification program and relevant regulations, in an effort to modernize the program to be more responsive to changes in the national workforce.

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

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

whos-the-boss-101233-m.jpgIn planning an L-1A visa petition for a foreign investor, it is essential to take into careful consideration several qualifying requirements. Below is a description of some of these qualifying criteria, which have in recent years caused L visa denials or requests for evidence. Navigating these criteria requires a high degree of sophistication and planning on the part of immigration counsel.

Executive vs. Managerial

These terms are often misunderstood, since the job responsibilities for each may share some commonalities. However, it is critical to remember that each has a distinct statutory meaning and purpose. For instance, an L-1A coming to the US to occupy an executive position may not necessarily have any supervisory roles. Hence, if the foreign national is entering the US to “direct” the petitioning company rather than supervising subordinate employees, a better argument exists that the L visa recipient will fill an executive, not a managerial position.

travel-1194402-m.jpgWhen one thinks about the nonimmigrant workforce in America, most turn first to the H-1B visa. However, there are often ample alternatives to the H-1B process that will spare employers and foreign nationals alike from waiting until April to submit and the stress of the current “wait-and-see” lottery system. Each of the categories below allow for an employee to begin upon approval of the petition, rather than waiting for the beginning of the fiscal year in October.

TN Visa

Based upon the North American Free Trade Agreement (“NAFTA”), the TN visa allows Canadian and Mexican nationals to enter the United States for employment in specific professional occupations. The beneficiary employee must meet any associated education requirement for the particular profession. This visa does not require any attestations by the employer to the Department of Labor via a Labor Condition Application (“LCA”). A TN may be extended indefinitely, unlike the six year cap on the H-1B visa. Additionally, for Canadians, this visa does not require approval from USCIS prior to entering. A Canadian may simply present themselves at the border to a CBP officer, and with the proper documentation, will be allowed entry in TN status. Depending on the intended Port of Entry, it is often safer to apply with USCIS and present an approval notice, rather than to rely on the knowledge and opinion of a Border Officer to grant status.

KeepCalmStudio.com-[Crown]-Keep-Calm-And-H-1b-Season-Is-Over
On April 7, 2014, the U.S. Citizenship and Immigration Services announced that it received approximately 172,500 total H-1B cap-subject petitions between April 1, the first day USCIS began accepting H-1B cap-subject petitions, and April 7, the last day to file an H-1B cap petition for FY 2015. This figure includes both regular cap-subject petitions and petitions filed under the U.S. Master’s cap exemption and far exceeds the statutory limit of 65,000 for regular cap petitions and 20,000 for U.S. Master’s cap petitions. Given the excess number of petitions, the USCIS completed the computer-generated random selection process (“lottery”) to determine which petitions would be accepted for adjudication. In the lottery process, the USCIS first selects 20,000 qualifying H-1B U.S.-Master’s cap-subject petitions from the pool of U.S. Master’s Cap petitions received. Those U.S. Master’s cap petitions that were not selected in the first lottery are then added to the pool of regular H-1B cap subject petitions. The USCIS then randomly selects 65,000 H-1B cap-subject petitions from the unselected U.S. Master’s cap petitions and the regular cap petitions. Our team has received questions regarding this process. Here is a summary of those questions and our answers:

Q: How will I know if my petition has been accepted?

A: While it is unlikely that the USCIS has processed all of the cap cases yet, the earliest way to know if your petition was accepted is to see if the filing fee checks have been deposited by the USCIS. If you have access to the check information, you may look to see if your filing fee checks were deposited. On the back on the checks, you will find your receipt number.*

Otherwise, the USCIS will notify our team by email or my regular mail (on the Form I-797) whether your petition was accepted or rejected. Please rest assured that the moment our team receives any notifications from the USCIS, we will immediately inform you of such correspondence.

* If our firm issued the checks, we kindly ask that you refrain from contacting our accounting team to request this information.

Q: When will I find out if my petition has been accepted?

A: With 172,500 petitions on their hands, it will take some time for the USCIS to inform you as to whether your petition was received or rejected. While we have received email notifications a few of our clients who filed under Premium Processing, notifying us that the petition was received, do not be alarmed if you have not received any communication from us or the USCIS regarding whether your petition was accepted or rejected. Right now, it’s simply a matter of waiting for the USCIS to process the numerous petitions they have on their hands.
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