Articles Posted in Employers

Thumbnail image for visa-approved11.jpgLooking back on the most recent H-1B Cap season, it becomes clear that the H-1B process works best when employers, employees and attorneys work clearly and efficiently together. There are many things that your employer’s attorney will need from you to determine if you qualify for a H-1B visa and to prepare the best petition possible for you. The basic things that will be needed from you include:

  • Your current passport
  • Your educational credentials (diplomas and transcripts)
  • Evidence of your current status, if applicable.

Your employer’s attorney will then use this information to demonstrate to USCIS that you meet the qualifications for an H1B visa. For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Thus, ensuring that the attorney has sufficient time to review your job description and your relevant education and experience will help give them an opportunity to thoroughly review your credentials and determine if you qualify or require and academic evaluation. An academic evolution will demonstrate to USCIS that your degree is the equivalent of a US degree in the specialty occupation field, or that your degree plus experience is the equivalent of a bachelor degree in the relevant field. It is very important to get a quality education evaluation as USCIS can reject poor ones. Thus, it is very important to get the attorney all your education information early so that they can review and determine the best course of action for your petition.
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April 1st is just around the corner, which means…It’s time to start the H-1B process! This year, there is no time for hesitation. The H-1B cap was reached within the first week last year, and this year will likely see an even higher demand. Thus, it is essential that when the U.S. Citizenship and Immigration Services Processing Centers open their doors on April 1st, your H-1B petition is on their welcome mat.

If you are an employer seeking to hire a foreign worker, you should be making final determinations about the position they seek to fill, the proffered salary and the foreign worker they wish to hire. If you are a foreign national seeking H-1B sponsorship, you should pinpoint your prospective U.S. employer(s) and gather the necessary documentation, keeping in mind that all supporting documentation must include a certified English translation. To ensure your petition is properly filed, contact an experienced immigration attorney now to give yourself time to perfect your case.

Having filed thousands of H-1B petitions, the Law Firm of Shihab & Associates has mastered the art of skillful and efficient filing. With your full cooperation, our team is able to complete your classic H-1B petition from start to finish in 10 days.

From our hands to the USCIS Processing Center’s doorstep, here is a breakdown of our 10-day commitment to you:

Day 1: Hit the Ground Running

Our Collaboration with U.S. Employers on Day 1.
On the first day that your case is opened, we will create your case file. Your case file is made up of the information that you are able to provide to us on Day 1. In order to hit the ground running, you should at least be prepared to provide us with the proposed position title, a detailed job description and the proffered salary. Using this information, we will determine the appropriate Standard Occupational Classification (SOC) Code and occupation title to be used on the Labor Condition Application (LCA). In addition, we will confirm that the proposed salary complies with the prevailing wage requirements.

Once the job title and salary are finalized, we will draft an internal posting notice for you to post in compliance with the federal regulations. As soon as you confirm with our team that the notice has been posted in compliance with the federal regulations, we will file the LCA with the U.S. Department of Labor (DOL). It typically takes the DOL seven (7) days to certify the LCA. However, if this is your first time filing for a foreign worker, you must first have your Federal Employer Identification Number (FEIN) verified by the DOL’s Chicago National Processing Center. This process usually takes about three (3) days and should be completed prior to filing the LCA to prevent the possibility of denial due to an unverified FEIN.

Our Collaboration with Foreign Workers on Day 1. If you are a foreign worker seeking an H-1B visa and you have a degree from a foreign university, a foreign academic equivalency evaluation will be required. Although this process usually takes between three (3) and five (5) business days, it is a good idea to send the request to an evaluator on Day 1 to guarantee that it is received by the time the H-1B petition is ready to be mailed to USCIS. Thus, if a foreign academic equivalency evaluation is required, you should be prepared to provide our team with your academic credentials, including the diploma and transcripts (“marksheets”) from the foreign academic institution. As soon as we receive these documents, our team will request a foreign academic equivalency evaluation.
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To be eligible for an L-1A Intracompany Transferee Executive or Manager visa, you must first determine whether your position in the United States will be an “executive capacity” or in a “managerial capacity.” The requirements regarding executive capacity are much simpler than the regulations for managerial capacity. If at all possible, it is best to argue that your position will be in an executive capacity. However, if you believe that your employment will be in a managerial capacity, but you do not supervise any subordinate employees, you still may qualify for an L-1 if you can establish your position meets the requirements of a “function manager.” The elements of a managerial capacity position are:

  1. The position manages the organization, a department, subdivision, function, or major component of the organization;
  2. The position supervises and controls the work of other supervisory or professional employees; or manages an essential function of the organization, a department or subdivision of the organization;
  3. If the position directly supervises other employee(s), the position has the authority to hire and fire or take personnel actions over said employee(s); or if no employee(s) is directly supervised, acts as a senior level supervisor within the organizational or managed function; and
  4. The position must exercises discretion over the day-to-day operations over the areas s/he has authority. If the position supervises employees, simply being a first-supervisor is not enough; to be managerial the position must supervise professionals

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The functional manager analysis is relevant to the second element of the managerial analysis. The second element is fulfilled even though the position does not supervise any employees. As long as the position manages an essential function of the organization, or a department or subdivision of the organization the position still meets the managerial capacity requirements Therefore, to meet the second requirement of the managerial capacity analysis, an employee may either supervise and controls the work of other professional employees or manage an essential function, department or subdivision of the organization.

Case law supports the approval of L-1A petitions for “functional” managers with small or no staff. The AAO approved a scrap metal company’s L-1A petition filed for its only employee and president. See Matter of X, 16 Immig. Reporter B2-84 (AAO Feb. 29, 1996). The beneficiary’s primary function was to obtain scrap metal for export and develop real estate through independent contractors.
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The Regulations

Before permanently employing a foreign worker, employers must certify that there are no U.S. workers available for the position by performing specified recruitment steps in order to receive a labor certification. The employer bears the burden of proving that it conducted the mandatory recruitment steps as a good faith effort to confirm that there are no US workers available before hiring a foreign worker. There are three mandatory recruitment steps that every employer must follow. First, the employer must post the job with a state workforce office for 30 days. Second, the employer must post an internal notice of the employer’s intent to hire a foreign worker. Third, the employer must post the job announcement in a Sunday newspaper that is in general circulation in the area of proposed employment for two weeks. If the position that the employer seeks to fill is “professional,” then the employer must choose an additional three of the ten recruitment steps listed in 20 C.F.R. § 656.17(e)(1)(ii)(A)-(J). One of the options is to post the position announcement on the employer’s website. Another option is to post the job opportunity through a job search website other than the employer’s website. As evidence of these options, the employer usually must provide dated printouts of the webpages showing the job advertisement, but other evidence, such as affidavits, may be acceptable. It is the employer’s duty to prove that all of the regulatory labor certification requirements have been satisfied before the labor certification may be granted.

In a decision of Board of Alien Labor Certification Appeals case, issued on December 30, 2013, the Administrative Law Judge (“ALJ”) affirmed a denial of a labor certification because the employer in that case failed to meet the regulatory recruitment requirements. (In the Matter of The Dallas Morning News, L.P., BALCA Case No.: 2011-PER-02302, December 30, 2013)

Background

In that case, the Certifying Officer (“CO”) denied the labor certification in the grounds that the employer did not satisfy the three additional recruitment steps required for a professional position. Two of the three recruitment steps that the employer elected to perform were to post the job opening on the employer’s website and to post the job announcement on an external job search website. The employer posted the job opening to Yahoo’s HotJobs, which is an online career management website containing job listings. In addition, at the bottom of the homepage of the employer’s website, a “careers” hyperlink redirected job seekers to the employer’s profile and job listings on Yahoo’s HotJobs’ website. The CO denied the labor certification based on a finding that the employer did not adequately document that it posted the job opening to its website.
Upon filing a request for reconsideration, the employer submitted an affidavit attesting that the employer entered into a contract with HotJobs whereby the career section of the employer’s website was linked to HotJobs’s website. Therefore, if a potential job seeker clicked on the “careers” tab on the employer’s website, it would redirect that job seeker out of the employer’s website and to the employer’s profile and job openings listed on HotJobs.
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On Tuesday April 1, 2014, the U.S. Citizenship and Immigration Service (USCIS) will begin accepting new H-1B petitions for the 2015 fiscal year, with a start date of October 1, 2014. The cap was reached almost instantly last year. With increased demand for H-1B visas expected in 2014, employers who plan to petition for a foreign worker under H-1B should begin the process early to be ready to file on March 31, 2014.

The 2013 H-1B Season
Last year, the statutory H-1B cap of 65,000 was reached within the first week of opening their doors to cap-subject H-1B petitions. With nearly 124,000 H-1B petitions filed, USCIS implemented a computerized random selection process, called the “lottery” to select the lucky 65,000 cap subject and 20,000 advanced degree H-1B petitions for filing. Last year, the regular cap-subject petitions had a 62.5 percent chance of being selected. Those H-1B petitions that were not selected were rejected and returned, along with the filing fees, to the petitioners.

Increased Demand for H-1B Visas in 2014
It is certain that demand for H-1B visas will be even higher this year for two big reasons. First, the Federal Reserve is predicting good growth in the job market in 2014. The correlation between the job market and H-1B visas is impossible to ignore. When the unemployment rate was nearly 10 percent in 2010, the cap wasn’t reached until November. As the unemployment rates have slowly gone down since then, the cap has been reached earlier each year. Last year, the unemployment rate was averaging around 7.7 percent when the cap was reached. The Federal Reserve forecasts a healthy job market with an unemployment rate as low as 6.4 percent in 2014. Thus, demand for H-1B visas will be even higher this year.

In addition to the improving job market, employers have not been able to file for new H-1B workers since April of last year. Thus, the demand has been building for almost a year. With nearly 39,000 H-1B petitions rejected last year, there are thousands of people ready to try their luck again in 2014. Taking this into consideration, employers seeking to file a new H-1B petition in 2014 must be ready to file when USCIS opens the door in April.
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1280927_ticked_checkbox.jpgLove it or hate it, the Department of Homeland Security’s E-Verify Program, which enables employers to verify employment eligibility of new employees electronically, is likely here to stay. Since its introduction in 2008, a major concern with E-Verify was the fact that the program was not able to catch an employee’s fraudulent use of another person’s name and social security number (SSN), enabling employees and employers alike to circumnavigate immigration laws by using or overlooking the common issue of identity theft. In the past, as long as the SSN provided by an employee matched the employees name and other personal information, E-Verify confirmed the information as valid and the employee was authorized to work, with no way of determining if the SSN was fraudulently obtained.

With hopes to remedy this flaw in the system, Director of the U.S. Citizenship & Immigration Services (USCIS), Alejandro Mayorkas released a statement introducing new security enhancements to the E-Verify program. According to Director Mayorkas, these enhancements will help curb identity theft and falsely obtained employment authorization by detecting and preventing the fraudulent use of SSNs for work authorization.

This new safeguard enables USCIS to “lock” SSNs that appear to have been stolen or fraudulently obtained. Using algorithms and detection reports and analysis, USCIS will track SSN usage patterns in order to track and detect suspicious pattern usage. If it appears that an SSN is being used fraudulently, USCIS will lock that SSN and prevent further usage of that SSN until the issue is resolved. For instance, if an SSN is used to obtain employment in California one day and then used the very next day to obtain employment in New York, the SSN would be locked from usage to obtain work authorization. If an employee attempts to gain work authorization using that locked SSN, the employee will receive a Tentative Nonconfirmation (TNC). A TNC does not automatically mean the employee is not authorized to work in the United States. However, in that situation, the employee may contest the lock at a local Social Security Administration (SSA) field office. If the field officer finds that the employee’s identity matches the SSN, the field officer will change the TNC to “Employment Authorized” status with E-verify. Director Mayorkas explained that this is similar to how credit card companies will lock a credit card if suspicious activity is detected.

calendar.jpgIn 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
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    Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

    With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary (“downgrade”). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

    This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent “upgrading” from EB-3 to EB-2, the beneficiary’s priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

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    Under the Obama Administration, the U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) have markedly increased their efforts in worksite enforcement. Consequently, there has been a significant increase in H-1B site inspections resulting in audits. United States Citizenship & Immigration Services (USCIS) has confirmed that random, unannounced onsite inspections will be a regular occurrence in the future. This will include sending investigators to the H-1B worksite to verify that the H-1B employee is working at the appropriate location and performing the work as described in the H-1B petition. The objective of the unannounced visits and investigations is to detect abuses of the visa program. These investigations can raise issues ranging from Labor Condition Application (LCA) discrepancies to committing fraud on the USCIS. However, the most commonly cited issue is non-payment of a prevailing wage to the beneficiary.

    To prepare our clients for these unannounced inspections, The Law Firm of Shihab and Associates will help you compile an H-1B Public Inspection File. We can also advise you on the best practices for I-9 compliance, what records you need to keep available, and any E-Verity questions you might have. These practices will often answer all the questions that an audit or inspection might raise, limiting your company’s exposure. However, there are some situations where these questions cannot be simply answered and the issue must be litigated.

    Strategies for Litigating

    Once it has been determined that litigation is the most appropriate option for your company, there are several tools and strategies that can be used to build the best case for your company. Some of the most basic litigation tools include requests for admissions, interrogatories and request for production of documents and depositions. These will lay the evidentiary foundation for your case and help establish the basic facts. Other, more advanced tools include, filing a motion in limine and if a party is seeking to submit evidence from a foreign country, working within the Hague Convention to ensure that the evidence may be used in the United States.
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    calendar.jpgAs you prepare for the upcoming H-1B Cap season, it is time to decide for whom you will be petitioning, the job position and function you would like for the foreign national to assume, and the job location where the foreign national will work.When making these decisions, it is important to keep in mind the following information.

    Who should I hire?
    In many instances, we file H-1B cap cases for students who are transitioning from OPT – Optional Practical Training, to H-1B visa status. Retaining your great OPT interns through the H-1B visa process is a great way to ensure that valuable training learned on the job does not walk out of the front door. H-1B cap cases can also be filed for persons who are in the USA in another visa status, or quite frequently for persons outside of the United States. Our firm would be glad to meet you to ensure that your target hire is a good match for the H-1B visa cap program.

    What job can my employee do?
    The H-1B visa is designed for jobs in a “specialty occupation.” There are many ways to show that a job meets the “specialty occupation” standard. However, a good rule of thumb is to consider if the job offered is the type of job that requires at least a bachelor’s degree. Many jobs can fit this category; popular jobs are engineers, managers, occupations in technology or the medical field.
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