Articles Posted in Work Visas

So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

To qualify for an H-1B visa foreign nationals must have the a U.S. Bachelor’s Degree or its equivalent in their specialty and, in fields that require licensing, such as teaching or pharmacy, a full unrestricted license to practice in the U.S. You must also have a U.S. employer to sponsor you; you cannot be self-employed or self-petitioned.

Thus, if you wish to come to the U.S. on an H-1B specialty occupation visa, and all your degrees are foreign degrees, you will need your educational credentials evaluated and submit that evaluation with the H-1B petition.

At a recent meeting between AILA and USCIS officials, the following issue came up: We request that Service Center Operations Director advise on how the Service treats foreign degrees, for equivalency purposes, if the programs were structured differently at the time

We have been reporting on the increase in unjust H1B denials for weeks. In many cases applicants and their lawyers are left with the option to appeal or refile. But when the media gets involved, USCIS are forced to change course.

Earlier this week “World News” shared the story of Amit Aharoni, an Israeli national and a graduate of Stanford Business School, who secured $1.65 million in venture capital funding with two cofounders to launch CruiseWise.com, an online cruise booking company. The company hired nine Americans in just one year.

But Aharoni hit rough waters after he received a letter on Oct. 4 from U.S. Citizenship and Immigration Services denying his request for a visa and notifying him that he needed to leave the country immediately. Aharoni moved to Canada, where he was forced to run his company via Skype from a friend’s living room. While “World News’ viewers voiced their disappointment, this morning, Aharoni received an email from USCIS. He was told that his petition had been reconsidered and approved. He is once again able to work in the U.S.

So the race for H1b Visas is on. As of October 28, 2011, USCIS received approximately 49,200 H-1B petitions counting towards the congressionally mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under the general cap. Employees with advanced degrees from U.S. colleges and universities may still apply under the general cap.

The H-1B numbers are being used at a faster rate this year than they were last year. In October 2010, USCIS had received approximately 45,600 H-1B petitions counting towards the congressionally mandated 65,000 limit and approximately 16,700 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

Can you own your company as an H1B Holder? Attorney Ekaterina Powell from our office has prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.

Since the issuance of Neufeld Memorandum “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements” in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.

In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. § 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an “employer-employee relationship”, as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.

As lawyers specializing in the H2B visa process, we wanted to share the following update. The Department of Labor (DOL) is now issuing two prevailing wage determinations (PWD) for H-2B cases. Since last week we have received new PWDs with the following message attached:

On January 19, 2011, the Department published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. On August 1, 2011 the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H–2B workers and U.S. workers recruited in connection with an H–2B labor certification for all work performed on or after September 30, 2011. However, on September 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to November 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

As a result of the pending court actions and the delay imposed by the Department, you are now receiving two Prevailing Wage Determinations; attached please find the second of two. The wage listed on this Form ETA 9141 is for work performed until November 29, 2011. The National Prevailing Wage Center has already issued to you an ETA Form 9141 that is based upon the Wage Final Rule, which will, by virtue of that delay in the effective date, apply to work that is to be performed on or after November 30, 2011, unless a new effective date is established in connection with the pending court actions.

In the past several months we have received numerous lengthy Requests for Evidence regarding L1B visa cases. We are not alone, many lawyers across the country report similar requests in L1B cases.

The L1B visa is designed for individuals from foreign countries who plan to come to the United States to work. These individuals possess specialized knowledge, skills and experience regarding the procedures, systems, services or products of a firm, corporation, company or other entity. The area of specialized knowledge for the individual includes highly developed technical expertise or professional knowledge. It also relates to a person’s private, exclusive understanding relating to a company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s connected to the successful functioning of the entity in the United States.

Immigration attorneys continue to be concerned about USCIS’s L-1B adjudications and the failure to apply current binding USCIS guidance to these adjudications. Instead, adjudicators are relying on pre IMMACT 90 case law, as well as adjudicatory standards enunciated in a line of non-precedent AAO decisions.

Attorney Ekaterina Powell spearheaded this remarkable victory. Camille is a citizen of the Philippines. She came to the U.S. in August 2007 on a J-1 visa to train in the hospitality operations of a restaurant. The restaurant subsequently hired Camille to work for them under H-1B visa in the position of Human Resources Specialist. The employer did not follow the H-1B regulations, did not pay Camille the required wage for the position or overtime wages.

On September 28, 2010, the restaurant informed Camille that she is fired effective immediately. Camille has long been thinking about continuing her education and obtaining a Master’s Degree. She immediately started searching for good MBA programs at local schools. On Monday, October 4, 2010, Camille retained an attorney, collected all the necessary documents for Change of Status application which was filed on Tuesday, October 5, 2010.

USCIS denied Camille’s application for Change of Status because, in the opinion of the Service, Camille was not in a lawful status when she filed the Change of Status application because she was discharged from work on September 28, 2011 and was in violation of her status the next day.

Due to several reasons, Camille could not go back to the Philippines in order to apply for a student visa from there. Our office has filed a motion to reopen the case arguing that the denial decision should be overturned and Camille should be granted the F-1 status.

MOTION TO REOPEN THE CASE

In the motion to reopen, we argued that Camille continued to maintain her valid status when she filed the application on October 5, 2011. We presented evidence that there was no bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS. Additionally, and most importantly, we provided proof that Camille was an employee of the restaurant on the date of filing the application because her termination was not effective until October 19, 2010, the date the Separation Agreement between her and the employer became effective.

In addition, we argued that even if the period of previously authorized status had expired, Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status to F-1 student. The lack of notice given to Camille regarding her discharge from work, Camille’s good faith and expeditious efforts to find an appropriate school program supported the favorable exercise of the Service’s discretion in granting the Change of Status.

There has not been a bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS.

In order to determine whether Camille was in a valid nonimmigrant status, we need to determine the date the employment relationship between her and the H-1B employer terminated.

U.S. employers who hire temporary H-1B nonimmigrants are required by law to notify the Service that an H-1B employee no longer works for the employer so that the petition is canceled. 8 Code of Federal Regulations (“CFR”) 214.2(h)(11)(i)(A). The regulations similarly require the employer to provide the employee with payment for transportation home under the circumstances in 8 CFR 214.2(h)(4)(iii)(E)). Upon the Service’s receipt of an employer’s request to withdraw an H-1B petition, the revocation of the approval of such petition is automatic. 8 CFR sec. 214.2(h)(11)(ii).

Therefore, notification to USCIS is fundamental to ending an H-1B employer’s obligations. The notice triggers USCIS’s ability to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. See 8 CFR sec. 214.2(h)(11)(iii)(A)(1).

USCIS regulations do not provide for the automatic revocation of an H-1B petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation by the employer. This means that the employer remains liable for payment of back wages to the employee up to the point of the petition’s expiration or revocation.

An employee may not be considered properly terminated unless the employer follows the regulations and notifies USCIS that the employment relationship has been terminated so that the I-129 petition is canceled and provides the employee with payment for transportation home. See Amtel Group Florida, Inc. v. Yongmahapakorn, ARB case no. 04-087, ALJ case no. 2004-LCA-006 (Sept. 29, 2006).

Under Amtel, a bona fide termination requires 1) notice to the employee; 2) notice to USCIS that employer has terminated the employment relationship and withdrawing the petition; and 3) employer providing the employee with payment for transportation home.

Therefore, notification of USCIS and payment for return transportation abroad are essential components of evidencing bona fide termination of employment.

In Camille’s case, the employer has not notified USCIS until February 8, 2011 that it is withdrawing the H-1B petition for the beneficiary. Therefore, there has not been a bona fide termination of Camille’s H-1B employment up until February 8, 2011.

Camille was an employee of the Restaurant on the date of filing the application for a change of status on October 5, 2010 because the Separation Agreement became effective only on October 19, 2010

Additionally, Camille signed the Separation Agreement and General Release of All Claims with her employer on October 11, 2010. The Separation Agreement itself became effective on October 19, 2010. The separation agreement serves as additional proof that Camille was an employee of the company when she filed the application for a change of status on October 5, 2010.

Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status

In the motion, we also requested the Service to favorable exercise the discretion to grant Camille the change of status even if it is determined that her previously authorized status had expired.

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In this article, attorney Ekaterina Powell from our office provides a summary of the key issues and analyzes the best practices for employers to follow in their immigration compliance efforts.

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Department of Justice protects the rights of individuals from employment discrimination based upon citizenship or immigration status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC enforces the anti-discriminatory provisions of the Immigration and Nationality Act (INA). Individuals discriminated against may file charges with OSC and be awarded back pay and reinstatement, among other remedies.

The INA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ work eligibility as specified on the I-9 form. The employees must present documentation to their employers to establish both identity and employment eligibility. The I-9 form must be completed for every employee, regardless of national origin, and whether or not the employee is a U.S. citizen.

We all share the frustration of dealing with VIBE (Validation Instrument for Business Enterprise) requests for evidence. At this point many employers are wondering if this system is really that beneficial to accomplish the Government’s goal to verify employers. Some argue it is time to get rid of this program once and for all.

Validation Instrument for Business Enterprises (VIBE) utilizes information contained in the Dun & Bradstreet (D&B) database to verify evidence submitted with I-129 petitions. VIBE is being used for verifying all I-129 petitions, except Os and Ps. Evidence submitted with the petition is given deference, and VIBE information is not reviewed independently of evidence submitted. However, any contradictory information will lead to the issuance of an RFE. VSC has indicated that its database is updated when contradictory information gets resolved.

VIBE RFEs indicate that petitioners may wish to update their information in the D&B database. Given that D&B is a commercial database, there is a very real concern that information offered by petitioners to D&B may be sold or otherwise misused by D&B for commercial gain. Also why give only one commercial system the power to verify all employers filing for visas?