Articles Posted in Work Visas

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?

Last Wednesday, House Judiciary Chairman Lamar Smith (R-TX) introduced the American Specialty Agriculture Act (H.R. 2847), legislation that would replace the existing H-2A agricultural worker program with a new H-2C visa program. The new H-2C visa program would be run by the Department of Agriculture. The new program would be attestation-based, would allow workers to stay in the United States for up to ten months, and would be open to half a million immigrants.

Despite substantial efforts to recruit and train U.S. workers, horse farms, ranches, and breeding facilities must use temporary foreign agricultural workers, currently through the H-2A program to meet their labor needs. Without foreign workers, many of the horse breeding farms upon which the horse industry depends could not continue to operate.

The bill would create a new foreign temporary agricultural worker program called H-2C to replace the current H-2A program. The H-2C program would share many characteristics with the current H-2A program such as protections for American and foreign workers and requirements to reimburse H-2C workers for travel and provide for housing. However, the H-2C program envisioned in this bill would have major differences from the current H-2A program intended to make an H-2C program more user friendly. Major provisions of the bill include:

The following sample questionnaire was released by AILA for the benefit of H1B employers. U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions.

FDNS’s mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. FDNS site visits are unannounced. They take place at the employer’s principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.

H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit.

Blow you will find a sample intake form presented to an H1B employer and all the questions asked:

Petitioner Employment Verification Questionnaire

Part I Employer Information (Petitioner):
␣ Name ␣ Address ␣ Number of employees ␣ Number of H1B employees
Employee Information (Beneficiary):
␣ Name ␣ DOB ␣ Address ␣ Phone # ␣ Worksite Address (list all) ␣
Provide the exact dates of employment at each worksite location as applicable ␣ Worksite Phone Number
␣ Work Hours ␣ Salary ␣ Date employment started ␣ Provide the end date of the current project/job ␣ Duty title and general role or responsibility in the job ␣
How much vacation and sick time does the beneficiary receive? ␣ Has the beneficiary been away from work other than normal sick or vacation time? If so,
explain the circumstance(s) and provide documentation.

Beneficiary’s Supervisor Information:
␣ Name ␣ Title ␣ Phone # ␣ Employer ␣ Worksite Address

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USCIS updated the Q & A document on employer-employee relationships for the purpose of determining H-1B eligibility. This updated Q & A follows from the memo entitled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The updated Q & A document addresses several key points of the memo, including clarifications on the types of evidence that can be submitted to USCIS to demonstrate an employer-employee relationship and what a petitioner should do if specifically-requested documentation is not available or does not exist.

Specifically, USCIS states that the types of evidence that can be submitted to demonstrate the employer-employee relationship can be those listed in the original memo, which include:

Recently, the USCIS Service Center Operations Directorate hosted an engagement with AILA representatives. USCIS addressed questions related to Requests for Evidence, the L-1 visa category, and court case decisions. The information below provides a review of the questions solicited by AILA regarding the increased denials in L1A cases and the responses provided by USCIS. We continue to fight and win many of the motions resulting in such erroneous denials.

Question: AILA members report receiving denials of L-1A “new office”petitions where service centers conclude that there is insufficient proof of consideration, or inadequate consideration, for the acquisition by one entity of another, notwithstanding the submission by the petitioner of evidence in the form of executed contracts, stock certificates, and other documentation showing the corporate transaction. Please instruct service centers that the financial arrangements involved in a corporate transaction are not a proper area of inquiry so long as there is other evidence of the creation of a qualifying corporate relationship between the foreign and domestic entities.

Immigration Service Answer:There may be circumstances in which it is necessary to request financial documentation to help establish a qualifying relationship. Such a determination must be made on a case-by-case basis. SCOPS will discuss this topic with the service centers. If there are examples where an I-129 L-1A petition was adjudicated improperly, please provide us with the receipt number, and we will review.