Articles Posted in Work Visas

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.

In recent months, the L-1A visa has been under attack by Immigration. More Requests for Evidence and more denials have been forthcoming on L-1 visas than have been issued in the past. Such issues that have arisen recently include the adequacy of the employer’s office space, the nature of the business itself, and even ownership concerns. What is more vexing is when Immigration sends a Request for Evidence asking for more evidence, providing the evidence asked for, and then receiving a rejection notice on a totally unrelated issue that was never raised in the Request for Evidence. Andrew Despositio, Esq. from our office with our team won an amazing motion to re open on a difficult L1A case denial.

Recently, our office submitted an L-1 petition on behalf of a company with a newly founded subsidiary in the U.S. The subsidiary is in the business of marketing the hearing and eye protection that is manufactured and distributed by the parent company in the foreign country. The subsidiary established that it had a legitimate need for an employee from the parent company to act as an executive/manager under the L-1A visa.

Once the case was submitted, a Request for Evidence came back asking to substantiate the business premises, the parent company’s premises, a feasibility study of the subsidiary’s business made by the parent company, insurance statements from the subsidiary, bank statements from the subsidiary, and a lease agreement from the subsidiary. All of these documents were provided to immigration to fulfill each request it made. In the end the case was still denied.

USCIS open forum, designed to encourage open communication between USCIS representatives and AILA practitioners, was held at AILA (American Immigration Lawyers Association) Annual Conference on June 17, 2011. USCIS Director, Alejandro Mayorkas, was present to answer the questions of immigration practitioners regarding the current issues in USCIS adjudication procedures. Attorney Kate Powel who attended this session, prepared the following points for our readers:

The Open Forum concentrated on the issues of aliens with extraordinary abilities category and the Kazarian guidance, VIBE program and its deficiencies, the increased number of standard RFEs, and other problem areas.

During the open forum, AILA members pronounced their concerns regarding the unpredictability in adjudications and stricter adjudication standards, especially as applied to small businesses, that are contributing to an environment that is discouraging foreign companies from coming here.

USCIS released the latest H-1B visa information on June 6, 2011. As of June 1, 2011, USCIS reported that 13,600 cap petitions had been filed and 9,300 spots for U.S. advanced degree holders have been filled.

On May 26, 2011, USCIS reported that 13,100 cap petitions had been filed and 9,000 spots for U.S. advanced degree holders have been filled. In Summary, from May 26 to June 1, about 500 cap petitions and 300 petitions for U.S. advanced degree holders have been filed.

We will be happy to assist you in your H-1B filing needs.

Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a “nonimmigrant” and “was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations].” The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA’s Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel’s office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.