Immigration Visa Attorney Blog

Many of our Family Immigration clients in Columbus, Ohio and in Michigan and elsewhere share their frustration that notwithstanding near a decade passage of the Child Status Protection ACT (CSPA), USCIS continues to struggle with its interpretation. I explained in my prior blog, The Child Status Protection Act (CSPA), enacted on August 6, 2002, contains remedies for foreign nationals claiming a "child" status who are in jeopardy of losing their immigration benefits due to aging out. Though the Child Status Protection Act (CSPA), was enacted in 2002, the United States Citizenship and Immigration Services (USCIS) were still changing its interpretation of the CSPA's provisions until 2008. In particular, foreign nationals who had an approved immigrant visa petition prior to the CSPA's inception, but had not filed a green card application before August 6, 2002 were initially not eligible for the CSPA's benefits.

In guidance issued in February 2003 and August 2004, the USCIS reiterated their initial position: that the provisions of the CSPA took effect on August 6, 2002 and were not retroactive. Thus, benefits would only be available to foreign nationals who aged out on or after August 6, 2002. The only exceptions for foreign nationals who aged out prior to August 6, 2002 were for those who had a visa petition either pending on August 6, 2002 or had an approved petition with a green card application pending on August 6, 2002. Interestingly, pending for the purposes of visa petitions includes appeals or motions to reopen filed with the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO) on or before August 6, 2002.

The USCIS' policy shift was not voluntary, rather mandatory in light of the BIA's decision in In Re Rodolfo Avila-Perez in February 2007, holding that it is not mandatory for a foreign national to have an application for adjustment of status or immigrant visa pending on August 6, 2002 to be eligible for CSPA benefits. Accordingly, the USCIS revised its previous position regarding the retroactivity of the CSPA provisions. Currently, qualifying foreign nationals who aged out prior to the CSPA's implementation can file a new green card application to take advantage of the CSPA. Additionally, foreign nationals whose green card applications were denied due to age can file motions to reopen or reconsider. It took the USCIS a long time to settle on the appropriate interpretation of the CSPA, but fortunately the correct conclusion was reached: that the benefits of the CSPA should have retroactive application to certain foreign nationals.

From Columbus, Ohio and Troy Michigan and beyond, The Child Status Protection Act (CSPA) gives children of immigrants badly needed protection form government slow immigration processing. The Child Status Protection Act (CSPA) was first enacted on August 6, 2002 for the purpose of allowing certain children of lawful permanent residents or naturalized U.S. citizens to maintain their "child" status through 21 years of age. Increasingly, processing delays at the United States Citizenship and Immigration Services (USCIS) were causing children to lose their eligibility for certain visa classifications due to "aging out" or turning 21 years old.

In general, the Child Status Protection Act (CSPA) provides that the age of a foreign national claiming a child classification will be frozen upon the occurrence of various events, depending upon the type of petition pending. For example, if an immediate relative petition was originally filed, the CSPA considers the foreign national's age to be fixed as of the date Form I-130 Petition for Alien Relative was filed. If Form I-130 Petition for Alien Relative was filed while the foreign national was 20 years old, the foreign national's age for visa classification purposes would be frozen at 20 years old until a visa number became available.

The CSPA contains special provisions for children whose lawful permanent resident parents naturalize, children self-petitioning under The Violence Against Woman Act (VAWA), and married children whose marriage is subsequently terminated. Additionally, the most recent guidance from the USCIS allows retroactive application of CSPA benefits to foreign nationals who had an approved immigrant visa petition prior to the establishment of the CSPA, but had not yet applied for a green card by the date the CSPA was enacted. This development in CSPA interpretation allows many foreign nationals who never filed a green card application, or had their application denied due to age, to refile.

The CSPA provisions are anything but easy to comprehend. Originally, the USCIS even had some difficulty in determining how the provisions of the CSPA should be interpreted and, for many years, was continually issuing revised guidance memoranda. There has been well documented cases of improper denials by USCIS since 2002. Notwithstanding the confusion, it is in the best interests of any foreign national in danger of aging out to fully understand and avail themselves of the benefits of the CSPA. I will provide more details on this in follow up blogs.

We have not noticed a change in H-1B review and approval process since the publishing of the Neufeld H1B Memo regarding H-1B visa and employer-employee relationship. We continue to submit our applications in the same fashion. We have always allocated a portion of our petitions addressing the employer employee relation form a traditional common law approach. In a case from Columbus, Ohio we have received a premium processing approval from the Vermont Processing Center in a record 24 hours. While the memo clearly shows certain flaws in USCIS legal analysis, USCIS continues to approve cases provided end client letters evidencing specialty occupation and petitioner right to control are well documented.

This is the second of three blogs on USCIS most recent H-1B memo. On January 8, 2010, the United States Citizenship and Immigration Services released a guidance memorandum to assist in clarifying what constitutes a valid employer-employee relationship for H-1B purposes. Though the memorandum likely caused more confusion than clarification due to its internal contradictions and repudiation of established law, the following is an overview of the USCIS' "guidance" regarding employer-employee relationships for H-1B petitions.

The memorandum recognizes that certain employment relationships are sometimes difficult to classify in the classic master-servant context. Therefore, the USCIS developed factors, purportedly based on Supreme Court precedent and common law principles, to assist adjudicators and petitioners in determining if the employment situation involves a legitimate employer-employee relationship. The factors outlined by the USCIS generally pertain to who supervises and evaluates the employee, who provides the tools and instrumentalities needed for employment, who claims the employee for tax purposes and provides compensation/benefits, and who has the ability to control the manner and means in which the work is accomplished.

To illustrate the correct application of the employer-employee relationship factors, the USCIS memorandum further classifies certain employment scenarios as having a valid or invalid employer-employee relationship. Specifically, the following situations are considered permissive employer-employee relationships for H-1B purposes: traditional employment, temporary/occasional off-site employment, long-term/permanent off-site employment, and long-term placement at a third-party worksite. The employment scenarios that, according to the memorandum, do not qualify as a valid employer-employee relationship include self-employment, independent contractors and certain third-party placements or "job shops."

Among other problems, the memorandum attempts to overturn well-settled law regarding the H-1B eligibility of consulting companies and is riddled with internal contradictions regarding whether the legal standard is "actual control" or the "right to control" the employee. The USCIS will undoubtedly face numerous legal challenges to the content of their most recent "guidance," but employers and employees should be aware that they are, nevertheless, bound by it in the meantime.

As an immigration attorney the new USCIS memo is most baffling. On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a memorandum offering guidance on "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." Based on the memo, companies across the nation from Columbus Ohio to Troy Michigan and beyond must now learn that some of their employees may not meet what USCIS calls employment. Though the memorandum facially claims that the requirements to establish eligibility for an H-1B petition have not changed, the substance of the memorandum indicates a dramatic policy shift. In particular, the USCIS has abrogated its position with regards to whether certain employers that place their employees at third-party worksites -- precisely employers they classify as "job shops" -- constitute a legitimate employer-employee relationship. Historically, such employment relationships satisfied the employer-employee requirement so long as the petitioner could prove the right to control when, where and how the beneficiary performed the job.

The recent memorandum continues to assert that a valid employer-employee relationship exists if the petitioning party can establish they have the right to control and are responsible for the direction of the foreign national employee's work. The USCIS relies on common law principles and the employer-employee relationship factors endorsed in the Supreme Court cases of Nationwide Mutual Ins. Co. v. Darden and Clackamas Gastroenterology Assoc. v. Wells to support its position. Notably, the memorandum recognizes that "[t]he common law is flexible about how these factors are to be weighed" and a totality of the circumstances test should be employed, "with no one factor being decisive."

Unfortunately, the memorandum's "examples" of situations that do not present a valid employer-employee relationship deprive petitioners of the case specific, factor-by-factor analysis called for by the Supreme Court and common law principles. The blanket assertion that computer consulting companies that place employees at third-party worksites do not constitute a valid employer-employee relationship is devoid of the proper legal analysis and a complete deviation from previous USCIS guidance. Even more interesting, the Supreme Court cases cited in the USCIS memorandum rely on an Equal Employment Opportunity Commission notice that reaches the exact opposite conclusion concerning whether staffing/consulting companies are the employers of individuals they place at third-party worksites.

Though the legal theory upon which the USCIS is basing their authority to unilaterally issue new regulations is unclear, one fact is clear -- the USCIS' recent actions do not comport with existing law and, rest assured, will be vehemently challenged by immigration lawyers, organizations, employers and employees alike.

A special election was held on January 19, 2009 to fill the Senate seat left vacant by the late Edward Kennedy. Although this was a Massachusetts special election, people from Columbus, Ohio to Troy, Michigan and all across the United States watched intently as Republican attorney Scott Brown defeated the democratic front-runner, Martha Coakley. Some have declared that his election did away with the filibuster-proof majority of Congressional Democrats and, with it, any chance of immigration reform. The election of Scott Brown may have been a surprise, but should by no means be considered the end of any possibility of immigration reform in the United States.

It is true that today's contentious political climate has fostered a system where a party change in one single Senate seat could potentially jeopardize the passage of much needed reforms, including immigration. While campaigning for Congress, Scott Brown's statements regarding immigration policy focused on stripping rights for illegal immigrants and combating illegal immigration through enhanced border security. His legacy as a Massachusetts State Senator includes the introduction of legislation that, if passed, would have required foreign nationals to provide proof of work authorization to pursue a wage enforcement action against a U.S. employer. Unfortunately, such laws are short-sighted and fail to recognize that preventing wage enforcement actions could serve to embolden U.S. employers that hire and take advantage of undocumented workers.

However, Scott Brown's record as a U.S. Senator is yet to be established and, regardless of whether he is ultimately a proponent or opponent of immigration reform, he is but one vote. Comprehensive immigration reform, before and after the election of Scott Brown, needs to be a bi-partisan effort -- with the support of Democrats, Republicans and Independents alike. The President did not dedicate much of his State of the Union Address to immigration reform, but he did urge Congress to "continue the work of fixing our broken immigration system - to secure our borders, enforce our laws so that everyone who plays by the rules can contribute to our economy and enrich our nation." Hopefully, the members of Congress will heed the President's words -- remembering that the United States is a "nation made up of immigrants from every corner of the globe" and "neither party should delay or obstruct every single bill just because they can" -- and work towards passing positive immigration reforms in the upcoming year.

Attorney Sam Shihab, co founder of the law firm of Shihab & Associates Co., LPA has teamed up with Attorney Cheryl Brikho a former partner & co-founder of Brikho & Kallabat to form Sam Shihab & Associates, LLC a boutique law firm with offices in Dublin, Ohio and Troy, Michigan. Combined, they offer over 30 years of experience in the area of Immigration Law.

Sam Shihab, Esq.

Mr. Sam Shihab offers 15 years of experience as an immigration counsel representing corporations, investors, families, and individuals in all aspects of U.S. immigration law. Mr. Shihab represent corporate clients in complex technology-related and multi-national transactions, and assist foreign scientists, engineers and information technology professionals in immigration law-related matters. He is listed in Strathmore's Who's Who.
Mr. Shihab received his Bachelor Degree in Civil Engineering form The Ohio State University in 1984 and his Juris Doctorate in Law degree from Capital University in 1994. Mr. Shihab is member of the Ohio Bar Association and several US District Courts. He is admitted to practice law in the State of Ohio.

Cheryl Brikho, Esq.

Ms. Cheryl Brikho Offers 16 years of experience, with the last 15 years of which were exclusively dedicated to serving clients in the area of immigration law. She is an accomplished immigration attorney with a reputation for commitment and excellence. Ms. Brikho has successfully represented individuals as well as fortune 500 and smaller companies in all aspects of employment immigration law. Ms. Brikho has personally appeared in over 600 hearings and interviews and has successfully filed several thousand petitions and labor certifications before the USCIS, its predecessor agency the INS and the US Department of Labor.

Ms. Brikho received her Bachelors degree from the University of Michigan in 1990 and her Juris Doctorate in Law from the University Of Detroit School Of Law in 1993. Ms. Brikho is an active member of the Michigan Bar Association and the American Immigration Lawyers Association (AILA). She is member of the Michigan State Bar.

Offices and contact Information

Columbus Metro: 565 Metro Place South, Suite 100, Dublin, Ohio 43017. Phone 614-791-0500. Fax 614-791-7727

Detroit Metro: 100 West Big Beaver Road Suite 200, Troy, MI 48084. Phone 248-524-0700. Fax: 248-573-0450

Nationwide: 866-665-0001

In a New York Times op-ed, Thomas Friedman, wrote that America should remember how it became the wealthiest country in history. He says it was not through fearing free trade, state owned banks or protectionism. It was through a flexible open market, adding to it, the most diverse highly intelligent immigrants from all over the world.

Some of our legislators have forgotten the principles that lead to our success. A clear example is a new anti H-1B & H-2B proposed legislation introduced this month by Sen. Bernie Sanders (I-Vt.) and Sen. Charles Grassley (R-Iowa) dubbed as "Employ American Act," which in fact has nothing to do with employing Americans. It basically mandates that if a company lays off more than 50 workers in any area, the company cannot hire any foreign workers for one year and all company foreign workers on visas approved in the preceding 12 months shall be cancelled. The bill also precludes judicial review for any visa cancellation.

This has to top the list of most irresponsible legislation introduced in 2009. To highlight the hasty nature of the introduced legislation, let's consider an example. If this legislation to become law, the practical effect is as follows: If, let's say, Ford lays off workers in a plant in Detroit Michigan, this legislation would prevent Ford form hiring on H-1 B a foreign scientists in its Columbus, Ohio research facility that is working on designing a more efficient engine to compete with its foreign competitors. It further will automatically cancel all recently approved H-1B visas for its entire foreign scientists anywhere in the US. This legislation servers no purpose except to harass companies that hire foreign nationals on H-1B visa. The practical impact of this legislation is that hiring foreign nationals becomes a liability to US corporations.

Sen. Grassley said with the current high unemployment rates (over 10%), companies should give preference to American workers when recruiting. But what he does not say, is that H-1B visas fill job vacancies in high tech areas where American workers are unavailable. It serves no purpose to force companies to cancel visas on difficult to fill positions because it had layoffs in completely unrelated job classifications in a completely different part of the country. This legislation is better dubbed as "Kill American Competiveness ACT"

Continue reading "Killing The H-1B visa Program! Will They Succeed?" »

Despite Canada and the US having a relationship spanning more then two centuries and sharing one of the most successful international relationships, Canada is clearly capitalizing on our failed immigration policies.

On November 28, 2008, the Canadian Government introduced major changes to the Economic Class permanent immigrant category. The Economic Class now includes a Provincial Nominee Program. To qualify for a permanent residence in Canada under the Alberta Provincial Nominee program, U.S. H-1B holders need NOT have a job offer in Canada to obtain residency. The applicant must only be working in the US for one year under the valid non-immigration visa, and must have one year working experience in "a major high demand occupations" . Recent advertisements in major newspapers in the US, goes like: "Alberta, Canada Welcomes H-1B Visa Holders and Their Families. Work Here. Live Here".

This is like a boon to all US H-1B visa holders who have to wait for more than 6 years to get that elusive green card and the security it brings. Why should they live in insecurity in the US, when Canada is offering a better solution? H-1B visa holders in the US are increasingly tired of their temporary status, where their future hangs in the balance as politician argue.

Continue reading "H-1B VISA: One's Loss is Another's Gain" »

We are starting to see the beginning of the immigration reform debate. Robert Menendez (D-NJ) introduced The Military Families ACT which if passed would allow USCIS to grant permanent residency to children and spouses of those honorably serving or have honorably served in the Military even if the spouse or child is undocumented alien. Several Democratic members of Congress already voiced their support to this legislation.

Traditionally, only US citizen applicants are permitted to immediately confer permanent residency status to spouses and children, but not if they are undocumented. This Act attempts to correct this situation and take care of family members of the military personnel.

According to the Immigration Policy Center, currently there is 114,601 foreign born persons in the armed forces. They represent 7.91% of active duty personnel. Most foreign born personnel in the military were able to acquire Citizenship pursuant to Sec. 1440 of the INA which conferred Naturalization through active-duty during periods of military hostilities. But this law ironically does not extend status to their family members.

The US has been at war for more than eight years. The continued need for foreign born military personnel with various language and other skills is clear. The passage of this legislation to protect the family of this important group is without a doubt is in our clear national interest.

Rest assured that this bill is far from being signed into law. Many believe that this legislation should be part of the overall immigration debate which will not be jumpstarted before the next year. Also, expect opposition form some lawmakers such as Representative Lamar Smith who simply does not think this is necessary.

Veterans Day: It is the day we honor our men & women who served and sacrificed. Large number of Immigrants has served and continues to server in our military. Many of them have sacrificed their lives to protect our American values. I have the pleasure of representing some of them as an attorney. According to CATO Institute, more than 700 Congressional Medals of Honor were given to immigrant veterans. This is more than 20% of all recipients. To all Veterans, happy Veterans day.

"Outsourcing" has recently became a codeword for things that are not good for America.
For example, Senator Grassley recently sent a letter to the Department of Homeland Security asking for a tight screening of the H-1B program, to avoid abuse and fraud in the system. He stressed on employers being held accountable, for violating the visa program and to prevent H-1B outsourcing.

The Senator was highly critical of H-1B outsourcing. But outsourcing in the US is an integral part of any business model. It appears the Senator was confusing between H-1B outsourcing and Offshore outsourcing. The latter normally referrers to a situation where jobs are lost to foreign workers becuase US companies are setting centers overseas. H-1B outsourcing, on the other hand, is when companies use other companies to provide services in the US through the use of H-1B workers. They are not the same.

Many argue that neither is bad for the US economy in any event. According to a study by the Information Technology Association of America (ITAA), offshore outsourcing of US IT jobs to foreign workers is beneficial to the US economy thereby resulting in the creation of twice as many jobs as are displaced. Outsourcing helps companies be more productive and competitive. The savings from outsourcing are invested in new products and services resulting in market expansion and creating new jobs.

Senator Chuck Grassley, however, keeps referring to 'outsourcing H-1B' to other companies as being a bad thing. Perhaps he is unaware that this is permissible under H-1B visa laws provided companies comply with the H-1B prevailing wage regulations. Outsourcing is vital as an economic business model.

Senator Chuck Grassley may disapprove of outsourcing H-1B workers; reality is that outsourcing within US companies is the norm. For example USCIS outsourcers its fingerprinting services and customer service response to private US third parties. Senator Chuck Grassley's well publicized hostility towards the H-1B visa program is based on misguided information. He is clearly not well informed of the benefits of the H-1B visa program to our economy and that outsourcing H-1B workers is permissible under US laws.

At least someone is trying to save one of our most vital immigration visa programs to our sustained scientific and innovative world leadership, the H-1b visa program. A bill introduced by Rep Gabrielle Giffords in March 13, 2008 referred to as the Innovation Employment Act, is getting some attention lately. The Act is an attempt to reform the H1-B visa program. From Columbus, Ohio & Michigan to both coasts, it is the visa that America's highly technical industries rely on to hire highly skilled foreign nationals to work in the United States.

One of the key reform features of the Bill is to increase the current H-1B visa cap from the current 65,000 to 130,000 a year. Additionally there would be no H-1B visa cap on foreign nationals who have studied science, technology and related fields in U.S Colleges. The current H-1B visa cap is 20,000 for US Masters Degree holders in all fields (referred to as the H-1B Advanced Degree Exemption). Another key reform feature is to prohibit companies with more than 50 employees that have more than half of their staff as H-1B workers, from hiring more H-1B workers. The Act also would prohibit employers from advertising jobs as available only to H-1B workers.

The Innovation Employment Act is supported by Microsoft chairman, Bill Gates. He said America provided the world's best universities and yet foreign students were not allowed to stay and work in the country. The legislation would allow access to the best talent available from all over the world. Microsoft believe that the bill would increase U.S jobs; Microsoft hires four local people to support each H-1B worker.

The proposed Act would be a step in the right direction to control outsourcing and keep jobs home. Many proponents believe that the proposed Act can be beneficial to our economy. It keeps foreign talent in the US so they don't leave to competing countries, where jobs follow them. It is no secrete that large companies have relocated some of its operation overseas to seek talent unavailable in the US. Microsoft has moved certain branches to India, Canada & Mexico.

Continue reading "H-1B Legislation Getting Some Attention" »