Immigration Visa Attorney Blog

As the list of companies receiving TARP funds has exceeded 550 institutions across the country, human resource managers and company executives have made it unambiguous that they are concerned about H-1B compliance. Under the Employ American Workers Act, (EAWA) signed into law this year, TARP fund recipients will be treated as H-1B dependent employers when they hire foreign nationals on H-1B visa. This law does not include those employed by the TARP fund recipients on, or before February 16, 2009. The normal exemption for foreign nationals receiving a salary of $60,000 or higher, or having a relevant master's degree is not available for companies receiving TARP money.

The reason that many of the 550 plus companies should be careful is twofold: The first challenge large employer's face is compliance with the H-1B dependant attestations without utilizing an elaborate and expensive tracking system; the second is applicability of The False Claims Act on TARP funds recipients.

H-1B Dependent Requirements:

H-1B dependent employers must make certain promises and must be able to demonstrate compliance if audited by the Department of Labor. TARP fund recipients who file H-1B petitions:

Continue reading "The TARP H-1B Application." »

Any Ohio labor certification attorney will tell you that prevailing wage determinations in Ohio have been consistently higher than other states for years. In a recent decision The Board of Alien Labor Certification Appeals (BALCA) in the matter of Reed Elsevier, Inc., 2008-PER-00201 agrees. The prevailing wage is the wage determined by the state agency to be paid to a foreign national if they are to obtain an employment based green card through labor certification. In reversing The Certifying Officer affirmation of a prevailing wage determination, the court stated that Ohio "drastically changes the character of the position, essentially increasing the yearly wage by over 25% and doubling the wage level at which the position would otherwise be classified."

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA's ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Continue reading "Ohio Labor Certification Prevailing Wage Level Improperly Doubled, Court Rules" »

There has been a recent spike in Requests for Evidence in adjustment cases questioning the intended work location of the foreign national and seeks confirmation of the permanent employment offer. The typical inquiry questions the intended place of permanent employment when USCIS observes, after reviewing the adjustment application, that the foreign national may be working in a different work location than the one listed in the approved labor certification.

It is important to note that, employer's obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

There is no debate that a comprehensive immigration reform is long over due. We must make adjustments and modernize our immigration legal system to remain competitive in the 21st century. AILA yesterday published a Talking Point calling for the elimination of the employment based immigrant visa backlog. The argument they made is clear and concise. We can not attract the best talent and stay competitive, if it takes up to seven years to issue a green card.

In today's employment immigration system, a green card application is filed while the candidate is in his twenties to receive approval in his thirties. By the nature of the process, we end up stifling entrepreneurial spirit rather than encouraging it. The foreign national is restricted in undertaking an intellectual or financial chance due to the uncertainly and the restrictions imposed by the pending application.

Most will agree that creative and productive talents are impatient by definition. The most talented and capable individuals will not wait a seven year period for a green card to come through. Consider the case of Sanjay G. Mavinkurve, featured in NY Times. Sanjay, an Indian national, is one of the key engineers that developed Facebook. Sanjay moved to Canada because the lengthy immigration process in the U.S. prevented him from joining his wife while the application is pending. Sanjay's story truly demonstrates the failure of our immigration system. The fact is there are many individuals who have left the U.S. for similar reasons as Sanjay.

While producing more homegrown talent is a priority, the truth is we must remain most hospitable to talents regardless of their origin. To that end, we must eliminate the immigrant visa backlog. AILA appropriately advocates that we should recapture all family based and employment based green cards not used in prior years, exempt family members form the current numerical limitation imposed on employment immigrant visas, and provide for appropriate exemptions for U.S. graduates in the field of science, engineering and mathematics. Finally, it calls for implementing a market based cap system that more appropriately addresses our need to remain more competitive.