Immigration Visa Attorney Blog

The United States Citizenship and Immigration Services (USCIS) has been continually threatened with lawsuits ever since the Neufeld Memorandum on Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements was released. On June 8, 2010, precisely six months after the Neufeld Memorandum was released, the first lawsuit was filed against the USCIS, USCIS Director Alejandro Mayorkas, the Department of Homeland Security (DHS), and DHS Secretary Janet Napolitano. Several IT staffing companies and two staffing associations, namely Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association (Plaintiffs), have filed a five count complaint in U.S. District Court for the District of Columbia. In addition, the Plaintiffs have filed a motion seeking a preliminary injunction preventing the agency from enforcing the policies contained in the Neufeld H-1B Memorandum until their claims can be decided by the Court.

The basis for the lawsuit is no secret or surprise. Although IT consulting and other staffing companies have a well-established history of sponsoring and employing H-1B workers, the Neufeld H-1B Memorandum's guidance makes it very difficult, if not impossible, for such companies to be H-1B visa sponsors. In fact, there have been reports that numerous IT consulting companies have closed due to the negative impact the Neufeld H-1B Memorandum has had on their ability to sponsor H-1B professionals. The supposed motivation behind the Neufeld H-1B Memorandum was to prevent staffing companies from sponsoring H-1B workers who were, in turn, hired out to other companies that were abusing or fraudulently using the workers. Unfortunately, the USCIS went so far in its efforts to prevent a small number of staffing companies from committing fraud that its guidance wrongfully prevents virtually all staffing companies from employing H-1B workers altogether.

In the complaint, Plaintiffs are alleging the USCIS has illegally changed the law regarding whether staffing companies have the requisite control over their employees to qualify as H-1B employers. Count one of the complaint claims the USCIS violated the Administrative Procedures Act (APA) by issuing a new rule without following the proper rule-making procedures and seeks to have the memorandum vacated. Count two of the complaint claims a violation of the Regulatory Flexibility Act for failing to analyze the new rule's impact on small businesses. The third, fourth and fifth counts allege the USCIS has exceeded its statutory and regulatory authority, that the memorandum is arbitrary and capricious, and that the memorandum is not authorized by law.

Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association have finally done what many groups have been threatening to do since the Neufeld H-1B Memorandum was first issued on January 8, 2010. The immediate motion for a preliminary injunction, if granted, may give staffing and consulting companies some relief in the short term. In the long term, hopefully this challenge will not only be successful in reversing the Neufeld H-1B Memorandum's ill-conceived guidance, but also make the USCIS think twice before hastily issuing new rules without following the proper rule-making procedures.

Our firm has recently learned that, in light of the Neufeld H-1B Memorandum, certain ports of entry are more vigilantly checking the Labor Condition Applications (LCA) of H-1B visa holders. Immigration officers are reviewing the LCAs of H-1B visa holders to confirm the end client work location matches the work location indicated on the LCA. If the end client work location does not match the information on the LCA, immigration officers are finding H-1B visa holders inadmissible. While this procedure may not seem atypical or unjust, it has come to our attention that Customs and Border Protection (CBP) is using LCA inspections as a means of testing the validity of the H-1B employer-employee relationship.

CBP's newly found emphasis on verifying the validity of the employer-employee relationship is undeniably based on the controversial Neufeld H-1B Memorandum on the H-1B Employer-Employee Relationship. In addition to memorandum's conflicting guidance regarding the standard of employer control, the Neufeld H-1B Memorandum has received harsh criticism for unilaterally implementing new immigration laws without following the proper rule-making procedures. In response to these concerns, the United States Customs and Border Protection (CBP) vaguely suggested that it would "take it under advisement." However, the practices is in place at certain ports of entry indicate that the USCIS's controversial memo is finding its way to CBP's screening process as an enforcement tool at certain locations.

By way of example, an H-1B visa holder recently traveled to India and returned through the Newark International Airport in New Jersey. Upon his return from India, the foreign national was going to be working as an IT consultant at a client site in Redmond, Washington. Though an amended LCA was filed with the proper work location, the foreign national did not have a copy of the new LCA. At the inspection point, the foreign national was asked by the CBP officer to produce his current LCA. The H-1B visa holder only had a copy of his previous LCA, which indicated his work locations were Texas and Georgia. The CBP officer informed the H-1B visa holder that his LCA did not demonstrate the proper H-1B relationship with his employer. The CBP officer then stated he should withdraw his H-1B extension application, go back to India and reapply. Even though the foreign national's work location was properly documented in an amended LCA, he was deemed inadmissible for not being able to produce the new LCA at the port of entry.

Despite the controversial nature of the Neufeld H-1B Memorandum, DHS appears to be enforcing the the policies promulgated therein. Unfortunately, until the Neufeld H-1B Memorandum is retracted, H-1B visa holders are required to abide by its contents. To avoid any issues at the border, all H-1B visa holders should be advised to not only file a new LCA for any change in end client work location, but also promptly amend their H-1B petition accordingly. And above all, the H-1B visa holder should be sure to carry documentation that accurately reflects their current employment situation, including copies of their the most recent LCA and H-1B petition with up-to-date work location information.

The United States Citizenship and Immigration Services (USCIS) issues 65,000 new H-1B visas annually for individuals with a Bachelor's degree or higher who will be working in a specialty occupation. In addition, the USCIS issues 20,000 H-1B visas to individuals with a Master's degree or higher under the advanced degree exemption every year. The H-1B fiscal year begins on October 1st, but the USCIS begins accepting petitions for the new fiscal year on April 1st. The USCIS will continue to accept petitions until the annual limitation on H-1B visas has been reached. Once the yearly cap has been fulfilled, H-1B hopefuls must wait until the next H-1B fiscal year to apply for an H-1B visa.

The time frame in which the H-1B cap is reached has varied from year to year. For instance, for Fiscal Year 2005, reverted to 65,000 limit, it was not filled until October 1, 2004. For Fiscal Years 2006 and 2007 it, likewise, took the cap a few months to be exhausted. Beginning in Fiscal Year 2008, though, the USCIS was flooded with H-1B petitions on April 1st, enough to exhaust the entire fiscal year cap by April 2, 2007. At that point, the USCIS instituted a lottery just to determine which of the hundreds of thousands of H-1B petitions received would be processed. This trend continued into Fiscal Year 2009, as well. Unlike the previous two years, however, the Fiscal Year 2010 cap remained open until December 21, 2009. At that time, it was becoming clear that the downturn in the U.S. economy was slowing the demand for new H-1B workers.

Unfortunately, the Fiscal Year 2011 demand for H-1B visas does not seem to have increased any from Fiscal Year 2010 and may, in fact, be lower. As of May 14, 2010, the USCIS had received only 19,000 cap-subject H-1B petitions and 8,100 cap-exempt H-1B petitions. This is far fewer petitions than had been received by this time last year. In comparison, the USCIS had received 45,000 cap-subject petitions and 20,000 cap-exempt petitions by May 18, 2009. It appears that much like the Fiscal Year 2010 H-1B visa cap, the Fiscal Year 2011 H-1B visa cap will take many months to reach. It is even possible that, for the first time since the mid 1990's, the H-1B, it will not be completely filled before the next H-1B fiscal year begins. However some trend analysts still predict that the H-1b cap will be reached this year around November. Only time will tell when.

As of May 2010, the unemployment rate in the United States is close to 10%, representing at least 15.3 million people out of work. Cities such as Troy, Michigan and Columbus, Ohio continue to struggle. Indeed the economy is improving but unemployment rate is expected to hold steady and with tougher H-1B review by USCIS and higher rates of H-1B denials, it is expected that more H-1B holders will lose their jobs in the next few months. While U.S. Citizens and permanent residents can collect unemployment benefits as they search for a new job, H-1B visa holders do not have that option. In fact, for H-1B visa holders, losing their job means losing their status.

There is a fair amount of confusion concerning whether there is a "grace period" after an H-1B visa holder's employment is terminated. Rumors abound that the 60 day grace period applicable to F-1 student status applies to H-1B status. Moreover, many interpret CFR 214.2(h)(13)(i)(A) as providing for a grace period after the validity period of the H-1B ends. Technically speaking, an H-1B visa holder is out of status once their H-1B has been revoked or expires. The 10 day period provided for in CFR 214.2(h)(13)(i)(A), however, is intended to provide the foreign national time to wrap up their affairs and leave the United States. It is not, unfortunately, meant to provide the foreign national time to find and port to a new H-1B position. What, then, are the options for H-1B visa holders who have been laid off?

Despite the lack of a formal grace period, one option may be for an H-1B visa holder to port to another H-1B employer. Depending upon the amount of notice the employer has provided, the H-1B visa holder may be able to secure a new H-1B position before their termination is effective. For example, if the H-1B employer gave the H-1B visa holder two months notice before their termination became effective, the H-1B visa holder may be able to find and port to a new H-1B position before their H-1B is revoked. Under the American Competitiveness in the Twenty First Century Act, the H-1B employee can begin working with their new H-1B employer as soon as the new employer files a portability petition with the United States Customs and Immigration Services (USCIS). Thus, it may be possible for the foreign national to port to the new H-1B position before their original employer revokes their H-1B status.

If the H-1B employer has not provided sufficient notice or porting is not an immediate possibility, another option is for the foreign national to change status. A change of status, though, is highly dependent upon each individual H-1B visa holder's situation. For instance, an H-1B visa holder may be able to change their status to F-1 student status. This may be difficult, though, considering the H-1B visa holder must be accepted and begin classes within a short period of time. Another option may be a temporary change of status to a B1/B2 visa or to a dependent status such as H-4 or L-2, again depending upon the foreign national's specific circumstances. Additionally, if an H-1B visa holder has commenced the permanent resident process, they may be eligible to work in a substantially similar position on an EAD card.

An H-1B visa holder that is being laid off should immediately consult with an experienced immigration attorney about their individual situation. The H-1B employee should thoroughly understand their options for remaining and working in the United States after the lay off. And it is important to remember that time is of the essence, because for an H-1B visa holder losing their job means losing their status.

1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.

2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.

3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.

4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.

5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is "indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The memorandum's employer-employee relationship requirements far exceed the scope of the current regulation.

6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is "actual control" or the "right to control" the H-1B employee.

Continue reading "10 Reasons Why The Neufeld H-1B Memorandum Should Be Withdrawn" »

A Columbus, Ohio Client asked me What has changed at the embassy interview and what to expect due to recent H-1B policy changes. So I thought a blog on this topic is appropriate. The H-1B visa is an employment-based, non-immigrant visa available for foreign national workers in specialty occupations. Unless a foreign national is already in the United States and eligible for a change of status, they will have to visit a U.S. Consulate or Embassy to obtain an H-1B visa. Notably, the U.S. Department of State has recently reiterated that "visa applications are now subject to a greater degree of review than in the past." Thus, it is more important than ever for an H-1B visa applicant, especially those in consulting positions in the IT industry, to know what to expect at the U.S. Consulate or Embassy interview and how to prepare themselves.

An H-1B visa applicant should always check the website of their specific Consulate or Embassy for a list of items to bring to the interview. The foreign national should bring the following documents to the interview regardless of which U.S. Consulate or Embassy they will be visiting:

• The original I-797 Approval for the H-1B Petition;
• A copy of the entire I-129 Petition for Nonimmigrant Worker, including certified Labor Condition Application;
• Their original passport, as well as a copy;
• Their original educational documents - such as diplomas, transcripts and certificates - as well as copies.
• The completed Nonimmigrant Visa Application Form (DS-156 or DS-160) and, if necessary, the Supplemental Nonimmigrant Visa Application (DS-157);
• Two passport style photographs; and
• A letter from the prospective U.S. employer confirming the specialty occupation, wage and intent to hire the foreign national.

If the foreign national is going to be working for a consulting company, the H-1B visa applicant needs to bring two employer letters to the interview. Not only should the foreign national bring a letter from the petitioning employer, but they should also bring a letter from the end client confirming the details of the project for which the foreign national's services are being contracted.

Given the current downturn in the economy and the recent USCIS guidance on the employer-employee relationship for H-1B purposes, it is even more essential for an H-1B visa applicant to know how to respond appropriately to questions asked during the interview. The foreign national should be able to succinctly answer questions about the prospective U.S. position and actual employer (not to be confused with the end client), their qualifications for the position including educational information and prior experience, and how long they intend to remain in the U.S. It is important to remember that although the H-1B visa ultimately allows for dual intent, it is a nonimmigrant visa and the consular officer will be looking for indications that the foreign national has immigrant intent. The H-1B visa applicant should always stress that their intended stay in the U.S. is temporary to comply with the nonimmigrant nature of the H-1B visa. Moreover, H-1B visa applicants working for consulting companies will likely need to prove the employer has positions to fill, that the foreign national will not be benched and that the petitioning employer will have sufficient control over the H-1B employee. It is highly recommended that any H-1B visa applicant preparing for an interview at the U.S. Consulate or Embassy consult with a knowledgeable immigration lawyer in advance of the appointment. Consular officers are reviewing H-1B visa applications, especially those for IT consultants, with increased scrutiny due to the downturn in the U.S. economy and, therefore, it is more necessary than ever for H-1B applicants to be fully prepared for the visa interview.

Many H-1B visa holders were alarmed by the recent news that several H-1B workers attempting to enter the United States at Newark Airport were either denied entry and sent back to their home countries or placed in expedited removal proceedings. While it has become clear in the weeks since that Customs and Border Protection (CBP) was targeting certain H-1B workers and petitioning companies involved in a fraud investigation, such incidents raise legitimate concerns amongst H-1B visa holders seeking to travel outside of the U.S. Is it safe to travel outside of the U.S. and, if so, what is to be expected at the port of entry? It is certainly still safe for H-1B visa holders to travel outside of the U.S, but travelers should be cognizant of the fact that they will be required to prove their admissibility to re-enter the United States.

Though a foreign national may have a valid H-1B visa in their passport, they must prove their admissibility to the Customs and Border Protection (CBP) Officer at the port of entry each time they return to the United States. It is important for any visa holder, but especially H-1B visa holders, to be prepared at the port of entry to prove any assertions made by the petitioning employer in the I-129 Petition for Nonimmigrant Worker. This will likely require the H-1B visa holder to carry additional documentation they would not necessarily carry anyway. It is advisable for H-1B workers to possess a copy of their entire I-129 Petition for Nonimmigrant Worker, including the certified Labor Condition Application, as well as their two most recent pay stubs reflecting the fact that they are currently employed and being paid the prevailing wage or higher. The petitioning employer should also be prepared to field on-the-spot questions from a CBP Officer calling to verify information provided by the foreign national at the port of entry. Indeed, the CBP has made no secret of the fact that they will compare publicly available information, such as company websites or media reports, to the information provided in a petition. Thus, it is imperative that information in the petition be consistent with, if not identical to, publicly available information.

In light of the events transpiring at the Newark Airport, CBP has stated that random security checks will be implemented at Newark Airport, particularly for those individuals traveling with an employment-based visa. Moreover, the Newark Airport will be instituting additional screening measures, including detaining lawful permanent residents with a post-1998 criminal conviction and automatically sending individuals with a pending I-751 petition for secondary inspection. While these changes have only been implemented at the Newark Airport thus far, they are likely a sign of things to come at other ports of entry. Therefore, an H-1B visa holder should not be afraid to travel outside of the United States, but should always remember they can never be too prepared for inspection at the port of entry upon return to the United States. If a foreign national has questions regarding whether they should travel outside of the U.S. and what they should expect at the port of entry, they should contact an experienced immigration attorney to discuss their specific situation prior to departure.

On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a guidance memorandum written by Donald Neufeld on "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." This memorandum has left many employers, especially those whose employees work primarily outside of the main office, more confused than ever. They are rightfully asking if there is a sound legal ground that gives USCIS the basis to question whether its employees qualify for H-1B visas. Employer's struggles to understand the need for policy changes if they are headquartered in Michigan, for example, and have employees working Columbus, Ohio. USCIS also appears to struggles defending its ill conceived and legally questionable policy memo it issued last month

Despite the USCIS' February 18, 2010 collaborative session to hear feedback and gather input on the impact of this guidance, there is no guarantee the concerns expressed will be considered or that the guidance memorandum will be revised. Therefore, H-1B employers with "roving employees" should consider implementing, or confirm their business has the following policies in place to ensure their employer-employee relationship meets the "clarified" requirements.

One question, according to the memorandum, that the USCIS adjudicator must ask when assessing the existence of an employer-employee relationship is whether the petitioner evaluates the work-product of the beneficiary. For off-site employees, evaluations and progress reviews may be unconventional or infrequent, but employers should consider implementing a firm and consistent review policy. The H-1B employer should progressively review the foreign national employee's work and conduct an annual evaluation of the employee to establish the requisite control or right to control, as is stressed in the recent guidance memorandum. These progress reviews and evaluations should be adequately documented and maintained in the employee's personnel file.

Further, a USCIS adjudicator will also be looking for evidence of supervisory control over the employee. The USCIS will first look to see if the employee is supervised by the H-1B employer on-site. Supervision on-site by H-1B employers is atypical for roving employees. Accordingly, in the absence of on-site supervision, the USCIS will look for evidence of off-site supervision by the H-1B employer. To adequately establish supervision for off-site employees, employers should schedule and document regular meetings with such employees. These meetings can be accomplished through a combination of weekly calls, reporting back to the main office and site visits by the H-1B employer. Regardless of the method, the meetings should be regularly held and sufficiently recorded. Consult with an experienced immigration attorney to assure that any policy changes are well designed and implemented to help success in future H-1B petitions.

Continue reading "H1-B Immigration Attorney Discusses Needed Changes in Employer Policy In Light Of The Neufeld H-1B Memorandum" »

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.

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" »

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" »

What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their visa attorney get the best results for them. I have a client in Washington, DC once tell me, please give me a list of your most important items that would help you get my case approved.

As an H1b attorney who filed more than 1000 petitions in my career, there are 3 main issues in mind that would determine whether an H1b petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.

Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities. Depending on the size of the employer, the USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H1B petitions for their prospective employees. If you are a large employer, chances that USCIS is comfortable about the size of the organization and will trust that the employer does have the ability to pay the wages of the employee and that it also passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.

Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentations to submit to create this comfort level depending on the circumstances. These additional documentation include, but are not limited to, the existence of in-house projects, business plans, contracts for work, financial information and many more. When it comes to smaller employers, proper planning must be undertaken as the days of USCIS rubber stamping H1B visas are over. In addition, it is important to note that USCIS is now keeping a keen eye at smaller employers as there is a feeling that such smaller employers do violate the regulations frequently. Smaller employers are encouraged to plan their H1b petitions with competent H1b lawyer, one who has many years of experience in H1b petitions in order to assure that contradictory information is not filed. This is what our firm has preached for almost a decade: get your story right before the USCIS! This is concerted effort between H1b immigration lawyer and the employer jointly.

Continue reading "H1B Lawyer on Filing Approvable H1B Petitions" »

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." »