Immigration Visa Attorney Blog

Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.

The lawyer was wrong.

Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.

On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.

Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."

"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."

While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.

You don't have to look far to find cases where proper counsel would have helped legal citizens.

Continue reading "Right To Immigration Advise Is Protected Says The Supreme Court" »

The Department of State has recently confirmed the commencement of its independent verification of information contained in visa applications. Sam Shihab & Associates also confirms that some of its clients have been contacted by the Kentucky Consular Center (KCC) via contractors by telephone as part of the process. However, some of our clients complained that the questions asked were quite intrusive and were not related to the visa applications. For example, some of the questions were about company profit margins. The initial announcement of the program was on November 17, 2007 when the Department of State (DOS) and the Kentucky Consular Center (KCC) said that NIV petitions would be reviewed through a program that focused on information verification. Consular officers began to track petition information through the use of the Petition Information Management Service (PIMS) as well as the Consular Consolidated Database (CCD). The KCC audit on NIV petitions was structured to verify information and correct mistakes in the visa petition applications. One specific aspect of the audit authorized consular officers to make an unannounced phone call to the petitioner in order to obtain and verify the information that was provided to the USCIS when the visa petition was submitted. They claim that the outcome of the audit is critical in order to accurately process and further the status of visa petitions.

Along with the announcement, KCC approved fifteen contractors to individually contact petitioners. Through the embassies, KCC is responsible for reviewing the visa petitions that are obtained from the U.S. Citizenship and Immigration Services (USCIS). After the initial review process, the contractors verify and obtain the necessary information. Then, any corrections or additional steps are taken in order to advance and finalize the petition. The idea is that contractors specifically review and gather information on the petitioner as well as the beneficiary. In the past, DOS found that visa petitions were lacking important information when KCC received them from USCIS. The contractor was supposed to focus on the company website, the contact information, and the physical location of the company's office in order to ensure the validity and existence of the petitioner. The contractor also performed random phone calls to petitioners in order to gather information about the beneficiaries.

Continue reading "H-1B Visa Attorney on Audit by DOS: Verification or Intrusion?" »

The controversy surrounding the 14th Amendment, which specifies that all children born in the United States are automatically U.S. citizens, continues. The discussion in the last 10 years is rooted in the debate over illegal immigration from Mexico and border security. Those who have initiated the movement claim that a large number of illegal immigrants come to the United States specifically to have a child, or a so-called "anchor baby," so that the parents would be able to remain in the United States due to being the parents of an American citizen. Proponents of overturning the 14th Amendment state that anchor babies often qualify for government assistance, which makes it more difficult to deport their illegal parents. However, there is no evidence to support the claim that deportation of parents of anchor babies is any more difficult than the deportation of other illegal immigrants.

Those that argue for a change in current laws claim that there are a large number of children born to illegal immigrants within United States borders each year. They point to 2008 data that shows that one out of every 12 children born in the United States were born to illegal immigrants, according to a study by Pew Hispanic Center, a nonpartisan research organization. This translates into approximately 340,000 babies who were given automatic U.S. citizenship out of the 4.3 million babies born in the U.S. that year. While the debate continues, we must consider what this may mean for the United States if the 14th Amendment is indeed overturned.

According to the study, as of 2009, more than 75 percent of illegal immigrants in the United States were Latinos. As the law stands now, if the parents of U.S. citizens are found to be in this country illegally, the parents would still be deported to their country of origin. Would the risk of deportation for the entire family actually stifle the high number of unauthorized immigrants who enter the country each year? Possibly. As the law stands now, children of illegal immigrants who were given automatic citizenship have the opportunity to act as a sponsor for family members for entry into the U.S. at the age of 21. If the opportunity of future sponsorship did not exist, some argue that having children in the U.S. would be less attractive. But is this approach Constitutional?

There is no study that shows, however, that changing the 14th Amendment will in fact alter the future data of US born children to foreign born parents. The truth is most parents would like their children born in the US, a country that at the core of its success is the fair and equal treatment of all persons. The concept of having classes of individuals born in the US but in fact are not US citizens flies in the face of many of the basic values we hold so dear to our hearts as Americans.

Currently the majority of Americans oppose changing the 14th Amendment, as 56 percent of Americans are against changing citizenship provisions, according to the Pew Research Center.

On June 28, 2010 the Supreme Court granted the petition for certiorari (for review) in a case that questions the legality of the proposed Legal Arizona Workers Act. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v. Candelaria, (June 28, 2009) (No. 09-115) . The case directly challenges the Arizona state law that intends to prohibit employers from intentionally hiring unauthorized immigrants and mandates how employers should verify employees. The petition that was sent to the Supreme Court states that the Arizona law is preempted by federal law. In other words, the court will answer the question if Arizona law is stepping into an area that is reserved for the federal government not for the individual States. What the Supreme Court will answer is can each state creates its own system of penalties and verification to immigration violations or this area is reserved for the federal government.

The Petition for the Writ of Certiorari requested that the Supreme Court reexamine the actions and findings of the lower courts. The district court and the Ninth Circuit both ruled that the Arizona statute was not preempt by federal law in two specific areas. Both courts concluded that the statute fell within the savings clause of the preemptive provision in the Immigration Reform and Control Act (IRCA). They also ruled that Congress did not specify that states could not require employers to participate in the electronic verification system for checking the status of immigrants. The petition's main focus is that federal immigration laws preempt the proposed state laws.

Continue reading "Supreme Court to Analyze the Legality of the Legal Arizona Workers Act " »

Certain acts, events or circumstances can render a foreign national ineligible for a visa or inadmissible to the United States. One such event is certain criminal convictions.It matter not if such conviction occurred in Columbus, Ohio, Troy Michigan, or anywhere in the US or overseas. Any foreign national that is convicted of, or admits to having committed, a crime of moral turpitude or a violation of any U.S. or foreign law or regulation relating to most controlled substances is considered inadmissible. Generally, a foreign national seeking admission to the United States who has committed a crime of moral turpitude would need to apply for a waiver of inadmissibility using Form I-601, Application for Waiver of Ground of Inadmissibility. However, there are exceptions to the rule of inadmissibility.

Under the Immigration and Nationality Act § 212(a)(2)(A)(ii)(II), a foreign national who has committed a single crime of moral turpitude will still be admissible if the maximum penalty possible for the crime is less than one year imprisonment and the foreign national was not sentenced to more than six months in prison. If the foreign national's conviction falls under the aforementioned Petty Offense Exception, they need not apply for a waiver of inadmissibility. Along the same lines, a foreign national's petty offense crime cannot be used against them as evidence of bad moral character for purposes of voluntary departure or to stop the clock for cancellation of removal.

It is important to remember that under the Petty Offense Exception the foreign national's conviction or admission must be their first and only crime. Notably, the foreign national need not be convicted of the crime to be deemed to have committed the crime for admissibility purposes. If a foreign national admits to having committed a crime, or even admits to having committed the elements of a crime, the Department of Homeland Security will treat such admissions the same as if the foreign national was actually convicted of the crime. Thus, foreign nationals should be aware of, and immigration attorneys should counsel their clients on, the consequences of making admissions to the Department of Homeland Security.

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.

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

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.

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong. The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong's flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong's restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong's foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

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" »