Archive for October, 2009
USCIS to Consider Accepting Pending Labor Condition Application for H-1B Filings
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently recommended that USCIS begin accepting H-1B applications with pending Labor Condition Applications, or LCA’s. Normally, the LCA, the document initially filed with Dept. of Labor (DOL) prior to submission of the H-1B petition , must be certified first. The certification process used to be instantaneous- as easy as a click of a mouse. But DOL, in its infinite wisdom, decided to scrap this system that worked so efficiently. In July of this year, DOL rolled out a new LCA process, and now each LCA is reviewed manually. Getting an LCA certified has now become a mini-nightmare in most cases, resulting sometimes in delays of several weeks and erroneous denials from DOL. The fact that we’ll now be able to file the H-1B petition without first needing to certify the LCA is somewhat of a positive development, although it does guarantee that USCIS will issue a request for the certified LCA before approving the petition, and they will likely use that as an opportunity to request other additional evidence.
Tags: DOL, H-1B, iCert, Labor Condition Application, LCA, LCA certification, USCIS, USCIS ombudsman
Posted in H-1B, USCIS | Read More »
Widow Penalty: The End of Insult to Injury
Congress has just voted to put an end to the “widow penalty”, that provision of the Immigration and Nationality Act that rendered surviving spouses and their children deportable following the death of the U.S. citizen spouse. President Obama is expected to sign the bill into law. This new legislation allows surviving spouses who were married for less than two years at the time of the U.S. citizen spouse’s death to self-petition for permanent residency within two years of the enactment of this new law. (Surviving spouses who were married for more than two years at the time of death of the U.S. citizen spouse already had the ability to self-petition). The new law does not require that an immigrant visa petition be on file, and it applies both to surviving spouses who live in the U.S., and to those who live abroad. Additionally, in cases there the surviving spouse was already a beneficiary of an immigrant visa petition filed on their behalf prior to the death of their U.S. citizen spouse, it is expected that such immigrant visa petition will automatically convert into a self-petition situation. For more information, see http://www.ssad.org. It’s nice to see a positive development from Congress in the immigration arena . Now, how about that comprehensive immigration reform?
Tags: comprehensive immigration reform, green card, immigrant visa, permanent residency, self-petition, surviving spouse, widow penalty
Posted in Politics/Current Events | Read More »
Poetic Justice
The following is a true “only in America” story. The U.S. Department of Labor (DOL) recently recovered more than $1.4 million in back wages for 237 workers of the U.S. Citizenship and Immigration Services’ Vermont Service Center. Apparently, the workers were misclassified and not paid the prevailing wage as required. Perhaps DOL should seize the momentum and conduct an audit of other government worksites. Maybe some unannounced visits to other service centers are in order. Yes, this one does give me a great big chuckle.
Tags: back wages, Department of Labor, DOL, service center, USCIS
Posted in Politics/Current Events | Read More »
Upcoming Presentations by Gali Schaham Gordon
NAFSA Regional Conference Region XII
The NAFSA: Association of International Educators is a member organization promoting international education. Its regional conference for 2009 – titled International Education – Navigating Across Borders – will be held in San Diego, California, at the end of October. Gali is speaking at the conference in a session titled Beyond OPT: How students can stay in the US. The details are as follows:
October 26 – 30, 2009 in San Diego, California
Pre-conference Workshops Oct 26-27
Main Conference Sessions Oct 28-30
Registration: http://www.nafsa.org/events.sec/conferences.pg/nafsa_regional_conferences/
HR Wine & Agriculture Conference
The NCHRA (Northern CA HR Association) Wine & Agriculture Conference is an opportunity for HR management personnel in the wine and agriculture industries to attend various workshops relevant to these fields. Gali will be speaking on immigration issues relevant to the wine industry. The details are as follows:
November 16, 2009
The Meritage Resort and Spa, 875 Bordeaux Way, Napa, California 94558
NCHRA Members: $340 / General: $425 (Join NCHRA for $150 and attend at the member rate)
Scholarships & Group Rates Available
Registration: http://www.nchra.org/staticcontent/download/CF90701.pdf
Tags: agriculture, green card, H-1B, H-2A, H-2b, human resources, international, OPT, student, visa, wine
Posted in Events and Presentations | Read More »
Don’t Treat Immigrants Like Criminals, Part II
I received an email from a former client today, a lawful permanent resident of the U.S. She was coming back from the Bahamas with her U.S. citizen husband over the weekend, and was interrogated at secondary inspection at the airport. According to her, she was treated disrespectfully, so she told the inspector that she did not appreciate being treated like a criminal, to which he responded: “Most immigrants are criminals-that’s why we treat you that way.” Besides being appalling, this statement is plain wrong. Immigrants commit crimes at rates lower than the general population. This has been proven in study after study. Anti-immigrant nuts like Bill O’Reilly and Lou Dobbs and the idiots who listen to them continue to perpetuate the myth that immigrant crime is rampant in order to garner support for their scapegoating. However, the negative tone is established at the highest levels of government. As I mentioned in my last post, immigrant detainees are often treated in an identical manner to criminal detainees. This practice needs to change, or else this attitude will continue to trickle down to the lowest level officials in our government.
Tags: Bill O'Reilly, criminal, immigrant, immigrant detainees, lawful permanent resident, Lou Dobbs, U.S. citizen
Posted in Politics/Current Events | Read More »
To the Obama Administration: Stop Treating Immigrants Like Criminals
The Obama Administration recently commissioned a report on immigration detention. The report, written by Dora Schriro, an expert on correctional policy, examines some of the fundamental flaws in the current system, and makes some important recommendations for reform. As any immigration attorney who has ever represented a detained client knows, immigration detainees are too often treated like criminals, even when they have no prior criminal record.
Dr. Schriro made an important observation in her report: “As a matter of law, Immigration Detention is unlike Criminal Incarceration. Yet Immigration Detention and Criminal Incarceration detainees tend to be … managed in similar ways. Each group is ordinarily detained in secure facilities with hardened perimeters in remote locations at considerable distances from counsel and/or their communities.”
Based on the report’s findings, the Obama Administration is considering reforming the current system by housing some detainees in alternative facilities such as converted hotels and nursing homes. While this is a step in the right direction, it does not go far enough. The Administration should expand alternatives to detention, such as electronic monitoring and mandatory reporting. In addition to being more humane, these programs save the taxpayers money.
Tags: detention reform, Dora Schriro, electronic monitoring, ICE, immigration detention, incarceration, mandatory detention
Posted in Politics/Current Events | Read More »
Beware of Unannounced USCIS Site Visits
The United States Citizenship and Immigration Service (USCIS) is currently auditing the H-1B nonimmigrant program for fraud and is sending its Fraud Unit investigators into the “field” to collect data. As part of the audit procedures, these investigators are visiting H-1B employers (small and large) and interviewing authorized officials and human resources personnel. They are also speaking directly with H-1B employees. These site visits typically last 1 hour or less. H-1B employers may request that their immigration attorney be present, although it is in the USCIS’ discretion whether they agree to re-schedule the visit to accommodate this request. As an alternative, employers are permitted to have their immigration attorney present on the phone listening to the questions being asked. We strongly recommend that our clients contact our office immediately upon being visited so that we can ensure the USCIS is not overstepping its bounds in the investigation. Please see below for more tips and recommendations.
The USCIS’ questions for the employers relate to the number of employees overall, the number of H-1B employees, gross income, net income, and type of business, among others. Investigators are also requesting tours of the business premises, during which photographs are taken. Please note that it is the current position of the USCIS that investigators do not need a warrant to enter confidential/private areas in the office or facility. To date, this has not been challenged and thus remains the current practice. Please see below for tips about how to best handle site visits and these types of requests.
H-1B employees are asked different questions pertaining to their job title, job duties, salary, and work location. In some instances, investigators speak to the H-1B employee’s co-workers as well to identify any inconsistencies with the information provided by the employee. Please note that investigators have visited client sites as well as the principal place of business to speak to H-1B employees. We recommend that the H-1B employer inform any end-clients that these types of USCIS visits could occur and instruct them to contact the H-1B employer immediately if visited. The end-client should request that the H-1B employer either be present or be on the phone listening to the questions asked.
Although these site visits sound daunting, there are several things an H-1B employer can do to ensure they go as smoothly as possible:
Inform first-line personnel and staff that a site visit may occur and instruct them to welcome the investigator properly, showing cooperation
Meet with the investigator and ask for his/her name and contact information or his/her business card
Request that the employer’s immigration attorney be present
Consult with immigration counsel before answering any questions that you are unsure about
Take notes on what is being asked
Answer all questions honestly, reserving the right if necessary to answer later any questions that cannot be answered on the spot. Do not feel you have to respond to the questions when you are unsure of the answer. Simply tell the investigator that you need to look into it further before providing information.
On a tour of the facility, feel free to re-direct investigators away from confidential/private areas or, at a minimum, explain that as a standard practice photographs are not permitted in confidential/private areas of the company
Keep company records organized, especially records pertaining to any H-1B employees, so as to be able to show the investigator if asked
Accompany the investigator when he/she speaks to the H-1B employees and co-workers and take notes
In general, maintain a cooperative attitude throughout the process while at the same time asserting your rights
If you have any questions, concerns or comments about these site visits, please don’t hesitate to contact our office.
Tags: fraud unit, H-1B, H-1B employer, ICE, site visit, USCIS
Posted in USCIS | Read More »
Is Self-Employment Permitted on an H-1B Visa?
The short answer is, no. However, you could (and many people have) establish a new company (or non-profit entity) that will hire you as an employee and sponsor you for an H-1B visa. The position must meet all of the normal H-1B requirements.
It must be in a ‘specialty occupation’; meaning an occupation that normally one cannot enter without possessing at least a university degree in the specialty, or in a related field. In addition, the company will have to pay you, the employee, a salary that meets the prevailing wage requirement. And yes, the company will need to pay payroll taxes on your salary. When an H-1B sponsor is a brand new company, you’ll want to demonstrate that it has sufficient capital to pay the proffered wage.
Additionally, it’s important to adequately explain to Immigration what the business model of the new entity is. Submitting a well-written business plan can help, as will evidence of revenue or contracts with customers. Lastly, although there is no regulatory requirement to have a physical office in the H-1B context, it is helpful to have at least part-time or virtual office space and to submit an office lease along with the other evidence in the petition.
Tags: H-1B, new office, prevailing wage, self-employment, specialty occupation, visa
Posted in FAQ H-1B, H-1B | Read More »
