HLG recently published its one year anniversary edition of the HLG Immigration Advocate. Check it out and share with friends. Thanks.
On August 1, 2016, a Dept. of Labor Judge ordered ME Global Inc. to pay a former engineer almost $183,000 in back wages. The Judge determined that the employer did not properly notify immigration officials when it fired the H-1B worker in 2008. As you probably know, immigration laws require employers to notify USCIS of the termination of H-1B employees.
Judge Almanza noted that the statute of limitations clock starts on the last date the employer failed to fulfill a condition of the labor condition application and therefore ME Global had “benched” their employee, placing an H-1B worker in a nonproductive status. This meant there was a continuing violation and the employee’s complaint to the wage and hour divisions was timely as long as it was filed within one year of when he left the U.S.
This holding is just another reminder that when an H-1B employee leaves your employment you must notify USCIS and withdraw the H-1B petition your company filed on their behalf.
In a time honored tradition designed to foster votes in the upcoming election, we are seeing yet another immigration bill offered, this time by Rep. Issa from the San Diego area. The bill primarily changes the rules impacting dependent users of H-1b employers and changes the threshold wage for exemption from $60,000 to $100,000. Just like every other immigration bill being introduced, it has no chance at being passed this year. My problem with the bill is not its content. Frankly, no objective person could argue that the exemption salary floor which has been in place since 1998 is at the correct level. My issue is with yet another immigration proposal that will never be debated, never voted on it, and never has a chance to bring about change.
On July 8, 2016, Bill Pascrell Jr., Democrat – New Jersey, introduced legislation Thursday designed to “overhaul” the H1-B and L-1 visa programs. H-1B and L-1 Visa Reform Act of 2016, or H.R. 5657. The bill is being introduced under the guise of protecting workers and cracking down on foreign outsourcing companies that “take high-skill jobs away from Americans.”
Two of the more concerning provisions of the bill include: Requiring employers to conduct a labor market test before hiring H-1B workers and prohibiting companies from hiring H-1B employees if they employ more than 50 people and if more than half of their workers are H-1B and L-1 visa holders!
The bill is co-sponsored by Rep. Dana Rohrabacher, R-Calif., who previously introduced a similar version of the measure in 2010. So, hopefully like last time this bill does not gain enough traction in Congress to move forward. Nonetheless, it is still worrisome to hear that these changes are be given any kind of consideration.
In the last several weeks, at least two lawsuits have been filed relating to the H-1b lottery. The first filed by AIC and AILA allege that the USCIS improperly counts the petitions filed. The complaint arises out of a FOIA request in which the USCIS failed to provide full documentation regarding the lottery system and the allocation of visas. Many attorneys have long believed that the lottery system is replete with inaccuracies. The second brought by two companies that did not have filings chosen in the lottery, alleges that the random lottery itself is a violation of the statute. We will keep readers updated on these two Federal Court actions.
Computerworld reported on a discussion in the House on major changes to the H-1b visa and immigrant visas. No bill has been released yet and we are obviously a long way from any change but, at least people known for reasonable stances on business immigration are putting forth ideas. We will keep you updated as information becomes available.
On May 5, 2016, in a California federal court, four people have been charged with conspiring to submit more than 100 fake H-1B visa applications. The prosecution alleges that, “the defendants … knew, these purported end-client companies did not have jobs for the defendants’ H-1B workers, the defendants did not intend to place those workers at those end-client companies, and none of those workers were placed at those end-client companies.” The Department of Justice goes on to say that between 2010 and 2014, a husband and wife used their employment-staffing companies DS Soft Tech and Equinett to sponsor temporary nonimmigrant workers for fraudulent H-1B applications for placements at companies that either didn’t exist or never received the proposed temporary workers and submitted fake documents to government agencies including the Department of Homeland Security and the Department of Labor. The maximum prison term for visa fraud is 10 years, while mail fraud and witness tampering both hold a maximum penalty of 20 years. While this is an extreme example, it is a good reminder that those that don’t follow the rules eventually get caught.
At a time when the USCIS processing times for H-1 petitions and extensions have grown to over 10 months, the USCIS has decided to reward themselves with an increase in revenue on the backs of US employers and international workers. Today, the USCIS released a proposed schedule of fee increases. Pursuant to the APA, the public is afforded 60 days to submit comments. Our firm plans on submitting comments on behalf of our clients. Of the most commonly used filings by US employers, the I-129 base fee will be increased from $325 to $460; the I-140 from $580 to $700; and, the I-485 from $985 to $1140. The last filing fee increases for the base petitions occurred in 2010. The USCIS claims that the fee increases are necessary to provide service to its customers. What a sad statement.
The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, adopting an Administrative Appeals Office (AAO) decision, to provide guidance that applies to and binds all USCIS employees regarding the adjudication of L-1A visa petitions. Specifically, the memorandum clarifies that when determining whether the beneficiary of an L-1A visa petition will primarily manage an essential function, USICS officers must weight all relevant factors including evidence of the beneficiary’s role within the larger qualifying international organization. The guidance clarifies a 2013 decision of the appeals office, Matter of Z-A- Inc., which overturned a Director’s decision denying an extension to stay for an L-1A beneficiary who was serving as a Vice President and Chief Operating Officer of a large Japanese manufacturer. In the overturned decision, the Director had determined that the officer wasn’t employed in a managerial capacity because U.S. operations did not have an “organizational structure” large enough to ensure the executive would not be performing the day to day sales duties. The decision failed to take into account the eight foreign staff located in Japan who worked under the manager, who performed the day to day sales duties necessary. The Japanese parent company is a publicly trade firm with over $900 million in sales.
In overturning the decision, the AAO found that the beneficiary’s responsibilities did primarily consist of managerial duties and that the beneficiary served as a member of the senior management team. The AAO found that the Director erred in focusing on the number of employees without looking at preponderance of the evidence presented which included evidence that the foreign staff performed many of the day to day sales duties required and thus, although the beneficiary may be required to perform some administrative or operational tasks, he primarily manages an essential function of the Petitioner. The case is Matter of Z-A- Inc. –
The USCIS announced that it received 236,000 H-1b cap petitions filed for the 85,000 spots available. They have completed the lottery process and have started to issue receipts. Last year, it took almost 4 weeks for all receipts to be issued. Premium processing cases will begin to be processed on May 16, 2016.