Third Circuit Issues Decision on At-Will Employment in the H-1b Context

On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic.   In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid.  Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1b.  The Third Circuit rejected this argument.  It noted that “sponsorship of an H-1b visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.”  Thus, an organization that sponsors an employee for an H-1b does not have a duty to employ the beneficiary throughout the duration of the H-1b validity period. Dr. Edwards other arguments also failed and the Third Circuit dismissed this appeal.  The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial.  The Hammond Law Group is always happy to help explore this topic.

Administrative Review Board issues decision in In Matter of University of Miami

On December 20, 2011, the Administrative Review Board (“ARB”) of the Department of Labor decided In Matter of University of Miami . In this case, the University of Miami submitted a petition for a H-1b worker who would perform as a clinical anesthesiologist. When the doctor arrived in the United States, the University of Miami told her that she must obtain a social security card before beginning employment. The doctor received the social security card and informed the University that she was ready to begin working. Due to issues regarding the offered position, the doctor’s employment was terminated. However, U.S. Citizenship & Immigration Services (“USCIS”) was not notified for more than four months. The ARB determined that the time that the doctor spent trying to obtain a social security card was involuntary non-productive time. Consequently, the University was ordered to pay backpay for this period. In addition, the ARB stated that the doctor’s termination only became effective on the date that USCIS was notified. Thus, the University was also liable for backpay from the date of actual termination until the date that USCIS received notification. This case should remind all employers that they risk being held liable for backpay if they create requirements that an H-1b worker must fulfill before starting work and if they fail to alert USCIS to a H-1b worker’s termination. If you have any questions regarding these types of issues, please contact the Hammond Law Group.

AG report now called the Grassley Report !

In several circles, the recent AG report which we discussed on Jan 4th and Jan 16th, has derisevely became known as the Grassley Report. In part, because Senator Grassley himself commissioned the report but, more importantly, and sadly, because it is a report that is so flawed in methodology, that if it were not a government product, it would be considered worthless. Senator Grassley is well known for his xenophobic policies and his stances that prevent legal immigration from flourishing but, that’s a political position, and although I may disagree with such a  position, I certainly support his right to hold and advocate for those positions. I presume that many of his constituents in Iowa share in those same beliefs. What is disheartening is that his political policies and his esteemed position as a US Senator have allowed him to manipulate various government agencies into creating policies and reports that start with the desired conclusion and then build upon half-truths, poor survey methodology, definitions devoid of any support in the law, and other tactics until, presto ! We have a damning report or memorandum that serves his political purposes. If only his talent at mudraking could be put to better use. For another opinion on this report, check out a recent post from the AILA leadership blog.

CBP on L visas under NAFTA

The CBP released a statement on its procedures for handling L petitions under NAFTA.  Our experience is that CBP officers have a far greater grasp of the L regulatory standards and far less of a political agenda  than their US Consulate brethren and that well-prepared L petitions are met with routine approval at the border.

More criticism of the AG report

If you are looking for more information on the AG report which was recently released (refer to our post from 1-4-2012) please read the blog post by our friend, Angelo Papparelli, which ILW.com recently ran.

EB2 India and China Jump again !

The DOS released the Feb Visa Bulletin and the priority dates for EB2 India and China moved forward by a full year to Jan 2010. The rapid movement over the past several months is due to reports from the USCIS of fewer than expected 485 filings. Future retrogression remains likely if the number of I-485 filings increases.  All EB3 categories saw snail like movement forward and the predictions are for more of the same.

Mike Hammond to speak at TechServe event

On Jan 12th, Mike Hammond will be one of the speakers for a webinar event being sponsored by TechServe Alliance . The topic will be  “Utilizing H-1Bs within Your Contingent Workforce: Understanding the Changing Landscape” The webinar is offered to TechServe members only.

Pressure at the USCIS ! Great !

As recently reported at www.thedaily.com,  the OIG released a report detailing that many rank and file USCIS examiners have faced pressure and even threats of job loss and demotion if they did not follow the policies and instructions of their supervisors including Director Mayorkas. The commentary suggested that those practices were horrible when, in fact, they should’ve been asking the question; “why should rank and file examiners think that their personal interpretations of the law be relevant ?” Rank and file examiners should follow the law, nothing more and nothing less.  The complaints of the “culture of no” which many immigration practitioners and employers believe is pervasisve at the USCIS Service Centers,  are derived from rank and file examiners who want to be policy makers and legislators instead of performing their jobs as tasked.   I applaud the pressure that USCIS HQ is putting on examiners and suggest that more is warranted.

Immigrants help drive job growth !

In spite of claims by protectionists (read Senator Grassley), the facts support a claim that immigrants contribute in a major way to US job growth. The NFAP released a recent study touting said facts. Now if only my copy to Senator Grassley’s staff would be read instead of being used as litter box filler, maybe we could see some rational pro business, pro job growth immigration bills get  fair  consideration.

US Consulates in Canada join in on the fun !

We knew it couldn’t last and we are sad to report that the US Consulates in Canada have now joined their brethren from Posts in India and Manila in determining that it is their duty as red-blooded Americans to re-adjudicate every issue in an H-1b petition before issuing a visa. The US Consulates are re-adjudicating issues relating to itinerary requirements, Labor Condition Applications, short-term placement rules, employer-employee relationship,  the rule of control and supervision created by the Neufeld policy memo, and the validity of employment contracts to name their favorite topics. Attached is the latest emailbeing sent by the US Consulate in Ottawa to end clients (or at least who it perceives to be end clients). The practice of re-adjudication of petitions previously approved by the USCIS is not supported by the regulations but, is being done under the guise of fraud prevention. Errors in interpretation and/or mis-application of DOL and USCIS regulations and case precedent go unchallenged since US Consulates enjoy the protection provided by the doctrine of non-reviewability. It is time for Congress to re-examine this doctrine and allow employers and foreign nationals who are wrongfully denied a visa to go into a Federal Court and obtain redress. Only with the threat of  an impartial judge reviewing their actions will the US Consulates stop the witch hunts and follow well-established law and procedure.