We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of “rogue” behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.
Archive for the ‘H-1(b) News’ Category
H-1Bs Encountering Problems at Airports
Thursday, January 14th, 2010GUIDANCE ON H-1B’S FOR THIRD PARTY PLACEMENT
Wednesday, January 13th, 2010At the annual AILA immigration conference last June, the USCIS promised that a memo would be forthcoming on the issue of what constitutes an employer-employee relationship for H-1b purposes. On January 13th, the USCIS issued a memo providing guidance on this issue. This memo is especially important to petitioners who place H-1b workers at third-party sites, such as information technology staffing companies and healthcare staffing companies.
The USCIS has long used the test of “right to control” to determine the employer-employee relationship. This memo specifies some factors that USCIS will look at to determine whether the petitioner has the right to control the H-1b beneficiary:
1. Whether the petitioner supervises the beneficiary (off-site or on-site)
2. How supervision is maintained (i.e. weekly calls, reporting back to main office, etc.)
3. Whether the right to control is on a day-to-day basis
4. Whether the petitioner provides tools or equipment needed to perform the duties
5. Whether petitioner has the authority to hire, fire, and pay
6. Whether the petitioner evaluates work-product of the beneficiary
7. Whether the petitioner provides employee benefits
8. Whether the petitioner claims the beneficiary for tax purposes
9. Whether the beneficiary uses any proprietary information of the petitioner
10. Whether the work-product is directly linked to the petitioner’s line of business.
The USCIS acknowledges that no single factor is determinative; rather, the decision will be made on the “totality of the circumstances.” Adjudicators are also encouraged to look at the nature of the petitioner’s business and the beneficiary’s type of work to determine the degree of control present.
The memo is particularly instructive on what type of specific relationships would qualify as meeting the right to control test, and what type of initial evidence to submit to show these relationships exist. Lastly, the memo instructs adjudicators who issue RFE’s on this issue to “specifically state what is at issue” instead of issuing generic, boiler-plate RFE’s. Also, the memo says that adjudicators cannot mandate a specific type of evidence unless it is required by the Regulations.
Clients are encouraged to contact their HLG attorney for more information regarding this issue.
USCIS policy against IT staffing companies encourages outsourcing
Monday, January 11th, 2010Recently, the USCIS, particularly, the California Service Center has imposed requirements on IT staffing companies employing H-1b workers that are not found in any statute or regulations. The requirement to produce contracts from parties with which the petitioner has no direct relationship is impossible to meet and the Service Center knows it ! That, is in fact their aim, to be as obstructionist as possible. Instead of applying the statutes passed by Congress and the regulations promulgated through the Administrative Procedures Act and subject to notice and comment i.e. a hearing by the public, they have chosen to arbitrarily act in an uniformed and misguided attempt to “protect the helpless Amercian worker” Kudos to the goal but, the execution gets a resounding “abject failure”. I happened to have a case recently that represents the idiocy of the Califronia service Center policy. The Petitioner (Co. A) had a contract with Co. B who had a contract with Co. C (the end client). For those of you who are familiar with the staffing industry, such an arrangement is the norm rather than the exception. Entire cos. are built on such contrcatual relationships. The CSC demanded the contract between Co. B and C, and my client who has no relationship with Co. C could simply not produce the required contract. Alternative proof, including a letter from Co. C verifying the relationsip and the job description was produced but, ignored by the CSC and the case was denied. I, being filled with righteous indignation, advised my client to file an appeal because surely the appeals unit would look at the evidence with a fair and unbiased eye and approve the petition. Unofrtunately, I told my client that the filing fee for an appeal is $585.00, attorney fees were ridculously exorbidant, and it would take 14-18 months for the case to be heard, and I added, in the interim, the employee could not keep working but, would have to leave the US and wait abroad for a decision. (clearly, the lack of a speedy appeal process and interim work authorization is one of the reasons that the CSC can act with such incredulity. There are simply no repurcussions when they flaunt the law and turn a blind eye to facts and evidenec submitted) My client, being a brilliant business person, had another option. He simply convinced the Co. B and C, the end client to move the project overseas to his development office in Secunderabad, India. Two of the three U.S. workers assigned to the project at the end client were offered the opportunity to transfer to India and when they declined, 3 more off-shore positions were created for Indians abroad. Way to go California Service Center ! In one failed swoop, you were able to keep an H-1b worker from working in the U.S., paying taxes, renting an apt, buying a car, etc. all horirble things, and at the same time, eliminate the work for 2-3 U.S. workers. I’m sure they appreciated you “protecting” them. But, hey look at the bright side, you made 3 Indians in Secunderabad very happy ’cause they now have a new project to work on.
H-1b count now at 61,500
Wednesday, December 9th, 2009As of
Is the H-1b cap 65,000 or 58,200 ?
Tuesday, December 1st, 2009With the recent announcement from the USCIS that 56,900 H-1b cases have been counted against the FY 2010 cap, there has been wide speculation about when the cap will actually be reached. Will it be a Hanukkah or Christmas present or will we get to ring in a new year with filings still to be done ? There has also been some recent news reports that state the actual cap is 58,200 due to the set-aside of 6,800 visas for the H-1b1 which are Free Trade Act visas issued to natioanls of Chile and Singapore. Those reports fail to take into consideration that unused numbers from the H-1b1 “spill-over” into the next fiscal year. Consequently, the calculation is actually 65,000 minus 6,800 plus the balance of the 6,800 from the prior fiscal year equals the actual cap. Although the numbers of unused H-1b1 visas has not been disclosed, the information that has been released indicates very light usage of the H-1b1 visa in FY 2009 and estimates are that in excess of 6,000 H-1ba visas remained which brings us right back to where we started i.e. 65,000. Breathe a sigh of relief here but, do not delay as the cap will likely be reached very soon.
Latest H-1B Count Numbers
Tuesday, July 14th, 2009As of July 10, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
Krispy Kreme Fined After I-9 Audit
Wednesday, July 8th, 2009As evidence of ICE’s new comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce, ICE has announced today a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for I-9 violations and for violations of the Immigration and Nationality Act. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Ohio Butler County Sheriff’s Office which revealed the company had employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.
Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.”Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. “ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities.”
Last week, ICE announced as part of their new initiative that 652 businesses around the country would be audited to determine their compliance with the immigration laws.
Latest H-1B Count as of July 3rd
Wednesday, July 8th, 2009The USCIS has updated the latest H-1B count. As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. The USCIS is continuing to accept both cap-subject petitions and advanced degree petitions.
ALJ finds H-1B Employer Liable for Back Wages for Benched Employee
Thursday, May 14th, 2009A recent Administrative Law Judge (ALJ) decision, Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09), found an H-1B employer, Itek Consulting Inc. liable for back wages for periods of time when the employee was in nonproductive status. In its decision, the ALJ references the pertinent part of the Regulations, writing “Employers are required to pay H-1B workers on the date on which the worker “enters into employment” with the employer. 20 C.F.R. § 655.731(c)(6). Employers are required to pay H-1B employees the required wage for both productive and nonproductive time. Employment-related nonproductive time, or “benching,” results from lack of available work or lack of the individual’s license or permit. 8 U.S.C. § 1182(n)(2)(c)(vii); 20 C.F.R. § 655.731(c)(7)(i). An employer need not pay wages for H-1B visa workers in nonproductive status due to conditions unrelated to employment or which render the employee unable to work. 20 C.F.R. § 655.731(c)(7)(ii).”These Regulations are particularly important given the state of the economy and the fact that many employees are now on the bench.The ALJ also found that an employee did not need a SSN to begin work, only evidence of having applied for one, to be considered in an employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. For full decision see: http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_ITEK_CONSULTING_INC_2008LCA00046_(MAY_06_2009)_114836_CADEC_SD.PDF
Old LCA Operational until 6/30/2009
Wednesday, May 13th, 2009The Department of Labor has informed AILA liaison that they will keep the old LCA system operational through June 30, 2009. The DOL has implemented fixes to many of the issues brought to their attention by AILA and other stakeholders thus far. The decision to keep the old LCA system operational will allow the DOL to continue to evaluate issues brought to their attention and to give users additional time to become familiar with the system. The new LCA system became operational on April 15, 2009.