USCIS Meets H-1B cap – Lottery Will be held

UnknownAs expected USCIS announced today that it has received sufficient H-1B application to meet the H-1B cap as well as the Master’s Cap.  Therefore USCIS will conduct a lottery later this month to determine which cases will be accepted for the cap, and which will not, and will be returned with their fees.   All application received by the close of business today will be accepted into the lottery.  USCIS will finish processing all cases received before proceeding with the lottery.  Unfortunately, according to USCIS, because of the high numbers received, USCIS is not sure when they will finish processing the cases.   Here is hoping it will not take them to long.  We will update you as soon as we hear anything additional.

H-1B Extensions and RFEs

Maybe this scenario sounds familiar:  You file for an H-1evidenceB for an employee, and get it  approved for them to work for you for 3 years. At the end of the 3 years you file a renewal for your employees H-1B.  Instead of a straight approval this time, however, USICS requests additional evidence as, according to the Request, they do not believe that you qualify for the position or that the position itself is a specialty occupation.  We have seen this happen recently even and, whenever it does, we cannot but help feeling confused.  Why would USCIS approve the application once and then, all of a sudden and out of the blue on a renewal demand documentation about entitlement to the visa classification?  It makes little to no sense.

In fact, in the Field Officers Operating Manual, USCIS itself states:

Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office.

Despite this, some officers will still insist on revisiting entitlement to status in subsequent renewals.  What can you do if this happens to an application for one of your employees?  The most important thing to do is to immediately start collecting the documentation requested.  The reason for this is twofold:  Fipreponderance-of-the-evidencerst, USCIS does have the right to ask for additional evidence regardless of the above procedure manual.  You also have the responsibility to meet your burden of proof – and to show by a preponderance of the evidence that the beneficiary is qualified for the position.  Second, USCIS does not like to admit they made a mistake.  By requiring you to respond no matter what, they can sooth their pride by saying it was because of the new evidence that the case became approvable.  So assume that, no matter what else you try, you will have to respond.  That way you will always be able to get the documents in a timely manner and will not run out of time.

It should also be noted that the overall RFE and denial rate has dramatically increased for H-1Bs over the years.  In 2009 it was around 8-10%.  In 2012, the denial rate was approximately 29.5% – almost a third of H-1B cases submitted in 2012 were denied.  This is a huge increase in a short period of time.  It also means that a larger percentage of cases were RFE’d (if almost 1/3 were denied) as they certainly did approved some cases that received an RFE.

So what can you do to prevent RFEs and denials in the first place?  Plan carefully – include documents showing ability to pay, include documents such as a transcript, showing the employee has learned the specific skills needed for the position through their eduction, include documentation of the complexity of the job duties so there is no question regarding the need for a bachelor’s degree.  In short, do not skimp on documentation for the initial H-1B OR the H-1B renewal.  Include everything.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

EB-1A Extraordinary Ability: The Cold Hard Facts

approval-rating

Many times we hear from clients or prospective clients that a “friend” of theirs, who has much less in the way of credentials, was approved for an EB-1A.  Sometimes it was a  “friend of a friend” or a “relative”  or some other acquaintance who had the approval.  While I have no idea if these individual stories are accurate or not (and I do suspect that some of these people may have been approved in different categories, either the EB-1B Outstanding Researcher (employer sponsored) or the EB-2 National Interest Waiver (self-sponsored))  I do know that numbers wise, very few people, especially on a country by country basis, are approved in this category every year.

Overall, every year there are 40,040 immigrant visas made available to the EB-1 category.  Each country gets approximately 3% of these immigrant visas per year.   There is also a limited number of visas that can be re-allocated from countries that typically do not use all their visas, to those that use more, but this is very limited and may, only bring a single countries usage up to 7% of the total or approximately 2,802 immigrant visas in this category.  It should be noted that this 3% includes all three application types in this category:  the EB-1A Extraordinary Ability AND the EB-1B Outstanding Researcher AND the EB-1C Intracompany Transferee.  All three application types share the number of visas in this category.  It also included not just the principal filer, but their spouses and children as well.   It should also be noted, that there is no backlog in this category for any country, so the maximum number of visas in this category allocated to each country is not even being used, further bringing down the overall number of approvals.  Overall, there are simply not that many people per country getting approved in this category.

Looking at USCIS statistics, this category, the EB-1A, has a historic approval rating of just over 50%, again showing how difficult this is.  Plus, you also need to take into account that there is a certain percentage of cases that are filed that definitely qualify (they won a Nobel Prize or similar, or they have huge amounts of documentation).  Once those people are taken into account, the actual approval rating for those with less sure cases is even lower.  This is in stark comparison to the EB-1B Outstanding Researcher which has an approval rating in the 90% range.

So for those approved in this category, congratulations you are truly one of a small percentage.  For those looking at applying in this category, do not deceive yourself into thinking it is easy as it is not.  It is possible to get approved with the right documentation and the right arguments, that is what is sets apart those cases that are approved, and those that are not.  We will discuss more about the kinds of documentation necessary in future posts.

As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

Are all Recommendation Letters Created Equal?

writing_a_letter-300x199One of the most frequent questions we get from our clients is about the Letters of Recommendations needed for the self-sponsored applications (we actually call them Expert Review or Expert Opinion Letters). People want to know who the best referees are, what the letters need to say, etc. For the most part, people believe that these letters are a very important part, if not the most important part of the entire application.

While the letters are important, what is more important is that you have “objective”, independent evidence as to the importance and impact of your work AND, for the Extraordinary Ability application, your renown. By “objective” generally USCIS means documentation not produced solely for the green card application, but that exists already. A good example of this is a news article published online, or the selection of an article you published as an “article of the week”. Such evidence exists separate from the green card application itself. This is the type of evidence that makes the difference between an application that is approved, and one that is not. Most Expert Review Letters come from your current boss, or a former boss, or a postdoc advisor, or a collaborator, etc. These type of letters, while nice, and helpful in terms of showing the role you played in your work, are not considered “objective” as they come from those with an interest in you and your work. These type of letters simply confirm the “independent” evidence you submitted, but cannot make your case. Expert Review Letters from those who are independent of you, on the other hand, CAN be “objective” evidence and CAN be persuasive to an Immigration officer when they review your case.

Letters that come from others in your field who do not know you personally, maybe have never even met you, but they do know your work (through citations, through presentations, etc.) AND they have used your work to help with their own work (maybe they have utilized your research in their own work, or applied your findings in their own projects) are the type of letters that USCIS is looking for. A letter from such a person IS “objective” evidence as to the importance and impact of your work AND evidence as to your renown in the field. Especially for the EB-1A Extraordinary Ability application, this is the type of letter that you should be shooting for getting.

To summarize:

  1. The most important evidence for a self-sponsored green card application is “objective evidence”
    2. Most Expert Review Letters are NOT “objective” evidence
    3. An exception to this rule are those Expert Review Letters that are written by “independent” people in your field who testify as to the importance and impact of your work AND how they have used your work in their own work

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The April Visa Bulletin is out

The April 2014 visa bulletin was released late last week.   For the Employment based categories, China 2nd Preference moved to March 8, 2009 and 3rd Preference worldwide, China and Mexico moved up a month to October 1, 2012.  India Second and Third Preference stayed the same and Philippines 3rd Preference also moved up a month to June 15, 2007.

In terms of Family numbers, F1 numbers moved up about 20 days to February 22, 2007 for Worldwide, India and China and to November 1, 1993 for Mexico and November 1, 2001 for the Philippines.  F2A numbers stayed the same and F2B numbers moved forward almost two months to October 22, 2006 for Worldwide, China and India but stayed the same for Mexico and Philippines.  F3 numbers moved up about 1 month for Worldwide, China and India and about 1-2 weeks for Mexico (June 22, 1993) and Philippines (February 22, 1993).  And lastly, the F4 numbers moved up about 1 week for everyone.

The Department of State did not update its estimates of movement that it put out last month, but so far, they are following those estimates fairly closely.

H-1Bs: Can an Employment Contract Termination clause require the Employee to pay H-1B fees?

punitive-damages

Here is the scenario:  An H-1B employee works for Employer A.  The employee receives a better off from Employer B, and Employer B files an H-1B transfer for them.  When the employee informers Employer A about the new filing, Employer A tells them that, per their employment contract, since they left prior to two years expiring they need to reimburse Employer A for a certain sum of money.  Sometimes the employer specifically requires employees to repay H-1B visa fees, sometimes it is a more general liquidated damages clause.

The big question is, Is this Legal?

Before proceeding let me say that I am not an employment law attorney and, in general, I cannot tell you if a specific liquidated damages clause is valid or not.  What I can say is that any clause that would require the employer to pay back H-1B fees is, in almost every circumstance, invalid and illegal.  As stated in a previous blog post, the Employer is required to pay certain fees, no matter what.  This includes the training fee, which is usually $750 or $1500 depending on the size of the employer.  There is no doubt that this fee CANNOT be reimbursed to the employer in any way, shape or form.  If the clause includes reimbursement for that fee, it would be considered illegal.  What about the other H-1B visa fees and the attorney fee?  Could the employer get reimbursed for those?

It is good to recall here that the justification given by the DOL for requiring an employer to pay all fees is that such fees are a “cost of doing business” and, therefore, not a legitimate deduction from the employees pay.  Therefore, the payment of such fees could bring the salary of the employee below the required wage.  Therefore, I think it is clear that if the employees repayment of the fees brings their salary below the prevailing wage (this would be their yearly salary minus the amount they are repaying, not their entire salary for the entire time they worked), it is against the regulations and the DOL would have an action against the employer.

The trickier situation is where the re-payment of such fees would not bring the employees salary below the prevailing wage.  First, if the LCA lists just a static wage, and the re-payment of the fees would bring the wage below that level, I again feel that it is clear that the DOL would consider that a violation of the LCA as the employer is no longer paying the promised wage.  If the LCA lists a wage range, and the re-payment of the fees would keep the wage in that range, I still believe that the DOL and USCIS would both have issues with the re-payment of the fees.  DOL seems to think that there is no situation in which it is ok for the employer to require an employee to pay such wages.  It is certainly not worth the risk in my mind to tempt fate and try to enact or enforce such a provision.

As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

H-1B Process: The LCA

wwwdoletagov-regions-reg05-Documents-eta-9035pdf

Every employer who wants to sponsor an immigrant for an H-1B has to file, and get certified, a Labor Condition Application (LCA).  But what is the LCA and why is it important?  The LCA has two specific purposes.  First, it is there to make sure that foreign workers are not paid wages that are lower than US Citizens and Permanent Residents, thereby depressing wages for everyone.  Second, it is there to make sure that foreign workers and US workers are treated fairly and equitably.  In short, the LCA is a series of attestations of the employer.  Specifically, the employer is attesting that:

  1. The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
  2. The employment of H-1B workers will not adversely effect the working conditions of US workers
  3. When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
  4. The H-1B worker will be given a copy of the LCA, and the employ
    er has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed

The last attestation needs some elaboration.  Under the regulations, the employer must provide the employee with a copy of the LCA within 1 day of the employee starting work.  This must be documented (get the employee to sign a form that they received a copy and put it in the employees file).  In addition, if there is a union, the union must notified of the LCA filing by providing them a copy of the LCA (same documentation requirement).  If there is no union, then the employer must post the LCA in 2 conspicuous locations at the place of employment for 10 days.  The employer should then sign a notice that they did post the notices and where and place that in the employees file.

In addition to the above, the employer must, within one business day of filing the LCA, establish a public access file that may be viewed by any person.  This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public.  This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, evidence that the H-1B worker has been given a copy of the LCA, and evidence that the LCA was given to the Union or posted as required.

There are additional attestations for those employers who are deemed to be H-1B dependent.  H-1B dependence is determined as follows: If the employer has 25 or fewer employees, if more than 7 are on H-1Bs, if the employer has 25-50 employees and more than 12 are H-1B employees, or if the employer has more than 50 employees and more than 15% are on H-1Bs.  For those employers who are H-1B dependent they must also attest about the recruitment of workers as well as that they are not displacing US workers in their company OR in other companies by hiring the H-1B employee.

The LCA is an important part of the H-1B process and the above steps need to be filed in all H-1B cases.  As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

March 2014 Visa Bulletin Updates

The March 2014 visa bulletin was just recently published by the Department of State.  This month’s bulletin not only gave us the new cutoff dates but also provided us with some guidance as to how much the Department of State (DOS) think s that various categories will move forward in the coming months.

Starting with family cases, the F2A – Spouses and Children of Permanent Residents category – was fast moving forward.  Well, that has stalled over the last several months at September 8, 2013, and it is still there for the March Bulletin.  DOS also states that it does not foresee any forward movement in that category over the coming months.  The other family based categories are projected to move forward between 2 to six weeks every month.

In terms of the work based categories, the DOS sees Employment First preference remaining current, as well as Second Preference Worldwide availability.  For Second Preference China, which is now at February 15, 2009, the DOS sees it moving forward approximately 3-5 weeks every month.  India, which is at November 15, 2004 will remain at that date for the foreseeable future.  For Third Preference, the Worldwide and China and Mexico cutoff date is September 1, 2012.  DOS sees this date as remaining level, with great potential for having to move the date back if the potential demand for this category materializes (although in the short term there may be small moves forward).  India will most likely remain at September 15, 2003, but there is a chance of small movements forward, just not a good chance.  The Philippines, which is at May 1, 2007 will move forward at a rate of approximately 3-6 weeks each month.  For the Fourth and Fifth employment preferences, the DOS believes that they will remain current over the next several months.  It is important to note that these are just projections, and that they are only projections for the next couple of months.  Things could change rapidly depending on actual usage patterns each month.

What does this all show?  First, it appears demand for the EB-5s for China was not as high as the DOS thought, as they thought they may have to backlog that category in the next couple of months but they have not renewed that prediction in this visa bulletin.  Secondly, the EB-2 and EB-3 categories are going to remained quite backlogged for India for the foreseeable future.   The good news is that China dates seem to continue to move forward at a good pace and that does not show signs of slowing down.

H-1Bs – Who has to pay?

Money

Many employers would prefer not to pay for the H-1B process for their employees that they agree to sponsor.  It can be an expensive process, and it would ease the concern of many employers if they did not have to foot all of the bill.  Alternatively, some employers want to be able to recoup those fees if the employee leaves their employment.  The question then is “Is it legal for an employee to pay for thH-1B process or to re-pay the employer for such process?”  The short answer to this will almost always be No.

The Department of Labor regulations lay out two important factors in this regard.  First, the DOL has determined what “authorized” deductions from an employees pay are allowed.  This includes things such as tax payments, health insurance, etc.  The DOL has also determined what “unauthorized” deductions are, and this does include “necessary business expenses” which the DOL states included all fees associated with the H-1B and LCA process.  Unauthorized deductions are not allowed to depress the wage paid to the foreign worker below the “required” wage level.
 What is the “required wage”?.  According to the DOL, the wage the employer is “required” to pay is the HIGHER of the prevailing wage (which is what the DOL determines is the minimum wage that should be paid for that position) or the “actual” wage.  The actual wage is the wage paid to other similarly qualified employees in the same or similar position to the alien being sponsored.  So if the alien has a Master’s degree, you would be looking only at other employees in similar positions with Master’s degrees, etc.  However, if there are no similar qualifies employees in similar positions, the actual wage is the wage that is being paid to the alien as listed on the LCA and I-129.
Putting all the above together, in almost every case, the foreign worker will not be making more than similarly situated employees, therefore theH-1B fees could not be paid by the employee.  What if though, for some reason, the foreign worker WAS being paid more than their US counterparts, could they pay the wage then?  Judging from the reactions of the DOL to employees paying such fees while it may not violate the above principles, it is not preferred and could still lead to fines, etc.  Why?  The DOL has stated that requiring the employee to pay the H-1B fees is considered by them to be “fraud” in the LCA process.  In addition, the DOL also feels that if by paying the fees, it brings the wage below the level that the employer stated that they would pay in the H-1B forms and the LCA, it is still a violation, and back wages, at a minimum, could still be due.  Lastly, it should be noted that the training fee, by law, is ALWAYS required to be paid by the employer, no exceptions allowed.
Best practice as an employer is to just pay the fees and not worry about H-1B or DOL audits.    As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.
Image courtesy of khunaspix – free digitalphotos.net

ALERT: What the Possible Government Shutdown would mean for Immigration Services

With the current economic talks stalledand a potential shutdowImagen as early as next week many people want to know what does this mean for immigration services?  For those dealing with USCIS in the US, the answer is easy, nothing.  USCIS is funded through user fees (i.e. the fees they charge for applications, not the general budget, so a government shut-down does not affect them.  The only piece that is affected is e-verify, which is separately funded and would be shut down.

If you are not in the United States, it is a little murkier.  The Department of State is in Charge of the US Consulates overseas as well as running the National Visa Center and handling immigrant and non-immigrant visas.  They would be affected by the shut-down and would stop providing such services except in emergency situations and for diplomats (A visa holders) and International Organization members (G visa holders).
The Department of Labor, which handles the labor certification system and the LCA system (for H-1Bs and E-3 visas) would cease those operations in case of a shut-down.  This would mean that any pending labor certification or LCAs would remain pending and not be worked on until the shut-down is over.  It also means that there most likely be long backlogs created in the even of any shut-down.

The above is general, and only touches on some specifics of the situation. As always, please contact us with any specific questions or an answer about how the shut-down could affect your particular situation.

photo credit: <a href=”http://www.flickr.com/photos/58551403@N06/5601911092/”>boris.rasin</a&gt; via <a href=”http://photopin.com”>photopin</a&gt; <a href=”http://creativecommons.org/licenses/by-nc-nd/2.0/”>cc</a&gt;