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.

H-1B Process: The LCA

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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.

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

Updates on Government Shutdown and What it Means

Now that the government shutdown has happened I would like to update everyone as to what is happening with US agencies that deal with immigration:

 

1.  USCIS – they are up and running as normal EXCEPT for the e-verify system.  E-Verify is NOT working, and USCIS has already issued a statement on this and extended any deadlines affected by the shutdown as employees cannot go to the Social Security office, etc. during the shutdown.

 

2.  DOL:  LCA and PERM operations are shut down.  No PERM or LCAs submissions will be accepted or processed during the shutdown.  You should still mail in Audit responses, but DOL will not be able to accept, open or process them during the shutdown.

 

3.   DOS:  Contrary to what they stated before, all Consulate activities are up and running.  This means they are granting visas and processing all related cases.  This will go on as long as they have funding for such activities.  I would always check the Embassy/Consulate website to make sure the one you wish to visit is still open.

 

4.  CBP:  All ports are open and functioning as normal.

Please discuss any specific cases with your attorney.

Confidentiality of Documents and USCIS

 

 

 

 

 

 

 

 

ImageWe are asked quite frequently by individuals, and especially companies, whether the documents and statements they are giving to USCIS in support of visa applications are “confidential” or can anyone request and receive a copy of such papers.  The answer is complex, and involves the interplay of two statutes:  The Privacy Act of 1974 and the Freedom of Information Act.  The Privacy Act protects ALL records keep by all agencies from disclose except in certain situations (more on these below).  The Freedom of Information Act, on the other hand, opens up all documents to public inspection, except for documents that fall within its exceptions (which will not be open to the public).  So these statutes serve opposite purposes from each other, but do actually end up working in unison.

The Privacy Act has the following exceptions listed, which allow disclose of documents kept by all agencies:
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;  (2) required under section 552 of this title;  (3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;  (4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13;  (5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;  (6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;  (7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;  (8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;  (9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;  (10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;  (11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(e) of Title 31.

As you can see, only in very limited situations can documents be released.  Most such exceptions are to allow the agency that has the records to use the records in its operations or for the government to use them for criminal or congressional investigations.  Under the Privacy Act, all documents given to USCIS are protected unless one of these exceptions apply.   The second document that deals with disclosures of such information is the Freedom of Information Act (commonly known as FOIA).  Generally FOIA requires agencies to release documents when requested by the public.  However, as with the Privacy Act, there are limits to FOIA requests.  Specifically, in the following situations, documents are exempted, if:

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;  (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;  (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;  (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;  (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or, (9) geological and geophysical information and data, including maps, concerning wells.

The important exception here are number (3) and (4).  Number (3) specifically exempts from being released all documents that other statutes clearly and unambiguously state should not be released and Number (4) specifically prohibiting the release of trade secretes and commercial or financial information obtained from a person.  Since the Privacy Act does specifically guarantee the privacy of documents given in support of an Immigration Application, the FOIA statute will not override this prohibition.  Further, even if it did, if the documents constituted trade secrets or commercial or financial information about the company, those records would still be protected from release directly by the FOIA statute.    However, some of the exceptions in the Privacy Act may also apply in certain situations.  If there is a specific Court order that the specific records be released, then the government will release those records.  The Attorney General’s office has specifically stated that a discovery request is NOT a Court Order that would compel such release of the documents.  The Court would have to issue an actual order requesting those specific documents be released by the Government.  However, if the Government is investigating you or your company for criminal wrongdoing, the records can be released to those agencies without court order.

I do wish to emphasis that the above is a general discussion of the privacy act and FOIA statutes and is not legal advice.  Every situation is different and specific situations would require individual consultations.

USCIS Implements its new Customer Verification Program – Be prepared

Today USCIS is implementing its new customer verification program at all local offices.  Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

In this way, USCIS is looking to combat fraud and improve its systems.  Be prepared for the above when you go to an interview or to receive proof of an immigration benefit and build in extra time for this process.

Click here to view the USCIS press release with additional information.

July Demand Data for EB2 and EB3 cut-off dates

The Department of State has once again released the demand data used to determine the July cut-off dates for the EB-2 and Eb-3 category. It is important to note that there are additional cases outside of these numbers that have not been counted (those who have already filed an I-485, for instance, are not included. Nether are any new cases that have been filed as of the cut-off date they have used (June 7, 2013) to determine the July Visa Bulletin).

Currently, the DOS lists the following demand in the EB-2 category (please note, this is cumulative demand as of January 1, 2013):

India: 43,100 cumulative demand

China: 5,100 cumulative demand

All Other: 200 cumulative demand

For the EB-3 category, the following is the demand (same dates):

India: 41,175

China: 75

Mexico: 25

Philippines: 5,500

All Other: 400

This will give you an idea as to why the July Visa Bulletin has the cut-off dates that it does.

USCIS begins returning H-1B applications not Selected in Lottery

USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.

We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.