The issue is an extremely important one in employment based immigration process keeping in mind the need of the foreign nationals’ to be able to change jobs while awaiting the lengthy delay in petition approval and the congressional recognition of such need to port jobs to check employer abuse.

Earlier BIA had held that immigration judge does not hold the jurisdiction to determine validity of the I-140 employment based immigration petition. However the 4th Circuit, the federal court of appeals, has vacated this order of the board and the Fifth and the Sixth Circuit Courts have followed the 4th Circuit.

The worker could raise the back wages claim with the Department and the agency’s wage and hour division is authorized to investigate the complaints. If the DOL agrees to investigate the claim, the employer must cooperate with the investigator and furnish the needed information and records or face penalties. Although, the employer could question levy of improper penalty amount.

An H-1b worker must be paid the required wage rate i.e. higher of the prevailing wage and the actual wage. Wages should be paid if the reason for non productive benching is employment related i.e. the employee did not have work because the employer could not provide the person with work. Reasons may vary from lack of work to lack of permit, license or social security number. Liability does not attach to the employer if there is bonafide termination of employment or if the non productive time is due to reasons not related to employment.

As is evident, it is the employer’s effort to assert that benching was non employment related reason or that the employee was terminated while the employee would say otherwise. In order to avoid the “he said” “she said” situation it is nice to be able to build a well documented case but not always possible. Every case rests on its own facts and success of the case often depends upon how educated the client is and whether took timely steps to protect its interests right from the beginning.

In a recent decision, the Adiministrative Law Judge from New Jersey, decides that employer’s refusal to offer work because employee did not have a social security number on the first day he reported and thereafter did not report to office until after acquiring the social security number is not a good reason to withhold payment of LCA wages.

Also, the employer could not offset the losses it claims to have incurred because the employee violated contract terms. The decision reasons that a breach of contract action is beyond DOL’s authority and thereofre it could not allow such an offset against the obligation to pay the required wages. This decision just reiterates that the obligation to pay LCA wages is foremost to the Department and if the employer had any contractual claims against the employee, however valid, it may not assert the claim before the Department to offset its obligations to pay the LCA wages.

Often the j-1 visa holder is subject to a two yr. home residency requirements which means the visa holder after accomplishing the purpose of j-1 visa (J-1 program/course) is required to return to his country of last permanent residence for two years before seeking L or H work visa or lawful permanent resident status.

Whether a J-1 visa holder is subject to the two yr. home residence requirement depends upon three things: If the foreign exchange visitor (1) received government funds to complete the program, whether from U.S. or the foreign country; (2) is coming to complete a program in a field of study that is listed by the U.S. government as in short supply in the exchange visitor’s country aka skills list; or (3) the exchange visitor is a foreign medical graduate coming to U.S. to complete graduate medical education or training.

Those who are subject to the home residence requirement may seek a waiver of this condition from the government of the foreign country. Often grant of the waiver take some time as a lot of government procedural steps are to be completed and often means long waiting period. Grounds on which a waiver may be sought are: (1) the U.S. citizen or permanent resident spouse or child would suffer exceptional hardship, (2) the exchange visitor would be subject to persecution because of his race, religion or political opinion upon return, (3) if the foreign country of the exchange visitor’s nationality of last residence gives a no objection to such waiver, (4) the exchange visitor’s admission is in public interest and that his services are required by an interested state or federal government agency.

The physician receives waiver conditioned upon that he or she would serve as such for three years in a designated geographical area that meets the criteria for Medically Underserved Population (MUP) or Health Professional Shortage Areas (HPSA) and can change to H-1B status and permanent residence.

The three year period may be shortened in certain extreme cases if the employment is taken up at another health facility for the balance of the three year period. Also, the criteria and the process to designate MUPs and HPSAs has been recently revised that should provide a more realistic data.

Dependents: Dependents of the exchange visitors entering U.S. as such are also subject to the home residence requirements. There are interesting issues involving in which country should the foreign national reside for two years if he is a national of one country but permanently resides in another; whether residence in each country for part of the requisite period could be combined; or when an accompanying or following to join dependent is also subject to the home residency requirement – what effect if the dependent is a national or permanent resident of a country different from that of the exchange visitor; or if the dependent spouse divorces the exchange visitor after entering U.S. as his/her dependent. Not all the instances are explained but rules do not provide any leniency to accommodate these variations.

These immigration benefits do require filing the appropriate forms and the government reminder notes that the services are availale to an applicant who is in compliance with the various provisions of the U.S. immigration law.

As a general rule, visitors for pleasure or business, B visa holders, may seek extension of stay if unexpected events in their home country delay their return. The extension could be granted if inability to travel is caused by the disturbing event, sort of a cause and effect analysis. The foreign national should be able to give details about length of stay in U.S. and also how (s)/he would support himself/ herself during the extended stay as these visitors could not be gainfully employed during such stay in U.S. Another possibility is where the foreign national could no longer extend their nonimmigrant visa may be able to seek B1 or B2 visa through change of status.

Parolees, could also apply for extension of parole.

Foreign students holding F1 or M1 visa (for academic or vocational education) are permitted to request off-campus employment, if, affected by the unexpected event in their home country. Generally, these students are expected to bear the cost of their education and be able to support themselves during their study in U.S, without seeking outside employment. The college may allow limited hours of employment within the campus. However, if the unexpectable event in their country influences their ability to fend for themselves or to pay the college tuition fee, a foreign student could seek off-campus employment.

So much for the natural disaster, be safe.

Typical H-1B occupations include architects, accountants, doctors, engineers, management consultants, scientists, systems analysts, primary and secondary teachers, and college professors and researchers. The foreign national could initially be admitted for a period up to 3 years which may be extended to a maximum authorized stay not exceeding 6 years. The Department of Labor Regulations ensure that the H-1B worker is paid the ‘required wages’, is provided the similar working conditions as and is hired only in the absence of qualified and willing, U.S. workers.

The total number of visa admissions under this category is subject to an annual numerical limitation also known as CAP. Every H-1B petition, filed by an employer for a foreign national reduces the annual numerical limit by one. H-4 dependants, i.e. spouses and children of the H-1B are exempt from the CAP. The first time, CAP was reached in the fiscal year 1997 then again by May in FY 1998. The “American Competitiveness and Workforce Improvement Act” (ACWIA) raised the H-1B numbers to 115,000 in FY 1999, 115,000 in FY 2000 and 107,500 in FY 2001. This Act was further amended by the “Twenty First Century Act of 2000” (AC 21) which raised the CAP to 195,000 for FYs 2001, ’02 and ‘03. Together, the two enactments provided liberally in favor of H-1B visa category consequently CAP was not reached in FYs ‘01 through ‘03.

“The H-1B Visa Reform Act of 2004” brought back the annual numerical limit to 65,000 and created additional 20,000 visas for foreign nationals holding master’s or higher degree from U.S. institutions of higher education. H-1B employment at some institutions is CAP exempt. The CAP for the FY 2004 was reached in February 2004 and for the FY 2005 in October 2004. In the later years, the available visa numbers were exhausted much earlier in the year. For the fiscal year 2008, the CAP was reached the first day of April 2007, i.e. the first day on which filings could be accepted for the fiscal year. However, the USCIS decided to continue accepting the applications for the first two days as required by the rules and pooled the applications so received to pick 65,000 of these through a computer generated random selection process (lottery). It is reported that in FY 2007 the total number of applications received exceeded twice the number of visa admissions available. With no change in the available annual visa numbers, this year also (FY 2009), USCIS anticipated the same rush in filing H-1B petitions as was last year and decided to use the lottery selection process.

In an attempt to better manage the CAP and the rush in filing, caused by the shortage of H1Bs, USCIS announced an interim final rule modifying the H-1B filing procedure. The interim rule reasons that the modification was necessary to afford all the employers an equal and fair opportunity in making the lottery. Although, only 500 instances of duplicate filing were reported last year.

Among the most talked about provisions of the interim rule is the prohibition on duplicate or multiple filings by the same employer for the same employee in a fiscal year, even if it is for different jobs. The law allows only one CAP number to be allotted per beneficiary, regardless of the number of petitions filed on his behalf. Immigration & Nationality Act, Section 214(g)(7), 8 U.S. Code Section 1184(g)(7). Although recognizing that this provision of the statute contemplates multiple filings of H-1B petitions; USCIS has made it clear that it would revoke an approved petition upon finding a duplicate or multiple filing.

The rule creates an exception for the related employers, namely; parent or subsidiary or affiliated companies, may file two or more petitions for the same alien, only one per employer, if there were two or more job offers for distinct positions. Some think that the exception created a safe haven that encouraged forming subsidiaries and affiliates overnight. It appears that to increase their chances of making the lottery, both, employers and employees were resorting to duplicate / multiple filings. Employers filing multiple petitions for the same employee and the employees having several employers file petition for him. USCIS recognizes that too many employers are chasing too few H-1B visas. The rule also laid out that any petition that incorrectly claimed exemption from the CAP would be denied and all the fees retained. Since the rule came just a few days before April 1, when the filing started, those who had planned on filing multiple /duplicate petitions were scrambling to clarify the rule.

This year, USCIS anticipated that even the master’s degree exemption of 20,000 visas would become oversubscribed during the initial filing days and suspects that it may include duplicate filings. About 163,000 petitions were received until April 7, 2008 and master’s CAP was oversubscribed. Two lotteries were conducted on the April 14, 2008; which is when the premium processing period of 15 days started. The petitions filed towards the master’s degree exemption were subjected to the lottery selection process first and any such petition not so selected were then pooled for the regular 65,000 CAP subject lottery selection. The master’s petitions, therefore, stood twice the chance of getting accepted; which indicates a preference for the highly qualified foreign workers from U.S. institutions. USCIS has retained some petitions on a waiting list as it anticipates some petitions were likely to be returned, refused or rejected as ineligible. A decision on these waitlisted petitions could be expected by the end of May 2008.

The American Immigration Lawyers Association (AILA) says, “[p]roviding for visas based on lottery, rather than on the needs of the economy, is no way to run an immigration policy” and calls upon “the Congress to enact legislation to fix the broken H-1B system” and “to provide new legal avenues for employers to fill legitimate labor needs.” Several Bills have been proposed in the Congress, to raise the CAP and at least one seeks to restore it to the FY 2003 level, but none have been converted into law. The H-1B scramble could be checked and perhaps the businesses would also not move out to other countries if the annual numerical limit was raised. Perhaps this has been a contributory factor in the economic growth in Asia.