Talk about U.S. Immigration

Porting and I-140 validity issue before BIA again

Day after tomorrow i.e. 10/1/09, the Board of Immigration Appeals (BIA) hears on the portability issue. BIA would decide whether it should follow the 4th Circuit Court of Appeals vacating the Board’s earlier decision. The large issue remains whether immigration judge could determine validity of the I-140 employment based immigration petition while focus is on whether a foreign national could use the approved I-140 petition after changing employers. (posted 09/29/09).

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.

U.S. Immigration delays Indian Movie Super Star

The U.S. requires each entrant into U.S. be scrutinized for security reasons and certain factors may trigger a secondary inspection of the person at the immigration check point. This could be time consuming. There is no distinction between international celebrities and common people, which is commendable. The Indian cinema’s super star, actor Shah Rukh Khan, is reported to be subjected to such inspection on his recent U.S. trip to promote his movie on racial discrimination. Apparently he commented that he no longer wishes to travel to U.S. and later described it to be a routine but “unfortunate procedure.”

This at the least, explains that as part of immigration clearance, all foreign travellers must pass a strict security check each time they enter U.S. While it is appreciable that the procedures are in place to ensure safety, it is evident that this could affect internation tourism and perhaps international image of the United States. The consequent victim is the American travel industry. That perhaps explains why the U.S. airlines showed the first signs of economic peril?

Immigration Enforcement

Immigration enforcement policy is changing. Janet Nepolitano, Secretary, U.S. Department of Homeland Security (DHS), in her recent instructions to the agencies calls it “sensible” not “blind” enforcement. The policy shift focuses on enforcing employer compliance of immigration laws instead of just deporting the unlawful workers. Rise in the worksite audits by the Immigration and Customs Enforcement (ICE), over 650 planned this year as opposed to about 500 last year, is an indication of this change.

The change should be appreciated because it is a sign that the government is heeding to public objections to its erroneous policies. However, the rising ICE audits are not receiving a welcome sign from neither the answering employer nor the pro immigrant organizations.
Possibility of audit and threat of fines works as a good deterrent against violation of immigration or labor laws and exploitation of foreign labor. Increased audits should be favored by the pro immigrant groups which frequently found fault with the system because it ignored the employer who encouraged unauthorized employment but went after the undocumented foreign workforce. Consider the following:

E-verify participation, the electronic employment verification system, is considered a defense to the honest errors detected by the audit. It is pointed out that the employment verification form I-9 is so short but carries with it lengthy government instructions indicating complexity of the process. Besides, the electronic verification system itself is not free from flaws even as the government claims to continuously update it.

Also, employers participating in the e-verify should follow certain safeguards to avoid charges of adopting discriminatory practices. At times, an over cautious employer asks that the foreign worker produce certain immigration documents completely unnecessary and burdensome. All this is done in an attempt to protect the business. Although ICE audits signify a welcome change towards enforcing employer compliance much remains to be seen as to what tools will be offered the employer so that it could protect its business despite hiring foreign workers

I 140 returns to premium processing

I-140s would qualify for premium processing starting june 29th, 2009 says USCIS. Well, then comes the limitation that not all the I-140s would be accepted as premium processing. Out goes the Eb1 for multinational executives and managers and EB2 applicants seeking national interest waiver.

Those qualifying include extra ordinary ability workers and outstanding researchers and professors in EB1 category, exceptional ability or advanced degree professionals who do not want national interest waiver, and EB3 professionals, skilled and non skilled workers.

Premium processing was suspended in 2007 due to the heavy filing load in july- august. At the time government admitted openly that due to the enormous amount of filing it was not possible to fulfil the premium procesing guarantee of processing applications within 15 days as promised. Fair enough. After two years the services are about to be resumed. The national interest waiver category for professionals with advanced degree or extraordinary ability, that is widely used is kept out of premium processing for now.

It is nice to see the government regaining ability to quickly process papers but isn’t it something all should be entitled to? Administration is also run like a business. So when delay is inevitable and all pervalent, faster service ought to be made available at a premium. Well, this rule of premium processing started when the government wasn’t so much in need of $$$ but now we understand.

H-1B Employee and Benching claim

An H-1b employee must be paid the LCA wages from the start of employment whether or not offered any work. Often employers ignore this obligation and pay lower than the required rate when the h-1b employee is placed in non productive period aka impermissible benching.

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.

Adjustment of Status: Validity of Medical Examination

Adjustment of Status applicants have good news. USCIS extends the validity of certain certificates of medical examination accompanying a Green Card applications until its adjudication. The agency would maintain this policy till the end of 2009.

The adjustment of status applicants are required to provide a medical examination certificate on Form I-693 which generally expired in a year. The rule necessitated a new medical examination when the applicantions were considered for adjudication more than a year after filing due to backlogs.

Because of the Visa Bulletin mix up and fee increases, there were record immigration filings in 2007. This seemingly had caused a huge backlog at the USCIS. The piked up cases necessitated that an application be filed annually where authorizations were granted just for a year eg. employment authorization were granted annually. The present extension of the medical certificate validity comes as yet another government policy to ease the problems created by the backlog.

The government policy on extending the medical certificate validity is available only in some cases though. It is available only to where medical certificate did not show a class A or Class B medical condition relating to the adjustment applicant.

I-94 Error

Time and again I see that the foreign nationals have issues with their I-94 period i.e. the period for which a foreign national is permitted to stay in the U.S. When a foreign national enters U.S. with a visa, an I-94 stamp is placed on the person’s passport. This stamp among other things contains the date upto which the foreign national’s stay within U.S. is lawful.

Occassionally, an I-94 stamp may, erroneously, be made to coincide with the date of validity of their visa. The foreign national would do himself a favor if he checked the date on the stamp and other biographical information entered on the I-94 stamp before leaving the officer’s desk. An error corrected on the spot would save the foreign national from a lot of worries later on although CBP offers deferred inspection services that could be availed for I-94 corections.

All such efforts to correct the errors should be undertaken in polite and peaceful manner.

The Economic Stimulus Bill

The U.S. Senate adopted the “Sanders Bill” by a voice vote after the Bill was amended. The Bill allows a financial institution to benefit from the government offered stimulus and as a condition, makes it harder for the institution to hire foreign nationals on H-1 visa or even receive extension of such visa for those in the employ. The present time limit for the restriction is two years.

It is hard to believe a proposal that tantamounts to “protection” of employment in favor of the U.S. nationals is being adopted in the U.S., country that has been a protagonist of international free trade and commerce and has been a live example of the advantages of open economy with least government interference. Is it a sign of a change in U.S. ideology or merely an effort to politicise the immigration issue once again? Reminds me of the lessons I learnt in my economics class on why protection does more bad than good.

Generally, the reason for America’s role as a world leader in the economy was due to its passion for talent and the freedom it gives the talent to grow along side the employer hiring such talent. The opportunities created themselves within the country and then abroad creating multinational companies. The reason being, international trade and commerce leads to national economic growth and promotes competition that brings efficiency.

It is a common fear, that any protectionistic umbrella generally takes away the incentive to compete and so such a measure for the financial institutions to start with and percolating to other industries in U.S., would shun the human talent from around the world that the nation had welcome, enjoyed and exploited for the benefit of itself and for everyone else. Similar protectionist steps adopted by other countries would be detrimental to international trade and commerce. Recession, being a global phenomenon, an effort to combat it should properly consider its international aspect.

J-1 Visa and Two Year Residence Requirement

J-1 visa to U.S. is for training and educational purpose. Although, more foreign medical graduates use this visa to enter U.S. to complete a residency or fellowship program in a specialty field, exchange visitors in other areas of study also seek this visa.

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.

H-1B Employers to watch Strategy in the Slow Economy

Foreign workers in the U.S. and their U.S. employers need to be more careful, during the current economic downturn, so as to stay in compliance with the immigration and labor laws as businesses reorganize in an attempt to survive. In a recent statement, the Department of Labor (DOL) said that the department is well aware of the recent trends in the job market with rising rate of unemployment in certain industries and with a view towards enforcing existing regulations, would be closely monitoring the U.S. employers’ hiring practices of foreign nationals on H-1B and L visa.

The announcement has great significance to the U.S. employers, hiring foreign workers on H-1B, and L-3 visa categories. Employment in both these categories requires a labor condition application (LCA) to be certified by the DOL. The LCA contains basic information about the employment eg. rate of pay, period of employment and work location. It also carries four attestations or promises by the employer. Violation of any of the condition or the attestation of the LCA is met with sanctions that include back pay, civil fines and penalties and disqualifications from hiring foreign workers in future.

As the economy tumbles, employers resorting to various ways to cut costs including employment costs should be watchful of compliance requirements, lest they may find themselves in violation of the labor and immigration regulation. Resort to layoff, benching (where the employee is neither required to report to work nor is paid for the non productive period) or adjusting the work hours or salary and benefits package is common. A U.S. employer hiring foreign worker could be violating the terms of the LCA for adopting these practices.

A U.S. employer hiring foreign worker, is required to offer reasonable return transport to its H-1B employee in case of involuntary termination eg. layoff and must report to the USCIS to avoid liability for back wages. Violation of LCA could also occur for failure to pay full time or part time wages at the rate stated in the visa petition, or failure to pay a foreign worker the required wages within 30 days of admission into U.S. or within 60 days of hire if the employee is already present in the U.S. Similarly, benching, a nonproductive unpaid employment, is an unacceptable practice and violates the LCA.

Employer of a foreign worker may neither safely adjust the work hours nor the salary or other benefits without violating the terms of the LCA. The employer is required to pay the higher of the actual or the prevailing wage and has to offer the same benefits as those offered to similarly situated U.S. worker under the same eligibility criteria. While some of these changes may be incorporated by filing a new LCA and an amended H-1B petition, some forethought on the possible outcome is essential.

PERM (employment based greencard) filing, i.e. seeking DOL certification to hire the foreign worker as a permanent employee, may be another new challenge. The process requires employer to carry out recruitment efforts to hire U.S. workers and prove that no qualified worker turned up for the position. With the vast layoffs in some industries and increasing unemployment, DOL thinks there may be plenty of U.S. workers available for the position and appears skeptical of the employers’ claim that no U.S. workers were available. A careful and extensive documentation is essential to provide proof of compliance of the relevant regulations. As always, DOL would be looking for bonafide recruitment efforts to approve PERM applications.