USCIS Enters the Digital Age

In an effort to modernize and systemize immigration policy, USCIS recently launched the USCIS Policy Manual Page. The Policy Manual page will be split into three phases: the first phase is information on USCIS Citizenship and Naturalization policies — following phases will encompass further updates to different areas of immigration law.

USCIS’s new Policy Manual will, at some point, take the place of the current Adjudicator’s Field Manual (AFM). The rejuvenated Policy Manual will digitally streamline most aspects of immigration policy, including policy updates, immigration forms, updated and extended table of contents, and URLs to INA and CFR sections. USCIS will also supply dates for when updates have occurred on the Policy Manual page, which can be found here.

USCIS is making progress towards e-filing and digitizing its data and adjudications. Last May, USCIS introduced its Electronic Immigration System (ELIS) program. The system was created to enable immigration benefit seekers and legal representatives to create an account to file for benefits, and extend visas, online. The program is now moving towards welcoming other visa processes.

Today, immigration law is like a piece of Swiss cheese: if the body of the cheese represents the law, the larger holes are filled in with regulations and the small holes with memos from USCIS Directors. This still leaves some situations unaddressed or ripe for litigation and denials.

The Takeaway

Currently, all the resources for naturalization, laws, regulations, memos and AFM, have been consolidated in the policy manual. We hope highly complex areas, such as H1B visa and L visa filings and adjudications can be consolidated in the policy manual, offering the filer the assurance that all the legal resources related to the filing have been exhausted. This will lend transparency to adjudications and certainty to the law. Dare I dream?

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Planning for The New Year — H1B 2014

I was attending a Christmas party last week when a friend, who works for a prominent local employer, asked me, “What’s the latest in the immigration world?”

His question got me thinking: I am always taking urgent conference calls from employers who have visa issues, and filing visas at the very last moment. I think with 20-20 foresight (sic), now may be the best time to get employers to think about planning for the new hiring cycle and for new US visas, especially as the dreaded H1B visa season starts in a few months.

In 2012, H1B visas were over by June 15th, much faster than 2011 when the visas quota was finished only in mid-December. This H1B season, I expect H1B visas to be exhausted much earlier. We need to plan.

Immigration Strategy

Typical attorney consultations are discussions about which visa is appropriate for an employee — not much of the discussion focuses on which visa can be used for future employees. However it is important for companies to also look to the future, and to begin thinking about their employees’ immigration needs while planning product lines and office locations. Company strategy on immigration should involve the highest echelons who can make decisions about US and global requirements.

Global Companies

Our clients’ employees crisscross the world, going from USA to China to India, or from India to Brazil to Switzerland and beyond. Their visa journeys need to be mapped and matched to product roll-out dates; manufacturing skill requirements; economic marketing cycles; and changing individual country visa regulations. Most nations are seeking to protect native workers’ rights; hence, foreign workers have to pass more rigorous tests to obtain work permits.

US Employers

A company with several US business units, and with a rolling roster of demanding clients whose software products need to be completed timely and early, need to identify employees early to meet their goals. Our economic climate certainly dictates a live or die mentality.

Often companies think of the visa puzzle piece too late in the game: either when there is insufficient time to file, or when the need for a visa is urgent due to product rollout; however, at this point, visa quotas are often exhausted early in the year.

So how can an employer plan?

For US employment, the first step is to identify employees who are potential candidates for a new H1B visa. Either these persons are overseas or they are in the US, changing status from a non-immigrant visa to a new H1B, and are cap subject.

Employers must obtain their employees’ complete immigration history. History serves a dual purpose: both to identify potential workers who have no immigration violations, and to ascertain the nature and duration of other visa statuses that may reduce the amount of time an employee can validly spend on H1B visa status in the US.

Secondly, companies should determine a project’s actual start date in the US, so that visa dates can be tailored. If the employee is cap subject, they cannot start work until October 1.

What is the employee’s history?

While collecting an employee’s immigration history, also collect details of the employee’s experience in his/her industry, and educational qualifications for the position for which the future employee is being considered. This is to qualify the worker for an H1B visa in a specialty occupation, which requires a “theoretical and practical application of a body of highly specialized knowledge.”

Global Employees

Today, employers have global operations and often like to use their specialists in both the US and other countries. Most nations have a ‘work visa’ process, or an ‘intra-company transfer employee’ visa. Qualifying for this visa requires detailed employer information; as well as employee education, experience and travel document details. Even in the information age where exchange is instantaneous, filing for visas requires preparation and extra processing time if filing in a foreign system with foreign government requirements that do not match US processes. Natural disasters can also play a role: Hurricane Sandy took a heavy toll on Washington DC-based foreign visa processing units.

The Takeaway

Plan, Plan, Plan. Start the immigration strategy process when the project is in the drawing board stage. Work with an immigration attorney to assist you in identifying visa requirements and timelines in the filing process. The result could be less costly and stressful, and you may actually enjoy the holidays this year.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Slow Pace of H1B Adjudications Affects US Businesses & Economy

In mid-September, we had to inform many of our clients, who had filed H1B visas for their employees, that we had not received a response from USCIS; and judging from the published backlogs about these filings (over as many as 17,000 H1B visas), it isn’t likely that we will receive any decisions until the end of the year. Reluctantly, we advised our clients to pay the additional premium processing fee for urgent requirements.

Business and Economic Losses

If the losses from the slow adjudication process are added up, losses for American businesses are also adding up. First, there are the current projects that American businesses have with American client companies, which run the gamut from hospitals, car rental companies and credit card processors; financial and banking companies; retail, hotel and restaurant chains; IBM and Microsoft; and universities. In this day and age, everything is online and mobile. Current contracts are either delayed or postponed, and taxes paid by visa holders to the US and State government coffers are not collected. If delays continue, US businesses are likely to send these operations overseas, enriching foreign tax coffers.

Second, we face a brain drain from American universities. The difficulty for foreign students obtaining a timely US visa forces these students, who have gathered knowledge at our universities, to migrate to Australia, Canada, UK and their home countries where their US-gained knowledge is welcomed. This situation, again, is a loss of millions of dollars to the US economy.

Foreign Students in American Universities

This past year, enrollment of temporary residents in graduate school surged by 7.3%. Temporary residents made up 16.9% of American graduate school enrollment, a figure only growing as foreign governments pay for their citizens’ American education, specifically in technical fields. Foreign students made up a sizable percentage of technical areas: 45.5% of students in US engineering graduate programs, and 42.4% of students in US mathematics and computer science graduate programs, are foreign students. (NYTimes, “Enrollment Drops Again in Graduate Programs”, 9/28/2012).

Recently, some beneficiaries of H1B visas have reported receiving tremendously shortened periods of visa approvals from the consulates, despite being approved for the full period of H1B visa entitlement from USCIS. This re-adjudication contributes to the unfriendly and unwelcoming atmosphere facing H1B applicants and their sponsoring companies.

The tide of demand for US visas ebbs and flows: often, the federal government is not able to support US companies’ efforts to attract the best and brightest to work for us.The wave of hostility generated by our actions should not arrive at a tipping point. We could very well lose what makes up our American identity, and our ability to produce multi-million dollar products like Facebook, iPhones and Google.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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What An Employer Should Do Now that H-1B Visas are Over

As of December 1, 2011, the US Consulate General in Chennai will process all Blanket L Visas. The New Delhi US Embassy and Mumbai, Kolkata and Hyderabad US Consulates no longer process petitions for Blanket L Visas. Visas for dependent spouse and children (L-2) and individual visas (L-1A and L-1B) can still be processed at the Chennai, Hyderabad, Kolkata, Mumbai and New Delhi posts.

What is a Blanket L Visa?

A Blanket L visa is available to employees whose employers hold such a designation to file L visas under a Blanket L permit, issued by the Department of State. To be eligible, an employer must be in business in the US for more than one year; have three or more domestic or foreign, subsidiaries or affiliates; and be engaged in commercial trade or services. The employer must also have annual US sales of $25 million; a US workforce of 1,000 employees; or the employer should have received at least 10 L petitions in the last 12 months. An employer may be in danger of losing their Blanket L permit if they file fewer than 10 petitions in the prior year. Only commercial employers can be approved for a Blanket L permit; non-profits are not eligible.

Blanket L visas are for employees who have, in the three past years, been employed abroad for one year and will continue to be employed by the same company in the US. Employees can either be petitioned individually or under a blanket, and must meet the criteria of a “specialized knowledge” professional, executive or manager.

Three Major Issues

1. Will the L visa employee work at client sites?

If your answer is yes, then you must establish an employer-employee relationship during the time the employee is working at a third party worksite on behalf of the petitioner (employer). If the employee is to work in the office of the L visa employer, then that fact should be made very clear both in the documentation and at the interview. Consular officers are very concerned about L visas being misused by employers and being used when H-1B visas are no longer available.

At the US Consulate, the employee is often asked to go up to a window to answer questions. The interview is about 5 minutes, and very often consular officers may not have the time to read the entire petition. If the employee is to work on a particular project at a site other than the US employer’s offices, that fact should also be presented both at the interview and substantiated in the application.

L visa employees must be ready to answer any and all questions, and justify the reason for working at a end-client’s office instead of working at the L visa employer’s office.

2. Is the salary of an ordinary programmer or of a specialist in an L-1B visa category?

Salary earnings in India are indicative of the level of services an employee provides for his/her company; there is certainly a difference between IT workers who complete general services and those who have specialized knowledge. If the applicant is earning a sizeable salary, it is important to state the applicant’s salary in the support letter; salaries are often indicative of a specialist eligible for an L-1B visa instead of a programmer more suited to H-1B visa category status.

It is these distinctions that have caused a rise in the denial rate, 27%, of all filed L visa applications.

3. Is the applicant’s work in India not indicative of a specialized job?

The consular officers will most likely deduce that the applicant has no specialized knowledge if the applicant’s work in India is based in general services. This can include testing; enterprise recourse planning maintenance; or execution of Oracle, Microsoft or SAP software.

Experience

L-1B visa holders are supposed to be specialists; if the applicant has a three-year degree and one year of experience, then the consular officer is not likely to consider the applicant experienced enough to warrant an L-1B visa approval. The standard by which L visa applications are approved is “clearly approvable”. Hence, the burden of proving L visa eligibility lies with the employer. If the L visa has been approved by USCIS, the US Consulate may grant the L visa unless special circumstances exist, or the consulate determines more evidence is required.

We live in a climate where no USCIS application is sacrosanct, and where the Department of State often re-adjudicates USCIS approvals.

B-1 In Lieu of H-1B

The B-1 In Lieu of H-1B visa is a hybrid visa, a cross between a business visa and an employment visa in the US. The employee with H-1B visa qualifications comes to the US instead on a business visa (B-1), applies for the visa at the consulate and declares intent at the border. This employee cannot receive any remuneration in the US other than an expense allowance.

However, this visa is under attack. Employers should demonstrate that there are unexpected circumstances and an urgent need for the employee to obtain a B-1 Visa In Lieu of an H-1B. The controversy arises over the extent to which the B-1 visa is used or misused in lieu of an H-1B. Even if the consulate grants this visa, it is likely that the visa holder may encounter difficulty at the US port of entry.

True need for the visa must be well-planned to demonstrate the benefit of the short-term visit to the foreign employer, as opposed to the US client.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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How Employers can Reduce Audit in PERM Filings for Roving, Telecommuting and Traveling Employees

The tech industry is facing many challenges today, notably denials from the Department of Labor (DOL) based on very little understanding of how the industry works. Most large employers in the sector are not the ‘job shops’ that USCIS fears; and DOL is convinced the tech industry is engaged in fraud of some kind, or is somehow interested in recruiting foreign workers when willing and able US workers are available!

US employers in this sector pay a premium in governmental application costs and legal fees because they are unable to find a suitable worker in the advertised job. In fact, most recruiters I speak to would prefer to hire locally rather than internationally.

Both USCIS and DOL target employers who file for an employee with job duties involving roving, telecommuting or travelling; USCIS has recently issued guidance on roving employees placed at client worksites, in the H-1b visa context. DOL continues to audit and issue denials for roving, travelling or telecommuting positions. Current audits require employers to define employees’ positions as either national or regional roving without a residential requirement, or roving with a residential requirement. Additionally, DOL has expressed concern that these jobs may not be bona fide opportunities for the positions advertised at the intended place of hire; and, in the case of roving employees with no fixed ‘intended area of employment’, the location chosen to advertise the job opportunity and the wage may be artificial and misrepresented by the employer.

Where to Advertise for Roving Employees

In the past few years, DOL has audited and denied applications where the residential address of the employee does not match the location of employment. DOL decided that this position was for a telecommuting employee, a benefit the employer did not disclose in the advertisement for the position and therefore not disclosed to an eligible US applicant, but offered to the beneficiary as a benefit. A PERM application can also be denied based on job advertisements in the incorrect Metropolitan Statistical Area (MSA). The employer advertised the job where the client worksites were located, instead of the MSA where the employer’s headquarters was located.

In Paradigm Infotech, Inc (BALCA, June, 2007), the employer advertised the roving position in Erie, Pennsylvania where the client worksite was located, instead of the company headquarters. To reach the PERM denial, DOL conducted research on the employer. DOL ascertained that the employer’s headquarters was in Columbia, Maryland as confirmed by employer’s tax records and DOL interviews with employees. DOL also performed site visits to the Erie location of the employer’s branch to ascertain that sufficient office space existed, and parking space was available for the number of employees who were supposed to work there, in accordance with employer’s documentation filed with Board of Alien Labor Certification Appeals (BALCA). Based on short term contracts with client companies, inadequate office space at Erie, and payroll records that confirmed that employees worked at different locations, PERM labor certification was denied by DOL and the denial was upheld by BALCA. BALCA reasoned that the employer needed to test the labor market at the place where the alien was working, and since this was a roving employee and that geographical area of the labor market was unknown, the job market to be tested for PERM purposes was located at the employer’s headquarters.

Following Paradigm, employers with large business units away from company headquarters should also advertise at headquarters location. This is confirmed by the Barbara Farmers Memo: ETA Field Memorandum 48-94§10, published by DOL in 1994 and still followed by DOL.

Prevailing Wage Issues

Employers should also file to obtain prevailing wage determinations from DOL in all the intended areas of potential work sites for the foreign worker. Future locations can be determined from itineraries and statement of work signed with the end client.

Employers with International Locations

In August 2012, BALCA upheld that advertisements in the PERM context also include ‘travel requirements’. The employer in M-IL.L.C., filed a PERM for an employee who was required to travel to international locations as part of the job requirement. This fact was listed on the PERM application Form 9089 and the prevailing wage determination, but not listed on the advertisement for the job opening. 20 C.F.R. § 656.17(f)(4) states, “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The employer’s advertisements did not include the travel requirement. Denial was based on the fact that travel requirements listed on the PERM application and the prevailing wage determination was not matched by the advertisement for the position.

Conclusion

While we cannot with certainty expect every PERM filing with travel requirements to be audited by DOL, we must certainly file like that is a very real possibility. Any filing with the DOL is subject to audit, even if in the past those very same requirements were certified by DOL. The safest course in our uncertain climate is to match information on the prevailing wage with the PERM form, and the employer’s advertisement requirements for the position advertised.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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H1Bs may be over by mid-June, 2012!

If you are an employer with plans to employ a student on an H1B visa or employ someone from abroad or transfer an H1B employee from a US non-profit to your company, ACT FAST.

FY 2013 H-1B Cap Count
65000 Cap subject visas are issued every year. About 6800 visas are set aside for fashion models and citizens from Chile and Singapore under treaties with those countries. For the sake of simplicity, these visas have not been excluded from the H1B visa count below.

H1B visas receipted by USCIS so far:
Regular Cap Count             H-1bs Receipted             Difference from week to week
April 4                                     16,742                                0
April 9                                     17,400                                658
April 13                                    20,600                               3200
April 20                                    25,000                               4400
April 27                                    29,200                               4200
May 4                                      32,500                                3300
May 11                                    36,700                                4200
May 25                                    48,400                                11700

Forecast: All dates are approximate, and meant for planning purposes only.
If the Regular Cap Count is 65000, and the Balance of H-1bs remaining as of 5/4/2012 is 32500:

If 3500 visas are received per week, H-1b cap will be reached in 9 weeks, or July 13th.
If 5000 visas per week, the cap will be reached in 6.5 weeks, or June 27th.
If 6000 visas per week, the cap will be reached in 5.4 weeks, or June 15th.
If 7000 visas per week, the cap will be reached in 4.64 weeks, or June 10th.
If 8000 visas per week, the cap will be reached in 4 weeks, or June 6th.

There was an uptick in filings for the last 2 weeks in May, from the 4th to the 15th. Filings increased to pre-May levels. With this progression, the regular cap visas may be finished by mid-June, 2012.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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To VIBE or not to VIBE? Employers can avoid RFEs, NOID, 221(g)

MJ went up to the window at the US Consulate–he was there for an H-1B interview. The process normally takes about 5-10 minutes at the window. Behind him were more nervous interviewees, waiting their turn.

The consular officer (CO) went through the papers, “Who is your employer?” he asked. MJ replied, “XYZ”. The CO checked his database and did not find XYZ, so he searched the company name online; still no information. The CO believed the applicant was employed by the company but since the new Neufeld Memo, issued last year, he had to make sure the applicant was actually ‘employed’ by XYZ and that XYZ really existed. He could find no corroboration; CO felt there was insufficient documentation in the application, so the CO issued a request under INA 221(g) to the applicant.

Applicant was required to produce more employer tax records, payroll records and other information that would corroborate the employer’s self attestations in the application. Until that time the applicant was in administrative processing, which could take up to 6 months. The company was out a valuable resource and was losing money on their project because MJ was delayed overseas.

Unfortunately for MJ, his employer’s information was not included in Validation Instrument for Business Enterprises (VIBE). A web-based tool, VIBE was designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data from an independent information provider (IIP) (Dun & Bradstreet) to validate basic information about companies or organizations petitioning to employ certain foreign workers.

USCIS may also send an RFE or NOID or Notice under 221(g) because of the information in VIBE. Petitioners MUST respond to these RFEs or NOIDs or Notice under 221(g); failure to respond may result in the denial of the petition.

Currently, the information in the VIBE program includes: business activities, such as type of business; NAICS codes (North American Industry Classification System code); trade payment information; and status (active or inactive). VIBE also includes financial standing, including sales volume and credit standing; number of employees, both on-site and globally; relationships with other entities, including foreign affiliates; type of office (examples include single entities, branches, subsidiaries and headquarters.); type of legal entity: for example, LLC, partnership or corporation; company executives; date of establishment as a business entity; current physical address.

Adjudicators use the information from VIBE to verify the petitioner’s qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. Information from VIBE will help confirm petitioners’ financial viability in cases where petitioners must establish ability to pay.

Generally, USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of VIBE-supplied information that are material to the benefit requested, and an immigration services officer (ISO) will make a final decision based on the totality of the circumstances.

Updating VIBE is easy. If you are a US-based company employing foreign nationals, then create, verify and correct the Company’s D &B’s information via D&B’s iUpdate. This link is minus the direct marketing appeals from D & B. This also a fee free service. This link is only for US companies that are government contractors. For other US-based publicly traded companies, government entities and foreign companies wishing to create, update or view their report with D&B may use www.dnb.com; however, they may be subjected to direct marketing from D&B.

Immigrant Classifications Included in VIBE are:
• E12, outstanding professor or researcher
• E13, multinational executive or manager
• E21, member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
• E31, skilled worker
• E32, professional
• EW3, unskilled/other worker

Additionally, the following I-360 (Petition for Amerasian, Widow(er) or Special Immigrant) employment-based immigrant classifications are included in VIBE:
• SD1, minister of religion
• SR1, non-minister in a religious occupation or vocation
• Nonimmigrant Classifications Included in VIBE

The following I-129 NIV employment-based classifications are also included in VIBE:
• E-1, treaty trader
• E-2, treaty investor
• E-3, member of specialty occupation who is a national of the Commonwealth of Australia
• H-1B, specialty occupation worker
• H-1B1, specialty occupation worker from Chile or Singapore
• H-1B2, worker performing services related to a Department of Defense cooperative research and development project or coproduction project
• H-1B3, fashion model of distinguished merit and ability
• H-2A, temporary or seasonal agricultural worker
• H-2B, temporary nonagricultural worker
• H-3, trainee or special education exchange visitor
• L-1A, intracompany transferee in a managerial or executive position
• L-1B, intracompany transferee in a position utilizing specialized knowledge
• LZ, blanket L petition
• Q-1, international cultural exchange visitor
• R-1, religious worker
• TN, NAFTA professional from Canada or Mexico

Classifications Not Included in VIBE are:
• CW-1, Commonwealth of the Northern Mariana Islands (CNMI)-only transitional worker
• E-2C, long-term foreign investors in the CNMI
• E11, individuals of extraordinary ability
• E21, national interest waiver
• EB-5, immigrant investor
• O, individuals with extraordinary ability or achievement (including essential support personnel)
• P, internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Issue of 221(g) and Other Delays for H-1bs in India

H-1b fraud is rampant in India, and is one of the most falsified visas in India. Many Indian H-1b cases require site visits, as it is necessary for officials to authenticate H-1b applicants’ experience letters due to applicants fabricating employment. According to the India Biannual Fraud Update, 2009, the city of Hyderabad, in Andhra Pradesh, India, is a center for counterfeit documentation in educational qualifications, experience letters and nonexistent companies. Worldwide there are 300,000 H-1b applications that are filed, 100,000 of which that are adjudicated in India.

According to the Fraud Update, Hyderabadi applicants make up over 30% of the consulate’s visa workload. In the first three months of H-1b assessment, the Consulate General of Hyderabad detained and prosecuted multiple vendors on the basis of falsified documents. Some Hyderabadi applicants even tried to submit their applications through the Mumbai Consulate by alleging that their employer was in Pune, which is in the jurisdiction of the Mumbai Consulate. Applicants often used these shell companies so that they could change jurisdictions and avoid applying through the Chennai consulate.

The 2009 Fraud Report enumerated high volumes of fraudulent documentation, namely in education degrees and experience letters. Since then, India has been on high alert and visas are being re-adjudicated—reexamined based on evidence presented by the beneficiary at the interview. It was discovered that H-1b applicants who did not meet minimum education qualifications were being approved for H1B visas. In Hyderabad, India, when the applicants’ experience letters were investigated through site visits to verify the existence of 150 companies, 77% of these employers turned out to be fraudulent. The outcome of this fraud report has led to a higher number of requests for evidence in the US, and a greater number of applicants being sent into administrative processing by the consulates for both H-1b and L-1b visas. The Chennai Consulate has hosted a worldwide H and L fraud conference, which has been attended by, amongst others, Department of Homeland Security (DHS), Kentucky Consular Center (KCC), and multiple posts that adjudicate a number of Indian H-1b applicants.

In other words, the outcome is that even if you have an approved H-1b, there is a 27% chance worldwide of being re-judged, reexamined and re-adjudicated by an officer at the consulate. At this time, there is no deference being accorded to approvals by US Citizenship and Immigration Services (USCIS) of H-1b applications. The H-1b visa holder who has been approved in the US, either through change of status, extension of status, or change of employer, now faces a prospect of going through another judgment process. At the consulate, the H-1b visa applicant is either given a visa stamp of approval in their passport or given a notice under Immigration and Naturalization Act (INA) 221(g). Or worse yet, the applicant is denied.

A 221(g) notice will generally ask for more documentation from the employer and from the employee, and for documentation that demonstrates an employer-employee relationship between the two. H-1b applicants must establish the existence of an employer-employee relationship with documentation that demonstrates that the requirements of experience and employment have been met. Among the various documents required by the consulate are petitions of tax returns; petitions of employees; state tax returns; employee’s work itinerary; a detailed account of the development project that the employee is working on; and academic credentials.

Under the US Department of State (DOS), Foreign Affairs Manual volume 9, FAM 41.53, Congress is given the authority to determine whether the alien meets the required qualifications for “H” status. This approval, in general, is to be considered prima facie evidence that the employee has met the requirements for H visa classification. According to 9 FAM 41.53 N2.2, “DOS does not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.” On the other hand, even if DHS approves the petition, this does not relieve the employee from establishing that they are eligible for the visa at the visa interview. New information could be made available to DOS during the interview, which could determine whether the consular officer should or should not approve H status without additional evidence. This evidence should bear a reasonable relationship to the issue, but the consular officer should not reconsider the petition because of legal or factual disagreements with DHS. In fact, 9 FAM 41.53 N2.2 states that, “By mandating a preliminary petition process, Congress placed responsibility and authority with DHS to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” These are the specific directions to DOS consular officers to accord deference to USCIS decisions. Yet, in a knee jerk reaction to the 2009 Fraud Report, it appears that far more petitions are issued 221(g) notices, demanding more documentation despite apparent bona fides established by the visa applicant and employer.

Further, Regulation 9 FAM 41.53 N2.2 also authorizes consular officers to process applications that appear legitimate; identify applications that require local investigation; and identify applications that require referral to USCIS for reconsideration. To avoid inconveniencing petitioners and beneficiaries, and causing duplication by DOS, the consular officer must have specific evidence of a requirement of automatic revocation of the visa; misinterpretation in the petition process; a lack of qualification on the part of the beneficiary; or if other previously unknown facts come to light that might alter a USCIS finding of approval.

When a consular officer seeks reconsideration of previously approved USCIS petition, the consular officer sends the application to KCC with Form DS-3099. The consular officer includes pertinent documentation, or a written memorandum of evidence supporting the request for reconsideration. KCC forwards the request to the approving USCIS office; then KCC scans the request and all the supporting documents to Petition Information Management Service (PIMS). KCC maintains a copy and tracks consular revocation requests. USCIS reconsiders the petition and sends back an approval or denial. This process may take several weeks or months.

The effect of this delay is that employees who are currently employed by US companies on various projects, and who are spending their vacation time with friends and family abroad, are now delayed 3-6 months in their home country. US companies are scrambling to fill those unexpected vacancies; there is a huge loss of revenue and profitability for US companies in the US. Consular officers often reject H-1b petitions based on an erroneous belief that given the high rate of unemployment in the US, those positions filled by the H-1b visa holder should actually be filled by a US citizen.

There is also a belief that US employers want to employ H-1b visa holders instead of US citizens — that US workers are fired so US companies may hire foreign nationals on H-1b visas who may work for lower pay. This is not true. Under current statute and regulations, H-1b visa holders must be paid the higher of the prevailing wage or the actual wage paid to US citizens in similar employment. In fact, every US employer attests to this fact when they file for Labor Condition Application (LCA) certification with the Department of Labor (DOL). US companies pay approximately $6,000 in additional legal and government imposed fees when hiring an H-1b visa holder.

Offsite working is a common practice in the computer industry. Large US companies in the business process consulting industry employ foreign nationals, and place these H-1b visa holders at customer work sites in order to design, build; and deliver business driven technology solutions that enable customers to get a competitive advantage in their market place. Due to the nature of the products and services offered by these US companies to its clients, it is necessary for US employers in this particular industry to provide its products and services directly at the customer’s location. When consular officers see a beneficiary of an H-1b visa not working at the employer’s offices but at a third party location, the immediate reaction by a consular official is to require the H-1b applicant’s employer to provide documentation of employee-employer relationship —- the right to control and the actual control. This requires both employer and employee to provide tax documentation, employee payroll, state tax payroll, contract letters, agreements with customers, and signed employee benefit manuals. It apparently does not matter that some or all of this information may be either confidential or proprietary to the US employer and their customer. Employers are between a rock and a hard place; between disclosing too much private or proprietary information, and risking a denial if these documents are not provided.

To counter these issues presented to and by consular officers, employers and employees should follow the subsequent list of Best Management Practices (BMPs) for adjudicating while applying for H-1b visas.

As an employee, you should avoid traveling outside the US; it could be detrimental to the status of your H-1b. If you must travel, you should notify your employer and attorney and wait for consent, an application review and an update by your immigration attorney, before traveling abroad. Your DS-160 Form should not say “unemployed” while you are not working for your employer. Obtain a vacation letter from your manager.

In terms of the application, the beneficiary should be aware of what the company says about him or her. The beneficiary must have supporting evidence that proves he or she has the skills and expertise to do the job. The beneficiary should also know the organizational framework of the company, and know how education and experience qualifications make him or her eligible for H-1b. If the beneficiary has been with the employer for over two years, then it is wise to begin the Labor and Green Card process and fill out an I-140 Form. Before submitting the H-1b application, make a full copy of the petition with all the supporting documents and study the original H-1b application. Be prepared to answer questions that are not within the scope of the application. Remember to dress business casual, and do not be modest about your accomplishments.

As an employer, the support letter should describe the company’s product, and the employer must ensure that the application meets the criteria of a US company. The employer must identify job duties, qualifications and experience for employees; and that the employer is the source of tools and knowledge for the job. The employer must prove that he or she manages the employee, and has the authority to delegate supplementary tasks and hire and fire, as well as review employee performance and furnish company benefits. Evidence should support the fact that the employer pays employees’ wages, and pays federal, state and local taxes on the employee’s wages. The employer must show that he or she claims the beneficiary as an employee on tax filings. The employer must also provide employee records, corporate tax returns and payroll for employees. In addition, companies must ensure that any publicly available information about their business is accurate. Consular officers either check Vibe or perform a quick search online about the company.

Please contact Mahadevan Law Office if you have any further questions.
Phone: 314-725-9958
Email: nsm@lawyersyoucantalkto.com
Website: www.lawyersyoucantalkto.com

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step Two in ICE Audit Process

This blog details how employers can avoid I-9 audit by ICE. After ICE issues the employer a Notice of Inspection (NOI), ICE visits the employer‘s worksite, or the employer visits ICE‘s offices, with the electronic or paper Forms I-9 and supporting documentation.

Second Step: Violations

If, during the audit, ICE finds technical or procedural violations, then the employer is given 10 business days to make corrections.

Employers should avoid hiring:
• workers who do not have current authorization to work in the U.S.
• workers who have criminal immigration violations
• workers who fail to produce documents from Lists A or Lists B and C.

Worksite enforcement is conducted by ICE, Immigration and Criminal Enforcement, and a department of the U.S. Department of Homeland Security.

Worksite Enforcement Strategy:
• ICE will arrest and remove any illegal workers who are found in the course of these worksite enforcement actions.
• ICE will use civil fines and debarment to penalize and deter illegal employment.

ICE officers look for evidence of mistreatment of workers, employer discrimination against workers and evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct. ICE offices will get indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the employer before arresting employees for violations at a worksite.

To avoid audit, employers must not:
• Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
• Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

In the next section of Part VI, Section C, we will be discussing the final step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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