nonimmigrant visas

January 21, 2009

DOL Administrative Review Board orders payment of back wages to H-1B visa holder

The Department of Labor’s (DOL) Administrative Review Board (ARB) recently upheld the final decision of an Administrative Law Judge (ALJ) who found that the petitioner failed to pay the H-1B beneficiary the required wage under the H-1B provisions of the Immigration and Nationality Act (INA).

The petitioner, a not-for-profit corporation that operates medical clinics sought the expertise of the beneficiary, a medical doctor. After interviewing the beneficiary, a “Physician Employment Agreement” was signed which reflected an annual wage of $125,000. Thereafter, an H-1B petition was filed to hire the beneficiary as a full time medical doctor with H-1B non-immigrant status for three years. A Labor Condition Application (LCA) was filed along with the petition on behalf of the beneficiary listing the prevailing wage as $118,222 for the position. The beneficiary began working for the petitioner in June 2004 and was allegedly terminated in March 2005. During the course of the beneficiary’s nine-months of employment, he was paid a total of $49,000 in wages. The $49,000 (or $65,333.33 per year) falls below both the $125,000 per year wage that the beneficiary contracted for and the prevailing wage of $118,222 listed in the LCA. The beneficiary thereafter reported the wage violation to the DOL’s Wage and Hour Division who conducted a hearing and entered a decision in favor of the beneficiary. The petitioner thereafter sought review of the decision by the ARB.

The ARB found the petitioner liable for back wages calculated using the prevailing wage rate of $118,222 per year for the beneficiary’s nine-month employment during which time he worked as assigned and made himself available for work. According to the regulations, when an employer signs and files an LCA, he is attesting that for the entire “period of authorized employment” the listed wage rate will be paid to the H-1B non-immigrant. One of the ways in which an employer may escape liability is if they effect a bona fide termination and inform the Department of Homeland Security (DHS) immediately, and where appropriate provide the nonimmigrant employee with payment for transportation home. In this case, a bona fide termination did not occur until November 2005, when DHS was informed of the revocation of the H-1B petition. Accordingly, the petitioner was liable for payment of wages until the time of termination. The petitioner should have paid the beneficiary a total of $88,666.47 in wages for the nine months in which he worked.

December 16, 2008

Updated H-2B Visa Count for the Second Half of Fiscal Year 2009

by Kellie N. Lego

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augument their existing labor force with temporary workers.

Congress has set the numerical limit for H-2B visas at 66,000 per fiscal year. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. Accordingly, the 33,000 cap for the first half of FY 2009 was satisfied on July 29, 2008.

As of December 12, 2008, 18,367 petitions have been counted towards the 33,000 cap for the second half of FY 2009. Applicants interested in petitioning for an H-2B visa are encouraged to act fast as time is running out.

December 10, 2008

USCIS Published Religious Workers Final Rule

by Kellie N. Lego

The United States Citizenship and Immigration Services (USCIS) recently issued a final rule in the Federal Register amending various aspects of the religious workers program. The final rule amends the regulations to improve the Department of Homeland Security’s (DHS’s) ability to detect and deter fraud and other abuses in the religious worker program. The final rule applies to both special immigrants and nonimmigrant religious workers . The published rule requires that religious organizations seeking the admission to the U.S. of nonimmigrant religious workers must file formal petitions with USCIS on behalf of such workers, and under the rule, the USCIS is obligated to conduct inspections, evaluations, verifications and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. Forms I-360 and I-129 have been revised and now require an employer attestation. These updated forms have been made available on the USCIS website.

Read the final rule as published in the Federal Register.

September 23, 2008

H2B Proposed Rule Changes

by Kellie N. Lego

In a Leadership Journal entry issued by the Acting Director of the U.S. Citizenship and Immigration Services (USCIS), several rule changes to the H-2B program were proposed. Little about the program has changed to accommodate employers’ needs or improvement in worker protections. The Department of Homeland Security (DHS) is proposing to amend its regulations affecting temporary non-agricultural workers within the H-2B nonimmigrant classification and their U.S. employers. In order to better serve those participating in the program, they propose measures to remove unnecessary limitations, prevent fraud and abuse, and ultimately protect foreign workers.

The entry indicated that the proposed modifications would:

 Relax the current limitations on the ability of U.S. employers to petition for unnamed workers;

August 27, 2008

AAO gives Petitioner another chance to prove NEED for H2B welder workers

by Kellie N. Lego

The Administrative Appeals Office recently withdrew the decision of the Director, Vermont Service Center and remanded the matter to him for further action and consideration.

In the aforementioned case, the Petitioner is a Mississippi Limited Liability Company supplying labor and industrial services for the marine and petroleum/chemical industries in the Mississippi Gulf Coast area. The Petitioner submitted a H-2B petition on behalf of three beneficiaries. Upon reviewing the record, the AAO found that the record did not support the director’s decision to approve the petition. Moreover, the AAO found two separate grounds for remanding the petition: (1) petitioner had not established a temporary need for the services of the three beneficiaries, and (2) petitioner had not established that the three beneficiaries possessed the minimum amount of experience necessary to perform satisfactory the job duties described in the present petition. These two specific issues were not raised by the director in his Notice of Findings (NOF) issued to the Petitioner; therefore, the case was remanded.

The regulations require the petitioner to submit documentation that the alien qualifies for the job offer as specified in the application for labor certification. In the present case, the application for alien employment certification indicated that the minimum amount of experience needed to perform the job duties is two years of experience for the job being offered. Upon careful review of the record by the AAO, no evidence was submitted illustrating the beneficiaries experience and/or qualifications. Absent proof of the beneficiaries’ experience, the petition may not be approved. Additionally, there is another reason as to why the petition cannot be approved. The petitioner sought approval of the proffered position as a peakload need. The regulation regarding peakload need provides that the petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation. The director issued a request for evidence (RFE) to the petitioner requesting evidence that the petitioner’s need for the beneficiaries’ services is temporary. In response to the RFE, counsel for the petitioner sent a letter of intent to contract between another company and the petitioner, and a letter from the petitioner indicating that its client had a peakload need for temporary workers. Upon review of this evidence, the AAO concluded that the documentation presented in the record was insufficient to establish the actual H2B need asserted. The problem lies in the new information provided; the intent to contract letter was never alluded to or provided in the original petition for H2B temporary workers, and no other information was presented concerning the other company/client. Additionally, the petition sought 250 temporary workers, but has decreased to 3 workers without documentation as to why. Pursuant to case law, simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Accordingly, the burden has not been satisfied by the petitioner and the AAO has afforded the petitioner another opportunity to provide evidence of the experience and temporary need for the H2B beneficiaries.

August 20, 2008

L-1B Visa Requirements and Recent related AAO decision

by Kellie N. Lego

The L-1B intra company business visa allows specialized knowledge employees to transfer from a foreign company to a U.S. parent, affiliated, or subsidiary branch to perform temporary jobs. For a foreign applicant to attain L-1B visa status, three requirements must be met. First and foremost, the petitioning U.S. company must be affiliated with the company abroad, as a branch, subsidiary, or affiliate. This relationship shall be demonstrated either by one entity having control over the other, or by both entities being controlled by the same person or entity. Additionally, the L-1B visa applicant must be employed at the company abroad for at least one of the previous three years before the L-1B visa application is filed with the United States Citizenship and Immigration Services (USCIS). Finally, the employee must be coming to work at the U.S. company to utilize specialized knowledge. An employee with “specialized knowledge” has either a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company; or demonstrates an advanced level of professional or technical expertise, and proprietary knowledge of the organization’s services, products, technology, strategies, or any other corporate function that is essential to the U.S. company’s successful operation.

The Administrative Appeals Office (AAO) recently reviewed a decision certified by the Director of the California Service Center (CSC). The particular case involved the submission of an I-129 petition on behalf of a foreign professional for L-1B nonimmigrant visa classification. The director originally denied the petition after concluding that the petitioner failed to establish that it had been doing business or that the beneficiary would be employed in a capacity requiring specialized knowledge. Subsequently, the petitioner submitted a motion to reopen, and the director entered a new decision denying the petition on the same two grounds. The certified decision was thereafter sent to the AAO for review.

The purpose of review by the AAO is to determine from the documentation produced by the petitioner whether the petitioner had been doing business and whether the beneficiary would be employed in a capacity requiring specialized knowledge. After a thorough review and analysis of the evidence produced by the petitioner, the AAO found that the petitioner had been doing business. Accordingly, the decision of the director as to the first issue dealing with the petitioner’s business had been withdrawn. The AAO then reviewed the evidence in light of the second issue, whether the beneficiary would be working in a specialized knowledge capacity. According to the AAO, the record did not distinguish the beneficiary’s knowledge as more advanced than the knowledge possessed by other people employed by the petitioning organization or by workers employed elsewhere. Based on the evidence presented, the AAO concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a capacity involving specialized knowledge.

August 14, 2008

Future Rule Tightening by the U.S. Department of Labor

by Kellie N. Lego

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits

The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

July 8, 2008

Dual Intent – What Does It Mean In The Immigration Context?

by Kellie N. Lego

Many of our clients ask us why certain nonimmigrant visa categories allow individuals to enter the United States and apply for permanent residency while other nonimmigrant categories do not. The answer is “dual intent.” So what exactly is dual intent? The doctrine of dual intent states that even though a nonimmigrant must honestly demonstrate that he or she has the intent to remain in the United States to remain temporarily, he or she may have both a short term intent to leave and a long term intent to remain permanently.

Most nonimmigrant visa categories require the individual that is obtaining a nonimmigrant visa to truly have an intent not to remain in the United States. Therefore, since most nonimmigrant categories are not governed by the doctrine of dual intent, individuals entering the United States in those categories can not apply to change their status from a nonimmigrant to that of a permanent resident while in the United States. However, in the case of E, H-1, L-1, O, and P visas, the United States Citizenship & Immigration Service (USCIS), recognizes the doctrine of dual intent. Consequently, individuals who enter or are in the United States in E-1, E-2, E-3, H-1, H-4, L-1, O-1, 0-2, P-1, P-2, or P-3 status, may apply to adjust their status to that of a permanent resident.