H1B Visa Lawyer Blog

February 12, 2009

Final Defendant in California Restaurant ICE raid receives sentence

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) beginning in September 2008, the seventh and final defendant of the restaurant raids was sentenced. The Asian buffet restaurant owner was sentenced to eight months of home confinement and three years probation on charges of knowingly employing illegal aliens and mail fraud. Additionally, the judge ordered the owner to pay $49,000 in criminal fines.

As a result of the investigation, ICE arrested 21 illegal alien workers on administrative immigration violations who were encountered at the search locations.

Additionally, the judge noted that the restaurant owner had conspired with an employment agency to hire aliens, who due to their illegal status, were subject to exploitation. The judge also made note that the defendant benefitted financially by not paying taxes, fees and proper salaries for the illegal employees.

February 11, 2009

March 2009 Visa Bulletin

by Kellie N. Lego

The Department of State has released its latest Visa Bulletin. The March 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the March 2009 Visa Bulletin

February 2, 2009

ICE Investigation results in three-count indictment

by Kellie N. Lego

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) and the Alabaster Police Department, a Birmingham, Alabama construction company owner was indicted on charges of harboring and employing illegal aliens.

As a result of the investigation, the owner was charged in a three-count indictment. If convicted of all counts, the owner faces a maximum term of imprisonment of 10 years and a fine of $250,000. All of the illegal aliens working for the construction company were arrested and placed in deportation proceedings.

ICE aggressively targets employers who violate immigration laws by knowingly employing an illegal workforce.

January 27, 2009

Service Center Processing Times

by Kellie N. Lego

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on January 23, 2009 with processing dates as of November 30, 2008.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

Vermont Service Center

January 22, 2009

Update: Federal Contractors and the E-Verify System

by Kellie N. Lego

Effective February 20, 2009, ALL federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system. This program allows for employers to electronically verify the employment eligibility of their employees.

This new rule which is addressed in Executive Order 12989 reinforces the policy that the federal government does business with companies that have a legal workforce.

Specifically, this rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term.

January 21, 2009

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

by Kellie N. Lego

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.

January 20, 2009

Upgraded biometric technology in place at major U.S. ports of entry

by Kellie N. Lego

Since 2004, the U.S. Department of Homeland Security’s (DHS) U.S.-VISIT program has utilized biometric technology at major U.S. ports of entry to facilitate visitor entry. Last week, DHS announced that upgraded biometric technology is in place at major U.S. ports of entry. The upgrade is a change from a two to a ten fingerprint collection standard. According to DHS, the 10 fingerprint collection standard makes the entry process faster and more accurate.

Currently, certain non-U.S. citizens arriving at U.S. air, land and sea ports of entry with nonimmigrant visas or those traveling without a visa as part of the Visa Wavier Program (VMP) are subject to U.S.-VISIT procedures.

As of January 18, 2009, the following additional non – U.S. citizens will be required to provide biometrics when entering or re-entering the United States:

January 16, 2009

AAO approved EB-2 petition – Foreign degree found equivalent to U.S. “M.D.”

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the employment based immigrant petition.

The Petitioner is a hospital. The Petitioner sought to employ the beneficiary permanently in the position of Interventional Radiologist. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from the University of Poona in India. Upon review of the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on Form ETA 9089. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations. On appeal, counsel for the employer submitted a cover letter and two new evaluations of the alien beneficiary’s credentials.

January 15, 2009

February 2009 Visa Bulletin

by Kellie N. Lego

The Department of State has released its latest Visa Bulletin. The February 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the February 2009 Visa Bulletin.

January 14, 2009

ICE raid results in arrests and deportation proceedings

by Kellie N. Lego

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) a Louisville, Kentucky restaurant owner was sentenced to eight months in federal prison for knowingly employing illegal aliens.

As a result of the investigation, the restaurant owner plead guilty to knowingly employing at least 10 illegal aliens at his restaurant for commercial advantage and financial gain. During the ICE raid, agents seized about $59,000 from the restaurant, which will be forfeited to the United States, and detained six illegal aliens found working at the restaurant, who have since been deported. The owner of the restaurant was not a U.S. citizen and will be subjected to deportation proceedings after he completes his prison sentence.

ICE aggressively targets employers who violate immigration laws.