Immigration Visa Lawyer Blog

How Immigration Reform Will Benefit Those with Unlawful Status

Tue, 18 Jun 2013 08:58:42 -0500

It comes as no surprise that the immigration system in the United States is broken. On Tuesday, April 16th the "Gang of Eight", a bipartisan group of Senators, introduced immigration reform legislation, formally titled as the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. There was much excitement from those who may benefit from the legislation if and when it is passed, however, we must realize that the bill will likely change before it is passed.
The Senate Judiciary Committee began marking up the bill on May 9th. The mark up process could continue through the end of the month while amendments are submitted. The bill will eventually take its final form where it will go up for a vote in the Senate; if it passes it will move to the House for a vote and eventually to the President.
As the proposed bill currently stands, those who are unlawfully present in the United States will be able to adjust their status to that of Registered Provisional Immigrant. The eligibility criteria requires that the individual: 1) have resided in the United States before December 31, 2011,; 2) pay a penalty fee; 3) not have been convicted of an aggravated felony, felony, 3 or more misdemeanors; or any offense under foreign law.
Those deported for non-criminal reasons can also qualify for Registered Provisional Immigrant Status as long as they were previously residing in the United States before December 31, 2011 and the spouse or parent of a United States Citizen or lawful permanent resident. Additionally, those who are in removal proceedings or have removal orders can also apply. The path to citizenship through comprehensive immigration reform will likely take about 10 years. During the process, Registered Provisional Immigrants will be allowed to work, have driver's licenses, and a Social Security Number.
Before becoming a legal permanent resident, a Registered Provisional Immigrant will be required to maintain continuous presence, pay all taxes, have a regular job, and be able to speak English. Additionally, the priority dates of those who are waiting to legally immigrate to the United States will have to become current. This process is sometimes referred to as "getting in the back of the line."
Individuals who qualify for or have received Deferred Action for Childhood Arrivals
(DACA) will also be eligible for Registered Provisional Immigrant Status. The proposed bill states that DACA recipients will be eligible for legal permanent resident status in only 5 years. Additionally, those who are DACA eligible will not have to pay any penalty fees. All other requirements, as outlined above, will have to be complied with as well.
The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 also includes many other provisions and changes for family immigration, employment visas, border security, and employment verification as well as a brand new W-Visa program for low-skilled workers. The process for this bill to become a law will likely take some time but the wheels are in motion for comprehensive immigration reform to become a reality.

Recent USCIS Policy Memorandum Is Useful in Avoiding RFEs and NOIDS

Mon, 17 Jun 2013 11:28:22 -0500

A Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) from the USCIS will result in delay of your immigration petition or application, and possibly may also be followed with a denial. Therefore, if you want your case processed as quickly as possible and be approved, it is imperative to be sure that your immigration petition or application is accompanied at the very least by enough evidence to meet the requisite standard of proof to avoid RFEs and NOIDs.

The US Citizenship and Immigration Services (USCIS) recently issued a policy memorandum that may prove useful went gathering evidence that you can avoid RFEs and NOIDs. The policy memorandum entitled "Requests for Evidence and Notices of Intent to Deny," issued on June 3, 2013, details USCIS policy regarding when to issue an RFE or a NOID. A careful review of this policy memorandum should be particularly helpful for a favorable adjudication.

The policy memorandum cited an earlier report issued by the Office of Inspector General (OIG) that referenced a June 1, 2007 USCIS memorandum stating that "RFEs should, if possible, be avoided." This sentence has been misinterpreted by adjudicating officers in certain situations, according to the recent memorandum, and the purpose of the memorandum was to clarify USCIS policy of when to issue RFEs and NOIDs.

The policy memorandum stressed that USCIS officers should not avoid sending an RFE, but rather they should use the RFE when justified by the facts and the law, unless special circumstances apply that are accompanied by special instructions. The memorandum explains as follows.

The policy memorandum indicates that an approval should be issued when all of the essential elements have been met by the appropriate standard of proof, and if any additional requirement of favorable exercise of discretion has been met by the individual as warranted.

Request for Evidence (RFE)

You will likely receive a Request for Evidence if your petition or application is submitted without enough evidence necessary to establish to the adjudicating USCIS officer that an approval is warranted. An RFE means your case will probably be denied unless you respond with all of the evidence requested by the RFE.

The memorandum explains as follows. An Request for Evidence should be issued when all of the required initial evidence has not been provided or the evidence taken as a whole was not reached the level of the required standard of proof. Usually, the appropriate standard of proof is the "preponderance of the evidence" standard, which means that you must establish that it is more likely that you are eligible for approval than not eligible.

RFEs issued by adjudicating officers should request all of the additional evidence necessary for approval to avoid the need for multiple RFEs, according to the memorandum. When an RFE response creates new line of inquiry, it then may become Appropriate to issue a follow-up RFE.

Adjudicating officers also have the discretion to obtain additional evidence to corroborate or validate the evidence submitted. Such additional evidence may be from sources that are publicly available, nonpublic governmental sources, and classified sources. All additional evidence must be added to the Record of Proceeding unless that evidence is classified.

Notice of Intent to Deny (NOID)

Receiving a Notice of Intent to Deny is much more serious than getting an RFE. The Notice of Intent to Deny is actually similar in substance to the RFE in that it is a request for additional evidence. However, whereas an RFE is simply a notice that the USCIS officer needs more evidence from you in order to approve your case, the NOID is different in that it communicates a warning to the applicant or petitioner that there are serious deficiencies and the USCIS intends to deny the case.

The memorandum explains as follows. A NOID must be issued before a denial when evidence is uncovered that is derogatory to adjudication and they information is unknown to the individual. The NOID is also to be used when the petition or application is accompanied by little or no evidence, such as in the case of a skeletal filing, or (in cases involving a discretionary adjudication component) when the eligibility threshold has been met but individual has not established that a favorable exercise of discretion is warranted.

A careful review of this policy memorandum may provide a helpful understanding of what the adjudicating officer is looking for so you can be sure that your petition or application is submitted with at least enough evidence required in order to meet the appropriate standard of proof, thus avoiding an RFE or a NOID.

Click here to see the USCIS policy memorandum

Specialized Knowledge and the L-1B Intracompany Transferee Visa

Mon, 25 Mar 2013 11:42:26 -0500

One of the requirements to be eligible for the L-1B nonimmigrant intracompany transferee visa category is that the beneficiary must have specialized knowledge. The legal definition of specialized knowledge was illustrated recently by the Administrative Appeals Office (AAO) of the US Citizenship and Immigration Services (USCIS) in a recent court case dated March 15, 2013. In that case, the petitioner had filed an L-1B visa petition with the Director of the USCIS California Service Center, which denied the petition. The AAO heard the petitioner's appeal and reversed the Director's denial.

The AAO held that the Director based its denial upon an incorrect interpretation of the law regarding specialized knowledge. The Director concluded that the beneficiary did not have specialized knowledge because the beneficiary was not responsible for actually developing the product or technology for which the specialized knowledge is required.

The AAO held in that case that the Immigration and Nationality Act and the regulations do not require the beneficiary to have developed the particular product or technology in question. The AAO concluded that it was improper for the Director to deny the petition based solely upon the fact that the beneficiary had not developed the technology. The specialized knowledge requirements is met when it is established that the beneficiary has a special knowledge of the product and its application in international markets or possesses knowledge of an advanced level of the company's processes and procedures. Eligibility may be established by satisfying either of these two prongs.

According to previous court cases, in order to establish eligibility for the L-1B visa category, the petitioner must prove that the beneficiary is qualified by a preponderance of the evidence. This means that the evidence must show that a fact is more likely to be true then not. The evidence is not evaluated by its quantity, but rather by its quality. Furthermore, evidence must be examined for relevance, probative value, and credibility, both taken separately and also looked at together in totality.

The petitioner presented evidence to the Director establishing that the beneficiary possesses special knowledge of the petitioner's technology including a press release showing that the proprietary technology will be implemented into customer markets. The petitioner provided a comprehensive description of the technology in question and how the beneficiary was involved with the technology. Evidence established that the beneficiary had over five years of experience related to the technology, his team leadership in the technology's design, his patents in this area of specialization, as well as his additional contributions in connection with the technology.

In support of its decision the AAO added that the evidence showed that knowledge of the technology is exclusive to the petitioning company, that the technology is significantly complex, that a significant amount of experience is necessary in order to function at the beneficiary's level of expertise, and that such knowledge is not easily transferable to others in the same field. The AAO held that this evidence was sufficient to establish that the beneficiary possessed specialized knowledge as required in order to qualify for the L-1B visa. This decision can be a useful tool when drafting the L-1B petition.

Effect of Sequester on Immigration

Mon, 04 Mar 2013 10:39:19 -0500

On Friday March 1 at midnight, Present Obama was forced to sign an automatic spending cutback, or "sequestration," as negotiations with congress to avoid these cuts was unsuccessful. The spending cuts will have an impact on national security, domestic investments, and government functions. Included in the impacted areas is also immigration where we will see cuts in detention of immigrants and in personnel to adjudicate visa applications.

Even before the budget cuts took effect, U.S. Immigration and Customs Enforcement (ICE) released hundreds of low level detainees in favor of using cheaper methods to monitor their whereabouts. It is estimated that thousands more will be released since the sequester came into effect. Those being released had been detained for minor traffic violations or have no criminal convictions at all and are only guilty of civil immigration violations like entering the United States without inspection. All detainees released will still be in removal proceedings and will have to await their day in court before the immigration judge.

The release of detainees will save the government thousands if not millions of dollars. On average, it costs the government between $122 to $164 per day to hold someone in detention. This daily cost will drop to between $0.30 to $14 per day with the use of alternative means to monitor those released from detention. The alternative methods include the use of electronic ankle monitors and periodic check-ins with ICE officials. In addition, the detainees will be able to be in their own homes and with their families while they await their day in court.

Detention of immigrants will still occur despite the budget cuts that took effect on March 1. However, detention will be a priority for those who are serious offenders and who may pose a threat to public safety or national security.

Another area of immigration that will be affected by the sequester is visa adjudications. There may be some delays in the visa application processes. It is anticipated that consular services will be slower than normal as the number of officers processing visa applications at the Department of State will be reduced in order to comply with the spending cutback.

Cuts will take place across the board in all areas, not just visa processing. It is likely that many application processes will be delayed in light of the budget cuts. Applications will still be processed in the same way as before the budget cuts. However, the time between when an application is submitted and when a decision on the case is reached will become lengthier. Before the sequester, the Department of Justice had been making great strides in getting visa applications adjudicated quickly. More visa adjudicators were hired in order to make the process quicker for everyone involved. Now that budget cuts have taken effect, many of the adjudicators hired will be forced to take days off without pay resulting in delayed adjudications for those applying for visas.

On the bright side, Obama has promised that he will continue to reach out to congress and search for a permanent solution to this problem. The budget cuts are currently in effect but they should not last forever. Hopefully an agreement will be reached in the coming weeks that will benefit all who are impacted by these cuts.

Ohio Refuses to Issue Driver's Licenses to DACA Recipients

Thu, 21 Feb 2013 16:05:21 -0500

Since June 2012 many Ohio residents have been applying for Deferred Action for Childhood Arrivals (DACA), an executive order enacted by Present Barack Obama that allows those who arrived in the United States as children to have a reprieve from deportation and obtain a work permit for a period of two years. Once the DACA application is approved, the applicant is issued an Employment Authorization Document (EAD) from the U.S. Citizenship and Immigration Services (USCIS) that is valid for a period of two years. The recipient can then take his/her EAD to the local Social Security Administration office and obtain a Social Security number so that he or she may work and pay taxes. Additionally, in Ohio, a DACA recipient was allowed to obtain a driver's license at any BMV location within the state. The Ohio BMV website
http://www.bmv.ohio.gov/acceptable_id_documents.stm provides a list of acceptable documents that can be presented in order to obtain a driver's license. Among these acceptable documents are USCIS Documents, Social Security Card, and Employer Identification Card.

Until recently, approximately 200 DACA recipients in the state of Ohio received Driver's Licenses by providing the BMV with the documents stated above. In January 2013 some BMV locations began denying DACA recipients Driver's Licenses even though they had all the required proof. In the last month, all Ohio BMV locations decided to stop issuing driver's licenses to DACA recipients. Ohio's Administrative Code states that applicants for a driver's license must have legal status in the United States. So the question is: Are DACA recipients considered to have legal status in the United States? Originally it was unclear whether DACA confers legal status, but recently USCIS clarified that DACA holders do have lawful presence in the United States for the two year period that they are granted deferred action.

Ohio Attorney General, Mike DeWine, agrees that the BMV should allow DACA recipients to obtain driver's licenses. The BMV has not spoken on whether there is an agency wide directive to deny driver's licenses to DACA recipients but they do have reason to believe that some private contractors have been denying state identification cards. Those in favor of allowing DACA recipients to receive driver's licenses have signed a petition addressed to BMV Registrar Mike Rankin, Governor John Kasich, and Public Safety Director Thomas Charles urging them to declare DACA recipients eligible for driver's licenses in Ohio and to insure that all Ohio BMV locations comply with such directive.

Ohio joins Arizona, Arkansas, Kansas, Mississippi, and Nebraska who also refuse to issue driver's licenses to DACA recipients. This week Michigan joined approximately 33 other states who do allow driver's licenses for DACA recipients. Law makers in Michigan decided to allow DACA recipients to obtain driver's licenses after USCIS announced that they have lawful presence in the United States.

The good news is that Ohio law makers have not yet made a definitive decision on whether DACA recipients should be allowed to obtain driver's licenses. The BMV is currently reviewing regulations from the federal government on whether Ohio law permits DACA recipients to obtain a driver's license. Those DACA recipients who obtained a driver's license prior to January 2013 should not be deprived of their privilege. If a favorable decision is reached then those who have EADs through DACA will be able to present those documents at their local BMV and obtain driver's licenses.

Expect the H-1B Visa Cap To Be Reached Quickly This Year

Tue, 19 Feb 2013 16:15:03 -0500

The Law Firm of Shihab & Associates predicts that the H-1B visa cap will be reached close to if not on April 1st, 2013. It is our professional opinion that businesses seeking to hire workers in a specialty occupation for the 2014 fiscal year should strive to file cap-subject petitions on April 1st, 2013 wherever possible. While it is difficult to postulate that the 2014 cap will be reached on the first day of filing, we are advising our clients against taking any chance of losing out on valuable human resources needed for the coming year and to be prepared to file cap subject H-1B visas on the first business day of April.

A Pattern of Dramatic Growth in H-1B Hiring

For the past two years, the H-1B visa cap has been reached ever closer to April 1st. Strong growth in the financial markets is freeing businesses to address pent-up demand for human capital in the information technology, manufacturing, engineering, finance and health care industries. The growth in demand for H-1B workers is supported by empirical data collected for the past three years. Below, we have provided the respective dates on which the H-1B visa cap was reached for the 2011 through the 2013 fiscal years

The chart above shows that the demand for H-1B visas has mirrored the growth in the US economy by remaining relatively stable in calendar years 2010 and 2011 but increasing dramatically in calendar year 2012.

Market Indicators Trending Toward Growth in Key H-1B Sectors

Major market indicators that are closely tied to the H-1B visa count have all risen incrementally above their comparative positions during the depths of the global recession in 2008 and 2009. The market for services is up forty percentage points from its lows in 2009. The technology markets are up 60 percentage points since 2009. Financial services markets are up 25 points as well as the demand for healthcare services. Perhaps most telling is that multinational conglomerates, the large companies that require much of the service of software developers and computer programmers who install and revise large information technology systems, are performing 45 percentage points better than the lows of 2009. Finally, the Dow Jones Industrial average is within striking distance of record highs first set in 2007. These markets generally lead in the demand for H-1B employees. Because all of these sectors are performing at levels closer to their highs in 2007 when the H-1B cap was reached on April 1st, it is reasonable to conclude that H-1B cap subject petitions will rise correspondingly. Simply put, when the markets are doing well as was the case in 2007 when the cap was reached on April 1st, the H-1B visa cap is more likely to be reached sooner rather than later.

How to Take Advantage of the H-1B Visa Cap

Filing an H-1B visa petition can be a complicated process, However, the Law Firm of Shihab and Associates Co., LPA. has developed a system which makes the process easy and painless for our clients. In order to take advantage of the H-1B visa cap, we are advising our clients to retain our services for H-1B cap cases through the remainder of February and early March so that we can ensure that their H-1B visa petitions are filed on April 1st, taking no chances that the cap will be reached and the hiring potential employees will need to be deferred until October of 2014 or beyond.

How Much Persecution Is Enough To Qualify For Asylum?

Fri, 15 Feb 2013 16:34:28 -0500

How much torture or other mistreatment must you show in order to qualify as having been "persecuted" as defined in the immigration law? The answer is that it would seem there really is no bright line definition. Rather, a foreign national's asylum case could likely depend upon the subjective opinion of what a government official thinks persecution does or doesn't mean. When presenting an asylum case, don't simply rely that a government official will sympathize with your situation. It is necessary to properly research similar successful cases in order to have a strong case.

For a foreign national to be eligible to be granted asylum in the United States, the person must establish that he or she has suffered past persecution as a result of membership in one of a number of protected groups that include race, religion, nationality, particular social group, or political opinion.

The legal standard to establish "persecution" for purposes of asylum is that persecution is an "extreme concept" and requires "more than a few isolated incidents of verbal harassment, intimidation and accompanied by any physical punishment, infliction of harm, or significant deprivation of liberty." But what does this really mean? One person's concept of what is "extreme" or "significant" may be entirely different from that of another person.

An example of this is illustrated in a recent case decided by the US Court of Appeals for the 11th Circuit in Shi v. US. In this case, the Petitioner Jiaren Shi was originally denied asylum by the Immigration Judge (IJ) on the basis that he had not established that he had suffered past persecution. The IJ's decision was also affirmed by the Board of Immigration Appeals (BIA).

The facts of the case are these. Mr. Shi, a Chinese national, presented testimony that he was arrested in China for attending Christian church service at his father's home. He testified that he was held by police for seven days, interrogated, subjected to physical abuse, and warned not to be involved in such "illegal meetings" in the future. He testified that while in custody, police slapped his face, kicked his chair out from under him, and threatened to beat him with a baton. He testified that after one interrogation session, police handcuffed him to an iron bar outside and left him there overnight in the rain, after which he became ill for days.

The IJ and the BIA determined that these acts did not rise to the level of persecution required to establish an asylum case. The US Court of Appeals disagreed and reversed. In its opinion, the Court of Appeals did distinguish the facts of the case from other cases in making its determination. The court said that while the court has declared in previous cases that a short period of detention combined with some physical abuse was not sufficient to be deemed persecution, this finding was not made in cases where detention lasted as long as a week.

However, a reading of this case seems to show that the court did not base its ruling on a bright line test of the how long the detention was. Rather, the court simply restated Mr. Shi's story about what happened, and then determined that such a fact pattern did rise to the level of persecution required. One distinction the Court did make is that it seemed to imply that the IJ and BIA did not look at the totality of the circumstances, and that when all the facts are taken as a whole, such a fact pattern is persecution when compared with previous court decisions.

A government official may not be impressed with the mere fact that an asylum applicant was physically abused and detained by police as a result of his or her religious belief. That government official may agree that it is bad, but may not agree that is "extreme" enough to be called persecution. Don't rely on the subjective opinion of a government official. Do your legal research and come prepared to show that other cases similar to yours have been decided in your favor.

Altering PERM Job Ad Language Can Result In Denial

Fri, 08 Feb 2013 16:22:33 -0500

During the Application for Permanent Employment Certification (otherwise known as PERM), is imperative to carefully draft the language used in the advertisements and job postings. This was underscored by the Board of Alien Labor Certification Appeals (BALCA) in its recent decision on February 6 that affirmed the denial of PERM certification due to the way the advertisement was drafted, in the matter of Oracle America, Inc.

Originally, the Certifying Officer (CO) denied the employer's PERM application because of the language used in the Notice of Filing (NOF), otherwise known as the internal job posting, BALCA affirmed the CO's denial holding that the job posting contained a job requirement that was not indicated in the ETA Form 9089.

During the PERM application process, a job posting is required as part of the mandatory recruitment, which is designed to ensure that there are no qualified United States citizens available to fill the open position. The employer's job posting contained wording that was not included in the ETA Form 9089 that stated the position "may be assigned to various unanticipated sites throughout the United States." The CO denied the PERM because the job posting showed a travel requirement that was not listed on the application, and therefore would create a chilling effect for any other candidate who would apply for the position if not for the addition of the travel requirement. The PERM job posting is not allowed to have requirements that would tend to have a chilling effect upon potential applicants when those requirements are not listed on the ETA Form 9089.

Counsel for the employer argued that the application was for multiple positions, and since the word "may" implies that not all the positions have that requirement, so therefore the CO's decision should be overturned. It is permissible to have language in the job posting that indicates an additional job requirement that is not listed on the PERM application, but this is permitted if the language used in the job posting makes it clear that the requirement does not apply to all the open positions. So if a person reading the job posting would understand that although some positions do have the job requirement, other positions do not.

BALCA disagreed with the employer's argument. The language used by the employer in the job posting did not imply that the requirement was not for all the open positions because it could be interpreted that the sentence meant that travel may be required for all positions, not just for some.

When drafting the language of the job posting, if language is added or changed from the language used in the ETA Form 9089, it is absolutely imperative that careful attention is given to PERM requirements because even a very small change in wording or addition in wording can result in disaster when the PERM application is denied.

The moral of this case and cases like these is simple. A good way to avoid having your PERM application denied this way is to simply cut and paste the text from your ETA Form 9089 application to your job posting an advertisement. That way the situation suffered by Oracle in this case can easily be avoided.

Waiver of Inadmissibility for Willful Misrepresentation of Material Fact

Mon, 04 Feb 2013 11:10:09 -0500

What are the consequences of lying to an immigration official?

Any foreign national who willfully misrepresents a material fact in order to get an immigration benefit, such as a visa or entry into the United States, is inadmissible and subject to removal. Such foreign national is also not eligible to obtain a US permanent resident status (otherwise known as a green card). However, in certain circumstances there is a waiver available at the discretion of the Attorney General, through the USCIS. Even if you qualify for this waiver, it does not mean you are guaranteed to get it since the USCIS has the discretion to grant or deny the waiver.

It is important to note that in order for a misrepresentation to render you inadmissible, the misrepresentation of fact must be both willful and material. This means that you must have knowingly been untruthful about a fact that was relevant to your obtaining an immigration benefit.

How do I qualify for a waiver?

This waiver is generally available to a foreign national who meets the both of the following criteria. First, you must be a spouse, parent, son, or daughter of a United States citizen or of a US lawful permanent resident (green card holder). Second, you must have been in possession of an immigrant visa or equivalent document and you were otherwise admissible at the time of such admission except for the misrepresentation.

Therefore, to qualify for this waiver you must establish that the misrepresentation rendered you inadmissible at the time you were admitted into the United States. You must also establish that you would have been admissible, but for the misrepresentation.

Whether you qualify for a waiver can be a very complicated matter

This rule may sound simple on the surface but can be confusing. Even the USCIS has been known to misinterpret this area of immigration law. There was a recent court case from the US Court of Appeals for the Sixth Circuit that illustrates this, Jose Avila-Anguiano v. Eric Holder, July 18, 2004. In this case, the court held that the USCIS erroneously concluded that the foreign national was not eligible for the waiver on the basis that the misrepresentation did not occur at the time of admission. The foreign national made the misrepresentation three years prior to the date of admission, and the USCIS did not grant a waiver as a result of this fact.

The court held that the USCIS did not interpret the law correctly, and it reversed the decision and remanded the case back to the USCIS. The court held that it is not required for the misrepresentation to happen during the foreign national's admission to the US, as the USCIS incorrectly interpreted. But rather, what is required is that the misrepresentation must have been what caused the foreign national to be inadmissible at the time of admission.

An application for a waiver of inadmissibility can be a very complex legal matter. As illustrated above, the immigration official who will ultimately decide whether or not to grant your waiver may not accurately comprehend this area of immigration law. Therefore, it is crucial to seek assistance from competent legal counsel who can present your case properly and effectively.

Court Renders Recent Decision Involving H1B Back Pay Award

Thu, 31 Jan 2013 16:22:08 -0500

The US Department of Labor Office of Administrative Law Judges (OALJ) issued a recent court decision dated January 18, 2013 that illustrates legal issues regarding H1B wages and when employers must pay non-productive employees. This case, Administrator, Wage and Hour Division, United States Department of Labor (USDOL) v. North Shore School for The Arts (NSSA), involves an H-1B worker piano teacher, Ms. Natsuko Imai who filed a USDOL complaint against former employer NSSA and demanded payment of back wages for her nonproductive time. The USDOL originally determined that NSSA owed back wages for nonproductive time, and NSSA filed the appeal to OALJ in this case.

When must the employer pay wages for non-productive time?

Immigration law provides that employers are required to pay wages to their H-1B employees even during non-productive time in which the employees did not work, provided certain circumstances exist. The H-1B worker is entitled to wages during non-productive time when the worker is ready, willing, and able to work. Wages must be paid if the non-productive status results from the employer's decision or action, not from that of the employee. Subsequently, the employer must pay the worker for at least the amount of hours listed on the I-129 petition and the LCA form.

When is the employer not required to pay wages for non-productive time?

The employer is not required to pay wages to the H-1B worker for non-productive time when this condition is a result of conditions not related to the employer, but is a result of the worker's voluntary request and convenience. In this case, Ms. Imai, was asked by her employer NSSA to do certain tasks in addition to her piano teaching duties designed to bring more students to the school. These tasks included answering the telephone, involvement in an outreach program to the Japanese community, and performance at a Buddhist and temple. Ms. Imai refused to perform these tasks. In addition, although she spent several hours at the school, the majority of her time was spent practicing for her own benefit rather than focusing on teaching duties. The OALJ determined that in this case, Ms. Imai was not entitled to back wages because it concluded that her nonproductive time was a result of her actions, not those of her employer.

Employer is required to pay H1B attorney fees and filing fees

Immigration law provides that attorney fees and filing fees for the H-1B petition must be paid by the employer. In this case, NSSA paid the attorney fees and filing fees, but then sought reimbursement from Ms. Imai by withholding these funds from her wages. This was pursuant to an agreement between NSSA and Ms. Imai. However, the OALJ determined that such agreement is not permitted, and it ordered NSSA to pay Ms. Imai back for that amount of her withheld wages. The USDOL had originally determined that NSSA owed $16,800 to Ms. Imai in back wages. In this case, the OALJ reduced that amount to $2,980, which was the amount withheld to pay for the H-1B filing.

Restaurant Managers Qualify As an L-1 Visa Occupation

Thu, 24 Jan 2013 10:41:48 -0500

A restaurant manager does qualify for the L-1 non-immigrant visa category, according to recent court decision by the Administrative Appeals Office (AAO), provided that certain criteria are met.

In order to qualify for the L-1 visa classification, the petitioner must establish that the beneficiary employee will work for the petitioner in an occupational position that is one of the following: (1) managerial, (2) executive, or (3) with specialized knowledge. The petitioner must also establish that beneficiary employee has worked in one of the three capacities for one continuous year within the previous three years prior to the filing date of the application. Also, the L-1 petition must establish that the beneficiary employee will oversee other supervisors, will oversee professional employees, or will primarily manage an essential function of business.

In the particular case before the AAO court, the petitioning employer was a company that operated a Japanese cuisine style restaurant with an affiliated company situated in Japan. The employee had already been working for the petitioner as a restaurant manager in the United States with a one-year L-1 visa, which was granted to allow the petitioning company to employ the beneficiary for the purpose of opening a new US office. The petitioning company had filed an extension of the L-1 visa with the USCIS, which was subsequently denied.

The USCIS based its denial upon its conclusion that the employer failed to establish that the employee would be working in the United States primarily in a managerial or executive capacity. The USCIS stated that the employee did not qualify as it concluded that he was a first-line supervisor. The USCIS based this conclusion upon its determination that the managers that would be working under his supervision were not professionals, and it also concluded that he would be assisting his subordinate staff with the day-to-day nonsupervisory tasks of the business.

The petitioner appealed this decision and argued before the AAO court that the beneficiary did qualify because the majority of his time would be spent on managerial responsibilities and that his subordinates would conduct the day-to-day duties of the business. The petitioner argued that the USCIS used an improper legal standard because it is not required for the beneficiary to supervise professionals if it is established that the beneficiary will manage subordinate supervisors. The petitioner also presented argument that the duties of the beneficiary are primarily managerial.

The AAO agreed with the petitioner and sustained the appeal, and it withdrew the USCIS decision. The AAO held that in order to qualify as a manager for purposes of the L-1 visa classification, it must be established that the beneficiary employee will oversee other supervisors, or oversee professional employees, or primarily manage an essential function of business. The AAO held that the USCIS applied the law incorrectly since it required the beneficiary employee to oversee other supervisors who were also professional employees.

Consequently, a restaurant manager may be eligible to work under the L-1 visa category, provided that the occupational position meets the requirements emphasized by the AAO in the above case.

Form I-9 Penalty Amounts Assessed by ICE Must Be Based on Specific Factors

Wed, 16 Jan 2013 12:26:51 -0500

With regard to Form I-9 violations, any aggravated punitive fines imposed upon employers by the United States Department of Homeland Security, Immigration and Customs Enforcement (otherwise known as ICE) must be based upon several factors set forth by law. This was recently underscored in a recent court case heard by the Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO), in the case of United States v. March construction on November 13, 2012. Here, OCAHO significantly reduced the overall fine from $86,933 to $17,120 because it said ICE failed to establish specific factors.

The March Construction case emphasized the rule that the burden of proof rests on the government to establish the penalty and liability, and it must therefore prove aggravating factors by a preponderance of the evidence. In order to assess a penalty, there are several factors to be considered, which are:

The size of the business
The good faith of the employer
The seriousness of the violation
Whether the employee was an unauthorized immigrant
Whether the employer has previous violations
The company's ability to pay the fine

Each of these aggravating factors must be based on specific facts supported by evidence in order to justify enhancement of a fine.

The size of the business

The size of the fine to be imposed is proportionate to the size of business. A large sized business would receive a higher fine, whereas a small sized business would receive a lower fine. In determining the size of the business, case law has provided a variety of factors to be considered. These include gross sales, the value of assets, and workforce size.

The good faith of the employer

In order to establish bad faith, the government must prove that the employer engaged in culpable conduct going behind the mere failure to comply. It is not enough to simply show a large quantity of violations or a dismal compliance rate.

The seriousness of the violation

The seriousness of the violation is measured on a continuum. For example, failure to correct minor Form I-9 technical or procedural errors would be considered less serious, whereas failure to prepare the I-9 forms or failure to sign the application would be considered more serious.

Whether the individual was an unauthorized immigrant

This may only be considered to be an aggravating factor when it is found that a specific I-9 form violation concerns a specific individual who is found to be unauthorized. It is not enough to simply establish that a company employs unauthorized immigrants. It must be established that the specific I-9 form of the specific unauthorized immigrant contained technical or procedural violations. The mere presence of unauthorized immigrants in the workforce is not a legitimate basis for aggravating penalties.

Whether the employer has previous violations

This one is self-explanatory, as the number of previous violations will serve as an aggravating factor to justify increasing the penalty.

The company's ability to pay the fine

Although this factor is not specifically set forward by this statute, case law has established that the ability of the company to pay the proposed penalty is a legitimate factor to be considered when assessing the size of the penalty could be imposed.

Immigration Reform: No Longer a Political Third Rail Issue

Tue, 08 Jan 2013 16:41:30 -0500

Immigration reform used to be considered a third rail issue that political candidates would not touch, but after last November, this view has changed. Obama won 71 percent of the Latino vote in the last election, which may have been helped in part by the Obama administration's new program of Deferred Action for Childhood Rivals (DACA), which was announced just months prior to election day.

Since then, President Obama, House Speaker Boehner, as well as other leaders have announced plans to move toward some sort of immigration reform this year. It is believed that Obama and Democrats in the Senate may have an immigration reform plan ready hopefully as soon as April 2013. Other reports say we could see a bill passed as early as June. It is also rumored that some Republicans may be working on their own kind of bipartisan immigration bill as well.

We could see immigration reform that would make it easier to obtain green cards, an increase in work visa numbers, and possibly a guest-worker program. There has also been talk that Congress may produce a bill that would establish a path to citizenship for the projected 11 million undocumented immigrants living here in the United States.

Comprehensive immigration reform may have been considered too controversial for candidates to risk taking a stand on in the recent past, but now it seems it has become a political necessity. The last election may have been the game changer needed to finally achieve true reform.

New USCIS Online Policy Manual Released Today

Mon, 07 Jan 2013 13:44:25 -0500

The US Citizenship and Immigration Services (USCIS) started today its move to an online manual of immigration policies by its release of volume number one of the new online USCIS Policy Manual, which involves citizenship and naturalization. Policies in this volume will begin to be implemented by the USCIS on January 22, 2013.

Several volumes will be produced, one for each of the different areas of immigration benefits administered by the agency. The USCIS announced that future volumes of its new policy manual will include adjustment of status, refugees and asylum, travel and employment, protection and parole, admissibility, and waivers. The new manual is intended to eventually replace current Adjudicators Field Manual (AFM) and the Immigration Policy Memoranda website

USCIS Director Alejandro Mayorkas believes that the new policy manual will provide a higher level of quality and consistency to its stakeholders, workforce, and customers.

The USCIS announced that its online policy manual is a result of extensive review of its customer service and adjudication policy, which incorporates a survey of USCIS personnel and members of the public. The survey results where comprised of approximately 8000 responses, which the USCIS used as guidance in its undertaking of a broad reevaluation of its policies and operations. This review was unparalleled as an agency-wide examination of feedback from customers, stakeholders, and USCIS agency employees.

The USCIS is currently training its affected staff to become familiar with the content of the new online policy manual, starting with volume one.

Click here to see the USCIS online policy manual

Being a Public Charge Will Stop You from Getting Your Green Card

Wed, 02 Jan 2013 15:20:37 -0500

Your I-485 application to adjust status to permanent residence can be denied if you are deemed to be a "public charge." Under immigration law, you are a public charge if you have received public cash assistance to maintain your income or you were institutionalized for long-term care at the government's expense.

Public benefits that will make you a public charge

Cash assistance public benefit programs that will cause you to be considered a public charge include:

Aid for Families with Dependent Children (AFDC)
State and local government assistance programs
Supplemental Security Income (SSI)
Programs such as Medicaid that provide support for long-term institutionalized care
Temporary Assistance for Needy Families (TANF)

Public benefits that will not make you a public charge

Generally, non-cash benefits will not count toward a public charge determination unless they are for long-term institutionalized care. Public benefits that are supplemental in nature rather than primary income support do not count. These include:

Medicaid and other health benefits
Food stamp programs and WIC
Children's health insurance program (CHIP)
Child care assistance, housing benefits
Foster care and adoption assistance
Job training programs
Emergency disaster relief
Energy assistance such as the Low Income Home Energy Assistance Program (LIHEAP)
Other community-based program such as a shelter or soup kitchen

Affidavit of Support Form I-864

In certain family-based green card or immigrant visa cases, the Form I-864 Affidavit of Support is filed with the application to show that you have the financial means to live in the United States without public benefits. This form is signed by a person who will be your sponsor and must receive a yearly income of at least 125 percent of the federal poverty level. The I-864 form is required for many family-based preference categories.

Exempt Immigration categories

Certain immigration categories are exempt from the public charge rule. These include:

Refugees and asylum applicants
Haitian Refugee Immigration Fairness Act (HRIFA)
T Visa and U Visa
Nicaragua and Central American Relief Act (NACARA)
Cuban Adjustment Act (CAA)
Amerasian Immigrants
Temporary Protected Status (TPS)
LIFE Act Provisions