Immigration Visa Lawyer Blog

Said JPMorgan Chase & Co. Chief Executive Officer Jamie Dimon during a shareholder meeting yesterday, according to an article published by Bloomburg.com. As the company announced that it intends to refund several billion dollars of TARP funds it borrowed from the government, and in answering shareholder’s questions Dimon added “We need different talents and skills.” Accepting TARP funds “became a little more of a painful experience.” He cited concerns about other countries revoking visas of US citizens employed by the company abroad in retaliation to the H-1B TARP restriction.

Kudos to Mr. Dimon for expressing what many are afraid to say. Subjecting corporation to this type restriction is wrong and is, in fact, disgraceful. Restricting the follow of talents to our country chokes our competitive edge. We must be more vigorous in delivering this message, especially during challenging times. For our tendency to look the other way and become complacent during a crisis is our weakness.

Continue reading " The H-1B TARP Restriction is “Complete And Utter Disgrace” " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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As the list of companies receiving TARP funds has exceeded 550 institutions across the country, human resource managers and company executives have made it unambiguous that they are concerned about H-1B compliance. Under the Employ American Workers Act, (EAWA) signed into law this year, TARP fund recipients will be treated as H-1B dependent employers when they hire foreign nationals on H-1B visa. This law does not include those employed by the TARP fund recipients on, or before February 16, 2009. The normal exemption for foreign nationals receiving a salary of $60,000 or higher, or having a relevant master’s degree is not available for companies receiving TARP money.

The reason that many of the 550 plus companies should be careful is twofold: The first challenge large employer’s face is compliance with the H-1B dependant attestations without utilizing an elaborate and expensive tracking system; the second is applicability of The False Claims Act on TARP funds recipients.

H-1B Dependent Requirements:

H-1B dependent employers must make certain promises and must be able to demonstrate compliance if audited by the Department of Labor. TARP fund recipients who file H-1B petitions:

Continue reading " The TARP H-1B Application. " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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President Obama today nominated Sonia Sotomayor to fill the vacancy in the county’s highest Court. Much has already been written about her public service, and extensive legal knowledge and experience as a federal judge. With 17 years as a federal judge, some have called her the most experienced judge to have ever been nominated to the Supreme Court. President Obama cited her rigorous intellect and mastery of the law, and her recognition of the limits of the judicial role as her most important qualities. Several conservatives expressed concerns about her record and labeled her a “judicial activist.” This term has a negative connotation and typically refers to judges who do not follow established law but their own ideological views. The truth is all judges at one point or another exercise judicial activism. Sonia Sotomayor is a daughter of Puerto Rican parents who came to the US during the Second World War. She grew up in the Bronx and had a humble upbringing. If confirmed, she would be the first Latina judge to be appointed to the Court. I will be following this confirmation process with great interest. It will be interesting to see which path the confirmation hearing will take. I, along with many others, have begun to scour all possible sources to gain deeper understanding of her views on immigration law. There are undoubtedly many critical immigration law issues the Court will be dealing with in the foreseeable future. We will sure to bring them to you on our blog as soon as we learn about them.

Posted by Sam Shihab Esq. | Permalink | Email This Post

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Any Ohio labor certification attorney will tell you that prevailing wage determinations in Ohio have been consistently higher than other states for years. In a recent decision The Board of Alien Labor Certification Appeals (BALCA) in the matter of Reed Elsevier, Inc., 2008-PER-00201 agrees. The prevailing wage is the wage determined by the state agency to be paid to a foreign national if they are to obtain an employment based green card through labor certification. In reversing The Certifying Officer affirmation of a prevailing wage determination, the court stated that Ohio “drastically changes the character of the position, essentially increasing the yearly wage by over 25% and doubling the wage level at which the position would otherwise be classified.”

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA’s ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Continue reading " Ohio Labor Certification Prevailing Wage Level Improperly Doubled, Court Rules " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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The June 2009 Visa Bulletin has just been released and once again many of the Employment Based preference categories continued to retrogress or have become unavailable. During the last several months we have seen a continued trend of this retrogression. For example, visa availability for the second preference category for Indian born applicants has moved back by five and a half years in less than a year. It moved from June 1, 2006, as published in the August 2008 Visa Bulletin, to January 1, 2000, as published in this June 2009 Visa Bulletin. Does this mean an Indian born applicant who will file a labor certification application in June of 2009, under the second preference category, will have to wait eight and a half years in order to receive a green card? Not exactly.

Keep in mind that there are no cases with a January 1, 2000 priority date because that day was a Saturday and one day after a federal holiday. Federal offices were not open to accept applications. So, based on the currently released Visa Bulletin, the second preference, Indian born applicant with a filed labor certification or immigrant visa petition in 1999 or earlier may file for an adjustment of status. Translation: No visas are available at this time as it is virtually impossible to find an unadjusted, decade old petition in this category. I believe the January 1, 2000 date referenced above was politically chosen. A priority date availability from the prior decade (which is only one day earlier) would be politically incorrect and would not be looked upon favorably. This is also consistent with the visa numbers for third preference categories across the board being released as unavailable for the second month in a row.

Continue reading " Labor Certification Attorney on Priority Date Retrogression. " »

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Posted In: Labor Certification / PERM

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There has been a recent spike in Requests for Evidence in adjustment cases questioning the intended work location of the foreign national and seeks confirmation of the permanent employment offer. The typical inquiry questions the intended place of permanent employment when USCIS observes, after reviewing the adjustment application, that the foreign national may be working in a different work location than the one listed in the approved labor certification.

It is important to note that, employer’s obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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Department of Homeland Security Secretary, Janet Napolitano, confirmed recently that its Department is implementing fraud prevention tactics in H-1B petitions. In one of my recent blogs, I discussed USCIS profiling of companies when evaluating H-1B petitions. Now there is an official confirmation of this. In light of this confirmation, it is worth going back and reading my prior blog with special attention to the charts at the end of the blog to find out if your company fits the profile. If after reviewing my blog you feel that your company may fit the profile, here is what you should consider doing as a preventative measure.

• Write to your congressman and explain to them that USCIS tactics of targeting small companies is not helpful to the economy and may be violating the Equal Protection Clause of the Fourteenth Amendment.
• Understand that, the H-1B petition must be substantially detailed. The critical information dealing with employment location, nature of the work and nature of the company must be well documented in the application.
• Expect a Request for Evidence and prepare your documentation in advance so time is not wasted in gathering information you know you will need to submit.

Until USCIS finds more effective methods to uncover fraud, the law abiding companies that fit the profile will have to pay the price for the sins of those that perpetrate fraud. No, there is no fairness in this policy.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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There is no debate that a comprehensive immigration reform is long over due. We must make adjustments and modernize our immigration legal system to remain competitive in the 21st century. AILA yesterday published a Talking Point calling for the elimination of the employment based immigrant visa backlog. The argument they made is clear and concise. We can not attract the best talent and stay competitive, if it takes up to seven years to issue a green card.

In today’s employment immigration system, a green card application is filed while the candidate is in his twenties to receive approval in his thirties. By the nature of the process, we end up stifling entrepreneurial spirit rather than encouraging it. The foreign national is restricted in undertaking an intellectual or financial chance due to the uncertainly and the restrictions imposed by the pending application.

Most will agree that creative and productive talents are impatient by definition. The most talented and capable individuals will not wait a seven year period for a green card to come through. Consider the case of Sanjay G. Mavinkurve, featured in NY Times. Sanjay, an Indian national, is one of the key engineers that developed Facebook. Sanjay moved to Canada because the lengthy immigration process in the U.S. prevented him from joining his wife while the application is pending. Sanjay’s story truly demonstrates the failure of our immigration system. The fact is there are many individuals who have left the U.S. for similar reasons as Sanjay.

While producing more homegrown talent is a priority, the truth is we must remain most hospitable to talents regardless of their origin. To that end, we must eliminate the immigrant visa backlog. AILA appropriately advocates that we should recapture all family based and employment based green cards not used in prior years, exempt family members form the current numerical limitation imposed on employment immigrant visas, and provide for appropriate exemptions for U.S. graduates in the field of science, engineering and mathematics. Finally, it calls for implementing a market based cap system that more appropriately addresses our need to remain more competitive.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Comprehensive Immigration Reform

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There is no doubt USCIS is tightening its reviews of H-1B petitions. This blog is the fourth of a series about Requests for Evidence. For reference the prior blogs are listed below.

• H-1B Visa RFE – Sound Advice – Part I
• Request for Evidence, H-1B, Employer Information - Part II
• H-1B attorney on H-1B RFE’s, Part III

In this blog we will explore what USCIS looks for when it inquires about that nature of the relationship between the beneficiary and the petitioner. The nature of the relationship between the employer and the employee is one of the most straight forward inquiries in H-1B petitions, unless the employer/petitioner provides consulting services, outsourcing services or acts as an agent rather than an employer.

In a traditional employment relationship, the employee reports to the employer’s work location where he or she performs the professional services of the company. For example, a civil engineer reports to an engineering firm where he performs employment tasks of reviewing plans and preparing design documents for the employer. The supervisor is generally in the same office engaging the employee daily. This type of traditional relationship does not pose a challenge since it fits neatly within the conventional sense of an employer- employee relationship.

Continue reading " Tougher H-1B Requests For Evidence, Part IV " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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