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”" »

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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." »

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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.

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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" »

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The Wall Street Journal reported that a new study by Professor Jennifer Hunt of the University of McGill concluded that immigrant professional workers who came to the U.S. on visas such as H-1B, J-1 & F-1, outperformed its American peers in the areas of patenting and publishing books and papers. The H-1B visa is a specialty occupation visa for professionals and has recently come under fire with claims that it replaces American workers. Recent legislation restricts this type of visa for companies receiving Troubled Asset Relief Program (TARP) funding. The J-1 visa is an exchange visa program and is often used by universities to attract graduate level researchers and medical professionals. The F-1 visa is a student visa for foreign nationals to attend full course of study at U.S. colleges and universities.
The study deduced that businesses and institutions are able to draw the type of immigrants that surpass American born workers and end up earning more, by up to $5.00 per hour. While Professor Hunt concluded that “Foreign education commands a lower wage return,” those that come in younger and attend U.S. colleges typically will have similar or higher earning potentials than American workers.

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Senator Chuck Grassley of Iowa and Senator Dick Durbin of Illinois intend to introduce the H-1B and L-1 Visa Reform Act aimed at improving the Department of Labor ability to crack down on abuses in the H-1B and L-1 visa program. The bill appears to be enforcement focused and similar to prior bill that was rejected last year.
• It would require employers to make a good faith effort to hire American workers prior to filing H or L visa petitions,
• The proposed bill would add restrictions or freeze on companies with more than 50% of its workforce is H or L visas holders.
• It would expand powers of the Department of Labor to investigate employers suspected of violations.
• Finally, it would establish a process to audit foreign companies hiring L-1 visa workers to insure that such companies are not using the L visa program to circumvent wage safeguards placed on the H-1B program.

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

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In my prior blogs Part I & Part II on the same topic, we took on the H-1B RFE (Request For Evidence) question addressing different aspects of this growing area in immigration law and an escalating area of concern for many. In this blog, I will address the H-1B RFE when its inquiring, at least in part, about the beneficiary. The major issues typically inquired upon are:
• Length of time in H-1B or L-1 status
• H-1B recapture issues
• H-1B beyond six years
• Educational background of the beneficiary
• Status of the beneficiary

The above list is by no means exhaustive and one should be aware that there are other issues that can come up that typically require an experienced H-1B attorney to help address them.

Length of time in H-1B or L-1 Status: This is a reasonably straight forward issue but one that generally generates RFE’s if it is not presented properly. The general rule is that the beneficiary can only get six years of total H-1B time. Time spent on L-1 visa will count towards the six year limit. Unless the total time on both statuses is clearly articulated with evidence in the petition, expect an RFE. If the beneficiary had an intervening other non-immigrant visa status, the time calculation should be clear on the intervening time. Off course the issue of who is subject to the H-1B numerical limitation cap and who is not, is relevant here but should be the subject of a separate future blog to be given appropriate treatment.

Continue reading "H-1B attorney on H-1B RFE’s, Part III" »

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In my last blog we discussed H-1B RFE’s in general. In this blog we will discuss a component of an H-1B Request for Additional Evidence (RFE) relating to requested information pertaining to the employer. The list of documents requested from the employer is typically extensive. A detailed RFE request can contain some or all of the following documents request: Contract Agreement, Statement of Work, In-house Project Description, Itinerary of Service, Form 941, Federal Quarterly Wage Report, State Quarterly Wage Reports, Federal Income Tax Returns, Payroll Summary for all employees, W-2 & W-3 Wage Tax Statements, Organizational Chart, List of H-1B Employees, tracking number for every case, date of birth and title of each H-1B employee, Photographs of Business Premise, Business Licenses, Article of Incorporation, Lease Agreement, Floor Plan, Telephone Directory Listing all employees, Evidence of appropriate zoning for the office, list of all H-1B filed, list of all H-1B’s withdrawn, and more...

So why USCIS will request such an exhaustive list of documents form Employers in an H-1B RFE? The short answer is frustration. Based on a study published last year by USCIS, approximately 20,000 petitions submitted yearly are either fraudulent or contain technical violations. Approximately 88% of these petitions go undetected. USCIS, in an attempt to improve its percentage, requests extensive document list from certain profiled petitions. USCIS will compare some of this information to the petition filed and will use public source material to look for discrepancies. Of course a poorly prepared petition with missing or inconsistent information will almost always trigger an RFE or a denial subsequently. USCIS utilizing Chi-Square test for statistical significance in its studies identified fraud indicators in H-1B petitions. The indicators are as follows:

Continue reading "Request for Evidence, H-1B, Employer Information - Part II" »

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Now that we have filed our H-1B visa petitions, we are awaiting the dreaded lengthy Requests for Evidence (RFE) from USCIS. We will enjoy a relative peace for a short time until the H-1B visa RFE’s are mailed to us containing lengthy boilerplate inquiries and additional extensive document requests. Any employer or attorney who has filed more than a handful of H-1b visa petitions has seen these RFE’s. One of my Columbus, Ohio clients complained to me that he finds the RFE’s irritating not only because they are lengthy, but because they are intrusive and ask questions that are not relevant most of the time. For me they are irritating because they ask the same question from the same employer over and over. Going back few years the number of RFE’s issued were substantially less. Now, we see them more often. My advice is to get organized. From my experience, the H-1B visa RFE’s usually inquire about four broad categories.

1. Information pertaining to the employer.
2. Information pertaining to the employee
3. Information pertaining to the relationship between the employer and the employee
4. Information pertaining the job opportunity.

First of all, you should be aware that there is considerable overlap and interplay between the categories. For example if the RFE is requesting whether the job is a specialty occupation, you know the inquiry is related to the “job opportunity.” But also be aware that the nature of the employment arrangement is also in question as well. In outsourcing situations, for example, evidence pertaining to the specialty occupation will not be satisfactory if it comes form the employer/petitioner. USCIS expects that such evidence to come form the end client where the employee will be located. Also matters related to the length of the assignment become relevant. Does the end client have work for the H-1B employee for the duration of the H-1b visa? This has to be addressed within the context of the specialty occupation inquiry.

We will address each of the four categories in more detail with examples in the upcoming blogs.

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USCIS confirmed today that they are still accepting petitions for both the H-1B cap and the master’s cap categories. They estimated that they have received half of the H-1B Cap petitions and most of the master’s cap petitions needed to reach the cap in both categories.

Regarding cases filed under the premium processing program, USCIS will either adjudicate them or issue requests for evidence no later than April 22, 2009. USCIS will begin issuing receipt notices for H-1B cap cases as of today, although they have acknowledge that they have inadvertently issued some valid receipt notices earlier.

This year would mark the first time the 20,000 H-1B US masters cap will be reached prior to the 65,000 H-1B cap. The latter only requires a bachelor degree or equivalent, whereas the master’s cap requires US masters degree. This is consistent with the current difficult economic conditions where the more educated and more skilled are better able to find jobs.

USCIS has experienced this year more than 60% drop in H-1B petitions from last year. During the same time, last year USCIS received 163,000 petitions that competed for the available 85,000 visas using a lottery system. This year the best estimate is that USCIS received approximately 50,000 applications leaving approximately 35,000 visas available for fiscal year 2010.

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If you are somehow connected to the H1b visa program, whether you own or are employed by an IT consulting company, or whether you are a practitioner in the field, you cannot but help notice the increased investigative and prosecutorial efforts brought against such companies. There were 11 arrests recently in New Jersey involving a company called Vision Systems Group, Inc. for visa violations. The allegations include erroneous methodologies in the computation of prevailing wages for H1b workers. Another worthy article involving fraud allegation against small IT companies is what occurred on February 12, 2009 whereby the FBI and Immigration Officers arrested the 2 owners of a company called Worldwide Software, Inc. located in Iowa. The allegations against the aforementioned company owners include “misuse of immigration documents.” Even though the American Judicial System assumes one to be innocent until proven otherwise, such recent indictments and media coverage most definitely condemns these companies’ future viability. Lou Dobbs has also gone beyond to condemn the entire H1b visa program that it hurts US graduates from getting a job.

I have recently written a blog post relative to the enormous recent USCIS increase of Requests for Evidence (RFE) issuance against smaller IT companies who sponsor H1B visas. These RFEs have a debilitating effect on such smaller IT firms’ ability to hire additional H1b visa workers. A second blog post issued by our firm involve a sudden increased in USDOL H1B audits and LCA compliance investigations levied against small IT firms as well. Hence, if you summarize the recent governmental actions against small consulting companies, you come up with the following list:

1. What used to be a paperwork infraction in the H1B program is now being considered a criminal violation.

2. Smaller IT companies are being singled out and challenged by the USCIS in the form of cumulative paperwork inquiries aimed at frustrating their ability to hiring H1b visa workers even though such companies may have documentary proof that they are actively seeking US workers as well. These frustrating efforts come in USCIS issuing extensive requests for additional information seeking irrelevant information such as whether or not the IT Company occupies a building having proper zoning designation, etc.

3. Smaller IT companies have also been the target of increased Department of Labor audits resulting from complaints filed by “credible sources” relative to H1b practices.

These trends have few things in common: 1) most of these companies are information technology consulting firms owned by foreign individuals; 2) in my opinion, most of these alleged violations had occurred since the dawn of the H1B visa program; and 3) the recent increased enforcement activities will have the effect of increasing the legal cost of smaller companies to the point of either their extinction or abandonment of H1b visa sponsorship altogether. So you might ask, what is Uncle Sam really up to? Does Uncle Sam have something against foreign owned IT consulting companies? The logical answer is No. Then what is really going on?

Continue reading "Is US Government After Small IT Consulting Firms Who Sponsor H-1B Visas?" »

Posted by Gus M. Shihab | Permalink | Email This Post

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The US Senate has passed an amendment to the legislation allowing the federal government to provide Troubled Assets Relief Program (TARP) funds to financial institutions which may restrict or eliminate their ability to sponsor foreign workers under the H1b visa program. The aforementioned amendment would automatically cause a financial institution which may receive TARP funds to become an "H1b Dependent Employer" whether or not they possessed 15% H1b visa employees on their payroll. Such a notion will force these financial institutions to make certain promises if they wished to hire an employee on H1B visa. These promises include, inter alia, that it had not displaced a US worker 90 days before and after the filling of a Labor Condition Application (LCA) within the same occupational classification filled by the H1b alien. This amendment may very well cause these financial institutions from abandoning hiring H1b visas as many of them have experienced layoffs. I predict that such legislation while appearing to have a "protective" facade of the welfare of the US worker, it in fact will not limit the hiring of H1b workers generally and will as a matter of fact cost these financial institutions more in locating competent staff during some of the most challenging economic times.

Unfortunately, this is a political statement by the US Senate which has little to do with restoring confidence in the market place or to solve the growing unemployment rate currently experienced by the US labor force. This amendment is nothing but a political statement by the US Senate to appease special interest groups who are opposed to the H1b visa program. The general populous has a mistaken belief that H1b visa workers are the cause of the high unemployment rate experienced by the US. The truth of the matter is that H1b visa workers do not receive less wages; to the contrary they cost the employer a great deal of resources, both monetarily and otherwise to secure their employment. First employers wishing to employ foreign workers on H-1b visas must first pay prevailing wages; such employers must also pay legal fees as well as exorbitant governmental processing fees ( which could be as $2,320 for each H1b worker) to process their cases; in addition, employers hiring H1b workers also incur into other soft costs associated with record keeping requirements. Since it actually costs more to hire workers under the H1b program, it follows that employers will actually only do so when they are unable to find competent US workers to fill these positions.

Continue reading "Tougher H1B Restrictions on Companies Receiving TARP Funds Means Improved Business Prospect for Small Consulting Companies" »

Posted by Gus M. Shihab | Permalink | Email This Post

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Our law firm is delighted to announce to our clients nationwide that it was nominated for the 2008 TechColumbus innovations award in the category of "outstanding product" for its creation of the immigration case management software called VisaTurbo. We are also happy to state that our product was also chosen as a finalist in the competition which drew more than 160 astute competitor companies all having less than 50 employees.

In 1999 brothers Gus and Sam Shihab, the owners of a law firm immigration our law firm embarked on a project for designing and launching online case management software which would propel them forward ahead of their peers and provide unprecedented quality legal services. The product was called VisaPlanner which was launched in 2002. VsaPlanner is the predecessor of the current software called VisaTurbo. Currently VisaTurbo includes more 20,000 record entries, documents and notes pertaining to their client case processing status.

Being immigrants themselves, Gus and Sam Shihab are two lawyers among 10,000 other immigration lawyers nationwide. They realized that the key to success in this practice is to be close to their clients and this software has been successful in achieving this goal. Few law firms have undertaken a similar project and those include some of the largest immigration law firms in the country. About the same time, other software providers have designed similar products that are now for sale to immigration law practitioners. Holding engineering degrees from The Ohio State University, Gus and Sam employed a full time in-house software engineer Kevin Dagostine who wrote the program under their constant direction and supervision. Gus and Sam Shihab provided instructions regarding architecture, software functionality, deliverables, and look and feel. While other software development companies who designed similar products employ dozens of software engineers and programmers to design their commercial product, our law firm has been successful in simultaneously and independently designing an identical product with 70% functionality with their current team.

Continue reading "Columbus Immigration Lawyers Nominated Finalists in Innovations Award Competition for Outstanding Product Which Processes H1B visas" »

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What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their visa attorney get the best results for them. I have a client in Washington, DC once tell me, please give me a list of your most important items that would help you get my case approved.

As an H1b attorney who filed more than 1000 petitions in my career, there are 3 main issues in mind that would determine whether an H1b petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.

Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities. Depending on the size of the employer, the USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H1B petitions for their prospective employees. If you are a large employer, chances that USCIS is comfortable about the size of the organization and will trust that the employer does have the ability to pay the wages of the employee and that it also passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.

Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentations to submit to create this comfort level depending on the circumstances. These additional documentation include, but are not limited to, the existence of in-house projects, business plans, contracts for work, financial information and many more. When it comes to smaller employers, proper planning must be undertaken as the days of USCIS rubber stamping H1B visas are over. In addition, it is important to note that USCIS is now keeping a keen eye at smaller employers as there is a feeling that such smaller employers do violate the regulations frequently. Smaller employers are encouraged to plan their H1b petitions with competent H1b lawyer, one who has many years of experience in H1b petitions in order to assure that contradictory information is not filed. This is what our firm has preached for almost a decade: get your story right before the USCIS! This is concerted effort between H1b immigration lawyer and the employer jointly.

Continue reading "H1B Lawyer on Filing Approvable H1B Petitions" »

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As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an “agent.”

Although an “agent” technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer’s business.

In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a “worksite” other than the petitioner’s offices. USCIS charges such petitioners as a “staffing agencies” and requires a detailed itinerary of activities of the H1b beneficiary.

Continue reading "USCIS Increasing RFEs Against H1b Petitions Filed by Small IT Companies" »

Posted by Gus M. Shihab | Permalink | Email This Post

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Employees are the building blocks of any successful and prosperous company. Such successful companies know that they should hold on to their employees during hard times as their employees held the company together during good times. A client of mine located in Michigan recently informed me that he has recently requested a 10% wage reduction from all of his employees. Since the company was unable to do so for the H1B visa employees, as the law requires the employer to pay H1B holders the higher of either prevailing wages or actual wages, the employer turned to me for advice. I advised the employer to convert the H1b visa holders to part time and re-petition the USCIS to reduce their hours, and hence, their compensation.

Employers are able to employ foreign nationals in full or part time positions. Thus, this is powerful tool that can be utilized by employers who are concerned about keeping their staff during financial challenges it is facing. For instance, employers may be able to concurrently petition H1b visa employees who hold full time H1b employment with other employers, in a part time H1B visa in their own company. The H-1B visa is concurrent in the sense that the employee has an H1B visa status with more than one employer simultaneously.

Alternatively, the employer could petition an H1b visa employee to work for it on part time basis who would not not necessarily maintain full time H1B visa status elsewhere . In essence this would become a non-concurrent part time H1b visa petition. Example of this include converting an H-1B visa employee within the same company from full time to part time H-1B status or or by transferring an H-1B visa employee from full time status from another company to part time H-1B visa status into the company.

Continue reading "H1B Visa Lawyer on Part Time H1B Visas During Difficult Economic Times" »

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As immigration lawyer, I am presented with these questions frequently: what are the circumstances that would justify extending an H-1b visa beyond the maximum period allowed by statute? Or how can I extend my H1b visa beyond six years?

Congress dealt with this issue by passing legislation in 2000. The USCIS subsequently published several “guidance memoranda” in which it created criteria for extending H-1B visas beyond 6 years. In order to understand these criteria, I have created all the scenarios which will cause USCIS to either approve or deny an extension beyond the 6 year limit.

• Brief History

Prior to the enactment of The American Competitiveness in the Twenty First Century Act of 2000 (AC21) foreign nationals present in the US on H-1B visas, and who could not reach the point of I-485 in the permanent residence process, simply had to pack their bags and go home at the conclusion of the six (6) year term. The labor certification process (which forms the basis for the majority of permanent residence applications) had been riddled with protracted and overlapping administrative processes that took years. Such delays often caused aliens on H-1b visas to reach the maximum six (6) year limit and depart the United States prior to completing their permanent residence process. For those lucky ones whose employers were willing to continue the permanent residence process despite their departure, they were able to return back to the US after an interruption caused by the aforementioned six (6) year limitation.

The departure of these H-1B visa holders after six years of service working in their field in the US, created in my opinion, a lost opportunities for the foreign nationals, the employers and for the US at large. Many employers forfeited the services of highly trained and skilled employees as well as their investment in visa sponsorship, extensions and in applying for the permanent residence processes.

Congress realized this problem and in 2000 it introduced AC21 which sought to allow H-1B employees to extend their status beyond the maximum allowable six (6) year limit, if they reached certain stages in their permanent residence application processes.

• Permanent Residence Process

The most popular method of applying for employment based permanent residence is through labor certification, now called PERM. A PERM application is filed electronically before the US Department of Labor (USDOL) and it is intended to assure that the permanent employment of a foreign national does not displace equally qualified US workers. Once this process is complete, the employer must then file an immigrant petition for alien worker (I-140). Currently, employees are able to concurrently file an application for permanent residence (i-485) along with the I-140 petition. The I-485 application is the last step in the permanent residence process and its approval results in the issuance of permanent residence, also known as green card, to the foreign national.

Congress also created a quota system which assures that America continues to be a cross section of people from all nationalities. Hence, it instituted a “per country” limitation system to assure that nationals from one country do not become proportionally more populous in the US than others. This per country quota system favors foreign nationals who have higher academic or professional achievements coming from the same country. For instance, currently nationals of India have a significant backlog in the permanent residence process due to the proportionally higher number of Indian nationals who have applied for immigration when compared with other nationals. Within that specific Indian per country limitation system, those whose permanent employment requires the attainment of higher educational or professional achievements will receive their permanent residence status sooner. This is what is referred to as the employment based immigration preference system also known as EB-1, EB-2, and EB-3.

The Visa Bulletin, issued monthly by the US Department of State, publishes the dates that allow certain applicants to move forward with their permanent residence process based on the start date of their immigration process, also known as the priority date.

• H-1B Visa Time Recapture:

One of the most common ways to extend H visa beyond what might seem as a six year limitation is to recapture time the foreign national spent outside the US. So long as absence was not for brief vacations, the law allows the foreign national to precisely spend six (6) years in the US on H-1B visa. Hence, if an alien took a leave of absence for an extended period of time, he or she could request that such time be “recaptured” and the alien could request that his H-1b visa status be extended for those missed days. Another manner in which the alien could recapture lost time is through applying for an extension of the H visa to recover time between the initial issuance of the H-1b visa while the alien was outside the US, and the time that he or she enters the US on H status. For instance, if the H-1b visa approval was issued for a start date of October 1, 2003, but the alien, due to visa processing or other reasons, first enters the US on February 1, 2004, the alien is entitled to request a 4 month extension to be tacked on beyond September 30, 2009.

• Extension Beyond Six (6) Years When Labor Certification is Filed

1. PERM Application Pending For More Than One Year: If an alien has a pending PERM application which had been filed by his employer 365 days or more prior to the alien reaching 6 years on H-1B visa, then the alien is entitled to successive one year extensions. This is true even if the employer who filed the original PERM application is not the same employer who now seeks to extend the H-1B visa beyond six years.

a. Example: Employer “A” files a PERM application for Joe Alien who at the time of the application has already been in H-1B status for 4 years and 9 months. Six months after the filing of the PERM application, Joe Alien transfers his H-1B visa to Employer “B.” One passes after the filing of the PERM application and it remains pending. Employer “B” now uses the fact that there is still a pending PERM application which Employer “A” filed for Joe Alien to request extension of Joe Alien’s H-1B visa status for another year to continue to work for Employer “B.” Under this scenario, the USCIS will approve this extension beyond six years even though It was Employer “A” who originally filed the labor application and Employer “B” filed the extension.

Continue reading "H1B Attorney Untangles the Convoluted Rules of H-1B Extensions Beyond Six Years (7th Year H1B Extensions): " »

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In order to file for the extension or transfer of H-1B visa status, the alien must prove have an extension or transfer petition filed prior to the expiration of the alien’s current status and the alien must have maintained status throughout. Maintaining valid status means that the H1B employee must be paid at all times by the petitioning employer.

There are many unfortunate situations which might cause an H-1B visa holder to fall out of status. These situations include those who have done so inadvertently, those who have not been paid by their employers for work done, or those who have filed complaint against their employers and who have subsequently received retaliatory treatment by their employers. H-1B holders are, in many ways, at the whim of the employer and are very vulnerable. That is why Congress has enacted various legislation to protect those workers who had fallen out of status through no fault of their own. Please bear in mind that there are complex legal issues involved in re-instating status to one who, through no fault of his own, had fallen out of status which requires the assistance of competent legal H1b lawyer.

I have seen these issues more frequently recently out of our offices located in Columbus, Ohio and Cleveland Ohio. The same applies for our Washington, DC office. But most frequently, I have had a number of clients visit us in our Michigan offices to also find ways to re-instate their status.

Here are the situations that might occur causing an H1B visa holder to fall out of status thereby restricting his or her ability to change or extend her H1b visa with another employer:

• When H-1B Visa Holder Falls Out of Status Due to Inadvertent Technical Violations:
There are myriad situations where an H-1B visa holder fell out of status through no fault of his. An example of this is where an H-1B visa employee moves from one job to another and the employer fails or neglects to file an H-1B visa transfer petition with the USCIS. Another example I have seen lately, alien moves from job to another unbeknownst to him that the immigration lawyer negligently files an H-1b visa petition requesting consular processing instead of transfer. In both of these scenarios, the employee H-1B visa holder had done nothing to cause this confusion and the fact that he is now out of status. Sometimes, the inadvertence is not discovered for several months after the fact.

Continue reading "Extending or Transferring H-1B Visa When Alien is Out of Status" »

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One of the most concerning moments in my practice as an immigration attorney, or as some call me: H1b lawyer, is when my client falls out of compliance without even knowing it. Because employment in general is a fluid matter, I mean by that employees come and go continuously; a company which employs foreign nationals could become an H-1b Dependent Employer and not even know it. Failing to comply with the regulations if an employer becomes H1b dependent could could be cost the payment of penalties if the US Department of Labor ever audits the employer.

Our firm services employers nationwide, however, they usually meet with me in one of my offices located in Columbus, Ohio, Cleveland, Ohio, and Southfield, Michigan or in the nation’s capital, Washington, DC. I am on a constant communication with my clients to assure that they continue in compliance with the regulatory directives when it comes to the employment of foreign workers. It is important for an employer who regularly employs foreign nationals to keep open communication channels with a competent immigration lawyer. This communications relative to the hiring, terminating and the resignation of the foreign national on H-1b visas.

The immigration attorney could predict when an employer becomes H1B dependent which then requires him to undertake additional measures to protect the employer. For instance, the regulations at 8 CFR §214.2(h)(11)(i) require the employer to “immediately notify the Service of any changes in the terms and conditions of employment of an H-1B employee.” such changtes include when an H-1b visa employee resigns or is otherwise terminated. By having such an open relationship with an H1b lawyer, the attorney should be keeping a running tally of the number of H1b workers present on the employer’s payroll at any given time. Why is this important? It is because the ratio of an employer’s H1b employees can cause to unwittingly take on additional legal obligations.

• How Does An Employer Become H-1B Dependent?

Most of the time, the determination is rather simple and arithmetic:

- 25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs;

- 26-50 FTE employees, including 13 or more H-1Bs; and

- 51 or more FTE employees, including at least 15% H-1Bs.

Continue reading "H1B Dependent Employers Must Maintain Relationship with Immigration Lawyer " »

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Recapturing H-1B time

The burden of proof is on the employee to prove that time is eligible to recapture. It is crucial to keep accurate records of all entry and exit dates into and from the United States. If passport stamps are not readable or only partly readable, all dates should be separately notated and recorded. USCIS will not make these calculations when it adjudicates the petition unless instructed to do so. If you are unsure about how to do this call us at any of our offices in Columbus, Ohio, Cleveland, Ohio, Southfield Michigan, or Washington, DC.

File Labor Certification as soon as possible

The worst scenario occurs when an employee on H-1B status nears the end of the allowable six years without any legal means of attaining an extension. Extensions beyond the statutory six year linit are all based on having a filed or approved labor certification or I-140, so it is important to begin this process as soon as possible. Six years may seem more than an adequate period of time, but any number of complications could arise that delay filing.

In addition to starting the process, it is important to follow through requests for documentation such as experience letters. Documents such as these can be time consuming to procure so promptness and follow through are important

Continue reading "H1B Attorney Advice Bits For Employer and Employee" »

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While driving to his office one morning, Gus M. Shihab, an H-1B visa attorney whose firm covers four cities in the US, Gus focuses on his tasks for the day. He and his longtime partner and brother, attorney Sam Shihab, travel to all four of their firms’ offices in Columbus, Ohio, Cleveland, Ohio, Southfield Michigan, and Washington, D.C. to meet with clients. On this particular morning, Gus is thinking to himself: “as promised, today I must file 10 H-1B visas.”

Gus’ offices are located in the prestigious central business districts of their respective cities, and the one in Columbus, Ohio, is no exception. Located in the Capitol Square Office Tower, overlooking the bustling location of the State Capital Building, and connected to the Hyatt Regency, Gus’ office is located on the 15th floor. Gus walks into his firm and proceeds to his office, greeting his assistant Teri on the way. Gus changes his voicemail greeting daily. He has religiously done so for the last 10 years.

“First things come first,” he whispers to himself. He walks over to the break room to get a cup of dark roast coffee. On the way, he sees Zachary and Kristen, two competent paralegals in the hallway. Gus says “guys, in my office in 5 minutes.” Zachary and Kristen look to each other and nod with great attention. They know when Gus has something important on his mind. They also know the type of lawyer he is: though he enjoys his work, he takes it very seriously.

Exactly five minutes later, a meeting is convened in Gus’ office. He looks at Kristen and Zachary and says “we have the task of filing 10 H-1B visas today for Sunrise Central, Inc. and for Zoozoo X Limited, LLC.”

“I received all the forms back today from the clients. I am ready to file these cases on behalf of Sunrise Central, Inc.” Zacchary proclaims. Kristen says “All are ready except for the equivalency evaluations on Zoozoo X Limited, LLC.” Gus exalts “You two both have done a good job.”

“Let me make sure that you know what our main mission is,” he adds. Zachary and Kristen look at each other in exclamation as Gus sips his dark roast and looks at them intensely.

Kristen starts “we are an immigration law firm” and Zachary finishes “we do immigration filing on behalf of our clients.”

But Gus says “not exactly.” A moment passes. Then Gus inquires “run me through the activities that make up an H-1B visa case.”

Kristen says “O.K. We must collect data from the employer and employee.” Gus nods and Kristen continues. “Then we must review the proposed position description and make sure that it fits into the regulatory standards as a Specialty Occupation worthy of an H-1B visa.”

“We must make sure that the employee’s credentials are equivalent to a bachelor’s degree or better from an accredited US University, we research prevailing wages, and complete a Labor Condition Application. We then send the employer an internal notice to be posted at the ‘worksite,’” Zachary continues. Gus proceeds “…we fill the rest of the forms, put together public access file, etc., etc.”

Gus smiles big and says “but as a law firm, when have we truly done our job?” Zachary and Kristen look at each puzzled and look back at Gus as he continues. “Our job is not complete until we have represented our client.” At this point, Zachary and Kristen know that Gus is on to something. Gus says “we represent our client as a law firm when we show them how to avoid pitfalls in the H-1B visa program.”

Continue reading "One Day in the Life of an H1B Visa Lawyer" »

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Every year, thousands of students in F-1 status complete their education programs and wish to work temporarily in the United States on H-1B status. Between the time when these students complete their education programs and the time when they plan to begin working, many of them desire to travel abroad for various reasons, such as to vacation, visit family, etc.

As an H-1B attorney, the most common question is this: “I graduated from Ohio State University in Columbus, Ohio. My prospective Employer in Michigan filed my H-1B application. During the pending H-1B petition is filed, can I travel outside the US?"

It is the unofficial policy of United States Citizenship and Immigration Services (USCIS) to permit travel when the person has an approved H-1B petition and an approved application to change status from F-1 to H-1B. If the H-1B visa is still pending, a travel outside the US may cause the request to change status be denied. The H-1B petition will be approved but you must interview at a US embassy abroad before you can enter the US on H-1B status.

The F-1 foreign national should depart from and reenter the US prior to the effective date of the change of status and after the H-1B is approved. Your H-1B attorney will most likely advise not to travel on F-1 in the event the application to change status is still pending.

Despite the apparent benefits of the limited ability to travel, F-1 students should be warned against traveling due to other issues that may make travel difficult for them.

For example, in some cases, F-1 students who were approved for H-1B status have had their registrations erased automatically and in error from the Student and Exchange Visitor Information System (SEVIS). In these cases, the students’ F-1 status could not be verified at the border, despite having valid Form I-20 Certificates of Eligibility for student status.

Continue reading "Can I Travel While my H-1B Filing is Pending After Graduating From College?" »

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As an immigration attorney, I view my job as a partnership arrangement with my clients. Each non-immigrant visa that I process, be it an H-1B visa or otherwise, or a green card for that purpose, is truly a joint venture between myself and my client that I am servicing. Since we are coming up on the 2009 H-1B visa cap season, I believe that I should focus on describing the best possible partnership I, or any H-1B lawyer in our firm, could have with the employer and the employee; a partnership that would yield the best result for all parties concerned. In our Columbus, Ohio office, (the same goes for our Cleveland, Ohio, Washington, D.C, or Michigan offices) our clients utilize our online immigration case management system that we designed called, VisaTurbo to inform us about new H-1B visa cases. In other words, employers do not have to call our office to let us know that they need to process a dozen new H-1B visas, rather, they go into their secured accounts and add all of the necessary information about the identity of the prospective international employees that they would like join their company on H-1B visas.

From that point, the partnership begins. VisaTurbo sends the immigration attorney in our office an automated e-mail letting him/her know that a dozen of employees have been added for H-1B visa processing. The H-1B attorney assigned to the particular employer immediately contacts the prospective employees to provide them with their passwords to enter VisaTurbo and input all of the information that the H-1B visa attorney needs to get the H-1B Visa processed as quickly and as efficiently as possible. Here are the steps that the employee must carefully undertake in order for the H-1B visa attorney obtains the desired result:

1. Input Information in the “Profile”: The prospective employee is asked to populate the fields in the several tabs including: personal, contacts, visa stamping history, I-94, entry/exit dates, passport, education and employment biographic information. Please bear in mind the partnership approach our office deals with these types of visas: be precise, be complete, be efficient, and include as much information as possible. I always tell my clients “give me more information; don’t give me less.” Also please remember that the USCIS is interested in learning about your background and how you qualify for the H-1b position. Hence, this is the time for you to be as detailed as possible and provide as much descriptive profile as possible.

There is another reason why you should be as detailed about your background, if you had held H-1b visa or status within the last 6 years, you may not need to apply towards the 2009 H-1B visa cap and you could qualify for H-1B visa portability. Another example: if you had obtained your Master’s Degree from the US, you are eligible for the 20,000 visas set aside and hence will have higher chances to be selected in the 2010 H-1B visa quota. There are countless reasons as to why you should be descriptive, deliberate, accurate and informative. Now you can begin to see what I mean by partnership: I need your information to put together the best case for you, you need me to represent you before the US Department of Labor and US Citizenship and Immigration Service.

Continue reading "How Do I Help My H1B Attorney Get Me the Best Result?" »

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With more than 28 years of combined experience as immigration attorneys, our firm has represented hundreds of employers and employees in more than a thousand H-1b visas before the US Department of Labor and the US Citizenship and Immigration Service. Even though our offices are located in Columbus, and Cleveland, Ohio as well as Michigan and Washington, DC, we interact with employers all over the US. From this experience, I know that employers are always searching for the right H-1b attorney, one who can truly represent their interests as well as those of their employees in a cost effective as well as efficient manner. When it comes to H-1B visa processing, it is important to understand the role of effective H-1B visa lawyer in advancing the interest of the employer and employee. Here are some pointers that are important to keep in mind in choosing the right lawyer:

• Communication: A lawyer who is willing to put forth the time and effort to communicate with the employer and employees during the H-1b visa processing. Choose an H-1b visa attorney who is available and who is responsive.

• Public Access File: I have seen many H-1B visa attorneys who do not do so and rely on the employer to put these important documents together. I believe this is a dangerous trend especially if the employer is H-1B dependent. If you look at the regulations, you know right away that this function must be accomplished by the lawyer. Hence, it is highly advisable to choose an H-1B lawyer who is willing to put this important document together for the employer. Failure to prepare and keep the public access file may result in costly US Department of Labor investigations and penalties.

• Automation: It is highly important to make certain that the lawyer utilizes online case management software like VisaTurbo. VisaTurbo is secured software that was designed by our law firm for the dissemination and sharing of all documents coming in and out of the lawyer office from all parties concerned. Make certain that the H-1B lawyer you choose has such software as many others like VisaTurbo are available in the market.

• Experience: Processing of an H-1B visa requires experience with the needs of small and large employers. The smaller employer (less than 200 employees) is unique and USCIS has recently stepped up their Request for Evidence for H-1B visas processed by smaller employers. A lawyer who is experienced in processing H-1B visas for smaller employers can avoid many pitfalls that could truly delay the processing of H-1b visas.

Continue reading "Choosing the Right H-1B Visa Lawyer During the 2009 H-1B Cap Season" »

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We are pleased to announce that Shihab & Associates is updating its website, www.shihab.net. In order to implement state of the art features, it was necessary to go for a complete redesign. The site's new features and the fresh design, are easier to navigate and will contain new content that the old site did not contain. The added content aims to provide a more client-oriented description of immigration requirements and processes. Our hope is that we can make such information more easily accessible and understandable to our website visitors and clients, so that they can make an informed decision regarding immigration matters.

Our case management VisaTurbo is still accessible at www.visaturbo.com. Please enjoy our H-1B blog as we will continue to publish more H-1B related topics regularly.

Our contract information are listed below for your convenience:

Columbus, OH: 65 East State Street, Suite 1550, Columbus, Ohio 43215 Phone: (614) 224-2428 Fax: (614) 224-5080

Cleveland, OH: 600 Superior Ave. East, Suite 1300, Cleveland, Ohio 44114 Phone: (216) 479-7670 Fax: (800) 878-9405

Washington, D.C. 1725 I Street Northwest, Suite 300, Washington, D.C. 20006 Phone: (202) 373-1535 Fax: (800) 878-9405

Southfield, MI: 2000 Town Center Drive, Suite 1930, Southfield, MI 48075 Phone: (248) 351-5678 Fax: (800) 878-9405

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I have heard many of my clients who frequent our offices in Ohio, Michigan and Washington, D.C. and who sponsor H-1b workers attesting to the valuable contributions introduced by the employment of foreign labor. It is a myth that companies who employ foreign nationals do so to exploit cheaper labor. The truth is, employers who seek skilled foreign labor normally do so only after exhausting the available US labor pool and only in seeking scarce highly skilled workers. It has been documented that H-1b workers foster growth in the US economy by projecting new products and services into the market place.

With so many documented benefits, and as the national unemployment rate increases during the current downturn in the economy, the US Department of Labor (“US DOL”) Wage and Hour Division will be more apt to stepping up investigations of companies who regularly employ foreign nationals relative to H-1b violations. Yet with so many audits coming down the pike, few are able to find what my clients call a "competent Department of Labor audit lawyer."

The main mission of the Labor Department is to protect the interests of the US workforce and to assure that the employment of foreign nationals does not adversely affect the working condition of US citizens. If the reader of this article has never had experience with a Labor Department audit process also known as the LCA compliance investigation, LCA audit, or H-1b audit, he or she cannot begin to comprehend the nightmarish impact and disruption such process has on a business. It is a very difficult process for an employer to endure both financially and psychologically. The penalties and back wages are often six digits.

The thrust of the US DOL audit (H1b audit) is to discover employer violations of any of the regulatory directives implicit in the LCA attestations. Employers who sponsor H-1b workers know that these requirements are several. For instance, H-1b sponsoring employers must maintain a “public access file” containing certain records; the employer must also maintain updated approved LCAs when the “worksite” of the H-1b employee changes and must pay “prevailing wages.” The employer may not “bench” H-1b employees and is considered in violation of the regulations.

Continue reading "Effective Legal Representation is Key to Defending LCA Department of Labor Investigations (H-1b Audit or LCA Audit)" »

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Dear President-Elect Obama,

We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season’s greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.

Job Creation

One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.

There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.

Continue reading "The H-1B Visa Cap Should be Increased, An Open Message to President-Elect Obama, Part Two" »

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The deadline to submit H-1b petitions subject to the annual cap for federal fiscal 2010 is April 1, 2009. Many employers are playing a game of "wait and see" as news of high unemployment rates and "gloom and doom" on the economic front are on the front page headlines. But when one looks at the facts, some cities have much better outlook economically than others. Shihab & Associates, Co., LPA has offices in two of such "more fortunate" cities: namely Washington, D.C. and Columbus, Ohio. But because of the economic conditions of these cities, our firm has instituted a system to handle a large volume of H-1b visa filing for the April 1, 2009 H-1b visa filing.

MarketWatch online magazine has ranked all major US Cities in terms of business opportunities. Minneapolis-St. Paul was ranked first. Among the top cities for business opportunities, the following cities appear: Boston, Ma., Denver, Co., Washington, D.C., Richmond, Va., Charlotte, N.C., Columbus, Ohio, Nashville, Tn. tied with Dallas, Tx., and San Fransisco, Ca.

There is another good reason to believe that H-1b petition filing and hence employment of foreign nationals will remain strong in these cities. Unemployment rates issued by by the Bureau of Labor Statistics for these cities remain well below the national average. It is a known fact that unemployment figures for high tech positions are at least half of the national averages. For instance, the unemployment rate for Washington D.C in October 2008 is 4.1%. Based on the aforementioned ad hoc formula, the unemployment rate for high tech positions in Washington, D.C. is about 2%. It is therefore expected that these cities will offer high employment opportunities for US citizens and foreign workers alike. With such low unemployment figures for these more fortunate cities, it is very likely that H-1B visa petition filings for employers coming out of these cities will remain unchanged.

Continue reading "H-1B Petition Filing Predicted Unchanged for Washington D.C. and Columbus, Ohio Among Certain Other US Cities" »

Posted by Gus M. Shihab | Permalink | Email This Post

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Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading "The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One" »

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Notwithstanding the downturn in the economy, many companies and research institutions in cities such as Columbus and Cleveland in Ohio or even Detroit, Michigan continue to aggressively recruit engineers and scientists from all over the world. There is much demand for at least a temporary increase in the number of H-1B visas available. Legislation has been introduced, but rejected several times in recent years. Until Congress in Washington DC does something to alleviate the demand for more H-1B visas, employers seeking to hire temporary workers on H-1B status face much frustration over getting applications filed before the H-1b cap is reached. If you want to have a chance to file an H-1b petition this year, you will need to engage an immigration attorney by January and file your case before April 1, 2009. Students on Optional Practical Training should not wait until their status is close to expiration.

There are currently 65,000 H-1B visas available each year. In addition, there are 20,000 H-1Bs available for persons holding U.S. advanced degrees (e.g., master’s). Once the 20,000 visa cap is met for advanced degrees, persons holding advanced degrees can still obtain H-1B visas, but those visas will then be taken from the 65,000 cap.

Both H-1B caps described above have been reached quickly in recent years, usually a considerable amount of time before the fiscal year even begins and frequently within mere days after the beginning of the filing season. For example, for fiscal year 2008, the cap was met within two days of the start of filing, and approximately 6 months before the beginning of the fiscal year. Thus, timing is essential.

Timing the filing of applications is frustrating because in order to file one, a Labor Condition Application (LCA) must be submitted to the Department of Labor (DOL). An LCA certified by DOL or proof of filing the LCA must be submitted with the H-1B application. Per the LCA, the employer makes certain attestations regarding the position, its pay, and the working conditions of others similarly employed.

The problem is that both the LCA and the H-1B application must be submitted no earlier than six months before the intended date of employment. But since the cap has been reached so rapidly in recent years, employers, or their attorneys, have found the need to coordinate both the LCA and the H-1B filing substantially earlier to ensure that the H-1B application will be able to be filed before the cap has been met.

Failure to meet the deadline means that the application will be rejected and the employer will have to wait until the following year. For applications received by United States Citizenship and Immigration Services (USCIS) on the day on which the cap is met, a lottery system functions to randomly select from the pool of applications received that day a number equal to what is needed to meet the cap. All other applications received that day and after that day are rejected.

Employers should be aware that an interim rule was published by USCIS on March 24, 2008, prohibiting the filing of multiple petitions for the same beneficiary in an attempt to increase the chances of receiving an H-1B visa. In the case that more than one petition is discovered, all the petitions for the particular beneficiary will be denied and filing fees will not be refunded.

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As the H-1b filing deadline approaches, a frequent question I get is what the definition of Specialty occupation is. A typical question is: I have open positions in Columbus and Cleveland, Ohio, they will assist an engineer, is an Assistant Engineer job a ”specialty occupation? and can we file an H-1b visa petition for this person ?”

Nothing is more elusive than what is actually meant by that term. Some occupations, such as professors, accountants, or engineers, fall easily into the meaning of specialty occupation, but others are not so clear. For such occupations, many factors must be considered in determining whether specialty occupation work is involved.

“Specialty occupation,” as defined by the Immigration and Nationality Act, means an occupation that requires “a theoretical and practical application of a body of highly specialized knowledge,” and that the “attainment of a bachelor’s degree or higher” is usually a prerequisite to entry into the profession. It is not always clear that a particular position meets these two requirements. However, federal regulations give further guidance.

An employer can show that a given occupation is in fact a specialty occupation by showing one of the following:

(1) a bachelor degree or its equivalent is normally the minimum requirement for entry into the particular position;

This is per se evidence that the position requires “a theoretical and practical application of a body of highly specialized knowledge.”

(2) such a degree is commonly required in the industry in similar positions and in similar organizations, or the position in question is so complex or unique that it can be performed only by an individual with a degree;

The employer can search job-posting websites and provide copies of advertisements for similar positions in other organizations requiring a bachelor’s degree.

(3) the employer normally requires a degree or its equivalent for the position; or

The employer can provide past advertisements for the position or similar positions, and evidence that current employees in those positions meet the degree requirements.

(4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

A good resource to consult when considering the nature of the duties of a given position, as well as whether a bachelor’s degree is the normal minimum requirement for entry into the position, is the Occupational Outlook Handbook (OOH). The book is compiled by the U.S. Bureau of Labor Statistics and is considered authoritative for H-1B purposes; it is revised every two years.

Employers should note that a position will not necessarily be held to be a specialty occupation merely because the position’s title is one of an established specialty occupation or because the employer shows that it always requires a bachelor’s degree for the position. A description of the duties related to the position must be submitted with the evidence and the reviewing immigration officer will probably find the corresponding occupation in the OOH, without regard to the title.

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I received a phone call recently from one of my clients in Columbus Ohio who was exited about Obama’s choice for DHS Secretary. Its true President-Elect Barack Obama’s choice for Secretary of the Department of Homeland Security, Arizona Governor Janet Napolitano, is a strong advocate of increasing the number of H-1B visas available. Although she cannot raise the H-1B cap herself, Ms. Napolitano’s appointment to the post would give her some ability to streamline the H-1B process through changes in regulations and would give her position on H-1Bs significantly more weight. Obama’s decision to nominate Ms. Napolitano demonstrates his understanding that current H-1B policies—and immigration policies in general—are inadequate and reform is needed.

Ms. Napolitano sent a letter in September of 2007, along with 11 other governors, to congressional leaders urging an increase in the H-1B cap. The letter stated that the nation is facing a “critical shortage of highly skilled professionals in math and science to fill current needs.” It then warned that “until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country; and therefore need to ensure the increased availability of temporary H1-B visas, and permanent resident visas (green cards).” Opponents of increases in H-1B visas claim that such a change is unnecessary and even hurtful to U.S. workers. They say IT companies only use the H-1B visa as a way to hire cheaper and younger labor. I disagree.

Currently, the base cap set by congress on H-1B visas is 65,000. There are exemptions from the cap for certain people, such as those who are renewing their visas, those who work at universities and some research institutions, and up to 20,000 of those holding a master’s or higher degree from U.S. universities. Legislation introduced in the U.S. Senate in April of 2008 would have increased the cap from 65,000 to 115,000 for fiscal years 2009 through 2011, and increased the exemption for possessors of U.S. master’s degrees and higher to from 20,000 to 30,000. It remains to be seen how the new Administration and Congress will work together to effect long-awaited change in immigration policies.

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

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We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals. When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another visa category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued. Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work visa categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let’s discuss other visa scenarios that I have been able to implement for my clients.

A. Basic requirements for the H-1b Visa Program:

1. Labor Condition Application Attestation: An employer must attest, through the filing of a Labor Condition Application ("LCA") that the H-1b visa employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b visa dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.

2. Filing of the H-1b visa Petition: The filing of the H-1B visa petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b visa petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.

3. Filing Fees: The employer must also pay certain filing fees: The H-1b visa program is the only non-immigrant visa type that has its own filing fee. They don’t come by cheap.

4. Numerical Limitations: There only 65,000 visas given annually to H-1b visa holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master’s degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.

B. Alternatives to the H-1B Visa Program:

Continue reading "H-1b or Not to Be Asks The Employer..." »

Posted by Gus M. Shihab | Permalink | Email This Post

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People like to speculate. So do I. But I believe my speculation is an educated one. When it comes to increasing the H-1B cap, regrettably I do not foresee this in the near future. I read recently several news sources which predict we will see an increase in the H-1B cap early in an Obama administration. One example is an article in Computerworld entitled Why Obama may back an H-1B increase even in a recession.
I did a search on Obama and H-1B and could not find information that would give me confidence Obama will support an increase in the H-1B cap early in his administration. I do believe, however, that Obama will support an increase once the economy shows signs of recovery.

The issue of job loss was one of the hot topics addressed by Obama when he traveled through several key cities such as Columbus, and Cleveland in the battleground state of Ohio. The current economical/political condition and the various statements made by the President elect supports this view.

At best, Obama is neutral on this issue because he does not believe the H-1B cap increase will result in a positive impact on the bigger problems we are facing in the short term. Obama’s top priorities are the economy, jobs and national security. His priority is to create jobs for American workers, not for foreign workers, reversing the outsourcing trend. He also places priority on bringing about a comprehensive immigration reform as a component of national security concern. Unfortunately a general increase in the H-1B cap now does not directly advance or fit in any of his challenges. An H-1B cap increase at the present time may not even be reconcilable with bringing jobs home and reducing the escalating unemployment rate.

A more likely scenario is that Obama will play a wait and see role. There is some good news in my prediction to the high tech industry. Obama appears to attach high priority on solidifying our world dominance in innovation and engineering advancement. If Obama moves towards supporting an H-1B Cap increase early, we should anticipate it to be tailored to bringing foreign nationals that are highly skilled in engineering and other similar technological related fields.

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

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My clients in Ohio, Michigan, Washington, DC and all across the nation are always nervous about the visa interview. They have every right to be nervous although, most of the time, they are able to easily obtain their visa stamped after anxieties of much anticipated difficulties at the consular office. The truth is that an alien who truly values life in the US, knows all too well that things at the visa stamping interview may go wrong which can threaten his or her future in the US. Well, if you have an H, L or O visa and you are thinking about getting your passport stamped, you should be aware of several things that could impact the duration of your visa stamping process:

1. Security Clearance Procedure: These processes are instituted to protect the US from the transfer of technology sensitive information and any potentially adverse issue touching national security. They are called Visa MANTIS or DONKEY; the way it works is that following a visa application, the consulate would request various agencies in the US (FBI, CIA, Drug Enforcement Agency, Department of Commerce, Office of Foreign Asset Control, Interpol, the national criminal and law enforcement databases, the DOS Bureau of Non-proliferation, etc.) to check on any issues that might be of a concern. This security process can be as short as a week and can take on several months. It is important to know that citizens of certain countries are likely to experience longer delays than others. The Visa Mantis program is explained on the US Department of State website.

2. Procedure at the Consulate: Prior to making your visa interview, please check these important steps which are explained at a great details. Be precise and deliberate. Follow the instructions as they are very simple. Most if not all of my clients are very intelligent individuals and I truly believe that they can successfully master these simple steps.

3. Petition Information Management Service (PIMS) system: This is a document sharing mechanism that is truly useful which allows the USCIS and the Department of State to make certain documents available to the US Consulates. This system can be used only if your attorney sends a duplicate original petition when requesting consular processing, a change or even an extension of status. The additional duplicate petition is sent by the USCIS to the State Department’s Kentucky Consular Center (KCC) which in turn scans it and places it in the system database that can be viewed by the US Consulates. The US Consulate will then be able to easily check the petition and all of the supporting documentation online through PIMS and will not have to rely on the alien to bring in a certified copy of the filed petition. It is highly advisable to take advantage of this system.

Following these simple steps can make the stamping process so much simpler. Best of luck.

Posted by Gus M. Shihab | Permalink | Email This Post

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The H-1B reform debate is on again. Most believe that the H-1B visa program needs reform. Some lawmakers in Washington, DC are promising to introduce legislation to address this issue. The United States Citizenship and Immigration Services (USCIS) issued a report concluding that incidence of fraud in H-1B petitions are at an unacceptable rate of 13% and technical violations reaching 7.3%. Sen. Chuck Grassley has publicly released a statement reiterating his commitment to tighten H-1B and L visa program enforcement referencing his proposed H-1B VISA REFORM BILL TO PROTECT AMERICAN WORKERS introduced last year.

This debate will begin at a time of national economical crisis where 10.1 million Americans are currently unemployed according to the Bureau of Labor Statistics, US Department of Labor. Some states and cities, such as Detroit, Michigan and Columbus & Cleveland in Ohio, have not seen such high unemployment rates in years. The timing couldn’t be worse for such an important debate to be truly balanced and helpful. The fear of rising unemployment rate may trump the voice of reason in assuring that America has access to talent unavailable in the US to remain competitive in the world. Some raise the question as to whether USCIS can fully by trusted to issue a report regarding the H-1B program practices when they also have to justify collecting millions of dollars in fraud fees. Should this job be given to an outside agency not profiting from collecting fraud fee? Does USCIS feel pressured to find fraud in the program now that they are collecting a $500.00 fraud fee on each H-1B petition?

Continue reading "What is The Future of the H-1B Program ?" »

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

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If you follow H-1b news, you may have read about the increased Department of Labor (DOL) audit of companies that hire H-1b workers. It is clear now that The Department of Labor is conducting one the most extensive H-1b audit programs in recent history. One example is the GlobalCynex, Inc. audit. GlobalCynex Inc. is an information technology company located in Virginia, recently negotiated an agreement to pay almost $1.7 million in back wages to 343 H-1B employees after an investigation by DOL. DOL found that the company did not pay required wages from March 2005 to March 2007. It also found that the company charged H-1B workers training fees ranging from $1,000 to $2,500.

Having represented several clients in such H-1b audits, clearly DOL means business this year. In fact DOL has debarred ten companies from the H-1b program during the first half of this year alone. It has been our observation that the DOL's H1b audits have been very extensive in Michigan, Ohio and Washington DC. The consensus among H-1b dependent companies is that old models of doing business must change. Companies seem to be more interested in exploring methods to reform their practices and learn more about ways to avoid exposure to liability prior to paying the heavy penalties. Such newly revised business model that focuses on compliance and preventative measures as an integral part of managing the business is emerging out of necessity. However, before the transition is complete we expect to see heavier scrutiny by both USCIS and DOL in H-1b processing and enforcement.

Continue reading "Department of Labor H-1B Audits force companies to take second look at its own practices" »

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

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