Archive for July, 2009

The New iCert LCA

July 29, 2009

This blog is not about how the DOL took something that was instantly certified, so that business could move forward, and slowed it down. Yes, there’s much to gripe about there. Our H-1B process will become much slower, but then, why should the Government aid is speeding up business? We have slowed down as a nation, we are just standing and smelling the non existent roses.

No, this blog is about DOL’s use of the English language in the Prevailing Wage section of the LCA. Bear in mind this form is to be used not by attorneys, but mostly by Employers when they move H-1B employees from one location to another.

The first question (G-7) is Agency which issued Prevailing Wage.  Most Employers just look at the Online Wage Library which is maintained by Foreign Labor Certification Data Center. This is overseen by the Department of Labor.  Agencies are little orgs inside a Department. Just because the FLC Data Center does not end with an A, an US Employer should know its not an agency, right?  I don’t see why the question asked in the previous LCA (ie What is the source of the prevailing wage?) is not adequate.  Why ask 20 questions to get to the right answer? Wait, its probably a game.

Next (G11b) is this wonderful English crafted by the PhDs at the DOL. It says:

If “OES”, and SWA/NPC did not issue prevailing wage OR “Other” in question 11,
specify source

Yeah, this means If you used OES or Other, (AND you DID not use SWA/NPC) then write down the obvious answer FLC Data Center.

Can you use a comma before AND?

This reminds me of Lynn Truss’ book Eat, Shoots and Leaves – The Zero Tolerance Approach to Punctuation. The story goes like this: A panda walks into a bar. He asks the bartender for some plant shoots and leaves and a beer. He eats, shoots the bartender with a gun and leaves. The owner looks up the definition of Panda in Wikipedia.  It says a Panda eats shoots and leaves. The difference between the two is a comma between eats and shoots.

What University gave Bill Carlson his PhD?

Contact Houston Immigration Lawyer, Annie Banerjee, for more information.

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I-9 Audits

July 14, 2009

Every Employer in the US has to fill out a valid I-9 form for every employee. The form addresses whether the employee has the legal authority to work in the United States. The Employer is supposed to keep copies of documents like H-1B approval, or Green card, etc in their file, and update them as it becomes necessary. It has so far been an honor driven system, and the Citizenship and Immigration Services rarely audited them.

However the Immigration and Customs Enforcement (ICE) announced on July 01, 2009 that it will step up its audit for the employers. It has already issued 652 notices of Inspections to businesses. The Employers will have to surrender all I-9s within 3 days.  For large employers there may be many instances that the I-9 has not been updated. Small employers may not even know about the requirement to keep I-9s.

The US Government has instituted the E-verify system, where the employer has to input the Social Security numbers of their new hires into the Government computers, and they will know if the employee is legal to work.  However, if the employee used false IDs and SS Numbers, and the employers knew about it, they will not be immune, simply because E verify passed it.

Recently Krispy Kreme Doughnut Company was fined $40,000/- for I-9 valuation.

All Companies should do their own audits of their I-9 and update everything as soon as possible.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information.

The Non Immigrant in this Economic Downturn

July 9, 2009

Loosing a job is never easy.  Each and every one of the 14.7 million people who lost their jobs in this economic downturn has felt the sinking feeling in their stomach, the worry of uncertainty, and the stigma of failure.  But United States citizens can survive.  Yes, its hard for an accountant to deliver pizza, but its some money as opposed to nothing.  It’s an entirely different story with the non immigrants.

Employees in non immigrant visas like H-1b and L-1 are the first to let go off by companies.  Since their visas depend on one particular employer, they cannot get any job any where.  If they are not lucky in getting another Employer sponsor within a month, they have to convert to either student status, visitor status or go back.  The Citizenship and Immigration Service is denying significant amount of visitor’s visa for laid off employees.  And the cost can be far reaching

I had a client who worked for 25 years for an oil company in Saudi Arabia and 1 year in the United States.  And then he got laid off.  He is an Indian national, and his only option is to go back to India. He has a house in the US, which he will loose money on selling.  But the real cost is that his teen age children had never studies in India and will be hopelessly lost in the Indian education system.  He will not have money to provide for private schools.

Another client was coming back to work after visiting India for his father’s death and was informed by the Customs and Border Patrol in the airport that his employer fired him and revoked his H-1B visa.  In many cases non immigrants have postponed scheduled visits to their home country for fear of being laid off.  Some women are not taking maternity leaves after their babies are born for the same reason.  Thus the human cost for a non immigrant who is laid off goes far beyond finances.

By law a non immigrant looses their status when they loose their jobs.  However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. They of course have to submit copies of their last pay stub with this new transfer.

If not, one should consider either filing for a visitor’s visa, student’s visa or go back to their home country. A Visitor’s visa may be necessary to extend their stay to be able to settle their financial affairs here. One should file the Form I-539 and explain the situation.  They should also show sufficient resources in the United States to stay here.  Very often the Citizenship and Immigration Service is asking for proof of ticket purchase to return.  Also the reason to stay here has to be compelling.  Citizenship and Immigration Service is afraid of people staying here illegally, and thus there is a high rate of denial of these change of status applications to a visitor’s visa.

The employee can also seek admission to a school and convert to a F student status.  School benefit from foreign students and foreign students benefit from the education.  However one has to actually study.  Just registering is not sufficient.

After converting status, if one has time remaining in their H-1B status (ie, they have not used up the six years), they can go back to the H-1B status any time they find another H-1B sponsor.  They do not have to enter the crazy H-1B lottery again.  Even if they are back in their home country, they can file for the remaining period on their H-1B.  Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B or F visa, or by leaving the US, they actually stop the running of the 6 year H-1B clock and preserve the remaining time. So when the economy picks up again, and trust me, it will; they do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

Whatever one does though, they have to be careful not to accrue illegal presence.  According to that infamous law acronymed IRAIRA, if one has a 6 month illegal presence they are barred for 3 years, and if the illegal presence is 1 year or more there is a 10 year bar.

On the plus side, there is still H-1B numbers available.  As of July 03, the Citizenship and Immigration Service received 45,000 of the 65,000 per year quota for H-1B visas.  Businesses are slow in hiring, and that is true especially of non immigrants.  So for those lucky enough to find an employer sponsor, there is no lottery unlike previous years.

Hopefully we will all emerge from this economic downturn without too much scarring.  Hopefully the US will still be looked upon as a kinder gentler nation, and will continue to draw the brightest and the best to maintain our top position in the world marketplace.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

What is a Company for Immigration?

July 2, 2009

A Company is defined as its Federal Employment Identification Number (FEIN) for Immigration issues. When a Corporation seeks to hire a foreign national under a federal Immigration Law, it stands to reason that the Company should have a FEIN in order to hire that individual.

In a recent decision, In the Matter of Ornelas Inc, The Board of Immigration Appeals verified that the Company’s yellow page listing, or business licenses does not establish a bona fide Company.

Additionally, if two related companies have two different FEIN numbers, and the alien has worked for one entity, and the other entity is sponsoring the alien, the alien can use that experience and it will not be counted as experience from the same Company. Usually the alien cannot use the experience from the same company for labor certification, with the rationale being that the company can easily employ and American and train that person as well. But if say XY has two FEIn numbers, and the alien has worked for a division of Company X, and the petitioner is Y, then that expiration can be counted, even though the two companies are in the same location.

Thus if the two related companies have two different FEIN numbers, the Labor Dept treats them as two separate companies. Does not make sense, but then, the Dept of Labor never lives in a real world.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information