Archive for January, 2010

What triggers H-1B raids

January 29, 2010

In July of 2010, the CIS decided to use the $500/- fraud fee and conduct sweeping raids of many H-1B sponsoring companies. They conducted a study which revealed that a lot of H-1B Sponsors were not following the rules. The following are some of the criteria that was recently released by ICE as to what factors were used to determine what businesses to raid.

1. Unknown or unusual addresses or email addresses— who determines what is unusual? Are officers familiar with every type of business in America. They then have more brain than Einstein.

2. Skill/age/salary/ education does not match job requirements- If this happens, why not simply deny the petition?

3. No record of correspondence with parent company-This is for L-1 cases, and is understandable.

4. Zoning inconsistent with business-The CIS does not believe that businesses can be conducted from homes, so they frown upon any address that does not look like an office address. I doubt the officers actually look at specific zoning requirements of any subdivision.

5. Unusual data in quarterly reports

6. Labor certification right before sunset of 245i (April 30, 2001)

7. Multiple filings by petitioner is inconsistent with company size- Company’s Size is the big no no for CIS. Small businesses are not allowed to thrive under the democratic rule.

8. Location on ETA 750A or ETA 9035 differs from place of employment

9. No record of providing goods or services

10. Boilerplate documents that are in more than one petition- This can be problematic especially when the Companies file H-1B by themselves and use the same job description for every petition.

As anyone can see a lot of these are subjective criteria, leaving much room for discrimination. Thus overwhelmingly, small Companies are raided rather than big ones. This puts an undue burden on small companies who don’t have resources to fight the Government.

Moreover the officers used in the raids are often new and untrained in the Complexities of Immigration Law. So rather than some job creation, the only purpose of the H-1B raids is to hassle employers and H-1B beneficiaries.

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

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Consulting Companies as H-1B Employers

January 21, 2010

In the Computer Consulting business a company (Lets say Company A) might place an employee with one vendor (Lest say Vendor B) and the company itself may not have a contract with the end user. (Let say Enduser C)  However, according to Citizenship and Immigration Service the Company A cannot be a sponsor for that beneficiary’s H-1B visa.

The regulations say that “a United States employer” can file for H-1B for the beneficiary.  The Citizenship and Immigration Service looks to Common Law to determine the “Employer-Employee Relationship” whereby the employer has to have CONTROL of the Employee.  If Company A does not have the contract with End user C, then Company A cannot control the work product of the beneficiary.  Enduser C, at whose premises Beneficiary will work, has no dealing with Employer A, but goes through Vendor B.  In this scenario, Vendor B has to be the sponsor.

Control depends on a combination of factors listed below, but the control has to be Actual Control.  So Employer A not only should have the right to hire, fire and pay the employee, but also to supervise the employee.  In the scenario above Vendor B is liable to Enduser C for the work quality.  Enduser C will hold Vendor B liable if anything goes wrong.  Company A cannot enter the premises of Enduser C to check how the employee is working.  Company A must have the right to control WHEN, WHERE and HOW the employee will work, and cannot do that, simply because there is no contractual relationship between Company A and Enduser C.

The Citizenship and Immigration Service look into the totality of the following factors in deciding whether the employee-employer relationship exists in an H-1B situation:

  1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
  2. If the supervision is off-site, how does the petitioner maintain such supervision, weekly calls, reporting back to main office routine, or site visits by the petitioner?
  3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
  4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
  5. Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
  6. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
  7. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
  8. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
  9. Does the petitioner hire, pay, and have the ability to fire the beneficiary?

10.  Does the petitioner claim the beneficiary for tax purposes?

11.  Does the petitioner provide the beneficiary any type of employee benefits

However simply complying with the last three things above is not enough.

These rules were established by Common Law, invented at a time when the only ‘professions’ were probably priests.  There were few if any universities.  Why would the modern employer have to “Control” someone with a Bachelor’s Degree, and in some cases does the employer even have the education and ability to “control” the beneficiary in the 21st Century?  Unfortunately immigration law is filled with archaic laws which a vastly divided Congress does not even care to address. But businesses and America’s ability to compete in this global world suffers.

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

Is DOL turning Socialist?

January 8, 2010

The DOL introduced a new Prevailing Wage system which will centralize everything. Previously each State’s Workforce Agency gave those Prevailing Wage. Obviously there were discrepancies in how each SWA operated causing problems with DOL filings.

However, DOL introduced this new system of centralized Prevailing Wage determination with no computerized system of filing.  We have to mail in our request to the DOL. Then the DOL will take forever to come up with a Prevailing Wage. The DOL has advised employers to file the Prevailing Wage 60 days prior to advertising for a PERM, since the ads expire in 6 months. This is strange because the DOL went computerized much earlier than the CIS did.  Why could they not have a faster computerized process BEFORE centralizing the whole process? Was this then intentional?

This will slow down businesses, and filing of immigration. Similarly in July of 2009 the DOL significantly slowed down the LCA filings for H-1Bs. Which makes me wonder if DOL is slowing down things as a protectionist measure which caters to socialism? Is this the death of free enterprise, and business at the speed of 21 Century? It was another Democratic President and Congress that passed the AC 21 to speed the process up about a decade ago.

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

Airport searches

January 5, 2010

The Christmas day incident about the attempted Airplane bombing reveal that we are not safe and terrorism can happen, even with the security system in place. The US yesterday revealed a list of 10 countries whose citizens will face added searches, including padding down. The countries are: Nigeria, Yemen, Pakistan, Afghanistan, Libya, Somalia, Iran, Sudan, Syria and Cuba. While there is little doubt that these countries have terrorist cells, patting down a 70 year old grandmother from Pakistan will not achieve anything. It will simply be a waste of time, because the terrorists will recruit persons from non listed countries, or get passports and visas from some of these countries. So we will simply have to add countries to this list.

Israel does a behavior recognition system which works wonderfully. They do added searches to people looking nervous. But Israel is a small country and can take its time with all passengers. It is impossible to train TSA personnel to operate fast and look for behavior issues for the volume of traveler we have in the US.

The best thing to do is to have body scanners in all airports. Yes, its expensive to install, but in the long run its much cheaper. And those who feel like their privacy will be violated, maybe should not travel.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information