Category Archives: Business Immigration

Newer I-9

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  On September 18, 2017, all employers will be required to use the revised form, so it makes sense to avoid any delay and begin use of the new version immediately.

What is an I-9 form and why do employers need to use it?  The Immigration Reform and Control Act of 1986 (IRCA) requires U.S. employers to verify the identity and eligibility to work on Form I-9.

All individuals, both U.S. citizens and aliens, hired on or after November 7, 1986 are required to complete the form when hired.

How do you complete the I-9?

As an employer, your duty is to verify that the employment documents employees present appear legitimate.  In order to avoid a claim of discrimination on the basis of citizenship status or national origin, an employer is not allowed to ask an employee for a specific document.  The employee’s duty is to fill out the form honestly.   The Immigration Act prohibits a person from forging or falsifying  any document for the purpose of obtaining a benefit.

When an employee presents documents from the acceptable list on the I-9 form, these are evidence of the employee’s right to work in the U.S.  Absent clear evidence of the contrary such as the  immigration enforcement informs you that the A# is wrong the employee says “I am not authorized to work,” the employer need not inquire further.

Once the I-9 is complete, rechecking documents is prohibited by IRCA.

Civil and criminal sanctions will be imposed on U.S. employers and individuals who, subsequent to November 6, 1986, hire or refer for a fee aliens who are not authorized to work in the United States.

Employers will need to adapt to these new changes no later than September 18, 2017 or face the possibility of large fines.

Call for a consult to determine what documents you need have on file to protect yourself.  Call (646) 580-0617 or complete the contact form on this website.

Dena Wurman is an expert in I-9 forms in the following industries:  Retail, Restaurant, Landscaping, Housekeeping, Maintenance, Construction.  Beware! If caught, a repeat-offender employer of illegal immigrants can face civil and criminal fines (up to $11,000 per employee) and jail time (up to five years).

H-4 Visa Holders May Lose Work Permit

There are indications that the Trump administration is preparing to issue regulations rescinding the ability of H-4 spouses to get work permits.  H-4 visas are given to the spouses of H-1B visa holders, highly-skilled foreign workers, the majority of whom are from India.

Until 2015, H-4 visa holders – who often had skill levels comparable to their spouses – were not allowed to work. In 2015, U.S. Citizenship and Immigration Services announced that some H-4 visa holders would be able to work if their spouses were on track for permanent residency in the U.S.

The primary visa holder had to be a beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or a nonimmigrant seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

If the application was approved, the eligible spouse would receive a Form I-766, Employment Authorization Document (EAD), allowing them to work during the period of its validity.  The EAD validity period generally will match the H-4 spouse’s authorized period of admission, up to three years.

The 90-day period for adjudicating these I-765 applications, however, does not begin until the companion extension application is approved.

Dual Intent Visa

 

When applying for a visa to visit or work in the US, the immigration authorities are going to look very closely at your reasons for visiting or working.  More importantly, they will want to know whether members of your family already reside in the US.  The service looks at these areas because they reveal what your real reason is for visiting.

Different visas have restrictions on what you can do while using them.  For example, a B visa is intended for tourist-type activity and strictly prohibits working for payment in the U.S.

Non-immigrant visas, such as a B visa, are for individuals with permanent residence outside the U.S.  who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work or study.

On the other hand, an H visa is a “dual intent” visa.   Dual intent means you plan to visit and work and at the same time may stay for the longer term and apply for a green card.

Applying for an H1B and a green card at the same time is possible in this instance.

However, applying for a B visa and a green card at the same time is not.

When applying for either a visa or green card (which includes the authorization to work in a virtually unrestricted way) you must match your current visa intent with your future plans.

Your “intent” is a major factor the government looks at when approving your application to stay and work in the U.S.  If your intent doesn’t match, our application will be denied.

 

Routine immigration employment forms

Immigration forms are widely available on the internet. Many routine immigration employment forms may be completed by non-attorneys.

After an application is submitted and approved, frequently the same approach may be used again.

There may be a few adjustments.

For example, many immigration forms are updated annually.  Some filing locations change.  In some cases it would be a good idea to contact an attorney for advice on filing an updated form.  Particularly, if an employee has an arrest and conviction for a crime.

Barring any new events that may occur between filing periods, human resource professionals may have the ability to complete many forms with minimal training.  These applications include:

    • TPS
    • NAFTA Canada/Mexico TN Visa
    • Employment Authorization

Need help with an unusual case? Simply request an assessment of your issue by completing the contact form on this website.

This office is happy to set up a conference call with your staff!

Prevailing Wage

Department of Labor

Congress has mandated that the Department of Labor (DOL) monitor the H1B program.

The DOL is responsible for regulating any adverse impact immigrant workers may have on wages of American workers doing the same kind of work.  The employer must determine the prevailing wage rate before filing the labor condition application, in order to affirm that it is paying the higher of the actual wage or prevailing wage rate.

Then, an employer must file an “application” affirming that the employer will pay this agreed wage rate to H1B workers.

What is a prevailing wage?

The “prevailing wage” is defined by the DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment.

Similarly employed is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment.

Online Application

Before 2010 state workforce agencies processed prevailing wage requests for H-1B visa applicants. A relatively simple process, requests were faxed and a response came within a few business days. In 2010 these requests were centralized to an online filing system with the Department of Labor.

This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

E Investment Visa

    Here are the investment requirements for the E-2 Investor Visa:
    Person, partnership or corporation
    • The investor, either a person, partnership or corporate entity, must have the citizenship of a qualified treaty country.
    • If the investment is in a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
    Size of the investment
    • The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
    • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
    Control
    • The money invested must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
    • You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
    Develop and direct
    • You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.

     

    Documentation must be organized in such a way that the consular officer can locate all of the relevant facts to make adjudication within 5-10 minutes.

    Applicants who fail to submit the necessary information will face delays in the processing and adjudication of their cases.

    This office has experience drafting business plans, most recently for a Canadian E visa.

    Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a consultation, e-mail dena@wurmanlegal.com

H-4 Dependents

Retention of highly-skilled workers in the U.S. can be a problem for an employer.

Reasons may be immigration-related. The U.S. currently has less favorable rules for immigrant spouses than other countries. The time frame required to obtain permanent residency may be many years.

Under current regulations, the Department of Homeland Security does not list H–4 dependents (spouses and unmarried children under 21) of H–1B
nonimmigrant workers among the classes of aliens eligible to work in the United States.

Currently, when the spouse of an H1-B employee wants to obtain work authorization – they are eligible as derivative beneficiaries – they must wait until their husband or wife submits forms to get their green card.

An alien is prohibited from submitting these forms until a visa number is available. Visa numbers are limited each year and waiting can take several years until a husband or wife can work.

A new rule will extend work authorization to spouses but not to children.  When finalized, it would impact approximately 100,000 H-4 spouses and drop to a projected 35,900 spouses in subsequent years.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a complimentary consultation, e-mail dena@wurmanlegal.com

 

 

 


 

B-1 Visa Enforcement

Infosis Case

Immigration officials required tech giant Infosis to pay a record $34 million dollar fine, charging the company with visa fraud.  It is the largest settlement ever in an immigration case.

The government claimed the company used a scheme to pay its workers a lower wage than legally required in order to increase its profit margins.  The company, based in India, has offices in 30 countries, including the United States.

Business and B visas

American businesses frequently rely on the B-1 visa for foreign visitors to enter the country briefly to attend meetings, to train or to perform other temporary activities. B visa holders are not allowed to engage in employment of any kind.

The case was investigated by the U.S. Attorney’s office for the Eastern District of Texas, the Department of State, the Diplomatic Security Service, U.S. Immigration and Customs Enforcement’s Homeland Security Investigations and U.S. Citizenship and Immigration Services.

Government officials in the Infosys case announced that their extensive investigation revealed Infosys isn’t the only company guilty of this form of fraud.  Other U.S. company’s should be on alert that future prosecutions may be forthcoming.

Here are special issues to be aware of:

1)        B-1 visitors are not legally permitted to be “employees”

2)        The government can subpoena employee payroll records to investigate possible fraud

3)        The government can depose witnesses to investigate possible fraud

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system.  

Dual Representation in Immigration

Dual representation defined

Dual representation (multiple representation) occurs when a lawyer represents two or more clients in a single matter.  In most areas of law practice this is uncommon.  In immigration practice, it is very common.

Immigration practice is a unique area of American law where the great majority of cases are dual representations.

Petitioner submits forms

A U.S. citizen family member or a U.S. employer is the petitioner. The citizen or employer sends forms, and perhaps a legal brief, to the government and asks for approval of a request.  This is called a petition or an application. It could be for permission to get a green card or an employment authorization. The person receiving the benefit is called the beneficiary.

How the lawyer fits in

In immigration, the lawyer-client relationship exists with both the petitioner and the beneficiary, no matter who pays the fee. Representing two parties in one matter requires the attorney to be equally loyal to both parties. For example, it is a conflict to represent an employer in a layoff while also representing the same employer and employee in a green card petition.

If a lawyer jointly represents two or more clients with respect to the same matter, the clients should have no expectation that their communication with the lawyer, with respect to the joint matter, will be kept from each other.

Generally, a client is a person on whose behalf a lawyer acts. It may be inferred from conduct.  In business, the corporate lawyer usually represents the corporation as a client and not the employees. It can be surprising for a corporate client to learn its lawyer is also representing company employees. When the lawyer knows there is a misunderstanding, the lawyer needs to make an effort to correct it.

Conflicts

Conflicts are relatively rare in practice and are usually resolvable.  When a conflict develops, the lawyer cannot take sides. The rule is, if it can’t be resolved, the lawyer can no longer represent both parties in that particular matter.

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system. Through her efforts, new immigrants are awarded visas, green cards and U.S. citizenship. For a consultation call (646) 580-0617.

 

L-1 Visa

The L visa allows qualifying multinational companies to transfer managers and executives and employees with “specialized knowledge” to work in the United States.

To qualify, the employee must have worked abroad in an executive, managerial, or specialized knowledge capacity in an affiliated entity of the U.S. employer for at least one continuous year. Since the creation of the L visa category in 1970, the L-1 statutory provisions have been modified several times and, in recent years, L-1 cases have been subject to heightened scrutiny both by the U.S. Citizenship and Immigration Services (USCIS) and the U.S. consulates abroad.

In May 2010, USCIS launched the Validation Instrument for Business Enterprises (VIBE). It is a web-based tool that uses commercially available data to validate basic information about companies petitioning to employ alien workers.

In 2013 the Office of Inspector General (OIG) in the Department of Homeland Security (DHS) released a report on the L-1 visa program. The OIG conducts independent and objective inspections, audits, and investigations to provide oversight and promote integrity and accountability within DHS programs and operations.

The report contained ten recommendations:

      1. To improve consistent adjudications, provide guidance on “specialized knowledge” because the statutory language is not simple or clear
      2.  Remedy differing standards of review between Department of State and US Citizen and Immigration Service for blanket petitions
      3.  Have USCIS adjudicate L visas (not CBP) at Canadian ports of entry
      4.  Provide thorough L-1 visa training to all CBPOs processing L-1 travelers at ports of entry or preclearance/preflight stations in Canada.
      5.  Establish fraud fee collection guidelines for CBPOs processing L-1 travelers.
      6. Make a site visit a requirement before extending 1-year new office petitions.
      7. Provide CBPOs at the northern border ports of entry and preclearance locations with access to VIBE to assist in L-1 petition processing.
      8. Grant CBP access to VIBE to assist in L-1 petition processing
      9. USCIS does not have sufficient policy to illustrate labor for hire examples. Create a Visa Reform Act regulation
      10.  Update existing guidance on the Visa Reform Act that Immigration Service Officers can use in the interim while a regulation is created

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system.  For a legal consultation call (646) 580-0617.