Category Archives: Business Immigration

A newer I-9

This firm continues to monitoring the status of executive actions and will publish updates  on federal immigration issues.

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  Employers will need to adapt to the change and use the new form by no later than September 18, 2017 or face the possibility of large fines.

Just last year, Immigration and Customs Enforcement (ICE) announced increases in fines for Form I-9 violations to account for inflation. Increases are retroactive to cover any violations that took place after November 2, 2015.

These increases are for:

  1. Simple Form I-9 violations: The minimum fine has increased from $110 to $216 per Form I-9 violation, while the maximum fine increases from $1,100 to $2,156 per Form I-9 violation. Fines for second and third offenses have also increased to a similar degree.
  2. Unlawful Employment of Unauthorized Workers: For the first offense, the minimum fine has increased from $375 to $539, while the maximum fine increased from $3,200 to $4,313 per worker (fines for second and third offenses also increased).
  3. Unfair Immigration-Related Employment Practices: The minimum penalty has increased from $375 to $445, while the maximum penalty increased from $3,200 to $3,563 per charge. Repeat offenders now face a new maximum penalty of $21,563.

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.

 

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.

Training HR Staff

Many routine employment applications are completed by non-attorneys and HR professionals have the ability to fill out these forms with minimal training.  For foreign employees, these applications include:

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

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!

H-1B’s and the Prevailing Wage

What is a prevailing wage?

Congress has mandated that the Department of Labor (DOL) monitor the H1B program with regard to any adverse impact on wages and working conditions for the U.S. workforce. The employer must file with the DOL an “application” affirming that the employer will pay the required wage rate to H1B workers.

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. 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.

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.

Attorney Dena Wurman has successfully litigated cases for clients in ICE custody and has appeared at numerous hearings in Immigration Court. She has experience with consular issues and cross-border travel, particularly through the Canadian border. For a complimentary consultation call (505) 506-9434

Requirements for the E Investment Visa

Here are the requirements for the E-2 Investor Visa:

  • The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
  • If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
  • 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.
  • It 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.
  • 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.

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

New Work Rule for H-1B Spouses

Benchmarking against other immigrant receiving countries that allow more favorable work authorization, the U.S. currently has less favorable rules for immigrant spouses. The time frame required to obtain permanent residency may be many years.  As a result, retention of highly-skilled workers in the U.S. can be a problem for an employer.

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.

The new proposed rule will not extend to children.  If 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

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.

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.  For a consultation call (505) 506-9434.

Dual Representation in Immigration

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

Most immigration cases involve a petitioner (U.S. citizen in family cases or a U.S. employer, in employment-based immigration cases.)  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.

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 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 (505) 506-9434.

 

L-1 Visa Updates

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 (505) 506-9434.

 

H-1B Cap Exempt Institutions

Alien workers who provide direct contributions to the United States, by working at a nonprofit research organizations or governmental research organizations — as defined in 8 CFR 214.2(h)(19)(iii)(C) — may apply for H-1B visas that are not subject to the annual H-1B quota, otherwise known as “the cap.”

A non-profit research organization is primarily engaged in basic research or applied research.

A government research organization is a U.S. government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind.  It may include research and investigation in the sciences, social sciences or humanities.

Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes or services.  It may include research and investigation in the sciences, social sciences or humanities.

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 (505) 506-9434.