Category: Employment Visas

The Immigration Net is Tightening

President Donald Trump ran on a platform of America First.  As a candidate, he promised to Make America Great Again by, in part, making the United States less friendly to immigrants.

Several recent developments have made clear that Trump is following through on his campaign promises.

Employment Based Immigration

At our office, we have seen several signs that one of the Trump Team’s focus is employment based immigration.  The DHS has ramped up scrutiny of work visas and green cards through employer sponsorship.

Earlier this year, USCIS turned off premium processing for most H1b cases.  The agency also announced that it would be cracking down on the use of “computer programmer” as a specialty occupation as the basis of an H1b.

Two months ago, USCIS announced that it would now conduct face-to-face interviews on employment green cards.  USCIS always had this power, but rarely used it before Trump came into office.

We attended a naturalization interview recently with a client who came to America on an H1b, obtained a work based green card and then started his own information technology (IT) consulting company.

The N-400 interview included a whole lot of questions about our client’s work-based immigration history. The officer was extremely interested in whether our client and the companies that he worked for had complied with all of the rules regarding employment based cases.

Jim shot a short video about the interview in Tampa.

These changes represent a significant change in how employment-based visas are handled and it appears that these changes are here to stay.

Non-Immigrant Visas and Crimes

One way that we stay up to date on what’s going on across the immigration landscape is by participating in online forums and Facebook groups with other immigration lawyers.

One of those groups is called Cool Immigration Lawyers.

Earlier this week, one of our colleagues in Memphis reported that Immigration and Customs Enforcement had placed her H1b client in removal proceedings.

The basis of the removal proceedings was that the client had been charged with Driving Under the Influence of Alcohol.  The Department of State quickly revoked his visa and then when the man pleaded guilty, ICE issued him a Notice to Appear, which is the document that commences deportation proceedings.  ICE also took him into custody and only released him after he paid a $25,000 bond.

We believe that ICE’s aggressive position may ultimately fail.  But that is little consolation for the foreign national who thought he was all set on his immigration status but now finds himself facing deportation from the U.S.

It is not clear whether this new approach is an isolated incident by one ICE office or part of a nationwide policy.  It is also unclear as to whether this approach will apply only to DUI’s or to other crimes committed by immigrants.

The point for now is that ICE and DHS are not playing around.  These are serious times and immigrants are feeling the pressure.

 

Trump Administration Shakes Up the H-1b System

Over the past several weeks, the nation has seen some revisions to the interpretation of our country’s immigration laws related to the system that allows foreign nationals to work in the United States.

Generally, foreign nationals are not allowed to work in the U.S. without authorization.  The name of the visa that most foreigners use to work is the H-1b visa.

Federal law allows for the issuance of 65,000 H-1b visas to foreign nationals with a college degree in a “specialty occupation.”  Another 20,000 such H-1bs are set aside for foreign workers with a master’s degree from a U.S. institution of higher learning.

The H-1b system is based on federal law, as passed by Congress many years ago.

The President’s role in the H-1b system is to enforce laws passed by Congress, including the H-1b system.  The new Trump administration has made several recent and important changes to the H-1b program.

These changes will affect immigrants working in the St. Louis area and throughout the United States.

Premium Processing Suspended

The first change occurred in late March of 2017, shortly before the filing deadline for the next fiscal year of H-1b visas.  The Department of Homeland Security issued an announcement on the USCIS website that premium processing for H-1b visas had been temporarily suspended.

Premium processing allows an employer seeking to hire a foreign worker to obtain an answer in a few short weeks as opposed to waiting for five or six months.  Under the Trump administration, foreign workers and the U.S. companies that wish to hire them will have to wait much longer for an answer.

Mr. Trump made it clear during the presidential campaign that his number one priority was helping American workers and it appears that this change is designed to make it harder and more cumbersome to hire foreign nationals.

Computer Programmer Job May No Longer Qualify

On March 31, 2017, the day before next year’s H-1b applications were due, USCIS changed the rules regarding the availability of H-1b visas for the position of “computer programmer.”

The agency rescinded a 2000 memorandum that said that the role of a computer programmer would usually qualify as a specialty occupation and therefore be eligible for an H-1b visa.

USCIS issued a new memorandum that makes clear that foreign nationals employed as computer programmers, especially those in entry-level positions, may no longer be treated as working in a “specialty occupation.”  Because many computer programmers work without a specific college degree in computer programming, the job may not always be considered a specialty occupation.  Therefore, the H-1b visa may not be available for these foreign workers.

From the memo:

Based on the current version of the [Occupational Outlook] Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at 8 CFR 214.2(h)(4)(iii). Section 214(i)(1) of the INA; see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).

This is an important change.

Any employer looking to hire a foreign national is required to pay the prevailing wage.  The prevailing wage is calculated by looking at the average wages paid in a particular geographic area for that occupation type.

Computer programmers make significantly less than software developers.  The thought is that employers have been saving money and undercutting the American worker by paying foreign nationals as computer programmers instead of as software developers.

This change will require companies, especially foreign staffing companies, to pay a lot more to their employees or risk having their H-1b applications denied.

It is interesting, to say the least, that the Trump administration decided to make this announcement on the day that immigration lawyers and employers were shipping thousands of H-1b applications to the USCIS service centers for processing.  It appears that this was designed to harm employers who were relying on their ability to hire foreign nationals in this role.

H-1B Abuse Enforcement Announced

On April 3, 2017, USCIS issued a press release to announce “multiple measures to further deter and detect H1B visa fraud and abuse.”

The release is entitled Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.

USCIS has adopted new criteria to determine which H1B employers and worksites are to be targeted for site visits. An updated website and email address have been implemented to purportedly make it easier to notify USCIS that H-1b abuse has occurred.

Site Visits and Enforcement

Since 2009, USCIS has routinely conducted random site visits of H-1b employers and work sites. Starting with the issuance of the press release, USCIS will ramp up the number of site visits conducted and The USCIS has been conducting random site visits to the offices of H1B petitioners and work locations since 2009. Effective immediately, however, the USCIS will increase the number of site visits it conducts and “take a more targeted approach when making site visits across the country.”

The memo takes aim at the following situations: employers whose basic information cannot be verified through commercial databases; employers deemed “dependent” on H-1B workers; and, employers such as consulting companies whose employees will work off-site at another organization’s location.

USCIS also announced the use of a new email address (ReportH1BAbuse@uscis.dhs.gov) to allow American workers to report suspected H-1b fraud or abuse.  The agency also published an online reference page that lists other available ways that suspected H1B fraud or abuse may be reported.  The website also lists examples of the types of behavior that may indicate H-1b fraud.  The protections available to U.S. workers are also provided on that site.

On the same day that USCIS issued its press release, Attorney General Jeff Sessions’ Department of Justice sent out a separate release that makes it clear that U.S. employers are not supposed to discriminate against the American worker.

From the release:

The anti-discrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting. Employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

These recent changes suggest that Mr. Trump intends to make it more difficult for foreign nationals to work in the U.S.  As a candidate, Trump consistently portrayed immigrants as outsiders coming to take “our jobs.”  These changes to the law may make it significantly harder for employers to hire and retain foreign nationals.

We will keep you apprised of any additional changes to the law.

How Do I Find an H1b Employer?

How do I find an employer who’s willing to sponsor me for an H1B employment visa?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. We get this question a lot. We’ve a lot of foreign nationals who are either working or are going to school and about to graduate and they wonder, “How can I find an employer who’s willing to sponsor me for a work visa?” Of course you have to recall that generally foreign nationals are not allowed to work in the United States, but there is a visa called an H1B employment visa that’s available for people that work in specialty occupation. One thing to keep in mind is that not every job is eligible for a work visa. You have to have a degree in most cases or a very high set of specialized knowledge, but generally that’s going to be reflected in a bachelor’s degree or a master’s degree and you are going to have to be in a field that generally requires a degree in that field. So not every job has the eligibility for an H1B visa.

But let’s suppose that you’re working in a field that does qualify for an H1B and you want to find an employer who’s willing to sponsor you. I think the biggest thing to keep in mind is that the H1B process is hard, it’s expensive, and it’s complicated. A lot of employers haven’t been through the process before, so if you are a foreign national and you’re going to need an H1B employment visa, that might be a lot for employers to overcome or to get their mind around all the hoops and hurdles that they have to jump through in order to get you an employment visa. What I like to tell people is that you should look to see where people have sponsored before, and you want to find employers who are willing to sponsor you for an H1B. The way I think that you do that is you find people that have sponsored for H1B visas before. They’ve been through the process. They know the hurdles. They know the headache, and if you’re an outstanding enough candidate, they’re going to be willing to do it for you.

The way that I tell people to find that is a great website called myvisajobs.com, www.myvisajobs.com. If you go to that website you can search by company names, you can search by geographical regions, you can search by job, and you can see who has sponsored people in my field for an employment visa. It’s really a great tool. There is a basic version that’s free, and there’s an expanded version if you subscribe. You can find all the employers in your area who sponsored in your specific field. I think this is really important, it really cuts down on you wasting your time with an employer who may not be willing to sponsor you. Sometimes employers just don’t want to do it. They throw their arms up and they say, “We’re not doing it.” I think you’re really banging your head against the wall if you’re trying to start from scratch with an employer who’s never been through it. It’s not to say that it can’t be done but I just think your chances are going to be much greater.

You might also consider downloading our free book and you can get that. It’s called the “Staying Here Book.” It’s a guide for foreign nationals on how to find a job, and it really provides a lot of the tips and tricks that we like to tell our students and people who are interested in staying in the United States. You can download that for free. If you go to www.stayingherebook.com and you can download that book for free.

Definitely make sure that you’re searching in the right areas, make sure that you’re networking, find out from your friends what employers are sponsoring, find out from other people in your industry. You want to follow them on LinkedIn. You want to connect with them on social media. You want to see who are the movers and shakers in your field, and you want to learn a way to get to know them. You don’t necessarily want to bum-rush them for a job in particular, but instead to ask them what are the trends you’re seeing in the industry, who are the people that hiring, do you think it makes sense for me to reach out to this person or that person. You really want to have a network of advisors who are not people that necessarily are going to hire you, but are willing to give you good advice and to let you know about the field.

If you have any questions about this, about the H1B employment process, or about how to talk to your employer about sponsorship for an H1B, be sure to give us a call at 314-961-8200. You can download that book again at www.stayingherebook.com or you can email us at info@hackinglawpractice.com. We’ll be sure to get back to you. If you liked this video, please click the like button and share it with your friends. Also if you want to get updates as to our YouTube channel or Facebook videos, make sure you subscribe so that when we update with new videos, you’re the first one to know about it. Thanks a lot. Good luck with the job search. Have a great day.

USCIS Announces Steep Filing Fee Increases

The United States Citizenship and Immigration Services USCIS has announced an increase to many of the fees associated with filing for immigration benefits in the United States.  This is the first fee increase in six years.

The increase goes into effect on December 23, 2016.

The average fee increase is 21 percent.

The biometric fee for all applicable applications will remain $85.

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Naturalization and Citizenship

The cost to naturalize (N-400) in most cases will increase from $595 to $640 (with the biometrics fee, this amount will be $725).

One slight tweak to the filing fee requirement is that applicants with income greater than 150% but not more than 200% of the federal guidelines will pay a reduced fee of $405, including biometrics.

The naturalization fee waiver will remain available to lawful permanent residents who receive public assistance or have incomes under 150% of those poverty guidelines.

The fee for form N-600, the application for a certificate of citizenship, will increase almost 100% – from $600 to $1170.  This form is generally used for lawful permanent residents who became citizens as a matter of law, usually because their custodial parent became a citizen before they turned 18 years old.

Family-Based Immigration

The fee for an I-130 relative petition, which includes spouse petitions, will increase from $420 to $535.

Adjustment of status (I-485) application fees will go up from $985 to $1140.  So with biometrics, the total adjustment of status fee will go from $1140 to $1225.

Applications for a travel document (I-131) will increase a lot – from $360 to $575.

Employment-Based Immigration

Petitions for non-immigrant workers in the H-1b category will increase from $325 to $460 (in addition to the $750/$1500 training fee and $500 fraud prevention and detection fee).

Non-immigrant visas in the L category will also increase to $460 with the $500 fraud prevention and detection fee).

A petition for an immigrant worker for an immigrant visa (green card) – the I-140 – will increase from $580 to $700.

An application for employment authorization (EAD), the I-765, will increase from $380 to $410.

Silicon Valley University Stripped of Ability to Recruit Foreign Students

Last week, Immigration and Customs Enforcement revoked authorization previously extended to Herguan University for recruiting international students.  The Silicon Valley university has been popular with foreign students from India.

ICE estimates that the school has 240 foreign students, 180 of them from India.

Herguan University is a for-profit university.

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Last year, former Herguan University Chief Executive Officer pleaded guilty to filing false immigration documents with the Department of Homeland Security.  He served time in a California prison after pleading guilty to submitting more than 100 false documents to DHS while enrolling international students.  He also paid a fine of $700,000.

Students enrolled at Herguan have until January 11, 2017 to either leave the U.S. or transfer to another college or university.  If one of those actions are not completed in that time period, the students’ records will be terminated in the Student and Exchange Visitor Information System and they will be considered out of status.

Students who have not yet entered the U.S. will not be admitted into the U.S. with the Herguan-issued Form I-20.

ICE is requiring Herguan to notify each of their active and inactive students of the school’s loss of the ability to issue Form I-20s.

In March of 2014, a federal jury convicted the head of another for-profit California university – Tri-Valley – on charges of visa fraud, money laundering and harboring an alien.  Susan Su allegedly charged foreign nationals millions of dollars in exchange for false documents that would allow the students to stay and work in the United States.

With this university being located in Silicon Valley, we suspect that the university was really a front to provide IT workers to tech companies in the Bay Area.  With the high demand for talent and the limited number of legal options – namely, our nation’s broken H-1B visa program – it appears that some of the students at Herguan were probably working through the Curricular Practical Training program.  It seems likely that the students were not fulfilling all of their educational requirements associated with their F1 student visas.

Students who have questions regarding Herguan University are advised to contact an immigration lawyer and/or the SEVP Response Center (SRC) at 703–603–3400.

 

 

 

DHS requests 90 additional days to revise OPT STEM extensions

The Obama administration is asking for an additional 90 more days to revise a program designed to allow international students to work at the completion of their studies, while maintaining their F1 student status. The program is called optional practical training period and the OPT program has been under attack in federal court. Now, the Department of Homeland Security is asking for additional time to comply with a prior court order.

At issue is a 2008 rule on optional practical training that U.S. District Judge Ellen Huvelle  vacated in finding that DHS did not follow proper procedure in changing the OPT program. The government says that it is trying to avoid substantial hardship for thousands of international students and their employers. It is unclear at this point as to what will happen to the students currently working on the apparently flawed program.

The Washington Alliance of Technology Workers has challenged the legality of the 2008 rule, which increased the OPT period by 17 months for foreign students with certain STEM majors (science, technology, engineering and math), claiming that the program is a default guest worker program. In August of 2015, Judge Huvelle vacated the rule, after concluding that the government failed to provide notice and comment to affected parties and that DHS had failed to demonstrate that an emergency situation existed.

That decision was stayed by the judge until mid-February 2016 to allow the government to promulgate a new rule through the proper procedures. DHS issued a new proposed rule last October that would boost the OPT extension for STEM graduates from 17 months to 24 months. This would allow STEM students to work for up to three years and, more importantly, go through the H1b visa lottery on several occasions.

We will keep you updated as to what Judge Huvelle decides to do with the extension request.
EAD

 

Convictions in Texas H1B visa fraud case

A pair of brothers that hired H-1B workers have been found guilty of breaking federal law on November 12.  The six day long trial took place in the U.S. District Court in Dallas.  The brothers, Atul Nanda and Jiten Nanda, are each facing conviction of one count of conspiracy to harbor illegal aliens and conspiracy to commit visa fraud and four counts of wire fraud.  Dibon Solutions, an IT consulting group owned by the Nanda family, is involved in the case.  Their indictment was filed by the United States in 2013.  

They could potentially face 20 years in prison and fines up to $250,000.  Their sentencing date has yet to be set.  

The U.S. claimed that the Nanda brothers had recruited foreign citizens and represented H-1B visa workers with the intention of working at Dibon Solution’s office in Texas.  They went on to say they “did not have an actual position at the time [the foreign workers] were recruited,” and that the employees actually were providing their services to third-party companies.  

DOJ

The government further said, “paid for time spent working at a third-party company and only if the third-party company actually first paid Dibon for the workers’ services.”

“The conspirators falsely represented that the workers had full-time positions and were paid an annual salary, as required by regulation to secure the visas,” the government said about the conviction.  

The investigation was conducted by the U.S. Department of Homeland Security, DHS’s Immigration and Customs Enforcement Agency, and the U.S. Department of State.  The government claimed that Dibon Solutions were given “a labor pool of inexpensive, skilled foreign workers.”  This scheme was found to be profitable.  They went on to say, “required minimal overhead, and Dibon could charge significant hourly rates for a computer consultant’s services.”

The Nanda brothers “earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work,” said a government report.  

EB-1 Petition Approved for Rolla, Missouri Scientist

On July 1, 2015, we filed a petition for an alien worker (I-140), a leading scientist from Rolla, Missouri.  We are happy to report that – with premium processing – the case was approved in seven days and without a dreaded request for evidence.  This is the first step towards obtaining lawful permanent resident status.

This interesting case involves a PhD. who specializes in nanotechnology and metals.  He filed for an EB-1 visa for aliens of extraordinary ability.  This case was a self-petition, which means no employer was involved.

In most employment-based immigration cases, an employer is required to file a PERM application with the Department of Labor before filing the visa petition with USCIS.  But for a rare number of workers, the law allows them to self-petition without an employer and without going through the expensive and time-consuming PERM process.  To qualify for the exception, the alien has to satisfy at least three out of ten listed criteria and the standard is very stringent.

Our office is frequently contacted by scientists, researchers, educators and others who believe that they may qualified for this extraordinary path to lawful permanent resident status.  We turn down the vast majority of cases after having a heart-to-heart with the potential applicant.  The standard is very, very high and most people just don’t have the credentials necessary to prevail.

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One significant factor in determining whether these cases get approved is who will write letters in support of the person seeking to obtain the EB-1 visa.  If the potential applicant only has letter writers from a close circle of friends or from people that they studied or worked with, the application is unlikely to succeed.  To prevail, the person really needs world-class individuals in the field to write strong letters of support.

This is why we agreed to take this case.  The client had an impressive publication, teaching and presenting history.  But more importantly, the people that he had writing letters for him were the tops in the field and were both academics and industrial leaders.  We filed what we thought was a strong application and apparently USCIS agreed.

Now our client will need to file for adjustment of status.  We will get working on that shortly.

If you have questions about employment-based visas or would like for us to evaluate your credentials to see if you have a good chance of success, please contact us at (314) 961-8200.

Immigration Attorney convicted of $579,000 fraud scheme

New York immigration attorney Marijan Cvjeticanin was convicted of nine counts of mail fraud after a one week trial in U.S. District Court.  The jury deliberated 2 hours before finding Cvjeticanin guilty.

Cvjeticanin worked at the immigration firm of Wildes & Weinberg, P.C., first as a paralegal and then as an attorney.  He was responsible for preparing Department of Labor certifications and applications for permanent residency for foreign workers.  Firm clients included Automatic Data Processing, Inc. (“ADP”) and Broadridge Financial.

The PERM application process requires that job postings be published in the largest daily newspaper in the area in which employment would occur.  Unbeknownst to his law firm or to the clients, Cvjeticanin created a fictitious company to handle the publication of the classified ads.  But he never ran the ads.  Instead, he fabricated false advertisements and submitted them to the immigration service so as to suggest that the ads had been properly placed.

A routine email audit at Wildes & Weinberg revealed that Cvjeticanin had been running the fictitious company.  A subsequent investigation showed that ADP and Broadridge had paid nearly $579,000 for advertisements related to the PERM process for their employees.  False ads had been generated suggesting that they had been placed in Computer World magazine, as well as the New York Times, the Boston Globe and other newspapers around the country.

Cvjeticanin faces 20 years in prison and a $250,000 fine on each of the nine counts.  Sentencing is scheduled for late August.

Ex-immigration attorney Marijan Cvjeticanin
Ex-immigration attorney Marijan Cvjeticanin

 

Who is eligible for an H-1B?

Congress has defined “specialty occupation” as requiring (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.  What does this mean?

CIS regulations allow an employer to establish that the alien’s services fall in a “specialty occupation” in one of four ways:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Cases interpreting the statute and regulations provide guidance on how to establish that the given position constitutes a specialty occupation.  An employer should consider the following criteria.  The employer should focus on the tasks, job duties and actual requirements for the position used both at the employer’s business and throughout the industry.  The position should require theoretical and applied knowledge which is almost exclusively obtained through university or college studies.  Eligibility for the position should include a precise and specific course of study that relates directly and closely to the offered position.

If the employer requires a general college degree, this will most likely not be considered a specialty occupation.  If the employer requires a degree in the hopes of obtaining a higher caliber of employee, this will not suffice either.  The way to think about it is that the degree must be tied to the job and everyone in the industry must generally think that a degree is necessary to do the job.  CIS takes the position that a position qualifies as a specialty occupation if it “always” or “nearly always” requires a bachelor’s degree or higher.  “Usually” requires is not enough.

The strongest H-1B applications will involve positions that require the bachelor’s degree or higher.  That being said, the regulations and CIS do contemplate the possibility of experience alone serving as the basis for the specialty occupation designation.  You should know that these cases are much harder to get approved as the employer is in the unenviable position of asking CIS to look beyond the education and conclude that the level of experience required for the position meets the definition of specialty occupation.

Case law suggests that a combination of education and experience may be enough if the beneficiary has some formal college-level training and the training plus education are equivalent to the degree.  When an employer wants to substitute experience for education must include both theoretical and practical application of specialized knowledge required at the professional level.  So, an employer may be able to substitute experience for education but the hurdle for approval is much higher.  Any employer wishing to follow this approach should be fully aware of the low chance of success.

One additional issue arises in many H-1B cases.  Many foreign workers received their education overseas. Their academic transcripts are often in another language.  The education systems vary from country to country. Different countries refer to degrees or course completions in different ways.  The truth is that USCIS is not equipped to adequately evaluate the educational qualifications of foreign workers holding international degrees. The solution to this situation is to ask a reputable, licensed evaluation service to review the academic transcript of the foreign worker and to provide an assessment of the employee’s educational qualifications.

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