SHUSTERMAN'S IMMIGRATION UPDATE
FEBRUARY 2012

Volume Seventeen, Number Two

Top Los Angeles Immigration lawyerSHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 60,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 35 years of experience practicing immigration law.

Published by the Law Offices of Carl Shusterman, 600 Wilshire Blvd, Suite 1550, Los Angeles, California, 90017. Phone: (213) 623-4592 x0

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Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.

 

TABLE OF CONTENTS:

 

1. Prosecutorial Discretion: Will You Be One of the Lucky 50,000?
2. New Waiver Policy Would Promote Family Unity
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4. The Aussie Alternative: E-3 Visas for Professional Employees
5. Success Story: Spouse of U.S. Citizen – Easy Case? Read On!
6. Immigration Trivia Quiz: Immigrant Poets
7. State Department Visa Bulletin for February 2012
8. Official Immigration Government Processing Times
9. Ask Mr. Shusterman: Should Employers Pay for H-1B Filing Fees and Legal Expenses?
10. Winner of Our January 2012 Immigration Trivia Quiz!

 

Schedule Consultation

Skype Consultations Available!

 

NEWS FLASHES:

 

  • Attorney Shusterman on the Radio - In January, Attorney Shusterman made an appearance on the Shah Peerally radio show where he discussed important immigration issues such as the new prosecutorial discretion policy, the proposed adjudication of certain I-601 waivers in the U.S., and litigation involving the Child Status Protection Act. The interview is available via YouTube. It begins at 5 minutes and 5 seconds into the video, so you can scroll forward to 5:05 without missing any of the interview.

 

  • Chinese Public Engagement by USCIS - The USCIS has announced that it will be having a Chinese Public Engagement on Thursday, February 16 to discuss the naturalization process. The event is free and the public is strongly encouraged to attend in person at the USCIS San Francisco Office, by phone, or on the web.

 

  • DHS Updates List of H-2A/H-2B Eligible Countries - The Department of Homeland Security has updated the list of countries whose nationals are eligible to participate in the H-2A and H-2B temporary worker programs. Haiti, Montenegro, Spain and Switzerland have been added to participate for the first time. For more information on which countries are eligible see the full list.

 

  • Immigration “How-To” Videos - Our 30 “How-To” Immigration Videos have been viewed well over 250,000 times. Subjects include how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court, how to survive an I-9 audit and how to select an immigration attorney. Our video “Green Cards through Marriage” has been viewed over 100,000 times. We encourage you to take advantage of this free resource.

 

  • Justice Department Settles Discrimination Complaint Against UCSD Medical Center – On December 6, the Department of Justice filed a complaint against the University of California San Diego’s Medical Center. The complaint alleged that the center failed to comply with regulations involving employment eligibility for non-citizens authorized to work in the United States by subjecting non-citizens to a more stringent process of eligibility verification than U.S. Citizens were subject to. The UCSD Medical Center has agreed to pay a penalty of $115,000 dollars, implement a new system of employment verification and conduct supplemental training for all HR representatives.

 

 

  • President Issues Executive Order to Speed Visa Processing and Promote Travel to U.S. – On January 19, President Obama signed an Executive Order that establishes goals to speed the processing times for certain visas and also establishes a task force on travel and competitiveness to promote travel to the United States. This comes as part of a plan to spur economic growth through the tourism industry.

 

  • Straight From the Source – USCIS has published its January Issue of Straight From the Source. A newsletter with all the important happenings in the world of immigration from September through December of 2011.

 

  • Top Ten H-1B Users – The top 10 users of H-1B visas in the past fiscal year are listed by Computerworld. Most are offshore IT outsourcing companies.

 

  • TPS Extended for El Salvador – TPS designation will be extended for individuals from El Salvador through March 9, 2013. The automatic EAD extension for the re-registering current Salvadoran EAD will be in effect until September 9, 2012.

 

  • U.S. Representative Elton Gallegly to Retire – Representative Elton Gallegly (R-CA) of Simi Valley will be retiring at the end of his term this year after more than 25 years in office. Representative Gallegly is one of the first “casualties” of California’s redistricting. In January of 2011, Representative Gallegly was named Chairman of the Subcommittee on Immigration Policy and Enforcement where he focused on the removal of undocumented immigrants from the workforce. Representative Gallegly was named one of the Top Ten Illegal Immigration Hawks in Congress by Human Events Magazine.

 

1. Prosecutorial Discretion: Will You Be One of the Lucky 50,000?

 

If you are in removal proceedings, your chances of being saved by President Obama’s new prosecutorial discretion policy are about 1 in 6.

 

At least, those are the numbers that have emerged from the ICE pilot programs just completed in Denver and Baltimore. From early December until mid-January, 16 ICE attorneys reviewed 7,800 pending removal cases in Denver under the Morton Memo and determined that 1,300 should be administratively closed. That’s about 16% or 1 in 6.

 

Keep in mind that the fortunate 1 in 6 are not given green cards or even work permits. This is a long way from an “amnesty”. Only Congress can pass amnesty legislation, and to be perfectly frank, that possibility is about as remote as a U.S.-Iran mutual defense pact.

 

This is about as far as the Executive Branch of government can go without overstepping the prerogatives of Congress. In the eyes of some Republican leaders, it actually exceeds the powers of the Executive. However, prosecutorial discretion memos have been issued under both Republician and Democrat Administrations. Money is not infinite. Without a tax increase, our country has enough resources to deport about 400,000 individuals out of the 11-12 million undocumented persons who live and work in the U.S.

 

What’s more is that we have only about 260 overworked Immigration Judges to hear 300,000 pending cases. Judges are now scheduling cases in 2014. This is great news if you are married to a green card holder who is able to naturalize before then. However, do we really want to live in a country where serious criminals and persons who are security threats are allowed to remain out on the street for years while they wait for their deportation hearings?

 

Policy implications aside, how does the new policy affect you if your case is currently before an Immigration Judge, or if your application for immigration benefits is denied by the USCIS?

 

Please be assured that even as you read these words, the Obama policy is going nationwide. Be patient. It is no easy task to review 300,000 cases. It will probably take the greater part of 2012 to do so. If the present odds are any indication of things to come, about 50,000 cases will be administratively closed.

 

Will you be one of the lucky 50,000?

 

Those whose cases at at the extremes are easiest to predict: If your parents brought you to the U.S. as a child, and you have never been convicted of a crime, the chances of having your case closed are excellent. Ditto if most of your family are legally in the U.S. Conversely, if you are a criminal, a frequent illegal border crosser, have committed immigration fraud or are thought to be a security threat, don’t hold your breath!

 

If your case falls somewhere between these extremes, you have little choice but to wait and see if the folks at ICE choose to exercise prosecutorial discretion in your case. While you are waiting, you and your immigration lawyer would be wise to browse through our prosecutorial discretion page.

 

2. New Waiver Policy Would Promote Family Unity

 

A proposal was put forth in January by the USCIS which would allow thousands of spouses of U.S. citizens to come out of the shadows and apply for green cards.

 

This is as it should be since the stated purpose of our immigration laws is to promote family unity and spouses of U.S. citizens are usually given special preference in regularizing their status.

 

Despite this general rule, many thousands of families in the U.S. consist of one spouse who is a U.S. citizen and another who is an illegal alien. Worse yet, our laws require many spouses of U.S. citizens to leave the U.S. and travel abroad in order to apply for green cards. As a result, many of these spouses are forced to remain separated from their families for a lengthy period, from a few months to over 10 years.

 

Now, the Obama Administration is taking steps to halt this terrible travesty.

 

Before we explain the new policy proposal, it is best to recount the reason for the present state of the law.

 

In 1996, Congress passed and President Clinton signed the “Illegal Immigration Reform and Immigrant Responsibility Act” (IIRIRA). This law sought to punish persons who were “unlawfully present” in the U.S. by making it difficult for them to receive immigration benefits.

 

Here, one example is worth a thousand words.

 

Let’s say that a Mexican couple unlawfully entered the U.S. with their 3 children back in the 1980s. In 2005, their son Marty, then 21 years of age, married Barbara, a U.S. citizen. Marty and Barbara have been married for 6 years, and have two children. Yet, Marty is still unlawfully in the U.S. Why is that?

 

If Barbara sponsors him for a green card, he will have to apply at the U.S. Consulate in Ciudad Juarez, Mexico. Barbara hesitates to do this because Ciudad Juarez is a very dangerous place. More than one applicant for immigration benefits has been murdered or severely injured there. There is, however, another compelling reason why Barbara does not want her husband to go to Juarez.

 

Because Marty has been unlawfully present in the U.S. since his parents brought him here, the law bars him from returning to the U.S. for a period of 10 years. There is a way to avoid this, but it is neither quick nor certain.

 

If Marty can demonstrate that Barbara would suffer “extreme hardship” if he were not allowed to return to the U.S. for 10 years, then he can apply to obtain a “form I-601 waiver” from this bar. However, applying for a waiver is very tricky since only hardship to Barbara matters under the law. Hardship to Marty or even hardship to their children simply does not count.

 

Also, Marty must remain outside the U.S. while his application is pending, a difficult proposition since Marty is the sole breadwinner of the family. It may take the government several months or up to a year to process Marty’s waiver. If the waiver is denied, which occurs about half the time, Marty can appeal, but that is a two-year process. Marty must still remain outside the U.S. the entire time.

 

Because of this law, thousands of families have been separated for years. Some have had to go on welfare or have had their homes foreclosed when they could no longer make payments on their mortgage. As a result, many U.S. spouses in this situation simply choose not to sponsor their foreign-born spouses for green cards. The spouses simply remain in the U.S. with their families in unlawful status.

 

Do these same harsh penalties apply to spouses of U.S. citizens who enter the U.S. from Europe or Japan? Most of these spouses enter the U.S. lawfully as visitors or students, and many overstay their visas and remain in the U.S. illegally for months or years before marrying U.S. citizens. Yet, the law permits them to obtain their green cards without having to leave the U.S. or even requiring them to obtain a waiver. They may be illegal, but the severe penalties mentioned above mostly fall on spouses from south of the border.

 

So what is the new policy that was recently proposed by the USCIS and how will it promote family unity?

 

Is the government going to treat illegal Mexican spouses of U.S. citizens the same as illegal European spouses, and permit them to get their green cards in the U.S.? No. Is the government going to dispense with the waiver requirement or ease the standards for what is considered extreme hardship? Absolutely not.

 

What the Obama Administration is proposing is something much more modest. Nothing in the new proposal will change the law. It simply provides that before the green card appointment takes place outside the U.S., the waiver application may be submitted in the U.S. and the family can remain intact while waiting for the result.

 

Furthermore, the proposed regulation would limit the applicability of the new waiver process in 3 additional ways:

1. Only immediate relatives of U.S. citizens may apply;

2. Only unlawful presence waivers are included; and

3. The extreme hardship must be to qualifying relatives who are U.S. citizens.

 

Because lengthy family separations are avoided, the new policy would enable more U.S. citizens to apply to legalize their spouses, and would lower the number of illegal aliens in the U.S., something that everyone claims to be in favor of.

 

However, Representative Lamar Smith (R-TX), the principal author of IIRIRA, who currently serves as the Chairman of the House Judiciary Committee, characterized the proposal as an “abuse of administrative powers”.

 

We disagree. Still, we caution families to remember that the new policy is only at the proposal stage, and it may be many months before it is fully implemented. This is definitely a good time to start preparing your I-601 waiver application!

 

3. Schedule of Shusterman’s Upcoming Immigration Law Seminars

 

  • South Florida AILA Chapter
    South Florida AILA Conference
    Miami, Florida
    February 9-10, 2012
    Topic: Understanding the Child Status Protection Act

 

  • Immigration Boot Camp
    Pincus International
    Los Angeles, California
    March 16, 2012
    Register Online

 

  • Professionals in Human Resources Association
    Los Angeles County, District 1
    Downtown Los Angeles, California
    March 21, 2012
    Topic: I-9 Requirements

 

  • Los Angeles County Bar Association
    Immigrant Legal Assistance Program
    March 29, 2011, 8:30am
    Topic: “Introduction to Immigrant Visas”
    Registration Information

 

  • Professionals in Human Resources Association
    Los Angeles County, District 3
    Palm Desert, California
    April 18, 2012
    Topic: I-9 Requirements

 

  • FBA 8th Annual Immigration Law Seminar
    Federal Bar Association
    Memphis, Tennessee
    May 18-19, 2012
    Topic: Child Status Protection Act

 

  • 2012 AILA Annual Conference on Immigration Law
    American Immigration Lawyers Association
    Nashville, Tennessee
    June 13-16, 2012
    Topic: The Truly Mobile Law Practice: Tools and Technology Tips to Help You Be Productive Anytime from Almost Anywhere
    Please visit the conference website for more information

 

  • Professionals in Human Resources Association
    Ventura County, District 10
    Camarillo, California
    June 21, 2012
    Topic: I-9 Requirements

 

 

4. The Aussie Alternative: E-3 Visas For Professional Employees

 

The E-3 visa was created in 2005 to allow an Australian citizen who would otherwise qualify for an H-1B nonimmigrant visa to apply directly to the U.S. Embassy or Consulate abroad for an E-3 visa and not be subject to the H-1B cap.  A person may obtain an E-3 visa without the necessity of their employer having to submit a petition to the USCIS.

 

Many of the same regulations that govern the H-1B program apply to E-3 visas, including the need for an offer of employment in a “specialty occupation” from a U.S. employer at a wage equal to or greater than the prevailing wage for similarly employed workers or what the other employees at that worksite are being paid, whichever is higher. Also, similar to the H-1B, the beneficiary must have at least a Bachelor’s degree or equivalent professional experience and training in a specific field of study that is required for the job. All E-3 Visa applicants must have a Labor Condition Application (LCA) form ETA-9035 certified by the U.S. Department of Labor (DOL).

 

One of the major differences between the E-3 and the H-1B is that an E-3 can only be approved for a temporary period of up to two years rather than the three years for the H-1B. However, extensions can be granted indefinitely in two-year increments, unlike the general “six-year maximum” allowed for H-1B workers.  E-3 visa applicants are also required to have the intent to return to their home country or country of last residence before coming to the United States upon completion of their temporary stay in the United States, whereas H-1B workers are allowed to have “dual-intent,” meaning that they may enter the U.S. as temporary workers even if they have the intent to immigrate to the US.

 

Spouses and unmarried minor children of E-3 visa holders may apply for employment authorization while in the United States, unlike the spouses and children of H-1B  workers.

 

First time E-3 Visa applicants should apply at a U.S. Embassy or Consulate in Australia.  Subsequent E-3 visa applications may be presented at any U.S. Consulate abroad, but we recommend processing E-3 visa application at a U.S. Consulate in Australia as they are most familiar with the process.

 

To apply for an E-3 visa, applicants must complete a visa application (form DS-160), print out the confirmation page and make an appointment online with a U.S. Consulate in Australia. They must also present a copy of a certified LCA Form ETA-9035 from their prospective U.S. employer and 2 digital passport-style photographs taken within the past 30 days. There is also very specific process for paying the appropriate fees that must be followed closely before the visa interview.

 

E-3 Visa applicants should be prepared to present the following at their interview:

  • Copy of the signed and approved Labor Condition Application (LCA), which the U.S. employer obtains from the Department of Labor;
  • Evidence of academic or other qualifying credentials and a job offer letter from the U.S. employer;
  • Copy of any certificates and transcripts from their course of study to show U.S. degree equivalency. If your qualifications are not from an Australian or U.S. institution, the consular officer may request a certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree;
  • In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree; and
  • A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the foreign national will be obtaining the required license within a reasonable time after admission.

 

In general, the E-3 visa program has many advantages over the H-1B program.

 

5. Success Story: Spouse of U.S. Citizen – Easy Case? Read On!

 

In January, our law firm represented a middle-aged woman from Eastern Europe in a removal hearing.

 

She had entered the U.S. over 10 years before on a K-1 fiancee visa filed by a U.S. citizen who she met on the Internet and who had traveled to her country to meet her. Only when she arrived in the U.S. did she learn that he lived in his friend’s garage, and had only sponsored her in the hopes that she would support him for the rest of his life.

 

Within a few days, she left him and never saw him again. The following year, she and another U.S. citizen fell in love and got married. They bought a house together, and she helped him run his neighborhood business.

 

The couple sought our advice. Unfortunately, it is impossible for a person who enters the U.S. as a K-1 fiancee of a citizen to adjust their status in the U.S. through  marriage to another U.S. citizen. If she choose to return to her country to apply for a green card, her previous unlawful presence in the U.S. would bar her from returning to the U.S. for 10 years unless she could obtain a hardship waiver.

 

They had taken advantage of a couple of “free consultations” offered by attorneys near where they lived, and the attorneys assured them that she would qualify for a “waiver” of the ten-year bar. Just sign a contract, and give me a check, and I’ll take care of everything!

 

Aware of the adage that “if something appears too good to be true, perhaps it is”, they decided to seek a second, or more accurately, a third opinion. And as is all-too-often the case, I became the bearer of bad news.

 

I informed the couple that I would not take their case since there was nothing an attorney could do to help them. A waiver of the 10-year bar required that the wife show “extreme hardship” to her U.S. husband. True, they had been married for a number of years, and the emotional hardship that her husband would likely suffer would be tremendous. On the other hand, they had no children together, her husband was healthy and making plenty of money. I very much doubted that the USCIS would find the hardship to the husband would meet the “extreme” standard. And what if her waiver were denied? She could appeal, but this would take a minimum of two years, and the outcome would be tenuous at best.

 

The husband was upset. The wife was in tears. “But why did the other lawyers say we had a good case?” Although the answer seemed all-too-obvious, all I did was shake my head and tell them how sorry I was.

 

Fast forward a few years. The couple returned to our office. Now, the husband was suffering from a debilitating disease. Fortunately, the wife had medical training in her country, and with the help of some wonderful physicians, her husband was able to survive, but only with her constant care and attention.

 

On our website, they had read about a form of relief from deportation called cancellation of removal. Would she qualify? 10 years physical presence in the U.S.? Yes. A person of good moral character? Yes. And would her husband suffer “extraordinary and extremely unusual hardship”? I asked them a number of questions, and then answered, yes.

 

They retained our law firm to represent them in Immigration Court. Attorney Amy Prokop spent countless hours documenting the hardship, and discovered many types of additional hardship beyond the husband’s medical condition. After Ms. Prokop appeared at the master calendar hearing, she received a call from the attorney for the government. Based on the documents submitted, he was impressed by the showing of hardship. He stated that there was no need to bring expert witnesses and medical experts to the hearing. If she and her husband simply testified as to the accuracy of the materials submitted, the government would stipulate to granting her a green card through cancellation of removal.

 

Before the court date was reached, we prepared our clients for the merits hearing before the Immigration Judge. On two separate afternoons, we went over the testimony with the couple.

 

Then, a few days prior to the hearing, something unexpected and upsetting occurred.

 

Attorney Prokop received an e-mail message from the government attorney. A different Judge and a different government attorney had been assigned to the case. Did the verbal agreement still hold? Not clear. We began preparing for the worst.

 

Not an early riser by nature, I booked a room at the Biltmore Hotel near the Immigration Court on the day before the hearing, and called the front desk to arrange for a wake-up call. I needed to be at my best at the hearing early the next morning.

 

I spoke with the new government attorney prior to the hearing, and he seemed quite reasonable. I placed the wife on the witness stand. Although quite nervous, she made an excellent witness. The preparation had paid off. After I finished my direct examination, the Judge asked the government attorney if he had any questions. He did not.

 

I moved to call the husband to the witness stand, but even before he entered the courtroom, the government attorney stipulated that we had met the “extraordinary and extremely unusual” hardship standard, and that the government agreed that our client had established eligibility for a green card through cancellation of removal. The Immigration Judge granted the wife permanent residence, and the couple’s immigration saga had a very happy ending.

 

Only after the couple had left the courtroom, I reflected to myself, what would have happened if the wife had gone back to her country when her husband was still healthy and applied for a waiver? Would the government have allowed her to return to the U.S. or would she have had to remain separated from her husband for 10 years?

 

6. Immigration Trivia Quiz: Immigrant Poets

 

This month’s Immigration Trivia Quiz is entitled “Poetic Transitions: Immigrant Poets”

 

The first person to correctly answer our quiz and supply their biographical information wins a free legal consultation with me before the end of February.

 

7. State Department Visa Bulletin: February 2012

 

The February 2012 Visa Bulletin was issued by the Department of State on January 6.  The EB-2 priority dates for India and China move forward by one year.  Most other family and employment categories advance only a few weeks.

 

FAMILY CATEGORIES

 

Categories Worldwide China (PRC) Mexico Philippines
1st 10-15-04 10-15-04 4-15-93 4-15-97
2A 4-22-09 4-22-09 3-22-09 4-22-09
2B 9-08-03 9-08-03 12-01-92 9-01-01
3rd 11-01-01 11-01-01 12-22-92 7-15-92
4th 8-15-00 8-15-00 5-08-96 10-08-88

 

EMPLOYMENT CATEGORIES

 

Categories Worldwide China (PRC) India Mexico Philippines
1st Current Current Current Current Current
2nd Current 01-01-09 01-01-09 Current Current
3rd 02-01-06 10-15-04 08-08-02 02-01-06 02-01-06
Unskilled 02-01-06 04-22-03 8-01-02 02-01-06 02-01-06
4th Current Current Current Current Current
Religious Current Current Current Current Current
5th Current Current Current Current Current

 

8. Official Immigration Government Processing Times

 

* Citizenship and Immigration Services (USCIS)

 

The Immigration Service (USCIS) lists its processing times for immigration petitions and applications on their website. Most immigration applications and petitions must be submitted to one of the following USCIS Service Centers: (1) Laguna Niguel, California; (2) Lincoln, Nebraska; (3) Mesquite, Texas; and (4) St. Albans, Vermont and (5) the National Benefits Center in Missouri.

 

These service centers periodically issue lists of their processing times for various types of petitions and applications. We link to the latest list issued by each service center.

 

Warning: Processing times may appear faster on the official lists than they are in reality.

 

To see how fast (or slow) your service center or local USCIS office is processing a particular type of petition or application, see Government Processing Times Page.

 

Administrative appeals of most types of petitions and waivers denied by the USCIS are adjudicated by the agency’s Administrative Appeals Office (AAO) in Washington, DC.

 

We link to the AAO’s most recent published processing times.

 

* Department of Labor

 

The Labor Department’s website contains a tab entitled “PERM Processing Times”. This enables you to see how long it is taking the Labor Department to complete its final review of standard PERM applications, audited cases, standard appeals and appeals where there are government errors.

 

* Department of State

 

The State Department’s website contains a “Visa Wait List” page, which permits you to choose a particular U.S. consular post and learn how long it takes the post to process various types of temporary, nonimmigrant visas.

 

9. Ask Mr. Shusterman:  Should Employers Pay H-1B Filing Fees and Expenses?

 

H-1B petition filing fee: $325

Anti-Fraud fee: $500

ACWIA fee: $750-$1,500

Premium Processing fee: $1,225

Public Law 111-230 fee: $2,000

Employer pays all fees: Priceless!

 

The cost of filing an H-1B petition is substantial. Although some employers ask their employees to share some of the costs, this is seldom a wise course of action.

 

As discussed in our June 2011 newsletter, government regulations require the employer to pay the H-1B worker a wage that is equal to or higher than the actual wage or the prevailing wage for similarly employed workers. The actual wage is the wage rate paid to all other workers in the same position with similar experience and qualifications. If there are no such examples, then the  H-1B worker should be paid the prevailing wage. The prevailing wage is determined by the Department of Labor (DOL), or by the use of an appropriate salary survey or collective bargaining agreement and is detailed on the accompanying Labor Condition Application (LCA) that is certified by the DOL and attached to the H-1B petition when filed.

 

By statute, the only portion of the H-1B fee which must be paid by the employer is the ACWIA filing fee ($750-1,500) under Section 214(a)(9)(A) and (B) of the Immigration and Nationality Act.

 

However, if the employee pays for any other portion of the H-1B process, this amount may need to be added to his or her salary. The wage offered to the H-1B worker after his portion of the H-1B process has been paid must be equal to, or greater than, the actual wage or the prevailing wage, whichever is higher, as indicated on the LCA.

 

A Labor Department regulation, 20 CFR 656.731, provides in pertinent part:

“(c) Satisfaction of required wage obligation. (1) The required wage must be paid to the employee, cash in hand, free and clear, when due, except that deductions made in accordance with paragraph (c)(9) of this section may reduce the cash wage below the level of the required wage.”

 

Paragraph (c)(9), referred to in the preceding paragraph, describes which deductions are permitted:

those which are “not a recoupment of the employer’s business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of, and necessary to, the employment; living expenses when the employee is traveling on the employer’s business; attorney fees and and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)).”

 

What if the individual pays for the H-1B legal and filing fees before he begins working for the employer?

 

This seems to be covered by another Labor Department regulation, 20 CFR 656.731(c)(12):

“Where the employer depresses the employee’s wages below the required wage by imposing on the employee any of the employer’s business expense(s), the Department will consider the amount to be an unauthorized deduction from the wages even if the matter is not shown in the employer’s payroll records as a deduction.”

 

How does the USCIS know who actually paid for the case, so long as the employer has signed all the checks. Officers from Fraud Detection and National Security (FDNS) conduct random worksite inspections of H-1B employers as part of the Administrative Site Visit and Verification Program (ASVVP). The FDNS conducts unannounced pre- and post-adjudication random site inspections to verify information contained in certain visa petitions, including H-1B petitions.

 

The site inspectors may verify the information submitted with the petition, including supporting documentation submitted by the employer, based on a checklist prepared by the USCIS. They may verify the existence of a petitioning entity, take digital photographs, review documents, and/or speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties.

 

There have been reports that among the questions asked by FDNS during these inspections is who paid for the H-1B process. What portion of the H-1B legal and filing fees, if any, can the employee be asked to pay? The best way to avoid this contentious issue is to have all of the legal and filing fees provided by the employer.

 

Despite the above, some employers demand that employees for whom H-1B petitions are being submitted bear some of the costs. What happens if an employee complains to the Labor Department?

 

Consider the recent decision of a Federal District Court in Tennessee in Kutty v. Department of Labor, (E.D. Tenn. 2011), No. 3:05-CV-510. In this case, the Judge not only held that it was the employer’s legal responsibility to pay for all H-1B attorney fees and government filing fees, but also to pay for the J waivers which preceded the filing of the H-1B petition. The Court upheld huge fines and back pay awards that the Labor Department levied upon the employer for violations of the H-1B laws and regulations.

 

Although this case is currently on appeal to the U.S. Court of Appeals for the 6th Circuit, employers who attempt to pass along any of the costs involved in securing H-1B status for their employees clearly do so at their own risk.

 

10. Winner of our January 2012 Immigration Trivia Quiz!

 

January”s Immigration Trivia Quiz was entitled “Officially American: Immigrant Government Officials”.

 

Below is the message that we received from the winner:

 

Hi, Carl Shusterman & Office,

 

Here are the answers:

 

Alejandro Mayorkas, Cuba, Director of USCIS

Madeline Albright, Czechoslovakia, U.S. Secretary of State

Jennifer Granholm, Canada, Governor of Michigan

Arnold Schwarzenegger, Austria, Governor of California

 

It is fascinating that so many immigrants have done so well. About me: I am an immigrant from India and am a retired Civil Engineer. My wife and I have relocated to US to be with our son and his family. He is a faculty physician at UCSD. I have only recently been following the immigration news and development. We currently live in San Diego.

Besides enjoying time with our family, I volunteer teaching young kids Calculus, Trigonometry and Geometry. I absolutely love teaching math.

About solving, some answers I knew well , the others I was not very sure but was able to go online and read about these personalities.

Best,

Gopi

 

Congratulations, Gopi!

 

Carl Shusterman

Certified Specialist in Immigration Law, State Bar of California (1988-Present)

Former Immigration and Naturalization Service Trial Attorney (1976-82)

Board of Governors, American Immigration Lawyers Association (1988-97)

Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550

Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720

 

“I believe as strongly as ever that we should take on illegal immigration. That’s why my Administration has put more boots on the border than ever before. That’s why there are fewer illegal crossings than when I took office. The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away.”

 

President Barack ObamaState of Union AddressJanuary 2012

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January 30, 2012
 

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