H-1B Visas for Start Ups? USCIS Sending Mixed Messages for Entrepreneurs

A common question among H-1B holders is whether they can start their own company and work for it, rather than for an existing employer. The answer is: It depends. It depends on your degree, the nature of the company you want to create, your experience and expertise, the capitalization of your proposed business, your country of nationality, and a multitude of other factors.

Entrepreneur Pathways

To help orient prospective entrepreneurs about their options and to encourage new business as a means to help stimulate the economy, USCIS has launched a new site called Entrepreneur Pathways.

The site provides big-picture information on the immigration process, potential visa types, and information on outreach programs. The site seems to be a work in progress, with some pages not seeming to function properly in at least one browser (Internet Explorer), such as the “Click Here” link on the Get Started page.  The Visa Guide page, however, was accessible. It provides a useful click-through interface to help the reader identify potential visa types.

Visa Options for Entrepreneurs

There are several visa types that are appropriate for entrepreneurs, depending on the specifics of your situation, including such nonimmigrant visas as H-1B visas, O visas for those with extraordinary abilities, E visas for treaty traders and investors, and L-1 visas for intracompany transferees.

The site focuses on nonimmigrant visa categories, and does not mention the immigrant visa categories for entrepreneurs, such as the EB-5 for investors and those who might qualify in the EB-2 category under National Interest Waiver or other subtypes.

The information on the site is useful from the standpoint of telling you what options exist, and USCIS should be applauded for its efforts to create a single resource to educate foreign entrepreneurs about their visa options as part of the larger effort to boost the economy.

Reality Check for Entrepreneurs

Don’t start planning your future yet, however. While USCIS is doing a lot of talk, its actions are still to be seen. What this site does not show you is the reality check on the likelihood of being approved for any of these visas. For example, obtaining an H-1B for start-up company has been extremely difficult. Even more troubling, documentation received by the Legal Action Center of the American Immigration Council after a hard-fought FOIA request shows USCIS appears biased against young, small companies applying for H-1Bs or Ls, and targets them for fraud investigations.

Specifically, a USCIS document identifies three red flags which are presumed to show companies more susceptible to fraud: 1) H-1B or L petitioners with a gross income of less than $10 million; 2) with 25 or fewer employees; 3) or that were established within the last 10 years.  These factors are known as the “10/25/10” factors in reference to their relevant numbers. Where these factors exist, adjudicators are to review them “with an awareness of the heightened possibility for fraud and/or technical violations” and refer them for “further scrutiny.”

In practice, this heightened scrutiny of small companies results in extensive, burdensome documentary requests for additional information about the company, its operations, etc.

In the end, this targeting of small companies has a chilling effect on applications, as well as approvals, which undermines the government’s stated policy goal of promoting entrepreneurship.

So, while USCIS should be applauded for encouraging entrepreneurship, especially in this poor economy, by making information more accessible, it will need to follow through in action by ensuring start-ups are treated equally and fairly in the adjudication stage.

If you are a budding entrepreneur looking at your visa options, whether that be an H-1B or other visa type, have hope the immigration landscape is changing to support people like you. But before you act, be sure to speak with a competent attorney about the specifics of your matter for a reality check on your options, likelihood of success and the best way forward for you.

For more information about H-1B employee rights, contact the attorney-authors.

 

 

New Complaint Filed in Our H-1B Underpaid-Worker Class Action Against Access Therapies, RN Staff Inc. d/b/a Rehability Care

The attorney-authors have represented underpaid H-1B workers with a number of legal cases across the U.S., including a class action case pending in the Southern District of Indiana federal court.

This federal class action lawsuit was filed on behalf of a proposed class of H-1B workers against Access Therapies, Inc., RN Staff Inc. d/b/a Rehability Care, and an associated representative of the companies. The lawsuit alleges that Access Therapies and related entities systematically “bench” and underpay H-1B workers (and force workers to pay visa fees) as part of a scheme that violates civil laws including wage laws, contract law, and the Racketeer Influenced and Corrupt Organizations Act (RICO).

The attorney-authors of this blog, Michael Brown and Vonda Vandaveer, are among the attorneys representing the H-1B worker who filed the lawsuit, along with attorney Daniel Kotchen and Kotchen & Low LLP.

Please contact attorney Michael Brown at (920)238-6781 if you have any information or questions about the case.

Scroll below if you’d like to review the latest Complaint, which details the case allegations about H-1B workers being underpaid and mistreated:

View this document on Scribd

 

 

 

With No More New H-1Bs This Year, Is the J Visa Program Another Target for Exploitation By Employers?

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Beach (Photo credit: Moyan_Brenn_BE_BACK_on_10th_OCT)

Our H-1B worker readers are probably familiar with employers recruiting foreign workers holding OPT/CPT as an alternative to H-1B employment.  Some employers do this to avoid the restrictions that come with H-1B visas, such as having to pay the required wage to H-1B workers at all times, even while between work projects or on the “bench.”

But OPT/CPT isn’t the only visa tool employers are using in lieu of the H-1B. The attorney authors of this blog are aware of some companies that we believe have used the J exchange visitor visa program to recruit workers in J status as part of a scheme to later underpay them as H-1B workers.

Like the H-1B, the J visa also authorizes foreign nationals to work in the United States, but without the professional work and wage requirements of the H-1B. The J visa is for participants of a U.S. government approved work program. The various programs include offerings for: au pairs, scholars, camp counselors, students, interns, physicians, and trainees, as well as a summer work-travel program, where participants work for employees with seasonal needs, such as at summer resorts.

Some workers are recruited by unscrupulous employers to work (say, at a summer resort) in J status. When their J visas expire, the employer will then offer to sponsor the workers for H-1B visas. Such workers may be told they are being offered an H-1B professional level position which carries a prevailing wage that is higher than the wages they have received while in J status.

But when the workers of such an employer show up for their jobs in H-1B status, the employer tells them they will be working lesser-skilled jobs than that for which they had their H-1B status obtained, and they only would receive the same lesser salary they were earning while in J status. Employers may promise the workers that the lesser-skilled jobs (falling short of H-1B standards) are temporary, or that the workers may be promoted “soon,” and later receive the full wages required under the H-1B program. But “soon” may never arrive with such an employer, and the workers may continue to be underpaid. Employers who participate in schemes like this are violating the H-1B program laws.

In short, it is unlawful for a company to use the J visa program to recruit foreign workers to come to the United States, and then– once the workers are hooked on their jobs– to switch the workers to the H-1B visa program, and underpay them based on old J – level wage requirements.  Employers who do this rely on the workers’ job dependence or their ignorance of the difference between the J and H-1B program requirements.  The workers fall victim to the employer’s promises of better jobs and higher salaries in the future, which the employer uses as means to get the workers to endure underpayment, and not complain about the employer’s H-1B law violations involving underpayment and lesser work assignments.

If you have been a J visa holder and are later asked to work in H-1B status, be aware that your rights, duties and obligations change. H-1B visa holders must be paid a specified wage and can only work in the position for which their H-1B was authorized.

If you were in J status and are now working in H-1B status doing the same job for the same wage rate as you were while in J status, you should review your H-1B petition and Labor Condition Application (LCA) to be sure you and your employer are complying with the H-1B program requirements.

If you are being underpaid, working fewer hours than promised, or being assigned to work in a capacity that is different from that stated on your LCA and in your H-1B petition, you may be eligible to pursue claims against your employer. You should seek competent legal advice promptly to avoid losing your legal rights and missing any filing deadlines.

For more information about legal services we offer to H-1B employees, see our page here: http://h1blegalrights.com/legal-services-for-h-1b-employees/

Join the Debate: Is there an IT Worker Shortage in the United States?

Companies like Microsoft say there is a shortage of competent and qualified US workers in the IT industry, so they must recruit employees from other countries (and, thus, want to increase the current cap on H-1B visas).

IT industry workers and others say there is more than enough home talent, especially in this bad economy. They say the jobs remain unfilled because employers are offering unacceptably low wages and demanding unnecessary and exact qualifications and experience, rather than being willing to train for the employer’s specific job needs. Instead, they argue, these employers recruit foreign workers who will accept lower wages.

What do you think? Is there a shortage of competent IT workers in the United States?

H-1B Visa Interviews Used to Detect Suspected Employer Fraud and Abuse; Are Visas In Jeopardy Even for Prior Employer Violations?

Consular officers are taking a more active role to stop employer abuse of the H-1B program, by reporting H-1B employer’s suspected wage violations to the Department of Labor (DOL) for investigation, based on information the officers obtained during visa interviews with workers.

The officers’ interest is good news to the extent unlawful H-1B employer practices are being challenged.

The bad news is, some H-1B employees seeking visas at consulates are themselves under scrutiny based on the bad acts of their former employers.  Some visa workers being interviewed are at risk of prolonged “administrative processing” or, worse, a denial, based on a former employer’s violations.

As of September 2012, the consular officer’s handbook, the Foreign Affairs Manual, has revised its notes at 9 FAM 41.53 N27 et seq, explaining the types of H-1B employer violations that can occur and provides instructions about what to report and to whom.

The FAM’s revisions put in writing what consular officers have already been doing in practice for the past several years in response to the government’s growing concern about H-1B program fraud. The FAM’s note on the subject discusses an employer’s obligations under DOL regulations as participants in the H-1B program, including requirements to pay the required wage and prohibitions against benching.

The FAM describes a variety of scenarios that consular officers might come across during an employee’s visa interview that indicate possible program violations by an H-1B employer, including discrepancies between the required wage identified on the LCA and the wages reported on employer or employee tax forms, an employer’s failure to pay return transport home upon termination, and an imbalance between the number of H-1B approvals for a particular employer compared to the number of employees reported on the employer’s payroll documents (e.g. 50 active H-1B approvals but only 10 H-1B employees being paid).

The FAM’s note tells consular officers they should report any suspected employer violations to the Fraud Prevention Unit at the Kentucky Consular Center (KCC), which is the DOS centralized processing unit for USCIS petitions. The KCC presumably then liaises with the DOL.

The note reminds officers only violations that occurred in the past 12 months should be reported. DOL’s filing deadline for WH4 complaints (for wages being underpaid to H-1B workers) has a 12-month limitation.

Of interest, the FAM notes remind consular officers that such violations do not preclude visa issuance.

Your primary responsibility in visa adjudication is to carry out the requirements of U.S. immigration law. Occasionally, you may discover indications of possible violations of other U.S. laws, even if you issue a visa. This note outlines types of possible violations of U.S. labor law, and tells you how to report them to the Department of Labor (DOL). In most of these situations, you likely would still issue a visa. 9 FAM 41.53 N27 BACKGROUND

In practice, however, immigration attorneys are reporting that if the suspected violations involve a worker’s current H-1B employer,  some consular officers are putting the case in the pending file (and issuing to the applicant what is known as a 221(g) refusal, a reference to the immigration code section, meaning more information is needed before a decision can be made), and returning the petition to USCIS for follow up investigation. Because the focus is on employer-fraud prevention, this procedure would be expected.

If the violation involved a prior employer, visa issuance should not be jeopardized, but in practice the attorney authors of this blog also have seen a 221(g) refusal issued for additional “administrative processing” in such a case, even for violations far outside the 12-month reporting period.

Whether this type of “administrative processing” is a new trend, with H-1B employees to be experiencing fallout for their prior employer’s violations,  remains to be seen. In the past, the attorney authors experienced no visa processing delays or denials related to violations by an H-1B employee’s prior employer. The attorney authors will update our readers as we obtain more information so you will know what to expect at your next visa interview.

DOS’ enhanced focus on enforcement has been coupled with efforts to raise H-1B employees’, as well as other temporary workers’, awareness about their rights in connection with the campaign against trafficking in persons. DOS has created a pamphlet available in multiple languages that discusses foreign workers’ rights while in the United States.

If you have been benched without pay, underpaid, or experienced other H-1B program violations, you should consider seeking competent legal advice.  You should also consider seeking such legal advice promptly, before risking the passing of any legal filing deadlines (not all of which you may be aware of) or before any visa interview takes place.

For more information about legal services we offer to H-1B employees, see our page here: http://h1blegalrights.com/legal-services-for-h-1b-employees/

 

Texas Farm Accused of Discriminating Against US Citizen Job Applicants in Favor of H-2A Foreign Workers

A Texas farm has been accused of discriminating against U.S. citizen workers, and instead favoring foreign workers hired under the H-2A temporary worker visa program.

In June 2010, a U.S. citizen with more than 12 years of experience in the agricultural industry said in a complaint that he had applied for a job as a cotton picker operator at Estopy Farms, of McAllen, Texas. He was rejected, but during the same period, Estopy Farms hired a number of seasonal foreign workers under the H-2A program. The U.S. citizen claims he was rejected because of his citizenship.

Texas Rio Grande Legal Aid Office filed a lawsuit with the Chief Administrative Hearing Officer (OCAHO) within the Justice Department’s Executive Office for Immigration Review on behalf of this applicant along, with another U.S. citizen. The lawsuit alleges violations of H-2A program rules, which require employers to certify that they have actively tried to recruit U.S. workers and that the hiring of foreign workers is not adversely affecting the working conditions of similarly employed U.S. citizen workers.

The Department of Justice also has filed a motion to intervene in the lawsuit in conjunction with its role of enforcing the INA’s anti-discrimination provisions. The DOJ pursues employers accused of discriminatory hiring practices.

Employer discrimination is wrong in the U.S., whether it’s discrimination against foreign workers or against U.S. citizen workers. For more information about the legal services we offer workers who have experienced discrimination, please email the attorneys at vonda@vkvlaw.com.

 

India EB-2 October Priority Date Predicted to Be 2006; Older than Hoped

More bad news for Indian EB-2 category green card hopefuls – the long-awaited Oct 1 release of the new priority date for filing applications is estimated to be for a much older date of 2006, rather than the previously predicted 2007, liaison officers of the American Immigration Lawyers Association (AILA) announced this week.

Worse, the government expects it to stay at 2006 for quite awhile. In fact, some are fearing a worst case scenario where it could fall back to 2005 later in the fiscal year due to demand.

China, meanwhile, is expected to fare better than India when the new numbers come out Oct 1, but that assessment is still ongoing so an estimated priority date was not identified.

The Department of State (DOS) predicts the rest of the EB-2 category may become “current” in October, meaning anyone with an approved I-140 can file (or concurrently file their case). Or, the priority date may go to early 2012 and then current in the November Visa Bulletin, according to the AILA meeting report.

News of the estimated upcoming priority dates was discussed during AILA’s regular meeting with DOS officials last week.

Indian and Chinese H-1B and other visa holders have been anxiously awaiting news of the estimated EB-2 priority date for the October 2012 visa bulletin to see if they will finally be eligible to file for their green cards. Workers can only file for their green card if the priority date on their I-140 is the same day or earlier than the date named in the DOS Visa Bulletin.

A fixed number of visas are made available at the start of each fiscal year, which begins Oct. 1. The EB-2 category was oversubscribed this year for Indian and Chinese applicants. Currently, the EB-2 category is “unavailable” for both China and India, meaning no one from those countries can submit green card applications, regardless of their priority dates. Other countries are registering a 2009 priority date.

The Department of State cited several reasons for the lagging priority date for India. One is oversubscription, another is the upgrading of EB-3 cases (for skilled and professional workers) to EB-2 (advanced degree workers). The unusual complicating factor this fiscal year, however, is a surprisingly high number of EB-1 applicants. EB-1 is for foreign workers with an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Normally, the EB-1 category is undersubscribed and its remaining visa numbers at the end of the fiscal year fall down to the EB-2 category for usage. This year, the Department of State expects all of the EB-1 visas to be used up so none will fall down for EB-2 usage.

For EB-3, the worldwide availability should remain as posted for the rest of September. DOS could not predict where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage, which would slow the speed of EB-3 worldwide.

Another complicating factor with predicting priority dates involves upgraded cases – those who initially filed in the EB-3 category, but who then earn a Master’s or other advance degree and become eligible for the EB-2 category. An estimated 10,000-15,000 upgrades are done each year, according to the AILA meeting report. The visa numbers for both EB-2 and EB-3 are held out of the visa pool until the green card is formally approved in one category or the other. Only then is the unused visa released back to its category for usage. Whether the EB-2 or EB-3 number will be used depends on priority dates and visa availability, which is why the unused one is not released until the green card case is approved. This delay in releasing the unused number makes it difficult to predict visa availability from month-to-month.

The DOS Visa Bulletin is available here, so you can check it monthly to see whether your case is eligible to be filed or estimate how long it will be before you can apply for your green card: http://travel.state.gov/visa/bulletin/bulletin_1360.html

While those H-1B holders with more recent priority dates will be disappointed with this news, these workers generally can still maintain their H-1B status based on the unavailability of the immigrant visa number. This means all H-1B regulations, including those requiring you to be paid your wage while benched, will continue to apply to your employment situation. A competent immigration attorney can provide you more information about whether you are eligible to stay in the United States and continue to work while waiting for your priority date to become current.

 

No More I-94; Expect Glitches In Short Term While Government Revises Procedures


If you are an H-1B worker, that white card stapled into your passport saying how long you can stay in the U.S. and work on your H-1B visa will soon be a thing of the past.

Customers and Border Protection (CBP) will be eliminating the I-94 card as part of its efforts to save money and streamline its systems, AILA’s committee that liaises with the CBP announced this week. Instead, CBP will stamp your passport and write in your approved period of stay, similar to what is done for Canadian or visa waiver entrants.

CBP will phase in the elimination imminently, starting with air and sea borders.  Entrants at land borders will continue to receive the I-94 as well as certain classes of people, such as refugees.

Other government agencies, including USCIS, the Social Security Administration and state motor vehicle bureaus where you obtain your driver’s license, which use the I-94 information for its records, still have to determine how they will revise their procedures to handle the lack of an I-94. Because the government is still sorting out the effect of the elimination of the I-94, we expect practices and procedures, including preparing H-1B applications, to be in a state of flux as part of the adaptation process.

So, next time you enter the United States, if you are not given an I-94, don’t be concerned. That is the new norm. At the same time, expect the rules for how to handle the lack of an I-94 to change from one day to the next as each government agency develops its new practices and procedures. In other words, be patient with the ever-changing processes and expect some glitches with getting social security cards, drivers’ license, and even filing your immigration cases.

It’s Your Status; Take Care of It

If you are an H-1B worker and have been reading our blog regularly, by now you probably know that your employer must pay you a required wage even if benched, you must do the work when available for which you were hired, and you cannot move from one location to the next without the employer notifying DOL or in some cases filing an amended H-1B application. 

You also know an employer’s failure to adhere to these H-1B program regulations is a legal violation. Indeed, the news abounds with stories of employers scamming the H-1B program and exploiting H-1B employees.

Not all employers intentionally violate these rules, however. Some employers, particularly smaller ones who have little experience with the H-1B program, may not fully understand the intricacies of their duties and obligations as an employer. Whether an employer’s violations are intentional or not, however, you are the whose status is jeopardized; your employer’s violation can put you at risk of violating the rules, with the consequence of being forced to leave the United States and even run the risk of not being able to return.

Protect Yourself; Know the Rules

As an H-1B worker, it’s your status at risk, so you need to take responsibility for your status by informing yourself of the H-1B program rules and what actions jeopardize your ability to live and work in the United States. Don’t rely on your employer. They often are too busy running their business to appreciate the risks  to you of an H-1B program violation.

Even good news, such as a promotion, can inadvertently put you in violation of your status. For example, if you are a market research analyst, and you are promoted to marketing manager heading up a department with dozens of employees and taking on entirely new duties, you are no longer doing the work for which your original H-1B documentation was approved. Your employer would need to file a new LCA with the Department of Labor and an amended H-1B petition with USCIS. If your employer does not follow the requirements, you are the one whose life will be upended by having to leave your job and the United States.

If you are being promoted into a new position, moved to a new location, or you experience any other change to your job, ask your employer whether an amended LCA or an amended H-1B petition is to be filed. If your employer refuses to take any action to help you ensure your status, then you should talk to a competent attorney to protect yourself.

For more information about the legal services we offer H-1B workers, see our page here.

Don’t Sit on the Fence If An Attorney Discusses Options– Take Action, or Don’t

The attorney-authors of this blog commonly get inquiries from workers who are underpaid or mistreated by H-1B-sponsor employers, and who are initially uncertain whether they want to take action against the employers.  We certainly understand this indecision.  Further, we think it is a very good thing that mistreated workers talk to an attorney about what legal rights and options they have before the workers take action or self-help measures on their own.

However, there are some workers who speak to attorneys at length about their problems, get legal advice and recommendations, but then “sit on the fence,” so to speak.  On occasion, the attorney-authors have communicated with certain workers for hours on end, spanning many weeks, with the workers ultimately not deciding whether they want to pursue legal rights and options we have recommended and explained several times.  Commonly, workers on the fence will be consumed with the same issues, asking the same questions over and over, even after an attorney has answered several times to the best of his or her ability.

Please know that there are harms involved with staying on the fence.  As a critical example, deadlines for legal rights come and go; opportunities to take action can be forever lost if a worker waits too long in a cloud of indecision.  Also, witness’s memories fade over time, meaning they may no longer be helpful to the claim.  If you leave attorneys waiting (even ones pleased to represent you), they will turn their attention to other clients and their work capacity and availability will change.

You probably know all this already.  And again, we understand if you are initially “on the fence” about taking action  until you consult with an attorney and get advice about your rights. Just know you can’t stay on the fence forever.  Until you decide you are truly willing to move forward– if you are able to make decisions and take action if an attorney discusses strategies that are logically in your best interest– then please don’t consume too much time (yours and others’) rehashing issues over and over, and staying on the fence.