H-1B Cap Exhausted. Who Is Affected? What Can You Do Now?

Our readers have probably seen all the headlines in the last few days about the H-1B cap being reached in the first week this year, the first time since 2008. For most of you, this story will not affect you, other than it being an indicator of a recovering economy. Those of you who already have H-1B visas that were cap-subject when you applied will be able to seek another H-1B.

But for our readers who have not held an H-1B cap-subject visa (such as those of you currently on F-1/OPT or J-1) and who are hoping for an H-1B this year, you are affected. Here is the rest of the story on this year’s H-1B cap race from USCIS’ April 8, 2013 Press Release:

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

* extend the amount of time a current H-1B worker may remain in the U.S.;

* change the terms of employment for current H-1B workers;

* allow current H-1B workers to change employers; and

* allow current H-1B workers to work concurrently in a second H-1B position.

When Can I Apply Again?

Employees working for companies who already have H-1Bs that were cap-subject may continue to pursue other H-1Bs, such as for a change of employment or a second job.

The early cap exhaustion only affects those who have not held an H-1B, such as F-1/OPT workers, and existing H-1B holders who were exempt from the cap, such as those working for non-profit or governmental research institutions or for institutions of higher education, and who now want to move to cap-subject employment.

These employees will have to wait until next fiscal year’s H-1B visa pool. The earliest start date for work on next year’s H-1B will be October 1, 2014.  Petitioners, though, can file up to six months in advance of the employee’s start date, meaning as early as April 1, 2014. So, plan ahead for next year. Unless Congress enlarges the cap, you can expect another H-1B filing race next April 1.

What Can I Do While I Wait For Next Year’s Filing Time?

Meanwhile, what can you do while waiting for next year? You will need to maintain a valid visa status to stay in the United States or leave. Your options may include taking advantage of the STEM OPT 17-month extension, returning to school, or finding a job that enables you to use another visa category such as O (extraordinary ability) or J (exchange visitor). You should speak with a competent immigration attorney who can advise you on your options.

Remember that all H-1B employers are required to follow the wage laws and pay employees the required wage. If you are not being paid your required wage or have experienced other employer violations, contact a competent attorney to discuss your legal rights.

For more information about legal services we offer to foreign workers, including H-1B employees, see our page here or contact us at vonda@vkvlaw.com.

 

Recent Arrest of Officials of H-1B Employer/Bodyshop

As detailed in this article from www.itbusinessedge.com, officials of Dibon Solutions, a sponsor employer of H-1B visa workers, were recently arrested by Federal authorities for criminal charges for conspiracy to commit visa fraud and wire fraud.

The Federal indictment was filed under seal on February 20, 2013 with the U.S. District Court, Northern District of Texas, and unsealed on March 1.   The indictment alleges an illegal H-1B temp- service (bodyshop) employment arrangement of the type alleged by workers represented by this blog’s attorney-authors in matters concerning other employers.  That is, Dibon allegedly has a business model where they make false promises to H-1B applicants and to the Federal government– including promises that full time work will be available, and that the workers will be paid legally-required wages including required wages for nonproductive/benched time between work projects– and once the workers are hired they learn that the promised work and wages are not provided.

According to the indictment:

Contrary to the representations made by the conspirators to the workers (and the government), the conspirators paid the workers only when the conspirators placed the workers at a third-party company and only if the third-party company actually paid Dibon first for the workers’ services. Additionally, in Dibon’s visa paperwork, the conspirators falsely represented that the foreign workers had full-time positions and were paid an annual salary, as required by regulation to secure the visas.

This scheme provided the conspirators with a labor pool of inexpensive, skilled foreign workers who could be used on an “as needed” basis. The scheme was profitable because it required minimal overhead and Dibon could charge significant hourly rates for a computer consultant’s services. Accordingly, the conspirators earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work.

This scheme is known as “benching.” Benching is defined by U.S. Department of Labor (DOL) as “workers who are in nonproductive status due to a decision by the employer, such as lack of work.” Dibon actively recruited H-1B workers and “benched” them.

In the blog authors’ view, this type of “benching” scam occurs with many H-1B employers across the U.S. and could be prosecuted, both in criminal and civil contexts, to a much greater extent than is currently occurring.  We wrote these articles about other criminal enforcement efforts:

http://h1blegalrights.com/2011/05/feds-cracking-down-with-criminal-convictions-against-employers-for-h-1b-and-work-visa-fraud/

http://h1blegalrights.com/2012/06/guilty-plea-for-h-1b-scam-targeting-student-visa-holders-beware-of-more-scams-with-h-1b-quota-cap/

Indianapolis News Station Report About Our H-1B Worker Class Action Versus Access Therapies

An Indianapolis TV station, ABC-affiliate RTV6, recently released a published news report and video about a case the attorney-authors are working on, Panwar et. al. v. Access Therapies et. al.

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 as part of a scheme that violates civil laws including forced labor laws, wage laws, contract law, and the Racketeer Influenced and Corrupt Organizations Act (RICO).

The RTV6 news report discusses the case, and interviews various attorneys about the case and Access Therapies.

The attorney-authors 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.

You can also link here to review more information about the Access Therapies case and the latest Complaint, which details the case allegations about H-1B workers being underpaid and mistreated.

 

J-1 Workers Have Rights Too; Students Awarded Back Pay After Filing Claims of Abusive Conditions

Exploitation of J-visa workers has popped up in the news again, with the Department of Labor reaching a settlement with three companies to pay $213,000 in back wages to foreign students who were hired for summer work in Pennsylvania at a Hershey’s Chocolate packing plant.

The settlement resolves claims against the three companies for their respective roles in recruiting and employing 1,028 foreign students who were participating in the State Department’s J-1 Summer Work Travel program, which is designed to promote educational and cultural exchange.

The three companies are: The Council for Educational Travel-USA (CETUSA), which acted as the students’ sponsor in the program, Excel, Inc., which operated the Hershey’s packing plant where the students worked, and The SHS Group, LP, which hired and placed the students at the Excel work site. Hershey was not a named defendant in the claims.

The companies’ violations first made headlines in 2011 when the J-1 student workers held a strike at the packing plant, alleging they were working in harsh conditions, such as heavy lifting and having pay dedutions that left them with less than the minimum wage for living.

The department’s Wage and Hour Division investigation found violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) as a result of excessive housing costs charged to the foreign students employed at the Palmyra facility, which reduced their hourly wages below the amount they were required to be paid under the FLSA.

Excel also was fined $143,000 for violations of safety and health violations in connection with the foreign employees’ working conditions, including excessive noise levels, and DOL assessed an additional civil money penalty against SHS for repeat violations of the Federal Labor Standards Act (FLSA).

Earlier this year, DOS debarred CETUSA from participating in the J program for two years for the violations and revised J-1 program rules to add additional protections for student guestworkers.

The Department of Labor has issued a detailed press release on the case here: http://www.dol.gov/opa/media/press/osha/OSHA20122169.htm#.UKPmReOe9mg

The case was pursued by the National Guestworker Alliance. http://www.guestworkeralliance.org/tag/j-1-visa/

J-1 Workers Susceptible to Fraud and Exploitation

While the media abounds with stories about H-1B fraud, the employer violations occurring within the J-1 program are not as well publicized and perhaps not as well reported. J-1 workers are just as susceptible as H-1B employees to becoming victims of fraud due to their dependence on their sponsor to work and their lack of knowledge about their legal rights.

If you are a J-1 worker and are being underpaid, 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 foreign workers, including J-1 employees, see our page here or contact us at vonda@vkvlaw.com.

 

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?

Beach

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.