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Archive for the ‘Immigration & I-9 Services’ Category

Be Aware of Your Rights When ICE Wants to Review Your I-9 Files

Posted on: July 29th, 2019

By: Ken Levine

Under the current administration, Immigration and Customs Enforcement (ICE) has ramped up investigations on corporate compliance with laws pertaining to the hiring of workers.   The reality is that large, medium and small employers are all at risk of being subject to an ICE enforcement action.

Congress has given Immigration and Customs Enforcement (ICE) broad authority to investigate and enforce Form I-9 compliance.  Under current laws, employers must verify the employment authorization of a new hire through the Form I-9 verification process.  Forms I-9 must be retained for three years after hiring or one year after the employee’s last day of work, whichever is later. Employers must also make their Forms I-9 available for inspection by ICE or other government agencies upon proper notification.  ICE initiates an I-9 audit by serving a Notice of Inspection (NOI) on the employer, who then has three (3) business days to produce internal I-9 forms as well as the other documentation requested.  During the 3 day period, immigration legal counsel may enter their appearance in the matter and should review a copy of all documents that have already been provided or will be provided to ICE. ICE agents review the documents, identify any technical or serious violations, and provide issue an audit report.

 The ICE I-9 audit did not go well – what could that mean?

Significant defects in the I-9 audit could very well mean that ICE will levy substantial financial penalties or even initiate a raid.  The I-9 audit process is where ICE has the ability to weigh evidence of whether an employer is knowingly hiring and employing unauthorized workers.  If the evidence tends to show a company engaging in willful hiring and retaining of unauthorized workers, then a raid by ICE agents and criminal prosecution of company officials is certainly possible.  An “ICE raid” is the description for when agents (without notice) arrive at an employer’s worksite to arrest unauthorized workers, as well as company personnel who possess knowledge or have facilitated unauthorized employment hiring practices.

Employers should note that that ICE agents are entitled to enter any public area in a workplace but require consent (which can unwittingly come from a receptionist) or a judicial warrant in order to access non-public areas.   A judicial warrant has the following characteristics:  1) It contains the signature of a federal or state judge and the date; and 2) It includes a timeframe for the search; and 3) the areas to be searched.

In the current environment, proper I-9 planning can certainly mitigate the effects of an ICE audit.  Working with attorneys well versed in enforcement compliance will best position a company in the event of an audit or raid.  Good faith efforts by employers to correct defects in their I-9 records on their own will by and large make a favorable impression with ICE.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

Federal Litigation and How to Turn a USCIS Denial into an Approval

Posted on: July 17th, 2019

By: Ken Levine

The FMG Immigration Section was retained to prepare a green card case for one of the top chess players in Asia.  Our client, Oliver Barbosa, is a chess Grandmaster who hails from the Philippines.  He is currently ranked the 2nd best chess player in his country, the 60th best chess player on the Asian Continent and the 474th best chess player in the world.  FMG was already familiar with Oliver’s credentials. Our firm had previously secured an O-1 (extraordinary ability) work visa on his behalf, which allowed him to work as an Instructor for a prominent chess instruction company in New York City.

Information on Oliver’s impressive chess accomplishments can be seen in the attached articles:

http://bangkokchess.com/gm-oliver-barbosa-runner-up-of-the-14th-bcc-open-2014/

http://www.chessdom.com/parsvnath-international-open-oliver-barbosa-clinches-title/

Given the substantial evidence supporting Oliver’s O-1 work visa we had confidence that USCIS would look favorably upon our EB1 filing.  However, USCIS raised several legal issues in a request for evidence (RFE) and cast doubt on his eligibility to receive a green card under this category.  FMG immigration attorneys vigorously responded to the Immigration Service’s RFE and two weeks later we were met with a surprising denial decision.

After assessing the denial and determining that the legal reasoning set out in the decision was very much at odds with the actual evidence, FMG strongly recommended pursuing federal legal action.  While there are appellate steps within the USCIS process (Motion to Reconsider or an Appeal to the Administrative Appeals Office) these options were substantially less preferable than simply taking USCIS straight to Federal Court.   FMG filed what is known as a “Declaratory Action” in the U.S. District Court for the Eastern District of New York – https://www.pacermonitor.com/public/case/28492611/Barbosa_v_Barr_et_al

Our case was never reviewed by the Federal Judge nor was it necessary to appear in court.  23 days after filing and a mere five days after the Assistant U.S. Attorney (AUSA) entered their appearance, we received a notice that USCIS had reopened the denial and approved the EB1 petition.  The approval means that Oliver and his wife (Sunshine) will receive their green cards under our country’s most elite and prestigious immigration category.  Congratulations Oliver and Sunshine!

Oliver emailed us the below comments and has authorized us to print them here:

I have had the privilege of having Ken as my immigration attorney for over 3 years.  He had my O1 application approved then we hired him to prepare the green card.  Since the beginning of the green card process I was realistic and understood that the immigration process will sometimes not go smoothly, but I also believed that my decades of success and recognition in chess would work in my favor. 

The EB1 denial was unexpected and devastating.  While we were reluctant to challenge Immigration in court, since taking the government to court is just not what one does in the Philippines, Ken convinced us.  He spent a lot of time answering our questions about a lawsuit and addressing our concerns.  Ken explained his reasons for wanting to sue the government, pointed out what evidence he felt Immigration did not consider, and overall really seemed to have all the bases covered. Less than 3 weeks after the case was filed we received a call from Ken.  Immigration reversed the denial and approved my EB1 case!! 

I want to say a few things about Ken.  He is honest, trustworthy and very straightforward. He will tell you exactly where you stand and what direction you should go.  Thank you so much Ken for all your help, your perseverance and last, but certainly not least, for believing in my case.  Winning in court would not have been possible without your hard work, knowledge and skill.  I have already recommended him to other chess players and will certainly retain his services for my future immigration matters.”

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Hooray! My Employee’s H-1B Visa Was Finally Approved! Now Why Am I Getting This Revocation Notice?

Posted on: June 19th, 2019

By: Ken Levine

For the past two years, USCIS has ramped up revocations of approved H-1B petitions. While there are no reliable government statistics, word of mouth in the immigration legal field, as well as increased federal litigation concerning H-1B revocations, clearly underscores the existence of this trend.

Under 8 C.F.R. 214.2(h)(11) USCIS must satisfy at least one of the below criteria in order to initiate H-1B revocation proceedings:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or (2) The statement of facts contained in the petition was not true and correct; or (3) The petitioner violated terms and conditions of the approved petition; or (4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or (5) The approval of the petition violated paragraph (h) of this section or involved gross error.

In particular, USCIS has taken to stretching the bounds of “gross error” criteria to justify revocation of petitions for occupations that USCIS now believes do not merit recognition as a specialty occupation. An example of this approach can be found in the Service’s increased attempts to revoke approved H-1B petitions for Systems Analyst or Market Research Analyst positions.

As well, USCIS has substantially increased scrutiny on H-1B workers in the information technology field. Employers in the IT field must be especially diligent in filing amendments when there are changes to the terms of the position or location of employment. Even minor position changes that come to light through a USCIS audit can easily trigger an H-1B revocation notice.

DOES AN EMPLOYER HAVE ANY DEFENSES TO AN H-1B REVOCATION?

The regulations allow for an employer one opportunity to rebut the basis of a USCIS revocation. USCIS must send a summary outlining the specific reasons why revocation has been initiated.  Employers are then given 30 days to file a response. If the response is deemed persuasive then USCIS will uphold the validity of the approval.  Otherwise, USCIS will formally revoke the petition.

However, just because a petition has been revoked does not mean the matter must end there. Employers who believe that the Service’s decision to revoke their H-1B petition was unwarranted should strongly consider challenging the revocation in Federal Court. Federal Judges are reluctant to afford deference to USCIS decisions if those decisions are not logical, rational or well founded.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Did You Really Terminate That H-1B Employee?

Posted on: May 21st, 2019

By: Layli Eskandari Deal

U.S. Department of Labor Awards $43,366 Back Pay to Engineer.

In January, a Microfabrication Engineer, employed under the H-1B visa program by Minnesota-based TLC Precision Wafer Technology, Inc., was awarded $43,366.67 in back wages and interest after an investigation by the Department of Labor’s Wage and hour Division.

The employment began in October 2008 under the H-1B visa program. After a downturn in business, the company began experiencing financial difficulties. In a letter dated November 16, 2008, TLC notified the Engineer that he would be laid off effective immediately. However, TLC continued to employ the Engineer until January 2009, at which point he was advised by email that his hours would be reduced to part-time. The Engineer resigned his position in February 2010 and in the same month filed a complaint with the Department of Labor’s Wage and Hour Division alleging that the company had failed to pay him the required wage.

Department of Labor Regulations set the wage requirement employers must meet in employing H-1B workers. Employers must pay the H-1B employee the greater of the prevailing wage for the occupational classification or the amount they pay other employees with similar experience or qualification. The H-1B employee must be paid beginning on the date that they “enter into employment” with the employer. This condition occurs when the employee becomes “available for work or otherwise comes under the control of the employer, such as reporting for orientation or training.” H-1B employees must be paid the required wage even if they are not performing work and are in nonproductive or idle status.

In the instance case, the Administrative Law Judge found that TLC was obligated to pay the Engineer $43,000 per year starting in October 2008 until his departure in February 2010.

How can employers limit exposure?

U.S. Citizenship & Immigration Services (USCIS) regulations address the employer’s obligations with regard to material changes to H-1B employment.

  1. Employer must notify USCIS immediately of any changes in the terms and conditions of employment which may affect eligibility under the H-1B regulations. This includes changes in position or duties, changes in job location, changes in any condition of employment such as going from full-time to part-time status.
  2. If the employer no longer employs the H-1B worker, the employer must send a letter to USCIS indicating the termination of employment. DOL considers such communication to USCIS to effectively terminate the employer’s wage obligation.

It is clear that DOL will look at the actions of the employer and communication with USCIS to determine whether the employer has abided by rules governing the employment of H-1B workers.  It is vitally important for employers to be familiar with the rules and timely communicate with USCIS when dealing with changes in employment status of foreign national employees.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws, you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

 

The Door Swings Both Ways for U.S. and Israeli Investors

Posted on: April 29th, 2019

By: Layli Eskandari Deal


In June 2012, Congress passed a law which authorized E-2 Investor visa classification for Israeli nationals provided that Israel’s government would establish a similar status for U.S. citizens. After a long regulatory change process, U.S. citizens can now apply for and obtain the B-5 Israeli Investor visa. In response, the U.S. government has made available the E-2 Investor Visa to Israeli citizens. The U.S. Embassy in Tel Aviv will start accepting E-2 visa applications on behalf of Israeli investors on May 1, 2019.

The E-2 Investor Visa is a temporary visa that can be used to develop, direct, or provide specialized skills to an enterprise in which the owner has invested a substantial amount of capital. To qualify for a Treaty Investor (E-2) visa:

  • The individual or the company has the nationality of the treaty country (at least half of the company must be owned by Israeli nationals).
  • The investment must be substantial and sufficient to ensure the successful operation of the enterprise beyond just providing a minimal living for the investor and their family.
  • The business must be a real operating enterprise.
  • The investor must be traveling to the U.S. to develop and direct the enterprise.
  • If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

The E-2 visa will provide a much-needed alternative visa category to Israeli entrepreneurs and Israel’s flourishing hi-tech sector.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws, you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].