CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘USCIS’

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].

 

Latest Update on the H-1B Visa Application Process

Posted on: February 11th, 2019

By: Layli Eskandari Deal

The U.S. Department of Homeland Security (DHS) has issued a final rule implementing changes to the H-1B visa program for petitions filed under the H-1B cap (better known as the H-1B visa lottery).

The rule reverses the order whereby USCIS selects H-1B petitions for the standard allotment of 65,000 visas and the 20,000 visas allocated for the advanced-degree exemption. It also adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule is scheduled to become effective on April 1, 2019.

Under the reverse selection process, USCIS will first select H-1B petitions for the general allotment of 65,000 visas. Then USCIS will select from the remaining petitions a number estimated to reach the advanced degree exemption. The reverse selection rule applies to petitions filed for the FY 2020 H-1B cap season (this year). The agency expects the lottery reversal to increase the number of individuals selected who possess an advanced degree from a U.S. institution.

The rule also implements an electronic registration requirement for H-1B cap-subject petitions which DHS has postponed until next cap season (FY 2021). Once implemented, it will require those seeking to file H-1B cap petitions to first electronically register with USCIS. Only petitioners whose registrations are selected will then be able to file an H-1B cap-subject petition.

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].

No E-Verify During The U.S. Government Shutdown – What Is An Employer To Do?

Posted on: January 4th, 2019

By: Kenneth Levine

The current government shutdown has ensnared the E-Verify system, which is used by numerous U.S. employers to verify the employment eligibility of new hires. While many operations of DHS and USCIS are maintained through user fees, and therefore unaffected by the shutdown, this does not apply to the E-Verify system. Functions on the E-Verify website which provide valuable information to U.S. employers, such as webinars, myE-Verify accounts, Form I-9 and E-Verify telephone support, are currently unavailable. Only basic E-Verify guidance remains accessible.

Employers that utilize E-Verify should know that the current unavailability of the system does not mean that employee hiring decisions must be delayed. DHS has posted a link to the E-Verify website which provides guidance on how U.S. employer’s should proceed with hiring during the pendency of the government shutdown. In particular, the notice addresses the “three day rule” as follows:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve “tentative nonconfirmations” (TNCs) will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • USCIS and DHS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Despite the lack of accessibility to the E-Verify system, USCIS and DHS have made it crystal clear that employers engaged in hiring during the government shutdown must continue to comply with the I-9 employment verification process. Per the E-Verify website notice:

“The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.”

FMG Immigration Attorneys will continue to monitor E-Verify developments and provide updates as needed.

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

EB1 Success Story

Posted on: December 20th, 2018

By: Kenneth Levine

The FMG Immigration Group was retained in June 2018 to prepare an EB1 “Alien of Extraordinary Ability” petition on behalf of Woman International Chess Master Mariam Danelia. Mariam, who hails from the country of Georgia, was residing in the U.S. pursuant to F-1 Optional Practical Training after having earned a Master of Science degree in Accounting from the University of Texas at Dallas.

Mariam happens to be one of the finest female chess players ever produced by the country of Georgia. She is currently the 20th ranked female chess player in Georgia and is overall ranked in the 99th percentile of female chess players worldwide. While attending UT at Dallas, Mariam was a key member of the school’s powerhouse chess team. The UT at Dallas chess team is a perennial favorite to qualify for the “final four” tournament of collegiate chess, known as the “President’s Cup.”

The attached article discusses Mariam’s remarkable chess talents and recounts her appearance at the Denver Chess Club, where she competed against 25 other chess players simultaneously:

Although Mariam’s petition included substantial evidence of her eligibility for the EB1 category, USCIS nonetheless issued a rather lengthy and detailed Request for Evidence. Our office refined the evidence to address the issues raised by USCIS and submitted the response. An approval notice soon followed.

Mariam was positively thrilled to learn that she will be receiving her green card under our country’s most elite and prestigious immigration category. Indeed, U.S. media typically refers to the EB1 category as the ‘Einstein” green card. Congratulations Mariam!

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

“I had a great experience working with Kenneth Levine. He took my EB1 case and managed to get it approved, when no other immigration lawyer believed the case was approvable. During our first conversation, Kenneth told me that my case would require a lot of work and we would receive a RFE from the USCIS, but he was confident that the case would ultimately be approved. This is exactly what happened. We received a RFE and after he submitted the response, the case was approved. The approval of the case speaks for itself and shows that Kenneth is an outstanding attorney, but I want to emphasize that he does an amazing job at making the whole process smooth for his clients. He promptly responds to emails and patiently answers questions. He truly cares about his clients and does his best to assist them. I would not be able to stay in the United States without his help. I highly recommend him to everyone who requires immigration legal assistance.”

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

USCIS Reverses Course – STEM OPT Students May Now Work At 3rd Party Client Sites

Posted on: September 18th, 2018

By: Ken Levine

On August 17th U.S. Citizenship and Immigration Services (USCIS) posted an announcement on their website to publicize the agency’s decision to once again allow STEM OPT F-1 students to engage in training programs at a third-party client worksite.  This update supersedes the Agency’s policy change in April 2018 which disallowed STEM OPT students from being placed at 3rd party client sites.

This new guidance essentially restored an employer’s ability to place OPT students in a science, technology, mathematics or engineering (STEM) field at a 3rd party client site, so long as all applicable training obligations are met, and a bona fide employer/employee relationship is maintained for the full duration of the assignment.

This USCIS policy reversal was welcome news for the many U.S. employers who had historically trained their OPT personnel by placing them at 3rd party work sites.  However, it is extremely important that employers be vigilant in ensuring that the training is in full compliance with the I-983 training program. Companies that sponsor their OPT employees for an H-1B visa should expect that USCIS will closely scrutinize the OPT training program details.

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