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Posts Tagged ‘USCIS’

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].

 

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].