By David North, February 24, 2010

Sometimes it is hard to tell the significance of a government document just by reading it.

Sometimes the true impact becomes clear only when the activists speak out. A case in point: the recent USCIS announcement regarding employer-employee relationships in the H-1B program.

When I first read the USCIS document with the eye-glazing title “Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the ‘Employee-Employer Relationship’ in H-1B Petitions,” I was not particularly intrigued. The first question and answer confirmed my eyes’
initial reaction:

“Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A: No. …”

But shortly thereafter the H-1B cheerleaders in the immigration bar started reacting.

At first, the reaction was pretty calm. Kate Kalmykov, with the New York and Philadelphia Klasko law firm, blogged:

…If the H-1B worker will be employed at a “job shop”/third-party worksite where they will report to a manager of that third-party company and the petitioner will not retain control over the beneficiary’s [i.e., the H-1B's] work, the petition will be denied.

That, of course, is the point of the exercise; the new guidance continues to make it easy for employers to import H-1Bs to work at their own firms, but raises questions when the petitioning employers farm out their H-1Bs to other firms.

Soon the inspectors working at least two airports got the message from headquarters; apparently sensing a geographical disconnect among the airport used, the location of the petitioner, and the actual jobsite, they denied admission to some arriving H-1Bs. Here’s a report from a clearly upset immigration lawyer, Matthew Morse, that appeared in Immigration
Daily:

In some recent cases US Customs and Border Protection (CBP) inspecting officers have separated H-1B visa holders from other non-immigrants applying for admission into the United States on arriving at a port entry. Several of these H-1B visa holders were denied admission by CBP inspecting officers and placed on an aircraft to be returned to their home countries. Unfortunately, some of these H-1B visa holders were placed in expedited removal by CBP inspecting officers, rather than being permitted to withdraw their applications for admission, which resulted in these individuals potentially being barred from re-entering the United States for a five-year period. Such treatment has been reported at John F Kennedy International Airport, New York and Newark International Airport, New Jersey.

This treatment of H-1B visa holders by CBP inspecting officers may be the result of a memorandum issued on January 8, 2010 by Donald Neufeld of US Citizenship and Immigration Services (USCIS).

Then, on February 18, the USCIS Office of Public Engagement held one of its “collaboration sessions” on the subject in Washington. I was not there, but a friend was, and he told me that Bruce Morrison, the former chair of the House Immigration Subcommittee (D-CT), was the first to speak. He told the gathering that he wrote the H-1B law. He was very concerned that the Neufeld memo would threaten what he, Morrison, called the “staffing model” which he claimed had a long and successful history.

By then, the significance of the USCIS memo was pretty clear.

Frankly, anything that limits the flows of H-1Bs into the U.S. labor market, whether they work directly for the petitioning employer or for someone else, is good news. For whatever reason, it looks like USCIS, on this narrow issue, is moving in the right direction.

U.S. says IT firm underpaid H-1B workers

Labor Department seeks $1.9M in back wages and penalty payment from N.J. company

By Patrick Thibodeau

February 24, 2010 06:56 AM ET

Computerworld – The U.S. Department of Labor is alleging that a Newark, N.J., software company, Peri Software Solutions Inc., underpaid its tech workers on H-1B visas and owes some $1.45 million in back wages to 163 people. The Labor Department is also seeking to hit Peri with a $439,000 civil penalty and a two-year debarment from the H-1B program. About 20 H-1B employers are on the department’s current list of debarred organizations. Peri officials are not commenting on the action, but Labor Department spokeswoman Leni Fortson said the company is seeking an administrative hearing to challenge the finding. “Everything is contingent upon the outcome of the administrative hearing,” she said. In a statement, U.S. Secretary of Labor Hilda L. Solis said that the company’s alleged actions “demonstrate the kind of abuses that our laws are designed to prevent. “Every worker deserves to be paid for his or her work, and the Labor Department is committed to holding those companies that violate our nation’s labor laws accountable.” Specifically, Labor Department investigators contend that Peri failed to pay prevailing wages to workers hired under the H-1B program. The company also “forced employees to sign employment contracts and then sued them when contracts were broken,” said the Labor Department. Peri was approved to hire nearly 190 H-1B workers in recent years — 120 in 2007, 64 in 2008 and three in 2009, according to U.S. Citizenship and Immigration Services records. More broadly, immigration authorities have been increasing enforcement of the H-1B program and demanding more evidence to support visa applications.

Article Appears in Computerworld.

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The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.
After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children.
Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.

Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –
NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.
Please do not forget to contact the CBP port director to follow up on case problems at a particular port. In addition, as needed, file complaints through the CBP complaint process.

Learn more… About Nachman & Associates, P.C.

When traditional immigration approaches do not work, we analyze a candidate’s resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs.

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To schedule a consultation, please feel free to contact Nachman & Associates by e-mail or call 1-866-599-3625. Please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

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Nachman & Associates, P.C.
David H. Nachman
Managing Attorney
E-mail: david_nachman@visaserve.com