OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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Annually, the United States government issues a maximum of 55,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2012 random lottery will be accepted Tuesday, October 5, 2010 through Wednesday, November 3, 2010. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2012, persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. No countries have been added or removed from the previous year’s list of eligible countries..

Natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

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The large population of illegal immigrants in the United States has greatly contributed to the Social Security fund. The Chief Actuary of the Social Security Administration estimated that by 2007, the Social Security trust fund had received a net benefit of somewhere between $120 billion and $240 billion from illegal immigrants in the US. The Social Security crisis we face now would be far worse if not for the contribution made by illegal immigrants. Ironically though, it is the people that benefit most from and receive social security that want to force illegal immigrants out of the country.

The recent decline in illegal immigration due to tighter restrictions and hostile attitudes ultimately means that the contributions to Social Security from illegal immigrants will decrease as well.

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According to the Justice Department, Andrew Cole of Missouri pleaded guilty to racketeering conspiracy and fraud in foreign labor contracting charges. The Prosecution Unit Trial Attorney Jim Felte argued to the court that Cole was involved in recruiting Dominican Republic nationals under false terms and promises with the underlying knowledge that these workers would be exploited and their labor coerced. The charges came out of his role in a criminal enterprise that engaged in numerous criminal activities, including forced labor, fraud in foreign labor contracting, visa fraud, mail fraud, identity theft, tax evasion and money laundering. Specifically, Mr. Cole misrepresented their wages, working conditions, and type of employment. Mr. Cole sent the workers to a factory in Alabama where they were threatened with deportation and consequences if they didn’t comply with the orders. Other co-defendants also plead guilty in relation to the case and the remaining defendants await their trial on October 18. The case was investigated by the Department of Homeland Security (DHS), the FBI, the Department of Labor (DOL), the Internal Revenue Service (IRS), the Kansas Department of Revenue and the Independence, Mo., Police Department.

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The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of September 24, 2010, 39,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of September 24, 2010, 14,400 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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Recent scams have targeted New York’s immigrants, causing them to face substantial fees and possible deportation. Attorney General Andrew Cuomo has taken a stand against these scams by shutting down and filing lawsuits against seven different companies. Specifically, these companies have been targeting and misrepresenting themselves to immigrants, falsely promising legal citizenship, and giving their cases over to non-attorneys who have provided them with incorrect legal advice. Under New York State law, it is unlawful to mislead or defraud any person in immigration-related services. These companies and their owners have been permanently barred from operating any immigration services businesses and must collectively pay $370,000 in damages to the State of New York.

As a result of Cuomo’s efforts these companies are now facing monetary penalties, they must report any complaints, and they are required to inform their clients they no longer offer immigration services.

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The Wage and Hour Division of the U.S. Department of Labor’s Office investigated Smartsoft International Inc, a computer consulting company based in Georgia and found the company was not paying their 135 nonimmigrant workers their earned wages as required under the H-1B regulations. The H-1B nonimmigrant visa program sets certain standards to both protect nonimmigrant and US workers; as a part of those standards the company was suppose to pay the nonimmigrant workers at least the equivalent of what other U.S. workers were being paid that had similar knowledge and skill. The Wage and Hour investigator discovered through their investigation that the company had violated the H-1B regulations. Specifically, some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work. Accordingly, the investigation has led Smartsoft International to agree to pay their workers around 1 million dollars in back wages.

The H-1B system enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields, which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees, (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies, as previously stated.

The majority of U.S. employers who utilize the H-1B visa system do obey employment and immigration laws. The employers that abuse the system cause the perception that the system is corrupt, abusive, and a strain on the U.S. economy.

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MVP “Q & A Forum” – This Friday, October 1st, 2010

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

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Opas Sinprasong came to the U.S. from Thailand on an E2 Non-Immigrant Principal Investor visa to run his restaurants all over Colorado. He began bringing over Thai nationals to work in his restaurants because of their specialized skills. Sinprasong then began his fraud; he first made his workers pay a substantial bond, $3,000 more for their visa fees and if anything happened to him they were liable for a monetary penalty. Since Sinprasong paid them “under the table” he was also able to defraud the IRS (Internal Revenue Service) because he never paid his workers for their overtime, therefore the reports he filed were false allowing him to not pay the workers portion of Social Security and Medicare taxes.

Sinprasong was charged by a federal grand jury for defrauding his employees, harboring illegal aliens and other charges related to immigration and the IRS. He will serve multiple years in prison and fines for each account.

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In the recent Court Case (No. 10-22072) Gerardo Alvarado sued Carlos Albizu University for breach of contract and “breach of the duty of good faith and fair dealing.” He was working at the University on an H-1B visa in 2006 when he was promoted to Interim Director of the Business Program at the Miami Campus in 2007. His salary was increased from $75,000 to $95,000 per year. The University also agreed to sponsor Alvarado’s permanent labor certification in order for him to keep working past December of 2009. When the Director of Recruitment and Admissions stepped down, Alvarado was asked by the University to take over the position that had a salary less than his current job. When he asked for additional money the University refused saying it was already paying for attorney costs and fees for his labor certification.

Alvarado said the University violated § 1589(a) (3) and (4), alleging they used his pending labor certification as a means of force/abuse to obtain his “labor”. He believed that if he did not take this new job with the lower salary he would lose his visa and not obtain a permanent labor certification.

The Southern Florida District Court decided Alvarado’s claims failed. His arguments were “inconsistent with the definition of abuse or threatened abuse of law or legal process,” he merely proved the University violated the law. The court concluded that even though the University violated the regulation it did not use it as a “tool of coercion.” The University’s Motion to Dismiss was GRANTED.

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Are you currently on B1/B2 visitor status and would like to attend a U.S. school?

Under the current regulations anyone with B-1/B-2 status may not study in the US. It is required that they first obtain F-1(academic student) or M-1 (vocational student) status.

To apply for a change in status: you must not have already enrolled in classes (this is considered a status violation and you will be unable to extend or change your status), must have up to date status, and have not been involved in any illegal employment.

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