OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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The Department of Labor’s (DOL) Administrative Review Board (ARB) recently upheld the final decision of an Administrative Law Judge (ALJ) who found that the petitioner failed to pay the H-1B beneficiary the required wage under the H-1B provisions of the Immigration and Nationality Act (INA).

The petitioner, a not-for-profit corporation that operates medical clinics sought the expertise of the beneficiary, a medical doctor. After interviewing the beneficiary, a “Physician Employment Agreement” was signed which reflected an annual wage of $125,000. Thereafter, an H-1B petition was filed to hire the beneficiary as a full time medical doctor with H-1B non-immigrant status for three years. A Labor Condition Application (LCA) was filed along with the petition on behalf of the beneficiary listing the prevailing wage as $118,222 for the position. The beneficiary began working for the petitioner in June 2004 and was allegedly terminated in March 2005. During the course of the beneficiary’s nine-months of employment, he was paid a total of $49,000 in wages. The $49,000 (or $65,333.33 per year) falls below both the $125,000 per year wage that the beneficiary contracted for and the prevailing wage of $118,222 listed in the LCA. The beneficiary thereafter reported the wage violation to the DOL’s Wage and Hour Division who conducted a hearing and entered a decision in favor of the beneficiary. The petitioner thereafter sought review of the decision by the ARB.

The ARB found the petitioner liable for back wages calculated using the prevailing wage rate of $118,222 per year for the beneficiary’s nine-month employment during which time he worked as assigned and made himself available for work. According to the regulations, when an employer signs and files an LCA, he is attesting that for the entire “period of authorized employment” the listed wage rate will be paid to the H-1B non-immigrant. One of the ways in which an employer may escape liability is if they effect a bona fide termination and inform the Department of Homeland Security (DHS) immediately, and where appropriate provide the nonimmigrant employee with payment for transportation home. In this case, a bona fide termination did not occur until November 2005, when DHS was informed of the revocation of the H-1B petition. Accordingly, the petitioner was liable for payment of wages until the time of termination. The petitioner should have paid the beneficiary a total of $88,666.47 in wages for the nine months in which he worked.

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Since 2004, the U.S. Department of Homeland Security’s (DHS) U.S.-VISIT program has utilized biometric technology at major U.S. ports of entry to facilitate visitor entry. Last week, DHS announced that upgraded biometric technology is in place at major U.S. ports of entry. The upgrade is a change from a two to a ten fingerprint collection standard. According to DHS, the 10 fingerprint collection standard makes the entry process faster and more accurate.

Currently, certain non-U.S. citizens arriving at U.S. air, land and sea ports of entry with nonimmigrant visas or those traveling without a visa as part of the Visa Wavier Program (VMP) are subject to U.S.-VISIT procedures.

As of January 18, 2009, the following additional non – U.S. citizens will be required to provide biometrics when entering or re-entering the United States:

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The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the employment based immigrant petition.

The Petitioner is a hospital. The Petitioner sought to employ the beneficiary permanently in the position of Interventional Radiologist. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from the University of Poona in India. Upon review of the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on Form ETA 9089. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations. On appeal, counsel for the employer submitted a cover letter and two new evaluations of the alien beneficiary’s credentials.

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The Department of State has released its latest Visa Bulletin. The February 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the February 2009 Visa Bulletin.

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After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) a Louisville, Kentucky restaurant owner was sentenced to eight months in federal prison for knowingly employing illegal aliens.

As a result of the investigation, the restaurant owner plead guilty to knowingly employing at least 10 illegal aliens at his restaurant for commercial advantage and financial gain. During the ICE raid, agents seized about $59,000 from the restaurant, which will be forfeited to the United States, and detained six illegal aliens found working at the restaurant, who have since been deported. The owner of the restaurant was not a U.S. citizen and will be subjected to deportation proceedings after he completes his prison sentence.

ICE aggressively targets employers who violate immigration laws.

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Posted in: ICE
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The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2010 cap on April 1, 2009. These professionals will be eligible to begin H-1B employment on October 1, 2009.

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now. Keep in mind that last year, all 65,000 H-1B numbers were utilized within days of the April 1st filing date. This year we anticipate that the H-1B cap will be met even earlier.

Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2009, that individual’s employment authorization card will be valid through the end of May 2010. After May 2010, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2009 asking the USCIS to change their status to H-1B from October 1, 2009. H-1B status grants such an individual up to three years of employment authorization from October 1, 2009.

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The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Manager/Video Technician. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a video parlor and equipment retailer filed a LC on behalf of an alien worker in April of 2001. The requirements for the position included the attainment of a high school education and two years of experience in the job offered. In January of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification because the alien did not appear to possess the requisite experience prior to his hire. The NOF gave the employer several options to rebut its findings: (1) show that the Alien had the qualifications now required at the time of hire; (2) submit evidence that the alien obtained the required experience working for the employer in jobs not similar to the position for which labor certification was sought; (3) provide documentation that it was not feasible to hire a worker with less than the qualifications required for the position; or (4) delete the requirement. In its rebuttal, the employer argued that it was not presently feasible to hire an employee with less than the qualifications presently required due to business necessity. The employer further contended that there had been a change in the workforce of the company and it was not possible to provide the same training to a new employee. Thereafter, the CO issued its final determination denying certification because the employer’s infeasibility to train argument was not persuasive. Subsequently, the employer requested BALCA review.

Upon BALCA review, an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered. Accordingly, one way to avoid a denial is to show that it is not now feasible to hire workers with less training or experience than that required of the position. Where the alien gained the required experience with the employer, infeasibility must be documented – a mere statement is insufficient. In the instant case, the only documentation of infeasibility was the employer’s owner’s rebuttal statement with no collaborating documentation. Thus, the CO properly denied certification.

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If you have received a transfer notice from one of the USCIS service centers that your case is being transferred to the National Benefits Center (NBC), do not be alarmed . The reason your case is being transferred is that it is being scheduled for an interview.

For interview waiver criteria and the reasons a case may be sent for an interview, please click here.

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The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augument their existing labor force with temporary workers.

Congress has set the numerical limit for H-2B visas at 66,000 per fiscal year. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. Accordingly, the 33,000 cap for the first half of FY 2009 was satisfied on July 29, 2008.

As of December 12, 2008, 18,367 petitions have been counted towards the 33,000 cap for the second half of FY 2009. Applicants interested in petitioning for an H-2B visa are encouraged to act fast as time is running out.

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U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule that will streamline the Employment Eligibility Verification process.

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. Specifically, the interim final rule eliminates Forms I-688, I-688A, and I-688B from List A because the USCIS no longer issues these cards and all that were in circulation have expired. Additionally, the rule adds to List A foreign passports containing specially- marked machine-readable visas, and the new U.S. passport. The rule also makes other technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, etc.

After publication in the Federal Register, the public will have 45 days to comment on the final rule.

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