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AAO Clarifies ‘Culturally Unique’ in P-3 Cases

July 15th, 2012
posted by at 3:13 pm

Music

Music

The Administrative Appeals Office (AAO) recently addressed the meaning of “culturally unique” for P-3 visas in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (May 15, 2012).  Skirball involved a group of Argentine musicians performing music that blends klezmer (a form of Jewish folk music) with Argentine influences. The California Service Center (CSC) initially denied the P‐3 petition, finding that the music could not be culturally unique if it is based on a hybrid of artistic styles from more than one culture or region. Fortunately, the AAO reversed this decision.

The AAO held that while a style of artistic expression must be exclusive to an identifiable people or territory to qualify as “culturally unique,” it is not limited to traditional art forms and can include a “hybrid or fusion” art form from more than one culture or region. Citing 8 CFR §214.2(p)(3), the AAO noted that the regulations require a style of artistic expression, methodology or medium that is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. The AAO explained that the phrase “group of persons” allows for flexibility that could include unique artistic expression that crosses regional, ethnic, or other boundaries. Therefore, the “culturally unique” standard was met even though the art form was a hybrid of Jewish folk music and Latin music.

This AAO precedent decision is important for performers applying for P-3 visas.  In our increasingly global and mobile society, we will see more artistic expression that crosses regional, ethic or other boundaries.  Every group, individual or immigration attorney applying for a P-3 visa, where the music could be considered ‘cross cultural,’ should make sure to read the Skirball case before submitting their petition.

Is Canada Winning the War for Talent?

June 25th, 2012
posted by at 11:06 pm

By Pam Prather

While the United States continues to struggle with immigration policy, Canada cements theirs. As we prolong the societal debate over whether we even WANT immigrants anymore, Canada opens wide its arms and assures them they do.

“Currently on an H1B Visa or otherwise working or studying in the United States?” asks canadavisa.com.

They openly recruit temporary US professional workers who no longer feel welcome in a country where it can easily take over ten years to get a Green Card, even for those who qualify for one of the strictly-defined immigrant categories.

Who can blame our northern neighbors for taking advantage of our labyrinthine of laws that wind their way through the Department of Labor, Department of State, and Department of Homeland Security?

Why wouldn’t they cash in on our confusion and indecision regarding immigration policies?

After all, they too have concerns about economic growth and ‘brain drain’. They too exert great effort in filling positions in the STEM (Science, Technology, Engineering, Mathematics) sector.

Studies show the average American believes that 39% of the U.S. population was born abroad. It’s actually 13% – just a little higher than Great Britain’s.  Canada’s current foreign-born population, on the other hand, is almost 20%. And they’re not alone. Australia’s political and popular culture was described as xenophobic less than two decades ago. Their population is now more than 25% foreign born.  They, coincidently, are enjoying economic growth and robust cultural diversity.

Bottom line, it looks like Canada is learning more from their southern neighbor’s mistakes, than America is from theirs.

 

Why Tech Needs Open Borders

April 28th, 2012
posted by at 7:31 pm
By Murali Bashyam

I recently read an article in Forbes where the author, Mr. Flip Filipowski, discussed immigration policy, the technology industry, and why it needs open borders.  We often write about smart immigration policy, and it doesn’t seem smart for the United States to restrict immigration of highly-skilled workers.

Mr. Filipowski, a technology-industry CEO himself, said the following:

At the other end of the spectrum, we have the technological and economic viability of the United States. Our prosperity is built on the renegade, risk-taking entrepreneurial concoction of truly American innovation and invention – in addition to the fact that a disproportionate number of companies are created by immigrants. In Silicon Valley alone, immigrant-founded startups make up a remarkable 52 percent of companies. Wave upon wave of immigrants bought into the American dream that anything was possible in the United Sates and anyone who put in the effort could succeed here. We were to own that one magical thought in perpetuity but instead we have exported it to the world not in a gesture of generosity but in the incompetence bred in fear of immigration. Perhaps even in the moronic fear of adding Democrats to the voting roles as these immigrants assimilate into our society. The real fear should be directed at the complacency that seems to permeate subsequent generations that believe entitlement comes with citizenship via birthright.

He is right!

I recently attended a Raleigh Chamber of Commerce meeting on immigration policy.

The CEO of SAS, Dr. Jim Goodnight, said at the Chamber meeting that finding talent with the right skill set in the U.S. is their biggest challenge.  Other CEOs at the meeting said the same thing.

Unfortunately, our education system is not graduating enough people with the skills necessary for today’s economy.  How could it?  Only two thirds of high school students graduate. Nearly 50% of college students drop out.

Filipowski continues:

As the land of opportunity drifts to other locations through our neglect and inept immigration policies even our own best talent will be at risk. Not infrequently do I hear the comment that “If I were just graduating I would seriously consider relocating to Beijing – Mumbai – Singapore – etc.” Let’s come to our senses and hang a welcome sign on the border:  Buy a house, start a business, become a citizen.

It is a myth that foreign workers take U.S. jobs.  Why would a U.S. company go through the expense, headache, and bureaucracy involved with hiring a foreign highly-skilled worker if the same worker can be found in the U.S.?

I agree with Mr. Filipowski.  Let’s make it easier for highly skilled workers to come to the U.S.  Let them buy a house, start a business, become a citizen, and contribute to our great country.

Can You Relate? Understanding the ‘Invalidating Relationship’ for PERM Cases

April 28th, 2012
posted by at 6:54 pm

By Pam Prather

In the area of Employment-Based immigration, both the PERM and the I-140 Immigrant Petition are based – among other things – upon a “bona fide job opportunity”. Many factors go into the analysis of this particular piece of the pie. One is whether the beneficiary is related to the petitioner.

Question 9 of the PERM ETA-9089 asks “Is the employer a closely held corporation, partnership of sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators and the alien?”

The point is whether the relationship influences the petitioner – in advertising for the position, reviewing resumes, and/or interviewing applicants – to the detriment of the U.S. worker. Although the relationship itself would not normally be the sole factor in the denial of a petition, it definitely has bearing. The DOL and the USCIS may determine that because of the relationship, the job was notactually available to any other candidate, and therefore not bona fide.

It is concerning that “familial” is defined quite broadly in some DOL and USCIS decisions. In Matter of Summart 374.00-INA-93, BALCA upheld a denial stating that “A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by ‘blood’ or it may ‘be financial, by marriage or through friendship’”. (emphasis added)

The term “friendship”, rather than clarifying, seems to open up another can of worms. What definition is the government using?

Mirriam Webster defines friendship as:

1. a : one attached to another by affection or esteemb : acquaintance

2. a : one that is not hostile b : one that is of the same nation, party, or group

3. one that favors or promotes something (as a charity)

4. a favored companion

For both employers and employees, then, it is extremely important to disclose any prior relationship between owner/operator/executive and the beneficiary of the employment-based immigration petition.The difference between approval and denial could theoretically depend on a chance encounter at an industry networking function, or finding each other at your children’s softball game.

A competent immigration lawyer should be consulted to ensure that the job opportunity is properly made available toU.S. workers, and the bona fide nature of the position is made clear to the federal agencies involved.

Saving Grace? The Grace Period Myth for Laid-Off H1B Workers

April 28th, 2012
posted by at 6:40 pm

By Pam Prather

Many employers, H1B holders, and even immigration practitioners talk about a grace period after an H1B employment relationship has ended.

This so-called “10 day rule” is a myth.

A common scenario we hear of is that of an H1B employee who has been laid off – although not that uncommon in this economy. Most people understand that as of that day, the H1B visa-holder is not authorized to work in the U.S., no matter what the I-94 says. Unfortunately, the widespread misconception is that the laid-off foreign national is automatically granted 10 days to find another job, or even just wrap up their affairs.

This is simply not true.

The basis for the false impression is likely the H1B provision that states:

“A beneficiary shall be admitted to the United States for the validity period of thepetition, plus a period of up to 10 days before the validity period begins and 10 daysafter the validity period ends. The beneficiary may not work except during the validity period of the petition.”

This provision often does not apply in the best of circumstances, and certainly does not when an employee is terminated. The USCIS has taken the position that because the foreign national was admitted for the specific purpose of providing services to his/her U.S. employer, once that relationshipis over the H1B employee is no longer in status. Severance pay, unused vacation days, or any other arrangement to ‘stretch’ the employment does not help.

Once the employee is no longer working for the employer, he/she is no longer in valid non-immigrant status unless another application has been filed on their behalf.

Luckily, capturing laid-off professional workers is not the highest priority for the Department of Homeland Security. Often, if the case is presented carefully, the Immigration Service will ‘forgive’ the employee of a short period of invalid status. Again, this is NOT a “10 day rule”, but rather a strategy employed by experience immigration attorneys that is often successful.

Remember, contact a reputable immigration attorney in situations such as this, where there is so much at stake – stay, status, job, home, and even future visits to the United States.

You’ve Got Mail!

March 26th, 2012
posted by at 6:53 pm

By Pam Prather

eBay, EMC, General Electric, Hewlett-Packard Co., Intel, Microsoft, Texas Instruments, Boeing, Dow Chemical, Caterpillar, Chevron USA.

Reads like a Fortune 500 list, doesn’t it?  These are big companies. Big, American companies.  They matter to our economy. If we want to continue with this agonizingly slow recovery, we need to pay attention to their wants and needs.  And what is a common ‘want’ that they report?  A better visa system.

For many Americans, hiring foreign workers seems counterintuitive to creating jobs for U.S. citizens.  But could corporations like those listed be so successful if they didn’t know how to run a business?  Recently, these companies and others wrote a joint letter to President Obama regarding their frustration with a recent uptick in L1B visa denials (from 7% in 2005 to 27% in 2011). They indicate that the “U.S. is creating ‘unprecedented delays and uncertainty’ around L-1 visas, which are used for intra-company transfers of employees from foreign offices to U.S. offices”.  They also say “[s]uch delays or denials do not enhance compliance or enforcement and do nothing except disrupt carefully-laid business plans and create significant costs to the company and the American economy”.

I don’t know about you, but I don’t think we want to disrupt the business plans of giant U.S. companies who continue to struggle for recovery – and growth – in this sluggish economy.  We WANT them to do well, to keep their offices here in the U.S. open, and to hire whomever they decide is going to make their business thrive.  Study after study shows that the free-flow of highly-skilled employees is imperative to a successful capitalist market system. Why would the USCIS, through the Department of Homeland Security, act in opposition to our best chance for continued economic  recovery?

Here’s hoping the President reads his mail.

Consult an immigration attorney for more information about L1B (and other) visas.

H-1B Amendments: The Times They Are A-Changin’

March 8th, 2012
posted by at 8:06 pm

By Pam Prather

If your time to you

Is worth savin’

Then you better start swimmin’

Or you’ll sink like a stone

For the times they are a-changin’.

Bob Dylan’s lyrics in this song are timeless.

They apply to almost every aspect of our lives, including immigration laws and policy.

The times, they definitely are changing.

Ask any Information Technology (IT) company who places their employees at end-client sites if times have changed and the answer you’ll likely get is, YES.

We have been advising H-1B IT employers for quite some time now that a change of location for their employee cannot be ignored when it comes to their status, the Department of Labor, and the conditions of their employment.  In the past, companies would simply apply for a new Labor Condition Application (LCA) when an employee moved to a new work location.  However, that is not enough.

It is now imperative that any change or addition of work location MUST be reported to the USCIS through an actual H1B Amendment.

EVERY time the employee is moved to a different client, the company needs to notify the USCIS.

With an increase of USCIS site visits, it’s getting more and more important that communication with this federal agency be thorough and timely.

Here is a section (all identifying factors have been changed) of a 10-page USCIS “Notice of Intent to Revoke” an already approved H-1B petition AFTER a USCIS site visit, of which we were recently made aware:

The very nature of your business, locating and placing aliens with computer backgrounds into positions with firms that use computer programmers and/or analysts to complete their projects, is such that multiple employment locations would be expected.

In your filing, LCA Case Number I-200-00000-111111 certified on August 9, 2010 for 123 Main Street, Anytown USA, was submitted. No other work locations were noted on the LCA or in any other evidence in the file.

However, on March 28, 2011, an administrative site visit was performed at the address listed on the petition as the location where the beneficiary would work. Upon review of the work location address at 123 Main Street, Anytown USA, the site inspector discovered that your company did not exist at that location; and the beneficiary was not working at that address.

On July 01, 2011, John Doe, Vice President of ABC Company, sent an email to our office which stated that the beneficiary is scheduled to work on July 10, 2011 at XYZ Company, 789 Side Street, Every City USA.  At the time, Mr. Doe emailed a copy of the LCA I-200-00000-222222 which was certified on June 30, 2011 for 789 Side Street, Every City USA. No other locations were noted on the LCA.

A search of USCIS records indicates that you did not file another petition on behalf of this beneficiary.

As such, the record only contains one valid LCA, LCA Case Number I-200-00000-111111 certified on August 09, 2010 for 123 Main Street, Anytown USA. Since the beneficiary was not found at the location listed on the LCA, and it cannot be determined where the beneficiary is currently working, USCIS has determined that the LCA submitted cannot be considered valid.

So, this employer did the right thing in filing a new Labor Condition Application after his employee was moved to another End Client pursuant to a new contract.  However, the employer did NOT file an H-1B amendment with USCIS.

A new LCA without an official H-1B amendment can no longer satisfy the USCIS.

If an employer does not file the amendment, it risks getting a Notice of Intent to Revoke an already approved H-1B petition, as mentioned above.  Or, its employee can encounter problems when applying for an H-1B visa at a U.S. Consulate Office abroad.

An H-1B amendment (without an H-1B extension request) only requires a USCIS filing fee of $325.  It’s worth the cost, or an employer risks losing the employee and client project.

You should contact an immigration attorney any time your H1B employee’s work conditions change to a degree that might be considered significant.  But certainly contact one if the work location changes.

”The times they are a-changin’.”

 

Riddle Me This, Riddle Me That

March 1st, 2012
posted by at 12:46 pm

We recently wrote of a situation at the Hyderabad consulate, wherein IT consultants applying for H-1B visas are being threatened with a lifetime ban of the United States.  In making these applicants sign an affidavit regarding their future employment conditions, officers are trying to ‘catch’ potential non-immigrant workers committing fraud through ignorance.

We wanted to follow up with a list of questions that have been asked of some of these applicants.   Knowing this well in advance of the visa appointment – and making sure to have correct information from the employer – will reduce the risk of inadvertently giving incorrect information.

These are some of the questions being asked by U.S. Consular Officers:

  • What does your employer do?
  • Who is the client?
  • Who assigns your day-to-day activity?
  • Which division do you work for?
  • What is the name of your supervisor? Spell it for me?
  • Do you have any documents mentioning your employment?
  • Is your manager on site?
  • How often does he/she visit?
  • How long does he/she stay at client site?
  • Who is the manager for the client?
  • When do you interact with him/her?
  • Did your employer provide any tools or devices to perform your duties?
  • Do you use that laptop at client site?
  • If any situation arises at the client site then who do you inform?
  • Who has the right to hire, fire, and pay you?
  • To whom will the client report your evaluation?
  • Do you have any benefits?
  • Who is the health insurance carrier?
  • How many employees work on this project from your company?
  • Do you have a copy of the agreement between client and employer?

Add a “riddle me this, riddle me that” in front of most of these and what you have are the questions of a villain in a Batman movie!

If you’re going to be applying for an H-1B visa at a U.S. Consulate, you should definitely consult an Immigration attorney first.

Forewarned is forearmed!

 

DOL Says “All Too Easy” To Companies, Immigrants, and Immigration Attorneys

February 24th, 2012
posted by at 6:25 pm

By Murali Bashyam (Star Wars Fan) and Pam Prather (Not Star Wars Fan)

In George Lucas’ Empire Strikes Back, the evil Darth Vader lays a trap for the unsuspecting Luke Skywalker.  Skywalker, unknowingly, walks right into the trap.

What happens next?

This week, the Department of Labor ‘trapped’ companies, intending immigrants and immigration attorneys alike.   In yet another setback for employment-based immigrants, the PERM system has a new glitch.

Or is it a glitch?

Immigration practitioners have filled the blogs with messages of frustration and dismay, because a new ‘government error’ is resulting in a slew of denied applications.

This one concerns the contents of the advertisements placed for testing the market, specifically the ads’ description of primary and alternate requirements.  Although NOT legally required, denial letters state that the so-called “Kellogg language” must be specifically included.

This is clearly incorrect.

As AILA (American Immigration Lawyers’ Association) shared:

AILA has continued to follow up with DOL [Department of Labor] on this issue. ….the response to date is that this is being investigated, and they hope to have an update ‘soon.’ …… I think that someone is confusing the supervised recruitment standards with the PERM recruitment standards.

……. DOL hasn’t revoked their FAQ which says that Kellogg language does not need to be in the recruitment, so the decisions appear to fly in the face of their own policy guidance and regulations”.

One has to question the DOL’s motive on this policy change, a change they are apparently implementing now WITHOUT PRIOR NOTICE to immigration community.

When discussing this with a friend, he jokingly said that it all sounds a little passive-aggressive!

In the Star Wars movie, Darth Vader says “All Too Easy” when trapping young Skywalker.  Unfortunately for Vader, Skywalker escapes and a great fight with him begins.

If the DOL thinks it’s going to be ‘All Too Easy’ to shut down our legal immigration system with decisions that clearly contradict precedent, they are wrong.  The immigration community will fight to right these wrongs, much like Luke Skywalker did against the evil Darth Vader.

 

Applying for an H-1B Visa in Hyderabad: Be Careful or Be Banned!

February 18th, 2012
posted by at 6:56 pm

By Pam Prather


Yet another negative situation has come to light regarding temporary foreign employees working to the US.  It has the potential for professionals from India to be banned from the US for life.

The US Consulate in Hyderabad has started requiring applicants for some H-1B visas to sign an attestation about their work conditions.  This attestation, if erroneous, could expose them to a lifetime ban from the United States.

Applicants who will be working at a third-party client site in the US (usually IT specialists) have been subject to increased scrutiny regarding the employer-employee relationship in the last couple of years. In 2010, the USCIS issued a memo defining the required employer-employee relationship for H-1B visas.  It included a description of how that relationship was to be maintained if an employee was assigned to a third party, or to an off-site client location. In response, USCIS adjudicators started focusing more closely on things like who pays the employee, and who controls or supervises their work.

Now, in Hyderabad, the stakes in applying for an H-1B visa are very high.  If an applicant guesses about certain information and is wrong (or intentionally provides false information, of course), he/she could face a permanent bar from the US.

Not all applicants know and understand the full extent of their work conditions in the US.  What if they provide what they think is the right answer, or what the consular official wants to hear, and turn out to be wrong?  They could be barred forever from the United States, for misrepresentation. Any assumption by the H-1B employee could be the death knell not just for his or her visa, but for their ability to ever visit the US again.

If you have an H-1B visa interview scheduled in Hyderabad, or at any U.S. consulate for that matter, it would be wise to speak with an Immigration Attorney first.