Tags: Android Carrier IQ Detector, Carrier IQ, Carrier IQ Legal Rights, Carrier IQ Smartphone Application

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair effect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that (per the theory of legislators) would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements (known as the prevailing wage) for each job based on job type/skills and location, and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefiting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is for the most part not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent attorney.

For more information about legal services we provide to H-1B employees, please see our page here.

Tags: employer compliance, H-1B salary, H-1B Status, H-1B Wages, H1b settlement, H1b violations

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

Tags: H-1B visa, Maryland, Prince George's County Public Schools, United States Citizenship and Immigration Services, United States Department of Labor

Image by ElectronicFrontierFoundation via Flickr

H-1B employees who have been benched without pay or underpaid often are reluctant to complain against their employers because they fear they will be fired and lose their immigration status.

This fear is understandable, but exaggerated. This article will explain why complaining can actually help preserve your status in the United States.

The Relationship Between Maintaining Status and Changing or Extending Status

As H-1B employees know, to extend their H-1B status or to change to another status such as a student visa while remaining in the United States, they must prove they have been maintaining their H-1B status. For H-1B employees, the proof they have maintained status is normally pay stubs. If an H-1B employee has been fired or benched, he has no pay stubs to submit to prove he has been maintaining his status. In addition, the employer may have notified USCIS it wants to revoke the H-1B approved petition.

If the H-1B employee cannot prove he has been maintaining his status, he must leave the United States and await USCIS approval of the new H-1B employer, student visa status or other visa status, then apply to re-enter the United States. Because leaving the United States can create complications for visa holders and comes with the risk of being denied re-entry, many H-1B employees prefer to change or extend their status while remaining in the United States.

Can You Save Your Status If Fired For Complaining?

H-1B employees who are afraid they will jeopardize their status if they complain, will be relieved to know that even if fired, they may not have to leave the United States to change employers or to another visa status. The laws provide protections from retaliation by employers when H-1B employees complain about their legal rights. In particular, Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.

USCIS provides this protection against retaliatory termination because it wants to encourage H-1B employees to report their employers’ violations and to cooperate in investigations against employer violators. (This  type of protection is know as “whistleblower” protection. In many cases, the law protects people who inform the government about others who violate the law.)

Depending on the situation, USCIS may approve a change or extension of status so that the H-1B employee may remain in the United States even if terminated for complaining about employer violations. Specifically, the USCIS policy memo to its staff reads:

USCIS adjudicators are instructed that, if credible documentary evidence is provided in support of an H-1B petition that the alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This process may allow the alien additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.

The USCIS policy memo instructs its staff to consider whether an H-1B employee was terminated in retaliation for complaining about his employer’s violations of H-1B regulations or for cooperating in an investigation against an H-1B employer accused of violating the law. In determining whether an H-1B employee would be protected under this provision and be permitted to change or extend his status while remaining in the United States, USCIS looks at several issues, including whether the H-1B made a complaint against the employer.

So, contrary to many H-1B employee’s concerns, complaining about an employer who violates the law may actually help you maintain your immigration status, rather than cause you to lose it. Please note that this protection is not guaranteed, however. USCIS’ decision to accept or reject this argument is in its sole discretion. Even if you think you qualify for this protection, USCIS could disagree and deny  your change or extension of status.

While this protection is not guaranteed, the attorney-authors have successfully obtained extensions and changes of status for our clients who have complained against employer violations and whose jobs were terminated. Whether you are a good candidate for referencing this regulation against retaliatory termination depends on the circumstances of your case. A key factor in being able to take advantage of this protection under the law is the complaint. The complaint against your employer must be done in the proper manner. If not, you increase the chance USCIS will deny you protection.

Before Acting, Talk to an Attorney

Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.

For more information about legal services we provide to H-1B employees, please see our page here.

Other articles on changing or extending your status:

FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?

Will I Be Deported If I Complain Against My H-1B Employer?

Complaining About H-1B Employer Benching May Give You the Tool to Salvage Your Status

Tags: H-1b change status, H-1B complain, H-1B fired, H-1B Fraud, H-1B salary, H-1B terminated, H-1B Transfer, H-1b wage