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Due to a new requirement by at least one U.S. consulate in India, H-1B employees now face a new risk of a permanent bar from the United States for unlawful actions by their H-1B employers.

The U.S. Consulate in Hyderabad, as shown in a document obtained by AILA, is now requiring H-1B employees who will be working at third-party client sites in the United States to sign an attestation about their work conditions, which, if erroneous, could expose them to a life-time ban from the United States.

The attestation (reproduced below) states a series of conditions about the employer-employee relationship and the work at the third-party site, then at the end says:

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

What this statement means is if you intentionally provide false information about your work conditions, or even guess at what the information might be, and that guess turns out to be wrong, you could face a permanent bar to entry to the United States.

Attestation Based on USCIS Crackdown and Guidance for H-1B Employer-Employee Relationship

This attestation is byproduct of a USCIS policy memo that details restrictions on third-party client work for H-1B visa holders. USCIS realized H-1B employers were skirting the regulations or committing outright fraud by luring foreign workers to the United States with promises of well-paying jobs, only to make them go find their own contract work at third-party sites, leaving them unpaid for periods of time (often weeks or months) while they sought work: a practice known as “benching.”  Such H-1B employers provide no legitimate work themselves. This practice, while unlawful for H-1B employees, is common in the IT field where contractors are hired for a specific project.

To cut down on this type of fraud, in 2010 USCIS issued a policy memo defining what it considered to be the required employer-employee relationship for an H-1B visa and how that relationship had to be maintained if an employee was working on third-party projects and off site at a client location. USCIS looks at such factors as who controls and supervises the employee, who pays the employee, what is the nature of the work the employee is doing, etc. At the same time, USCIS also increased its surprise inspections of H-1B employer work sites, verifying the proper H-1B employer-employee relationship exists.

The document the U.S. Consulate is giving to H-1B visa applicants tracks the same factors outlined in the USCIS guidance.

US CONSULATE GENERAL, HYDERABAD, INDIA

DATE

I, _____________ born on _____________ in _____________ state that:

1. I have read and understand the Wilberforce pamphlet.
2. The petitioner is _____________
3. The petitioner supervisor is _____________ with a principle location of _____________
4. The number of petitioner employees at the work site is_____________
5. My primary work location is _____________
6. The end-client for my work is _____________
7. The end-client supervisor is _____________
8. The _____________ supervisor is located ‘offsite’ and is not regularly employed for the predominant part of the workday/work week/work month at the site where I work.
9. Contact with the _____________ supervisor is limited to weekly visits to the _____________ office and occasional Petitioner supervisor visits to end-client work sites.
10. The principle day-to-day management is conducted by the client, _____________
11. The client, _____________, provides the tools and equipment (including any software and operating environment) needed for the job.
12. The petitioner, _____________, makes primary hiring firing and promotional decisions.
13. Petitioner supervisor sits down at end-client location and reviews code, does not rely on on-site Petitioner supervisor for evaluation purposes.
14. The petitioner, _____________ claims Beneficiary for tax purposes
15. The petitioner, _____________ provides primary benefits, such as life/medial insurance etc.
16. The petitioner _____________ does not provide any primary/key proprietary tools or applications for the work.
17. I produce a product related to Petitioner’s line of business.
18. The client, _____________ makes the main development and product decisions for the end product I produce.

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

Are You At Risk of Being Banned Permanently?

The attestation at the bottom focuses on the applicant’s knowledge of the work conditions and any misleading information or outright lie. What this means is if the H-1B applicant believes all the required factors exist – that he will have a weekly visit from his employer, that he is controlled by his employer, etc. – then, when he goes to the United States and discovers his employer had lied to him, and instead he is completely controlled and supervised by a third-party client, he would not be guilty of misrepresenting his situation.

Not all employees, however, know and understand the full extent of their work conditions in the United States, or they may know some of the factors, but not all. If you are not sure about a particular factor and you provide the answer you think the consular officer wants to hear so that you get your visa, and that answer turns out to be wrong, even if you didn’t know what the actual condition would be, you could still find yourself barred from the United States for misrepresenting your work situation. So, for example, statement 14 says your employer will be claiming you for tax purposes. You may never have discussed such internal business operations with your prospective employer, so you may not know personally that your employer is claiming you for tax purposes, but you assume so, and you agree with the statement anyway to get your visa. Then, later if that statement turns out to be wrong, you could be found to have mislead the consular officer and be barred from the United States.

What Can I Do to Minimize the Risk I Might be Banned?

To avoid the harsh consequences presented by this attestation, be sure to always tell the truth. If you don’t know the answer to a question, just tell the consular officer. Don’t tell the consular officer what you think might be correct so that you can get your visa now rather than have to wait until you obtain the information and can get a follow up appointment. Now that you know you could be asked to sign such an attestation, you can prepare yourself in advance and ask the employer about your work conditions so you can respond fully and truthfully.

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

I am an attorney, and every so often, a new potential client will email me, and will do so using their employment email address.  When this happens, often the person’s email will contain negative information about his or her employer, or other information the person would not want the employer’s management to read.

Please know this: most employers can, and will, access employees’ emails sent from their work email accounts. Even if your employer has “never” done this so far, and you think they never will, please know if you later file a legal dispute (or the employer thinks you may), the employer will likely become motivated to comb through your emails at that point.

You can avoid risks by simply doing this: if you email an attorney for your own personal purposes, use your personal (non-work) email account.

When I prepare with an individual before a legal proceeding in which he or she will testify– say, for example, when I meet with a worker before a deposition or unemployment hearing– I discuss with that person what it means to be a good witness.

Being a good witness does not simply mean telling the truth, although that is certainly a necessary and important part of it.

Being a good witness also means work.

And the hardest work involved is not memorization of facts (you already know them pretty darn well). Nor will you spend hard work on thinking of ways you’re going to tell your story, explain how your opponent was wrong, or convincing someone how you were right– or at least you shouldn’t put work into these things, or you’ll lose.

Your job as a witness is to listen carefully to each question, and to answer ONLY that question.

Sounds simple, right?

Wrong.

See, your human instinct (like all of ours) is wired to do the opposite. Your mind, during a legal proceeding, will NOT want you to listen carefully.  Your mind will have you hear questions as you WANT to hear them, and to answer with something MORE or OTHER than what you are asked for. Your mind, when asked a simple question (say, yes or no) will want to give the questioner an elaborate answer, with volunteered facts and opinions (often true) that explain your “side.”

This is where the hard work comes in.

To really focus on a question, and focus on only answering that question alone– directly, factually, and truthfully– well, for most of us, that does not come naturally. It takes practice answering questions, i.e. work, to get to the point you actually do what a witness is supposed to do.

One exercise you could do is to have someone– whether your attorney, trusted family member or friend, etc.– ask you questions. And then, your task is to closely listen and answer only the question you’re asked.  If the question is a yes or no question, the answer should be “yes” or “no.”  It should not be “Yes, but …[extra details to explain/tell your side]…”

Practice this act of listening and answering questions before your legal proceeding, repeatedly, until you are comfortable with your results. It’s much like physical exercise, like lifting weights.

If you want your metaphorical muscles as a witness to get stronger, so to speak, that will take practice and work.

But if you don’t put in time and work as necessary to improve as a witness, you won’t turn out as strong at the legal proceeding as you hope you will.

Perhaps you found this legal site’s webpage because you have a legal issue that you want free information about, and a Google search led you here.

As a consumer, I have often used a Google or other website searches to find free information.

Sometimes, that has been successful for me.  For example, my dryer once stopped running, so I did a web search, found a repair video for my particular dryer symptoms, and the video showed a fix (showed me how a dryer fuse was the likely culprit and how to install a new dryer fuse). So I followed the instructions to install a new fuse in my dryer and… it worked (!!).

For one cycle. Then my dryer went kaput again. So I was back at square one, and about $30 lighter for the new fuse that I’d purchased and ruined.

The fact my web-inspired dryer fix did not work does not itself mean the how-to- video was ineffective. In fact, my botched repair was almost certainly caused by my terrible repair skills more so than the video’s content. The video was in fact competent in diagnosing a problem like mine, and in advising a reasonable potential fix for my dryer’s symptoms. (When I later talked to a repairperson, he told me the video’s diagnosis and fix I saw were reasonable but just one of several potential matches for my dryer’s symptoms, and as it turned out, the wrong match).

I learned a lesson about internet searches and web-based fixes: sometimes, the nature of the problem– in my case, a $50-$500 problem of either repairing a dryer correctly and/or botching the fix and/or replacing the dryer– requires the actual presence and communication from someone who knows what they are doing.

The same is true of legal advice.

Doing a web search for legal information may be helpful to a certain extent.  A web search, for example, may tell you some laws and some important issues that you had not previously taken into account when considering your problem. It may make you a better-informed consumer.

However, if you take action based on that web information alone– without talking to an attorney about your legal situation– you may wind up with the legal equivalent of a botched dryer repair.  If the stakes involved are greater than a new dryer’s pricetag (which IS often the case with many legal situations, whether people realize it or not), then that’s all the more reason to get legal advice from an attorney as compared to a website. 

Please note that does not mean I’m saying you must get MY legal advice, or that of any paid attorney, just that legal advice you’d get from a competent attorney (whether private, nonprofit etc.) beats website information however competent that information appears on its face.

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Posted via email from Mike Brown’s posterous

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.

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.

If you’re an employee in an employment dispute or legal dispute, you will be tempted– very tempted– to describe events in terms of adjectives or conclusions, i.e. labels.

For example, a worker may want to tell a boss or a legal authority “I was treated unfairly” (the operative label being “unfair”), as compared to saying “On June 5th, Supervisor Jones told me to complete work on 1,000 widgets in 1 minute, and I could not physically perform that work in that time frame.”

It is much better to speak in the latter terms, i.e. to speak the language of facts, than it is to speak in label-ese.

Know this: to the ears of the person(s) you want to influence, the language of labels (e.g. “unfair,” “lied,” “disorganized,” “harassed,” etc. etc.) is like the sound of nails scratching across a chalkboard.  The horrible sound of labels will muffle out the factual content of what you say.

But if you speak in the language of facts– and describe things strictly in terms of what was said and done, i.e. the terms of who, what, when, where and how– then you give yourself the best chance of having your audience actually consider what you have to say.  The audience could thereafter apply whatever adjectives or conclusions come to their own mind.

Please note the audience is in control of their own decisions.  And they will resent you if you try to make decisions for them, which in effect is what you’d be doing if you speak in terms of labels. 

So, whatever your employment dispute and whoever your audience, if you’re going to speak up, it’s best you give your audience the raw facts, politely stated.  Then stand back as the audience considers the facts and makes decisions.

Posted via email from Mike Brown’s posterous