More bad news for Indian EB-2 category green card hopefuls – the long-awaited Oct 1 release of the new priority date for filing applications is estimated to be for a much older date of 2006, rather than the previously predicted 2007, liaison officers of the American Immigration Lawyers Association (AILA) announced this week.

Worse, the government expects it to stay at 2006 for quite awhile. In fact, some are fearing a worst case scenario where it could fall back to 2005 later in the fiscal year due to demand.

China, meanwhile, is expected to fare better than India when the new numbers come out Oct 1, but that assessment is still ongoing so an estimated priority date was not identified.

The Department of State (DOS) predicts the rest of the EB-2 category may become “current” in October, meaning anyone with an approved I-140 can file (or concurrently file their case). Or, the priority date may go to early 2012 and then current in the November Visa Bulletin, according to the AILA meeting report.

News of the estimated upcoming priority dates was discussed during AILA’s regular meeting with DOS officials last week.

Indian and Chinese H-1B and other visa holders have been anxiously awaiting news of the estimated EB-2 priority date for the October 2012 visa bulletin to see if they will finally be eligible to file for their green cards. Workers can only file for their green card if the priority date on their I-140 is the same day or earlier than the date named in the DOS Visa Bulletin.

A fixed number of visas are made available at the start of each fiscal year, which begins Oct. 1. The EB-2 category was oversubscribed this year for Indian and Chinese applicants. Currently, the EB-2 category is “unavailable” for both China and India, meaning no one from those countries can submit green card applications, regardless of their priority dates. Other countries are registering a 2009 priority date.

The Department of State cited several reasons for the lagging priority date for India. One is oversubscription, another is the upgrading of EB-3 cases (for skilled and professional workers) to EB-2 (advanced degree workers). The unusual complicating factor this fiscal year, however, is a surprisingly high number of EB-1 applicants. EB-1 is for foreign workers with an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. Normally, the EB-1 category is undersubscribed and its remaining visa numbers at the end of the fiscal year fall down to the EB-2 category for usage. This year, the Department of State expects all of the EB-1 visas to be used up so none will fall down for EB-2 usage.

For EB-3, the worldwide availability should remain as posted for the rest of September. DOS could not predict where it will go in the October Visa Bulletin. Steady progress is expected in FY2013, unless heavy EB-1 and EB-2 usage, which would slow the speed of EB-3 worldwide.

Another complicating factor with predicting priority dates involves upgraded cases – those who initially filed in the EB-3 category, but who then earn a Master’s or other advance degree and become eligible for the EB-2 category. An estimated 10,000-15,000 upgrades are done each year, according to the AILA meeting report. The visa numbers for both EB-2 and EB-3 are held out of the visa pool until the green card is formally approved in one category or the other. Only then is the unused visa released back to its category for usage. Whether the EB-2 or EB-3 number will be used depends on priority dates and visa availability, which is why the unused one is not released until the green card case is approved. This delay in releasing the unused number makes it difficult to predict visa availability from month-to-month.

The DOS Visa Bulletin is available here, so you can check it monthly to see whether your case is eligible to be filed or estimate how long it will be before you can apply for your green card: http://travel.state.gov/visa/bulletin/bulletin_1360.html

While those H-1B holders with more recent priority dates will be disappointed with this news, these workers generally can still maintain their H-1B status based on the unavailability of the immigrant visa number. This means all H-1B regulations, including those requiring you to be paid your wage while benched, will continue to apply to your employment situation. A competent immigration attorney can provide you more information about whether you are eligible to stay in the United States and continue to work while waiting for your priority date to become current.

Tags: H-1B, Indian EB-2, priority date

If you are an H-1B worker, that white card stapled into your passport saying how long you can stay in the U.S. and work on your H-1B visa will soon be a thing of the past.

Customers and Border Protection (CBP) will be eliminating the I-94 card as part of its efforts to save money and streamline its systems, AILA’s committee that liaises with the CBP announced this week. Instead, CBP will stamp your passport and write in your approved period of stay, similar to what is done for Canadian or visa waiver entrants.

CBP will phase in the elimination imminently, starting with air and sea borders.  Entrants at land borders will continue to receive the I-94 as well as certain classes of people, such as refugees.

Other government agencies, including USCIS, the Social Security Administration and state motor vehicle bureaus where you obtain your driver’s license, which use the I-94 information for its records, still have to determine how they will revise their procedures to handle the lack of an I-94. Because the government is still sorting out the effect of the elimination of the I-94, we expect practices and procedures, including preparing H-1B applications, to be in a state of flux as part of the adaptation process.

So, next time you enter the United States, if you are not given an I-94, don’t be concerned. That is the new norm. At the same time, expect the rules for how to handle the lack of an I-94 to change from one day to the next as each government agency develops its new practices and procedures. In other words, be patient with the ever-changing processes and expect some glitches with getting social security cards, drivers’ license, and even filing your immigration cases.

Tags: H-1B social security, I-94

If you are an H-1B worker and have been reading our blog regularly, by now you probably know that your employer must pay you a required wage even if benched, you must do the work when available for which you were hired, and you cannot move from one location to the next without the employer notifying DOL or in some cases filing an amended H-1B application. 

You also know an employer’s failure to adhere to these H-1B program regulations is a legal violation. Indeed, the news abounds with stories of employers scamming the H-1B program and exploiting H-1B employees.

Not all employers intentionally violate these rules, however. Some employers, particularly smaller ones who have little experience with the H-1B program, may not fully understand the intricacies of their duties and obligations as an employer. Whether an employer’s violations are intentional or not, however, you are the whose status is jeopardized; your employer’s violation can put you at risk of violating the rules, with the consequence of being forced to leave the United States and even run the risk of not being able to return.

Protect Yourself; Know the Rules

As an H-1B worker, it’s your status at risk, so you need to take responsibility for your status by informing yourself of the H-1B program rules and what actions jeopardize your ability to live and work in the United States. Don’t rely on your employer. They often are too busy running their business to appreciate the risks  to you of an H-1B program violation.

Even good news, such as a promotion, can inadvertently put you in violation of your status. For example, if you are a market research analyst, and you are promoted to marketing manager heading up a department with dozens of employees and taking on entirely new duties, you are no longer doing the work for which your original H-1B documentation was approved. Your employer would need to file a new LCA with the Department of Labor and an amended H-1B petition with USCIS. If your employer does not follow the requirements, you are the one whose life will be upended by having to leave your job and the United States.

If you are being promoted into a new position, moved to a new location, or you experience any other change to your job, ask your employer whether an amended LCA or an amended H-1B petition is to be filed. If your employer refuses to take any action to help you ensure your status, then you should talk to a competent attorney to protect yourself.

For more information about the legal services we offer H-1B workers, see our page here.

Tags: H-1B compliance, H-1B new location, H-1B promotion, H-1b protect status, H-1b violations

The attorney-authors of this blog commonly get inquiries from workers who are underpaid or mistreated by H-1B-sponsor employers, and who are initially uncertain whether they want to take action against the employers.  We certainly understand this indecision.  Further, we think it is a very good thing that mistreated workers talk to an attorney about what legal rights and options they have before the workers take action or self-help measures on their own.

However, there are some workers who speak to attorneys at length about their problems, get legal advice and recommendations, but then “sit on the fence,” so to speak.  On occasion, the attorney-authors have communicated with certain workers for hours on end, spanning many weeks, with the workers ultimately not deciding whether they want to pursue legal rights and options we have recommended and explained several times.  Commonly, workers on the fence will be consumed with the same issues, asking the same questions over and over, even after an attorney has answered several times to the best of his or her ability.

Please know that there are harms involved with staying on the fence.  As a critical example, deadlines for legal rights come and go; opportunities to take action can be forever lost if a worker waits too long in a cloud of indecision.  Also, witness’s memories fade over time, meaning they may no longer be helpful to the claim.  If you leave attorneys waiting (even ones pleased to represent you), they will turn their attention to other clients and their work capacity and availability will change.

You probably know all this already.  And again, we understand if you are initially “on the fence” about taking action  until you consult with an attorney and get advice about your rights. Just know you can’t stay on the fence forever.  Until you decide you are truly willing to move forward– if you are able to make decisions and take action if an attorney discusses strategies that are logically in your best interest– then please don’t consume too much time (yours and others’) rehashing issues over and over, and staying on the fence.

The Department of Labor (DOL) reaffirmed that an H-1B employer must pay its employees the full, required wage when in training. DOL ordered SVK Systems Inc. in Montgomery, AL to pay $257,635 in back wages to 21 H-1B employees hired for tech jobs across the United States, according to a recent press release.

DOL investigators determined the employees had not received their salary while doing mandatory company training and, in some cases, also had not been paid for hours actually worked.

Despite the violations, SVK will continue to be able to file for H-1B workers. It has agreed to follow the rules in the future.

If you are an H-1B worker and were not paid while attending mandatory company training, you may have a claim for unpaid wages against your employer. For an evaluation of any claims you may have you should consult with a competent attorney.

For more information about the legal services we provide, please see our page here: http://www.h1blegalrights.com/legal-services-for-h-1b-employees/

Tags: Department of Labor, DOL Award to H-1B Employees, H-1B visa

The run on H-1Bs using up the allotment for new visas for this year has left many scrambling for an alternative authorization to live and work in the United States until more H-1Bs become available again next year.

In this article, we discuss alternatives to the H-1B visa for those who cannot apply for an H-1B because they are subject to the cap, such as F-1/OPT holders or employees overseas seeking to enter the United States for the first time to work.

Continue Reading »

Tags: h-1b cap, OPT, visa alternatives

united states currency eye- IMG_7364_web (Photo credit: kevindean)

The attorney-authors have represented many H-1B workers, some of whom have done project work for some of the biggest companies in the U.S.  Some things that seem remarkable to us: (1) the epidemic of H-1B workers across the country who are underpaid or not paid during benched time and are not paid, underpaid or have delayed payment, even during project time; (2) the fact that this epidemic of H-1B underpayment is well-known in large social circles, including H-1B sponsor employers themselves, immigration attorneys, etc.; (3) the fact that many large U.S.-based corporations themselves sponsor H-1B workers (whom they usually pay their full required wages), BUT the same large employers often employ, as independent consultants for project work, H-1B consultants whose H-1B visas are sponsored by other, smaller, body-shop employers who systematically underpay the workers and violate H-1B laws per their business models and systemic practices.

Our question: don’t these large end-clients (at least some of them) know that their project consultants are sponsored by H-1B-bodyshops who underpay and mistreat the workers?

It seems implausible that so many large U.S. corporations use bodyshop H-1B consultants, but are not aware that these same workers are often victims of exploitation by their sponsor employers.  Are big companies turning a blind eye, and knowingly accepting the benefits of H-1B bodyshops’ dirty work?  We’d be curious for our readers’ thoughts on this issue.

Tags: H-1B Bodyshops, H-1B visa, Large Cos. Blind Eye to H-1B Fraud

(Photo credit: Wikipedia)

A few weeks ago we wrote about a legal complaint against an H-1B body-shop employer that highlighted a unique process for American citizens or green-card holders to contest unscrupulous employers who exploit the H-1B program.

In our prior story, we discussed the complaint process within the Department of Justice (DOJ), in which American citizens and green card holders can pursue employers who violate anti-discrimination provisions of the Immigration and Nationality Act (INA) by rejecting U.S.-citizen and green-card employment applicants and targeting H-1B workers and other visa holders instead.  (Often a company that preferentially hires H-1B workers to the disadvantage of U.S. citizen workers will go on to exploit the H-1B workers by benching or otherwise underpaying them; our blog discusses legal rights and claims for underpaid H-1B workers).

Today we follow up on our prior story, to report on the settlement the accused company reached with the DOJ on the complaint.

DOJ Reaches Settlement With IT Staffing Company Whiz International

Less than a month after filing its complaint in May 2012, DOJ reached a settlement with Whiz International LLC, an information technology staffing company in Jersey City, N.J., regarding allegations that the company unlawfully terminated an employee in retaliation for opposing Whiz’s preference for H-1B workers and other foreign nationals with temporary work visas. The INA laws prohibit U.S. employers from exclusively or preferentially focusing on hiring H-1B workers, and thereby discriminating against U.S. citizens or permanent residents in the hiring process.

The complaint, which was filed May 22, 2012, alleged that the company directed the receptionist to target H-1B and other visa holders in its recruitment efforts and when she objected, terminated her.  The anti-discrimination provision in the INA prohibits employers from retaliating against workers who oppose a practice that is illegal or who attempt to assert rights under the law.

Under the terms of the settlement agreement, the company agreed to pay $21,780 in damages to the receptionist, which included back pay and front pay, along with a $1,000 civil penalty.  The company has also agreed to be subject to three years of monitoring and reporting by DOJ.

Reporting Discrimination

The procedure for filing a complaint and the handling of the complaint itself with the DOJ is different from the process used by the United States Department of Labor (DOL) or United States Citizenship and Immigration Services (USCIS). With DOJ, an aggrieved worker can file what is known as a “charge” directly or through a representative such as an attorney. DOJ will investigate the charge and decide whether to file a complaint with an Administrative Law Judge.

If DOJ declines to file a complaint, a worker may still pursue his or her complaint directly by filing it with the Administrative Law Judge.

If you are considering the filing of a DOJ complaint, or if you filed a DOJ complaint but DOJ has declined to pursue your complaint, before you act further, you should consider speaking with a competent attorney about your rights and options.

Information about the DOJ complaint process is available on the DOJ website here: http://www.justice.gov/crt/about/osc/

For more information about the legal services we offer H-1B workers, see our page here.

Tags: H-1B body shop, H-1B complaint, H-1B discrimination, H-1B Fraud, US worker discrimination

Assumptions Kill the Cat (At Least in the Workplace) post.ly/7yM4j

H-1B Body Shop Ordered To Pay More Than $740,000 in Back Wages post.ly/7y61P