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Business Immigration - Old News

• Be Careful of Who You Help

• The INS Lowers Fees

• INS introduces premium processing

• Philadelphia Considers Plan to Welcome Immigrants

• H-1B applicants still facing backlog at Department of Labor

• New visas created for spouses of permanent residents, US citizens

• H-1B visas increased for 2001 through 2003

topBe Careful of Who You Help

If you have ever considered filing an H-1B application to simply assist a friend or family member in obtaining or maintaining legal status in the US be forewarned. Not only are fraudulent applications illegal, potentially subjecting you and your company to serious penalties, now a recent Office of Administrative Law Judges ruling may give the alien you fraudulently petitioned for incentive to turn against you.

A recent case out of California resulted in an H-1B recipient employee successfully suing her new employer for back wages for time she never actually worked. This case involved a senior computer program analyst from India, who was facing an imminent layoff from the company she initially received an H-1B visa through, and who applied for new H-1B status through a family friend's IT firm. The woman was qualified and the firm was legitimate, and the visa was approved. The IT firm never had any work for the woman to do. Witnesses for the firm testified that the H-1B was sought “as a favor to the Complainant so she could remain in the United States and upon the hope that suitable work for the Complainant could be found.”

In this case, Matter of Chelladurai v. Infinite Solutions, Inc. No. 2003-LCA-00004 (OALJ, Feb. 7, 2003), the Office of Administrative Law Judges (OALJ) said by agreeing to file the H-1B application on Employee's behalf, Employer undertook the role of employer once the H-1B application was approved, and became subject to regulations requiring payment of wages to an H-1B worker in a nonproductive status. Formerly, an employer was not required to pay wages to an H-1B employee until the employee began actually working, with some exceptions.

In this case, however, the woman's Labor Certification Application (LCA) had been filed in January of 2001 under the relatively newly enacted portability provision of The American Competitiveness in the Twenty-First Century Act of 2000, Public Law 106-313 amended Section 214 of the Immigration and Nationality Act. Pursuant to that act, she was allowed to begin working immediately for her new employer once the H-1B application was filed in good faith, however, the woman never worked for the company. Nonetheless, the LCA was approved in April of the same year. The company finally officially discharged the woman one month later due to lack of work for her.

The woman argued that she was entitled to back pay to cover the time period from January until her official discharge in May. The OALJ ruled that because the company was not obligated to pay her for the time from January until the approval date of the LCA in April under the above mentioned amendment. The OALJ ruled that this amendment allowed the employee to begin working for the petitioning employer but did not obligate the employer to actually begin the employment.

The OALJ ruled that the employer, “by agreeing to file the H-1B application on her behalf, (the employer) undertook the role of complainant's employer once the application was approved including subjecting itself to the regulations governing H-1B employees. Specifically, (the employer) became subject to 20 CFR 655.731(a)(7)(i) which requires payment of wages to an H-1B worker in a nonproductive status.” Matter of Chelladurai v. Infinite Solutions, Inc. The OALJ found that the employer in this case was obligated to pay the woman from the date of the LCA approval until her official termination because the woman was in a nonproductive status not of her own doing, but due to the employers decision not to put her to work.

To recap, once you file an H-1B application for an H-1B transfer employee, you can begin to employ that person legally, however, you do not have to. You will be obligated to begin paying the H-1B employee once the LCA has been approved for these types of employees, unless the H-1B employee does not chose to begin working. In the case mentioned, the employer thought they were doing the employee a favor and unfortunately ended up having to pay the employee for about a month of unworked hours.

topThe INS Lowers Fees

That's right, the INS has lowered application fees for some twenty seven applications. This was not an INS initiative, though. Congress passed the Homeland Security Act of 2002 which required the INS to reduce the immigrant benefit application and petition fee schedule by the amount of surcharges used for asylum and refugee services, fee exemptions and fee waivers. Now, we're not exactly how the INS came up with the amount of the reduction on each application, but this is one gift horse that does not need its teeth examined. For a list of the new fees you can go to http://www.ins.gov/graphics/newforms.htm

topINS introduces premium processing

INS has recently introduced expedited processing for certain visas, including E, L, O, P, and Q visas. The program won't be available for the popular TN and H-1B visas until July 30. Premium processing is available for the H-2B and H-3 visas, but is temporarily unavailable for the H-2A visa. According to the INS, they will guarantee completion of the application in no more than 15 days or the premium fee will be refunded and the petition will remain in expedited processing. Premium processing costs $1000 per petition, in addition to the usual filing fees.

topPhiladelphia considers plan to welcome immigrants

The success of older cities like New York in revitalizing older, troubled neighborhoods through an influx of immigrants has not been lost on City Council for the Philadelphia. The city is considering a program which would attempt to lure immigrants to the city of brotherly love, and which would establish an Office of New Philadelphians to assist the newly arrived in their efforts to adjust to life in the city.

topH-1B applicants still facing backlog at Department of Labor

Applicants for an H-1B (typically technical or other workers with a bachelor's degree) are facing a serious backlog for LCA approvals. The LCA is a document which is filed with the Department of Labor and is intended to ensure that foreign workers do not increase unemployment or reduce pay for US workers. LCAs were once processed in as little as a day, but problems with the new LCA approval system have resulted in backlogs of almost two months. There have also been problems with erroneous denials and missing LCAs.

topNew visas created for spouses of permanent residents, US citizens

Congress has passed a number of immigration measures in connection with last-minute budget legislation. Among other things, the legislation created a new temporary "V" visa for the spouses and minor children of legal permanent residents who find themselves in visa backlogs of three years or more. V-visa holders would be temporarily protected from deportation, and granted work authorization. The legislation also created a new temporary "K" status for spouses of US citizens, targeted towards spouses who married US citizens abroad (and their minor children) and spouses who are awaiting approval of their green card applications to enter the US In another provision, Section 245(i) was grandfathered until April 30, 2001 for certain applications.

topH-1B visas increased for 2001 through 2003

Congress passed the “American Competitiveness in the Twenty-first Century Act of 2000” (S 2045) in the evening of October third, dramatically increasing the number of H-1B visas available for fiscal years 2001 through 2003. The bill increases the number of H-1B visas available to 195,000 for FY2001, 2002, and 2003. Additional provisions attempt to address inconsistencies in the INS’ counting of petitions against the cap and attempt to recapture unused H-1B visa approvals. H-1B visas are intended for employers needing to bring specialty workers into the country to alleviate shortages in the US labor market. H-1B visas are frequently used for highly trained computer and other technical personnel. If you want more information check out the related article in the September 2000 edition of The Erb Law newsletter.