Computerworld is reporting that USCIS will conduct 25000 H-1B raids up from 5191 last year.

For more details on what the CIS is looking for in these raids please refer to two of my previous blogs.

Two of my clients were “raided” and another one had somebody visit the beneficiary’s job site.

In all these cases the officer did not ask for any documents. They seemed satisfied that the job location site actually existed, and that the beneficiary actually worked there. Beneficiaries were not questioned extensively at all.

According to the Computerworld article the USCIS found “various problems including fraud” in nearly one in five H-1B applications last year.

Yes it is important to combat fraud. But much of the fraud is because the USCIS (as does the DOL) does not accept the reality of workplace situations. In the IT business the end user usually contracts with someone, who then contracts with someone else to get the employee. For instance, Computer consulting Company A has an individual ready to work. Computer Consulting Company A has a contract with Consulting Company B. Consulting Company B has an agreement with say Megacorp C to perform the work. So A contracts the employee to B who then place him at C. The CIS holds that Company A cannot petition for the beneficiary, since Company A will not control the beneficiary and hence is not the proper employer. Company B is.

Why should control of a professional matter? Do professionals with at least a Bachelor’s Degree need control? Why cant the CIS look into the reality of workplace situations?

Instead the Government is using the $500 fraud fee that it collects from Employers filing for H-1b to hire workers who does not understand the complexities of the problem to act as policeman and visit sites.

Also in keeping with this fraud finding, the CIS gives out ridiculous “requests for evidence” (RFE) to small employers. They need everything under the kitchen sink. The Company’s taxes, wage report, pictures, type of toilet tissue they use, coffee maker’s name. I only wish I was kidding.

All this only discourages small businesses, the backbone of the US economy from filing H-1B petitions. Yet look at this year. From April 01 to November 13, only 55,600 applications have been filed. Is this not proof that the marketplace takes care of the filings, and that most employers do not file false petitions?

And lets face it, no small employer can afford just the government fees of $1570/- per H-1B candidate, not to mention attorney’s fees unless they really want the foreign employee. So these employees are NOT taking US jobs, much as the democrats like to think. And true to the democratic principal, there are no more fraud investigations on family based immigration like “paper marriages”, which are far more dangerous than simply not allowing H-1Bs who don’t have contracts with end users not to file.

Contact Houston Immigration Lawyer, Annie Banerjee for more details.

H-1B Auditers, what they have to fill out

The following is a simplified version of the instruction sheet that the H-1B Audit inspectors have to fill out:

1. Does the facility visually appear to be that of the organization? (Take pictures if possible of the building with Number of building.

Include in narrative box:
1) Description of the location:
• Commercial office unit;
• Apartment or condominium complex;
• Single family residence;
• Mail center/postal location; or
• Virtual office (a business with multiple small workstations leased to numerous entities).
indicate if any other businesses are sharing the site location and the names

2. Was an organizational representative authority present?

In cases where contact cannot be made
Inquire with neighboring businesses and/or residents to determine:
• . If the business actively engaged in business activities.
• The business’ normal hours of operations.
• It they are familiar with the benefic1ary and/or petitioner.

3. Did results of site visit suggest the presence of a legitimate organization

Include In narrative:
1) Indicate the product end/gr service the company provides.
2) Number of employees.
3) Number of H1B employees that work full time.
4) Number of H1B employees that work part time.
5) Number 01 employees working on-site at this location, verses off site.
6) Number of clients the company has where their H1B employees are working.
7) Number of employees how that are non immigrant aliens.
8} Number of employees that are lawful permanent residents.
9) Length of time the organization has been in business.
10) Number of other locations the organization is located. List other.locations.

4. Did the organization have knowledge of the beneficiary and the petition filed on Please note that even if the employer’s secretary has knowledge of who the beneficiary is, and the signatory of the petition is not present, the secretary should only state that, and not try and guess on answers that the Auditors are asking

5. Was the beneficiary working for the organization on behalf of the beneficiary?

Include in the narrative:
1) Whether or not the beneficiary is employed by the organization and what supporting documentation was reviewed (i.e., recent pay stubs, business cards, Employee ID).
2) If the beneficiary is not currently employed by the organization:
• Indicate where the beneficiary is currently working; and
• Why the beneficiary Is not employed by the organization.
3) The hours the beneficiary works.
• Full-time or part-time position.
4) If the beneficiary Is employed somewhere else:
• Where?
• What type of work?

6: Were you able to identify and speak to the beneficiary

7. Was the beneficiary knowledgeable, cooperative, and forthcoming with questions

8. Was the beneficiary being paid the salary as indicated?

9. Was the beneficiary performing the duties as indicated?

10. Do you recommend further inquiry?

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Office of Fraud Detection and National Security (FDNS)is conducting raids to H-1B business in an effort to detect and deter immigration fraud. The following blog is borrowed from an article by American Immigration Lawyer’s Program, and is meant to advise employers as to what to expect.

Employers should right now have the public access files for their H-1B employees ready. This file should contain the wage determination, the LCA, and a note on when the LCA was posted. It should also contain a copy of the H-1B petition.

The Government raids are conducted without warrants, and without prior notice. The Officer usually carries a copy of the H-1B petition. The officer then inspects the premises (and can take pictures). They will request to speak to the person signing the petition, but since the visits are unannounced, the officers are fine if the person who signed is unavailable. They may ask for copies of the beneficiary’s pay records, W-2 and also the employer’s tax records, quarterly wages, etc to prove that business is being conducted.

Then they also interview the beneficiary. They may ask details about the job description, employment dates, position, dependents etc. After this they might also want to speak with the beneficiary’s supervisor or colleague.

Here are some suggestions from AILA if the Government shows up:

1. Call your attorney, they can be present over the phone while the raids are being conducted.

2. If there is no designated official in the Company at that time, who is knowledgeable about the petitions, the officials should be told about that. Company Employees should not guess and say answers if they don’t know about the petition. Also if your company has strict policies against photographing, etc, please advise the officials accordingly.

2. File amended petitions, LCAs as necessary to keep files updated with changing situations. Wrong information could lead to a denial of the H-1B, even though the initial adjudication was an approval.

3. Request the name, title, and contact information for the site investigator. Ask for a business card and phone number. Multiple agencies are doing these visits, and it is important to determine which one is doing the site visit.

4. Don’t speak to the investigator without a witness present. Make notes of what transpired as soon as the meeting ends. Keep a list of all documents submitted.

5 If the beneficiary has been placed at a client site not controlled by the client, the client should notify the end user about the current FDNS H-1B assessment program and the possibility of a site visit. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the identity of the H-1B employer and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user’s location.

Vermont Service Center has sent about 20,000 companies to be audited, and California would also send about the same.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Employer: I got this contract to start work in 1 week. I have the perfect H-1B guy. Can you have the petition to me by tomorrow?

Attorney: No can do

Employer: Why? You always do that.

Attorney: That was before July 1. iCert will prevent me from doing that now.

Employer: iCert?

Attorney: Yes, the new LCA system. We file it, then wait 4-5 days. Then hopefully if the DOL can identify your FEIN, we may get an approval. If not, you submit FEIN documents to DOL, wait 4-5 days. DOL verifies it, then you need to file again. Then wait 4-5 days again…… This is a song that never ends, it goes on and on my friend

Employer: Stop singing, you have no tonal sense. So wait, wasn’t the purpose of AC-21 to increase competitiveness in the workplace with Employers being able to hire and get work done more quickly? Has Obama changed the century on us as well? Do we have a new AC-18?

Attorney: Ummm, the only thing that Obama wants fast is that health care reform. He said immigration has to wait. Besides the DOL is terrified that we are all trying to pull one over them. All of us trying to file fraudulent LCAs, our Government doubts everything we do

Employer: Thats bullshit! This is not fucking North Korea. This country was built on trust, where we elect our Government and have mutual trust. Besides illegal people don’t file H-1B. H-1Bs are professionals who will go back to their country if they don’t have a job. So this Computer program that DOL has, was it even beta tested?

Attorney: Calm down Sir. You just have to be patient. I quote from DOL’s stakeholder’s meeting on 07/31:”iCERT Program has only been operational for 3 months at this time, so bugs are to be expected at this point.” Also Sir, If we file an LCA, and it is denied, the notice will only go to you, not us. Can you kindly forward it to us?

Employer: I am not dealing with this. I’ll just outsource the work. Maybe the DOL should have hired H-1B professionals to design a better program.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Loosing a job is never easy. Each and every one of the 14.7 million people who lost their jobs in this economic downturn has felt the sinking feeling in their stomach, the worry of uncertainty, and the stigma of failure. But United States citizens can survive. Yes, its hard for an accountant to deliver pizza, but its some money as opposed to nothing. It’s an entirely different story with the non immigrants.

Employees in non immigrant visas like H-1b and L-1 are the first to let go off by companies. Since their visas depend on one particular employer, they cannot get any job any where. If they are not lucky in getting another Employer sponsor within a month, they have to convert to either student status, visitor status or go back. The Citizenship and Immigration Service is denying significant amount of visitor’s visa for laid off employees. And the cost can be far reaching

I had a client who worked for 25 years for an oil company in Saudi Arabia and 1 year in the United States. And then he got laid off. He is an Indian national, and his only option is to go back to India. He has a house in the US, which he will loose money on selling. But the real cost is that his teen age children had never studies in India and will be hopelessly lost in the Indian education system. He will not have money to provide for private schools.

Another client was coming back to work after visiting India for his father’s death and was informed by the Customs and Border Patrol in the airport that his employer fired him and revoked his H-1B visa. In many cases non immigrants have postponed scheduled visits to their home country for fear of being laid off. Some women are not taking maternity leaves after their babies are born for the same reason. Thus the human cost for a non immigrant who is laid off goes far beyond finances.

By law a non immigrant looses their status when they loose their jobs. However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. They of course have to submit copies of their last pay stub with this new transfer.

If not, one should consider either filing for a visitor’s visa, student’s visa or go back to their home country. A Visitor’s visa may be necessary to extend their stay to be able to settle their financial affairs here. One should file the Form I-539 and explain the situation. They should also show sufficient resources in the United States to stay here. Very often the Citizenship and Immigration Service is asking for proof of ticket purchase to return. Also the reason to stay here has to be compelling. Citizenship and Immigration Service is afraid of people staying here illegally, and thus there is a high rate of denial of these change of status applications to a visitor’s visa.

The employee can also seek admission to a school and convert to a F student status. School benefit from foreign students and foreign students benefit from the education. However one has to actually study. Just registering is not sufficient.

After converting status, if one has time remaining in their H-1B status (ie, they have not used up the six years), they can go back to the H-1B status any time they find another H-1B sponsor. They do not have to enter the crazy H-1B lottery again. Even if they are back in their home country, they can file for the remaining period on their H-1B. Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B or F visa, or by leaving the US, they actually stop the running of the 6 year H-1B clock and preserve the remaining time. So when the economy picks up again, and trust me, it will; they do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

Whatever one does though, they have to be careful not to accrue illegal presence. According to that infamous law acronymed IRAIRA, if one has a 6 month illegal presence they are barred for 3 years, and if the illegal presence is 1 year or more there is a 10 year bar.

On the plus side, there is still H-1B numbers available. As of July 03, the Citizenship and Immigration Service received 45,000 of the 65,000 per year quota for H-1B visas. Businesses are slow in hiring, and that is true especially of non immigrants. So for those lucky enough to find an employer sponsor, there is no lottery unlike previous years.

Hopefully we will all emerge from this economic downturn without too much scarring. Hopefully the US will still be looked upon as a kinder gentler nation, and will continue to draw the brightest and the best to maintain our top position in the world marketplace.

Contact Houston Immigration Lawyer, Annie Banerjee for more details