Legal – Immigration Posts

Exclusive Guidance from IABA for Individuals with Visa-Related Issues under the Travel Ban

“IABA Needs Your Help In Collecting Information Regarding The “Travel Ban” Executive Orders. If any of your Iranian relatives/friends have been in administrative processing (security checks) for over 6 months, please email us! We will have the D.C. chapter of IABA compile a report to give to the State Department. The report will highlight the increasingly long wait times facing Iranian visa applicants. We will need the applicant name, interview date, and visa application number. Also, to the extent you, your Iranian-American or Iranian relatives/friends have received any written communications from the U.S. government (including the State Department, any consulates, or any regional or national visa centers, etc.) referencing the “travel ban” executive orders, including any denials of visas on the basis of the executive orders, please let us know. We would also like to see copies of any such communications. Please email us at info@IabaDC.com. And please feel free to circulate this as needed. Disclaimer: This information may be shared with third party entities and organizations for (among other things) gathering and reporting data, and helping advance your rights or the rights of others. Sharing your story does not create an attorney-client relationship with us and is not subject to the attorney-client privilege. IABA does not make any representations regarding what impact sharing such information will have on the visa applications in question.

H1B Program Reforms? President Trump’s new Executive Order, “Buy American And Hire American” has followed a major media campaign alleging “abuses” of the H1B program. The order reads in particular: “(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries. https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american There have been allegations as reported by certain media that jobs which could be available to American workers are being offered to foreign workers at lower salaries. However, data from government agencies which process the H1B employment petitions point to the contrary. As Department of Labor’s definition of H1B jobs clarifies, these positions are “specialty occupations”: “… A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g. sciences, medicine, healthcare, education, biotechnology, and business specialties, etc.)” https://www.foreignlaborcert.doleta.gov/h-1b.cfm Recent data provided by the Office of Foreign Labor Certification (for the year 2017) indicate that the top H1B certified positions were in the computer/software analyst/developer positions. See, Selected Statistics By Program at: https://www.foreignlaborcert.doleta.gov/performancedata.cfm These positions are in fact high-skilled and high-paid positions in the US labor marker. These H1B positions require higher level education and demand higher salaries, as certified by US Department of Labor. Prior to filing for a visa or H1B status for their proposed employee, the employer must file a Labor Condition Application for the job with the department of labor. The employer must attest that it will comply with wage and labor laws of the US when hiring the H1B employee: “The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working. The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application, there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.” https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models “The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.” https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models The fact that each year, H1B petitions exceed the “cap” numbers by 100,000s, indicates the extent of need for employees in this sector of US economy. Software/computer and information technology firms argue that the current “cap” and visa numbers for H1B jobs are far too low to meet the needs of the US economy. Although the Executive Order has made a proclamation of more stringent scrutiny and reforms, it is unlikely the program will see significant changes. It appears that for the growth of the US economy, the H1B program should in fact be expanded and not restricted. Our office is available to consult on H1B as well as other employment-related visa petitions. Law Office of Atoosa Vakili US Immigration Legal Services 100 Spectrum Center Drive, Suite 900 Irvine, CA 92618 Tel: 949-667-0976 Email: Info@usils.com

Employment Contracts Scrutinized in L-1 Petition Cases: On April 12, 2017, USCIS published a policy memorandum, confirming adoption of the decision by the Administrative Appeals Office in the case of Matter of I- Corp, Adopted Decision 2017-02 (AAO Apr. 12, 2017). USCIS has directed its employees to follow the decision and reasoning of Matter of I- Corp in adjudicating applications. The case, which involved an L-1, Specialized Knowledge Employee, clarifies that USCIS must ensure that salary and benefits offered to a potential employee meet minimum wage requirements under state and federal laws.“(1) U.S. Citizenship and Immigration Services (USCIS) cannot approve a visa petition that is based on an illegal or otherwise invalid employment agreement.(2) To prevent a potential conflict with the Fair Labor Standards Act (FLSA), USCIS must ensure that a beneficiary will not be paid a wage that is less than the minimum required wage under state or Federal law, whichever is higher, before approving an employment-based visa petition.” https://goo.gl/s4Wtdi Our office is available to consult on L-1 as well as other employment related visa petitions. Law Office of Atoosa Vakili US Immigration Legal Services 100 Spectrum Center Drive, Suite 900 Irvine, CA 92618 Tel: 949-667-0976 Email: Info@usils.com

Employer Site Visits By USCIS: As of April 2017, USCIS has announced an increase in efforts to detect and deter what it considers abuses of the H1B visa system by employers. USCIS has announced it will increase audits of employer sites where H1B employees are employed. “ USCIS will focus on: Cases where USCIS cannot validate the employer’s basic business information through commercially available data; H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and Employers petitioning for H-1B workers who work off-site at another company or organization’s location. Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system. “ See, USCIS website at: Combating Fraud and Abuse in the H-1B Visa Program We urge employers to review their policies and procedures in case of office visits by USCIS agents. Review and advanced preparation will eliminate surprises and delays in employer’s ongoing business activities. Our office is available to consult and prepare adequate policies and procedures for H1B and other employers who have employed non-US citizen workers. Law Office of Atoosa Vakili US Immigration Legal Services 100 Spectrum Center Drive, Suite 900 Irvine, CA 92618 Tel: 949-667-0976 Email: Info@usils.com