A Filipino nurse was recently awarded back wages for the period that he was not performing work due to lack of assigned work.
Vicente de Dios was petitioned by Medical Dynamic Systems, Inc., a health staffing company, to work as a fulltime nurse manager at a salary of $37.06 per hour. He contended that his H-1B status began on January 28, 2010 but he only worked for 24 hours in March 2010. On May 21, 2010, he was asked by the Marketing Director of Medical Dynamic to look for another sponsor since the company was unable to provide him a job placement. He was offered a plane ticket to go back home. However, after that, it kept communicating with him asking him to attend a few job interviews.
De Dios claimed that Medical Dynamic put him in a non-productive status and failed to perform its obligation under the H-1B petition. He was willing and able to perform his job as a nurse manager but Medical Dynamic attempted to employ him in positions other than what was in the petition. He also claimed that he paid the H-1B filing fees and attorney’s fees to process his application, in violation of H-1B regulations.
According to the decision of the Administrative Law Judge (ALJ), the employer must pay the required wage even if the H-1B worker was in non-productive status. If the non-immigrant worker was unable to perform work due to a decision by the employer like lack of assigned work, the worker was deemed to be “benched”. “Benching” is the nonproductive time that can occur when a company brings H-1B workers to the US and contract them out to other entities instead of use them in their own business. By law, the employer is still required to pay the said worker his required wage rate.
The only time that employers need not pay is if the nonproductive status happened because of circumstances that are attributed to the worker himself and unrelated to his employment like touring the US, caring for ill relative, maternity leave, among others.
The ALJ highlighted that an employer’s obligation to pay the H-1B worker’s back wages extends from the date the worker makes himself/herself available for work or comes under the control of the employer until the time that a bona fide termination of employment relationship was undertaken.
The ALJ ordered Medical Dynamic to pay De Dios for the period starting February 15, 2010, the date when De Dios made himself “available for work” or came “under the control of the employer” up through October 27, 2010, the date when the company made a bona fide termination of employment. It was liable to pay $55,587.20 in back wages for 37 weeks and two days at a rate of $37.06/hour, at 40 hours per week. It was also made liable to pay compound interest for the back wage assessment.
Furthermore, it was also held that the company violated the H-1B regulations when it made the worker pay for his H-1B filing fees and attorney’s fees, therefore reducing his pay. When a worker is asked to pay for the expenses in the filing of his H-1B petition, the ALJ said that it is in effect a wage deduction which would reduce his salary below that required in the petition. In the said case, De Dios paid $3,600 for his H-1B processing, which, according to the decision, was clearly in violation of the regulation. Medical Dynamic was then asked to remit the said amount to De Dios.
The US Citizenship and Immigration Services (USCIS) recently announced that the H-1B cap for fiscal year 2017 has been reached. Over 236,000 petitions were received during the filing period that ended on April 7.
It conducted a computer-generated random process or lottery on April 9 to select the petitions that met the 65,000 cap for the general category and 20,000 for the advanced degree exemptions.
The lottery for the advanced degree came first and those not selected became part of the random process for the 65,000 limit. All rejected petitions will be returned along with their filing fees.
The USCIS will continue to accept and process petitions that are filed to extend an H-1B status, to change the terms of employment of an existing foreign worker with the same US employer, to transfer an H-1B worker to another US employer and to allow current H-1B workers to work concurrently in a second H-1B position.
It will also accept cap exempt H-1B petitions such as those filed for alien workers who will work at an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization. Third party petitioners that are not qualifying entities may claim cap exemption if the beneficiary will work at a qualifying institution.
J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.
Nieblas further said “Why do we continue to artificially limit this program? In a reasonable system, market demand should factor into how many business visas are granted, and indeed, demand for H-1B visas slowed when the economy took a downturn. But each year that we cap these visas when demand outweighs supply, all we’re doing is creating obstacles to economic growth. We’re losing out on shared prosperity for no good reason.
The H-1B petition is used by most US companies to hire skilled alien workers to fill up skill gaps in the local labor supply.
A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.
The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.
Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.
The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.
The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.
The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.
If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.
If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.
You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.
If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.
If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.
While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.
Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.
There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.
An H-1B petition may be filed not earlier than April 1 of any given year or six months before the start of the following fiscal year on October 1. In some cases, the F-1 status or Optional Practical Training (OPT) period of a student who is a beneficiary of an H-1B petition expires before October 1. The cap-gap provision addresses this problem and grants an automatic extension of the F-1 status and OPT period allowing the student to remain and work in the United States.
To be eligible under the cap-gap provision, the F-1 student must be a beneficiary of a timely filed petition requesting change of status to H-1B with an employment start date of October 1. Those benefiting from this provision should be aware of the repercussions of travelling abroad during the cap-gap period.
The USCIS construes travelling outside the United States during the cap-gap extension as an abandonment of the application for change of status. Leaving the United States during this period will mean not being able to re-enter the U.S. as a student and being required to obtain an H-1B visa at a U.S. consulate abroad.
The H-1B petition filed on behalf of an F-1 student on OPT who leaves the U.S. during the cap-gap period may still be approved by the USCIS; however, the application for change of status will be considered abandoned. He will not be able to return to the U.S. immediately as he will be required to undergo normal visa application process abroad which could be subject to delays and longer wait.
An F-1 student who is on OPT with a valid Employment Authorization Document (EAD) through October 1, on the other hand, may travel outside the United States and should be able to re-enter. Documents required to be readmitted as a student include a valid passport with a valid F-1 visa stamp, Form I-20 endorsed for travel by a designated school official (DSO), a valid EAD and a letter of OPT employment. Keeping these documents always in hand while travelling will avoid delays at the port of entry.
The number of days spent overseas must be considered when travelling during OPT. The maximum number of days for unemployment during OPT is 90 days. This includes days spent travelling abroad unless it is a leave authorized by the OPT employer or is part of the OPT. The F-1 student must carry the letter from the OPT employer when travelling to avoid delays or difficulties when inspected at the border.
An F-1 student who already finished his course of study may remain in the United States during the cap-gap period. The cap-gap period automatically extends his F-1 status provided the H-1B petition was filed before his course of study ended. The cap-gap period starts from the time when his course of study ended including the 60-day grace period.
An F-1 student who is still in school through October 1, on the other hand, may travel abroad and re-enter the U.S. even with an approved H-1B petition and change of status application. He must however bring the required documents and be able to prove nonimmigrant intent. He must be in the U.S. on October 1 when his change of status to H-1B takes effect.
Obtaining a new F-1 visa abroad to re-enter the U.S. with an approved H-1B petition will be very difficult. Because a professional job in the U.S. contradicts nonimmigrant intent required for an F-1 visa, the visa application may be denied.
Some F-1 students may want to apply for their H-1B visa abroad. In this case, they should consider the processing times at their respective U.S. consulates. If they are issued their visas abroad, they may re-enter the U.S. ten days prior to the employment start date on October 1.
J-1 exchange students unlike F-1 students are not covered by the cap-gap provision. However, change of status to H-1B for J-1 exchange students will not be a problem if their authorized stay in the U.S. remains valid through October 1 or when the change of status to H-1B takes effect.
May an employer file an H-1B petition even if the cap has been met? With the 65,000 annual quota for the cap-subject H-1B petitions for fiscal year 2014 already reached, an employer should determine if the petition is subject to the numerical limit.
Based on USCIS data, approximately 124,000 H-1B petitions were received during the first week of the filing period that ended on April 5, 2013. These included petitions filed under the advanced degree exemption.
Since the number of H-1B petitions exceeded the annual quota, the USCIS conducted an H-1B lottery on April 7, 2013. The H-1B lottery is a computer-generated selection process which was last used in 2008. The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.
The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees. The USCIS however announced that it would continue to accept cap-exempt petitions.
A petition is cap exempt if the current H-1B worker has already been counted against the cap. This is the case where the petition filed on behalf of the H-1B worker is (1) to extend his stay in the U.S., or (2) change the terms of his employment, or (3) change employers, or (4) allow him to work concurrently in another H-1B position.
Petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.
In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.
To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.
In a case that our office handled a few years ago, a dental intern petitioned by a nonprofit community health center was granted H-1B status under this exemption because we were able to prove by an institutional agreement and contract of services that the clinic was affiliated with the University of Massachusetts.
If the USCIS finds that there is a significant change or clear error in the adjudication, it will not grant the exemption. The reorganization of the entity as a for-profit entity, expiration of the affiliation not automatically renewed and affiliation with a different institution as basis for exemption are evidence of significant changes which may lead to denial of the exemption.
A nonprofit research organization is an organization engaged in basic research and/or applied research. A government research organization is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.
Employers engaging in work visa fraud do not only face administrative penalties but also imprisonment if convicted.
An owner of a tech staffing company in New Jersey faced 6 months prison sentence and $50,000 fine for filing H-1B petitions for ineligible foreign workers and running fake payrolls. Another company owner in Iowa also faced a three year prison sentence for submitting H-1B petitions containing false statements about the beneficiaries’ jobs and work locations.
Various fraudulent schemes have been employed by employers who abuse the H-1B program. However, with the government crackdown on work visa fraud, the number of criminal convictions has also increased.
Last month, the owners of Dibon Solutions, an information technology consulting company, were indicted for multiple counts of conspiracy to commit visa fraud and wire fraud. The company operated like a staffing company which provided third-party companies the services of inexpensive foreign workers with computer expertise on an “as needed” basis.
Under this scheme, Dibon Solutions sponsored foreign workers for H-1B visa stating that the foreign workers will work for their company. In reality, Dibon did not require the services of the foreign workers. Instead, it hired these foreign workers to provide consulting services to third-party companies.
The scheme is lucrative business for both the employer and the third party companies as the employer profits by charging high hourly rates for consultancy services. Third party companies, on the other hand, save money because they do not pay workers when their services are not needed.
This is extremely unfair to the foreign workers who are generally paid only when they are placed at a third-party company. Worse, the workers do not usually get paid unless the third-party company pays their employer.
The nonproductive status of workers due to a decision of the employer is termed as “benching” by the Department of Labor. Employers are required by law to pay the foreign workers even if they are in a nonproductive status. These foreign workers, however, are not paid and are encouraged to find third party companies themselves.
The H-1B process starts with the filing of the Labor Condition Application (LCA) with the Department of Labor. The employer is required to state basic information about the proposed employment such as rate of pay, period of employment and work locations. The employer also makes several attestations. If the LCA contains false information, the LCA would be fraudulent.
Recently, the president of iFuturistics, an Indian national from North Carolina, pleaded guilty to conspiracy to violate U.S. laws by filing fraudulent immigration documents following an investigation. He had received a total of $13.2 million in payment from staffing companies. Records showed that he tried to cover his fraudulent scheme during an inspection visit by moving in furniture and setting up work stations.
Among the charges that may be filed against an employer for committing work visa fraud include conspiracy to violate United State laws, which carries a maximum prison term of five years and a $250,000 fine and presenting fraudulent immigration documents, which carries a maximum prison term of 10 years and $250,000 fine. Available remedies against the employer include restitution to victims of the fraudulent act. Also, properties, real and personal, used in the perpetration of the crime will be forfeited to the government.
There is a maximum period of six years during which a worker can be on H-1B status. The 6-year period begins from the date on the I-94 form given to the foreign national upon first entry in the U.S. with an H-1B visa.
Except for those who do not reside continually in the U.S. and work in the U.S. only on a seasonal or intermittent basis, workers on H-1B status generally must live abroad for at least one year before returning to H-1B status. In short, if they want to restart the 6-year period they must remain outside the U.S. for 1 year.
However, H-1B workers are often unable to apply for adjustment of status before the end of the 6 years due to government delays or the heavy backlog for immigrant visas.
The delay could be due to the slow processing of the labor certification application or the adjudication of the I-140 immigrant worker petition. Per-country visa limits keep a worker with an approved labor certification and I-140 petition from filing an adjustment application because a visa number is not yet available to him/her.
A law passed in 2000, the American Competitiveness in the Twenty-First Century Act (AC21), as amended, allows H-1B workers in these two circumstances to file for an extension of their H-1B status beyond 6 years.
Under Sec. 106(a) of AC21, a post-sixth year extension is available to H-1B workers if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. In other words, the labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.
The length of extension permitted under Sec. 106(a) is one year, and subsequent one-year extensions are available until a final decision has been made to deny the labor certification application or I-140 petition or to revoke the approval thereof. Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.
Under Section 104(c) of AC21, if the H-1B worker is the beneficiary of an approved I-140 petition, an extension is available if he/she is otherwise eligible to adjust status except for the unavailability of an immigrant visa number. The extension can be for a three-year period in this case and is available to the principal H-1B beneficiary and eligible H-4 dependents.
H-1B workers affected by the visa backlog can continue to remain in H-1B status until their priority date is reached and they become eligible to file an adjustment application. Right now, there is a long waiting period for a visa in the third preference employment-based (EB-3) category for nationals of all countries, and there is also a backlog in the second preference (EB-2) for nationals of India and China.
Only workers who are in valid H-1B status may be issued an extension. Extension applications for workers who are “out-of-status” will not be approved unless the delay in filing was due to extraordinary circumstances beyond their control and the length of the delay was reasonable. They must also demonstrate that they have not violated their nonimmigrant status, remain bona fide nonimmigrants, and are not in removal proceedings.
Once the worker files an adjustment application and obtains an employment authorization document (EAD), there is strictly speaking no need for H-1B extensions under Sections 106(a) or 104(c). However, an H-1B worker who has worked using the EAD will immediately be out-of-status if his/her adjustment application is denied and the EAD revoked. Therefore, it is prudent for the worker to maintain H-1B status until he/she is approved for a green card.
The USCIS announced last March 15 that more petitions than the H-1B cap may be filed between April 1, 2013, the start of the filing season and April 5. It is therefore recommended that employers file cap subject H-1B petitions within those first five days. A petition is considered accepted, not on the date the petition is postmarked, but on the date the USCIS receives it.
Each fiscal year, an H-1B visa quota of 65,000 is allotted for foreign workers in specialty occupations. An additional 20,000 H-1B visas are made available to graduates with advanced degrees from U.S. universities. For fiscal year 2013, the H-1B cap of 65,000 was reached on June 11, 2012.
The public will be notified of the final receipt date or the date when the quota is reached. When the number of petitions received by the USCIS exceeds the quota, the USCIS will conduct an H1-B lottery which will randomly select the petitions to be accepted for processing. Petitions not selected in the lottery will be rejected and returned. Petitions filed after the final receipt date will also be rejected. It was in 2008 when the USCIS last used the lottery system.
Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year however the USCIS will start premium processing of H-1B petitions subject to cap on April 15, 2013. This is to address the expected high volume of premium processing requests and the likelihood that the cap will be met in the first five days of filing.