I-140 Premium Processing Resumes for Most Classifications

Effective June 29, 2009 Premium Processing for most I-140 immigration petitions will resume, USCIS has announced.

 I-140 Premium Processing will be available for the following classifications:

• EB-1 Aliens with Extraordinary Ability
• EB-1 Outstanding Professors and Researchers
• EB-2 Members of Professions with Advanced Degrees or Exceptional Ability
• EB-3 Professionals
• EB-3 Skilled Workers
• EB-3 Workers other than Skilled Workers and Professionals. 

 Premium Processing still will not be available for:

• EB-1 Multinational Executives and Managers
• EB-2 National Interest Waiver.

For the $1,000 fee for Premium Processing Service, USCIS guarantees that within 15 calendar days of receipt it will issue either an approval notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation.

If the petition is not processed within 15 calendar days, USCIS said it will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service.

E-Verify Explained

The Migration Policy Institute has posted an informative explanation of the controversial E-Verify program and its proposed alternatives.

E-Verify is a U.S. government database that employers can use to verify the employment eligibility of prospective hires. Both the U.S. government and some states are attempting to make use of this database mandatory against the protests of various immigration, business and other advocacy groups.

One of the key problems with this database is its unacceptable error rate, which results in citizens and non-citizens alike receiving non-confirmation notices. A non-confirmation means the prospective employee effectively cannot start work until he clears his name.

The following are highlights of the problems with the database extracted from the Migration Policy Institute’s article on the issue:

Error Rate

“False nonconfirmations, the most serious problem, affect both legally resident workers and employers. Where tentative nonconfirmations are successfully appealed, some workers report having to make multiple trips to SSA field offices or numerous calls to DHS to correct the error.

The persistence of database errors means that protecting workers against false final nonconfirmations requires employers to endure relatively long periods of uncertainty about employees’ status to ensure workers an adequate opportunity to appeal a [nonconfirmation]….

As noted earlier, foreign-born workers, particularly naturalized citizens, have the highest database error rates. Since Westat, GAO, and other independent analysts have found that employers subject native and immigrant workers to different degrees of scrutiny, human error and bias can reinforce the problem. …”

 Identity Theft

 “A second unintended consequence of E-Verify is identity theft, which affected 8.4 million Americans in 2007 at a cost to these victims of $50 billion according to the US Trade Commission.

By linking employment more closely to valid Social Security numbers (SSNs) and associated data (e.g., name and state of birth), E-Verify increases the value of this information, the key to stealing an individual’s identity.”

Excessive Cost to Tax Payer

“Third, although USCIS bears the financial costs of administering E-Verify, SSA manages 90 percent of the system’s queries, and SSA field offices must resolve erroneous nonconfirmations for US citizens.

SSA administrators have testified before Congress that these tasks threaten the agency’s ability to complete its core mission of service to disabled and retired Americans. These administrators have estimated that a mandatory E-Verify program would cost the agency about $281 million for fiscal year (FY) 2009 through FY 2013.

SSA officials and advocates for the agency warn that expanding E-Verify would threaten the agency’s ability to process the impending wave of baby boomer retirees, which is expected to add a million new cases to the agency’s workload each year for the next decade.”

FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?

Question 1: I’m an H-1B employee and I have benched without pay, but I have found a new employer. I have no pay stubs. Can I “transfer” without leaving the U.S.?

Question 2: I’m an H-1B employee and I was benched without pay, but when I complained my employer fired me. I have found a new employer, but have no pay stubs. Can I “transfer” without leaving the U.S.?

Answer: The answer to both questions is maybe.

In this article, we explain a regulation that may enable you to change or extend your visa without leaving the United States even though you have not maintained your status .

H-1B “Transfers” and Maintenance of Status

To change or extend status (a.k.a. “transfer” as it is sometimes misnamed), the H-1B employee must have maintained status. In the context of an H-1B visa, maintaining status includes maintaining the employer-employee relationship with the H-1B employer sponsor.

If the H-1B employee has not maintained status, he cannot seek the extension of stay (e.g. change to another H-1B employer) or change of status (e.g. change from H-1B to H-4) from within the U.S. Rather, he would have to leave and if the application is approved, re-enter on a valid visa (whether a new visa needs to be obtained depends on the circumstances).

This requirement to maintain status is what underlies the USCIS requirement for pay stubs and other financial proof of having been paid. Those who have been benched or fired don’t have pay stubs.

There is a useful regulation, however, that may help these H-1B employees change their employers or change their status without leaving the United States.

Extraordinary Circumstances

Regulations give USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States when the visa holder has been out of status due to “extraordinary circumstances beyond the control of the applicant.”

What constitutes an “extraordinary circumstance” is not defined. An example that comes to mind, though, is a serious illness that keeps the person bed-ridden for a long period of time.

In previous guidance, USCIS has said a lay off is not automatically considered an “extraordinary circumstance” warranting a forgiveness of the failure to maintain status. Benching without pay or retaliatory termination, however, may qualify depending on the circumstances.

When reviewing requests for forgiveness due to “extraordinary circumstances,” some of the factors USCIS will consider include the reason the employee did not maintain status, for how long the employee was not maintaining status, and what the employee did about it (e.g. for a benched employee, did you complain about not being paid or say nothing?).

We must emphasize that there is no guarantee USCIS will apply this regulation to your case. This regulation gives USCIS the option, but not the requirement to forgive status problems. USCIS can decide your situation does not qualify and deny the extension or change of status.

Whether you are a good candidate for seeking relief under this regulation depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular case. 

Additional Information

For more articles about your immigration options, please visit our blog’s main page at or the website of our law firm V.K. Vandaveer, PLLC site. For information about Legal (Attorney) Services for foreign nationals, please visit here.  

In addition, please see our related article Will I Be Deported If I Complain Against My H-1B Employer?  as well as other articles related to H-1B employee rights on our companion blog H-1B Legal Rights.

LLC? LLP? Inc.? Choosing The Right Structure For Your Business

Today’s post is written by guest author Kenneth Sprang, a corporate and international business transactional attorney based in the Washington, DC area.

In recent years the LLC has become the darling of entrepreneurs and small businesses around the country. But the LLC is not always the best choice. Sometimes a Subchapter S corporation or another structure is preferable. This article helps you choose the right structure for your new business.

Determine Your Long Term Goals

Is your goal to create a company that will grow and then go public, or be sold to a larger company for millions of dollars, or do you intend to run a small family business where you, members of your family, and perhaps a few trusted associates will be involved? Will you operate primarily in your home state, or will your focus be national or international? These questions are critical in deciding how to organize your new business. For example, if your goal is to be acquired or go public, you probably want to create a “C corp.” If you and a few friends or family members are creating a business that will not expand, at least in terms of owners, an LLC may be perfect. On the other hand, you may want the formalities of a Subchapter S corporation.

When to Use an LLC

LLC’s and corporations both insulate the owners from liability. An LLC has “members” rather than shareholders. The members can run the company or have one or more “managing members” do so. The LLC is an excellent tool for holding rental property–I recommend that each building be held by a separate LLC so that any liability is limited to that building. If your company is going to have only a few owners or members, an LLC may be ideal. The paperwork is somewhat simpler than a corporation (though many states allow “close corporations” in which the shareholders run the organization just like members of an LLC). The LLC is usually a good substitute for a sole proprietorship. Note that all income from the LLC will be treated as ordinary income and subject to FICA and income tax. Although you can elect to have an LLC taxed as a corporation, generally the LLC is taxed like a partnership or sole proprietorship and profits are distributed to the members and taxed as ordinary income.

When to Use a C Corporation

A C Corporation is a garden variety corporation with no limits on the number of shareholders it can have. If you want to grow your shareholders and maybe go public or be acquired, a C Corporation is generally the best choice. The local XYZ Store can be a C Corp, and IBM is a C corp. When creating a C Corporation, you will need guidance on how many shares to authorize and how many shares to issue. This is true for both a C corp and a Subchapter S Corp

When to Use a Subchapter S Corporation

If you create a corporation, you may file a form with the IRS asking to be treated as a Subchapter S Corporation. In order to qualify, the number of shareholders must be limited and no shareholder can be a corporation. The advantage of the Subchapter S Corporation is that profits or losses are passed directly to the shareholders and the corporation itself is not taxed. With a Subchapter S, you can pay yourself a salary but distribute some profits as dividends, possibly avoiding self employment tax on some income..

Where Should I Organize My Business?

Generally speaking, you can organize your business in any state where you have an actual presence. That can be the state where you live or it can be a state where you have an office. Many companies organize in Delaware, because Delaware does not require companies to have a physical office in Delaware. You can have your registered agent there serve as your office. There are three things to consider: First, where do you have a physical presence. Second, what are the franchise or similar fees charged in the states you are considering. For example, CA charges $800 a year, while Delaware charges less than $200 for a small company. Finally, in what state will your business be taxed and what are the tax rates there? If you can organize and operate your business in a state with lower tax rates, that is usually an advantage.

 Mr. Sprang is a corporate and transactional lawyer with special expertise in labor and employment law.  He represents business clients throughout the United States and in Europe. He can be reached at: DC International Counsel, 5335 Wisconsin Ave., NW, Suite 440, Washington, DC  20015, (202) 895-1504, Fax: (202) 403-3644;
ksprang@dcinternationalcounsel.com

 

 

 

Weird Science: Maddening Visa Policies For World’s Brightest And What You Can Do About It

On the heels of yesterday’s post about the proposed STAPLE Act, today the Washington Post ran a timely article discussing a related obstacle faced by the world’s brightest minds, who would prefer to use their expertise in the United States but due to ill-conceived visa polices and procedures find it all but impossible to do so.

The article, headlined “U.S. Visa Delays Distress Scientists,” talks about the plight of foreign talent eager to get back to work, but who are stuck in their home countries waiting to emerge from the background check black hole so they can get a visa to re-enter the United States. (To read the article you will have to register to read the article, but to do so is free. If you don’t want to register, use a log-on from a site such as www.bugmenot.com).

It doesn’t take a genius to figure out the consequences such obstacles are having and will have on scientific research and advancement in the United States. Experts don’t want to sit idle waiting for the U.S. government to decide whether they are worthy of a visa, and research institutions can’t simply put projects on hold until the experts arrive.

Innovation will go elsewhere.

If you want to bring back some common sense and balance to U.S. immigration law, contact your Senators and Congressmen. To learn more about the issues and how to contact your representatives, check out AILA’s Legislation and Advocacy pages, most of which do not require a password to use. Also see AILA’s advocacy arm AILFand AILF’s policy site for additional information, both of which are free to access.

New Bill Proposes Unlimited H-1Bs and Green Cards for STEM Ph.Ds

A new bill is circulating Congress that would allow foreign students who earned Ph.Ds in certain fields from universities in the United States an easier path to employment and a green card.

H.R. 1791, called the Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009 (aka ‘STAPLE Act’), would eliminate numerical limitations for green cards and H-1Bs for foreign nationals who earned Ph.Ds in science, technology, engineering, or mathematics (STEM) and have a job offer. The goal is to stop the reverse brain drain caused by the United State’s current immigration policies that thwart the ability of many of those holding these desirable STEM degrees from staying here and putting their talents to use.

In 2007, foreign nationals earned 34 percent of the doctorates awarded, most of which were in the STEM fields. In fact, in most STEM fields, foreign nationals represent the majority, outpacing their American counterparts who prefer non-science fields. For example, 30.3 percent of the degrees in engineering were awarded to foreign nationals and only 8.1 percent went to U.S. citizens in 2007, according to a study by the National Opinion Research Center headquartered at the University of Chicago.

When the new bill was announced, news sites and blogs targeting Indian readers lit up with excitement. One main reason for the attention from Indians is that these students would greatly benefit from such a program because they make up a large group of foreign nationals earning STEM-based Ph.Ds in the United States. Chinese students also account for a large percentage of Ph.Ds earned from American universities.

These two groups in particular are experiencing four- and five – year backlogs, and longer, for employment-based immigrant visas for those holding advanced degrees.

The bill was introduced March 30, 2009 by House Republican Jeff Flake from Arizona and has been sent to the Judiciary Committee for review. We will update our readers on the progress of this bill. Please note, every year many bills are introduced in Congress, but most either die or are revised for better or worse before becoming law.

Last Call for New H-1Bs For the April Lottery Season

OPT employees and others filing for their first H-1B visa hopefully have already made their plans to file their applications when the lottery season opens on April 1.

If not, we urge you to act now to avoid any last-minute problems.

USCIS will accept applications from April 1-April 7, 2009 for inclusion in this year’s lottery. If the number of applications received during this window are fewer than the cap, then the window will remain open until the cap is reached. In prior years the quota has been reached on the first day and we expect the same to happen this year.

The cap remains unchanged this year with only 65,000 for standard H-1Bs and 20,000 for those holding advanced degrees form the United States (Master’s degree or higher).

If the cap is reached in the first five working days, USCIS will first hold the random selection process for those holding advanced degrees from the U.S. After this quota is reached, those applicants not chosen will be placed in the standard H-1B lottery pool.

Extensions For Those Whose OPT Expires Before Oct. 1, 2009

If your case is accepted under the quota:

• Work authorization will be extended if you will still be in OPT status after April 1 and you have filed for a change of status to H-1B.
• If your post-completion OPT has expired before April 1, but you will still be in your grace period by April 1, your will receive an extension to stay in the United States until your Oct. 1, 2009 H-1B start date, but you will not be able to work prior to the H-1B start date. In other words, work authorization will not be reinstated retroactively.

Cap Exempt

Applications for employees who will work at the following are not subject to the cap:

• Institutions of higher education
• Nonprofit organizations or entities related to or affiliated with institutions of higher education
• Nonprofit research organizations or governmental research organizations.

 In addition, individuals previously counted against the cap, such as most of those already in H-1B status (those working for the organizations named above were not counted against the cap, so if you are planning on changing employers, you should talk to a competent attorney immediately to determine whether you will be subject to the cap now).

H-1B Restrictions for Stimulus Funds (TARP) Recipients

Under the American Recovery and Reinvestment Act of 2009, companies that receive funding under title I of the Emergency Economic Stabilization Act of 2008 (aka “TARP fund recipients”),  or under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies), face additional restrictions on filing H-1B petitions.

EB-5 Regional Center Program Extended to Sept. 30, 2009

The EB-5 Immigrant Investor Regional Center Pilot Program has been extended through Sept. 30, 2009, USCIS has announced.  

The extension was included in the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105, which was signed this week.

Thanks to the extension, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.

Currently, there are 45 regional centers throughout the United States, according to USCIS.

Stop Gap Measure for EB-5 Regional Center Program: Proposed Extension to March 11 To Be Decided Today

UPDATE: President Obama signed the short-term continuing resolution that extends funding for the EB-5 Regional Center Program through Wednesday, March 11, 2009.

AILA is reporting that today, March 6, 2009, the House passed a short-term continuing resolution (H.J. Res. 38) that provides funding through Wednesday, March 11, for the EB-5 Regional Center Program as well as other programs and agencies normally covered by the nine regular FY 2009 appropriations bills that have not been enacted.

In addition to the EB-5 Regional Center Program, the continuing resolution also extended the controversial Basic Pilot (E-Verify) program through March 11.

The short-term continuing resolution will provide time for the Senate to complete action on the Omnibus bill by early next week.

The continuing resolution now moves to the Senate for consideration, where it is expected to pass. President Obama is then expected to sign the measure before midnight today.

USCIS has posted information on how it will handle any failure to extend the program here.

New biometrics ACS office opening in Saipan in March 2009

A new Application Support Center (ASC) is scheduled to start operations March 2, 2009 in Garapan, Saipan in the Common Wealth of the Northern Mariana Islands (CNMI), according to a USCIS press release.

The new center will allow the people to provide their fingerprints and other biometrics without having to travel to Guam or the United States.

In addition to the traditional function of fingerprinting services, people will be able to make appointments through the USCIS website (www.uscis.gov) to see an Information Officer at the ASC for general immigration questions.

The customer service line (800) 375- 5283 is also now accessible toll-free from the Commonwealth.

In CNMI, U.S. immigration law currently only applies to immediate relatives of U.S. Citizens. Come June 1, 2009, when the transition period is scheduled to being, U.S. immigration law in general will be applied to the CNMI, according to USCIS.

On May 8, 2008, President Bush signed into law Public Law 110-229, the Consolidated Natural Resources Act (CNRA) of 2008.  Title VII of this law amended P.L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States.  Title VII extends certain provisions of the Immigration and Nationality Act (INA) to the CNMI for the first time in history, according to USCIS.

Houses Approves EB-5 Regional Center Extension to Sept. 30; Senate Now Considering Bill

An appropriations measure containing a short-term extension of the EB-5 Regional Program has passed the House and was sent to the Senate for consideration, AILA has announced.

The House of Representatives passed the Fiscal 2009 Omnibus Appropriations bill (H.R. 1105) on Wednesday, which included a provision that would extend the EB-5 regional center program through September 30, 2009.

The bill must jump through additonal hurdles before it goes into effect and the final product is still subject to change.

The measure also included an extension of the controversial Basic Pilot (E-Verify) program through the end of September.

I-140 Premium Processing Program Expanded Starting March 2, 2009

Effective March 2, 2009, USCIS has announced it will begin accepting premium processing for I-140 petitions for foreign nationals who meet certain conditions.

USCIS has announced it will expand its premium processing service to include I-140 beneficiaries who:

• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
•  Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and 
• Are ineligible to extend their H-1B status under section 106(a) of AC21.

“H-1B Legal Rights”: Employees Among Those Charged in Recent H-1B and Green Card Fraud Bust

While the recent H-1B and green card fraud bust has been applauded for focusing attention on abusive and exploitative H-1B employers and “bodyshops,” short shrift has been given to the fact that several H-1B employees were also indicted for their alleged participation in the scheme.

Of the 11 people arrested last week, eight were employees. The employees were indicted as co-conspirators based on their alleged role in obtaining H-1B visas and seeking permanent residency by fraud, according to redacted indictments filed in U.S. District Court of the Southern District of Iowa.

The H-1B employees are accused of the following legal violations:

• Conspiring with their employers to obtain by fraud H-1B visas and permanent residency by falsely claiming they lived and worked in Iowa when in fact they were living and working in other states. 18 USC 371
• Mail fraud for stating on tax and/or immigration documents they lived and worked in Iowa when they actually did not. 18 USC 1341, 18 USC 1342

These employees may not have originally devised the alleged scheme -in fact, they may well have been talked into it by their employers against their better judgment-but the pressure the employees may have felt does not excuse violations of the laws.

Are you worried about finding yourself in this same situation? In this article we discuss the charges and the laws at issue to help explain why these employees were arrested and what steps you can take to protect yourself and your status.

Read the rest of this article on our companion blog  H-1B Legal Rights here.

Lawsuit Seeks to Void Controverisal New Federal Contractor E-Verify Law

The latest government attempt to impose the use of E-Verify on employers is being challenged in court. This time it is the U.S. Chamber of Commerce and other business and human resources groups attacking the legality of new regulations that force federal government contractors to use E-Verify for its employees.

The regulations, which go into effect Jan. 15, 2009, require federal contractors with projects exceeding $100,000 lasting 120 days or more and for sub-contractors with projects exceeding $3,000 to use E-Verify to confirm its employees’ eligibility to work. It also requires contractors to reconfirm the employment authorization of existing employees hired after Nov. 6, 1986 who work on government contracts.

The Chamber says the government is using an executive order to get around normal law-making processes.

“This massive expansion of E-Verify is not only bad policy, it’s unlawful,” said Robin Conrad, executive vice president of the National Chamber Litigation Center (NCLC), the Chamber’s public policy law firm. “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.”

The lawsuit asks the court to declare the new regulations illegal and void.

Employer groups have criticized E-Verify as too costly and imperfect to require use by federal contractors and subcontractors.

The case, filed in the U.S. District Court for the District of Maryland, is Chamber of Commerce of the United States of America, et al. v. Chertoff, et al.

For more information on the controversial E-Verify program, please see our other article here.

Updated USCIS EB-5 Regional Center List – December 2008

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

The required investment amount is $1 million, or $500,000 if located in a rural or targeted employment area. In addition, Regional Centers typically charge additional amounts in fees.

In December 2008 USCIS released an updated Regional Center list, with quite a few changes to the participants. Several new regional centers popped up around the country, while others disappeared from the list. In addition, those centers on the list which previously had been flagged due to administrative matters pending with UCSIS, apparently have been rectified. In total, USCIS says it has approved about 32 centers and has 12-15 applications pending.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB – 5 Permanent Residency through Investment.

Please note that this pilot program expires at the end of September 2008 unless reinstated. The program was temporarily extended until March 6, 2009 as part of Congress’ continuing budge resolution, but is awaiting Congressional approval for reinstatement for beyond that date.

In alphabetical order by state, the Regional Centers deemed “active” include:

New Database Gives State-by-State Round Up of Immigration Laws

In recent years states have been enacting a rash of new laws addressing immigration issues that affect foreigners and U.S. citizens alike.

In response, the Migration Policy Institute has created a free, searchable data base ofall immigration-related bills and resolutions introduced in state legislatures.

The State Responses to Immigration database classifies information by state, region, subject area, legislative type, and bill status.  For example, you can search the status of enforcement initiatives introduced in a state, compare the number of bills regulating employment, or evaluate the passage rate of health-related bills across the nation.

The database is a joint project of the Migration Policy Institute (MPI) and a research team at the New York University School of Law (NYU).

The site reports that it has posted 2007 legislation and will add data for 2008, in addition to 2001-2006 data, in the coming months.

Other groups which have tracked state efforts to regulate immigration issues include the National Conference on State Legislatures. For information on this group’s efforts see our article here.

EB-5 Regional Center List Grows; 2 New FL Projects

[NOTE: USCIS HAS UPDATED THIS LIST AS OF DECEMBER 2008. PLEASE SEE OUR LATEST ARTICLE HERE]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

Will I Be Deported If I Complain Against My H1B Employer?

You know your employer is violating the law. Perhaps, he has benched you with no pay; is paying you less than the required wage; has you sending out resumes instead of writing a computer program.

So why do H-1B employees put up with this situation?

One of the main reasons an H-1B employee tolerates exploitation rather than filing a complaint against the employer is fear of being deported.

This fear is understandable, but protections do exist. Specifically, regulations prohibit the employer from threatening you and retaliating against you if you complain about his violations of the law. 20 CFR 655.801.

Read the rest of this article on this publisher’s co-authored blog H1BLegalRights.com

Underpaid the Prevailing Wage? 5 Reasons an H-1B Employer Should Settle Your Complaint

If your H-1B employer (or former H-1B employer) underpaid your wages, you may be interested in complaining to the employer or pursuing legal action, but worried about what may happen to you. You may be worried that, if you complain about unpaid wages, you may lose your H-1B status, and be subject to deportation.

These are realistic concerns.  Pursuing your legal rights indeed is a serious and delicate matter.  You should thoroughly educate yourself on your legal rights and options before you take action or assume risks.

However, you should know that an underpaying H-1B employer has their own risks to worry about. The legal and financial consequences that an employer faces if found to have underpaid an H-1B employee’s wages could drive the employer out of business.

Because of this risk of losing everything, rather than face the risks that result from a worker filing a legal complaint, fraudulent H-1B employers will often prefer to reach a settlement with an underpaid H-1B worker that: (a) pays you your unpaid wages (and possibly more, given the possibility of legal penalty monies in addition to wages); (b) fixes any immigration-status problems(e.g. makes sure you receive valid payments and pay stubs needed for H-1B transfer); and (c) agrees not to retaliate against you.

Below are 5 reasons why an underpaying H-1B employer should agree to such a settlement.

(Please note: This article is NOT advising you to demand settlement from your employer, to threaten your employer with legal action, or to take legal action. Before trying to negotiate a settlement or filing a legal complaint on your own, it is strongly advised that you talk to an attorney, such as an H-1B rights attorney and immigration attorney, about your own specific circumstances and legal options).

If the H-1B employer does not settle with you, you could go on to file legal complaints that could present serious problems for the employer. (Please note: you could pursue these legal complaints even if you were deported and outside the U.S.-so, the employer could not “fix” its potential problems by trying to get you deported).

There are two types of legal complaints that could be filed against the employer: (a) a Department of Labor (DOL) complaint, which relates to failure to pay the prevailing wage and other immigration law violations; and (b) a federal court complaint, which relates to unpaid wages and various fraud laws.

Here are 5 reasons why an employer would want to avoid these legal complaints and settle with you instead.

#1 If the employer refused to settle with you, and you went on to file one of these legal complaints, the employer would likely have to pay your unpaid prevailing wages.

If an underpaid H-1B worker filed a legal complaint, the chances are the employer would be found in violation of the laws and have to pay the worker the unpaid prevailing wages.

In addition, the employer would have to reimburse the employee for any prohibited payments or wage deductions demanded of the employee such as the petition filing fee or an early termination penalty.

Violations are often clear-cut.  In many cases, a legal decision-maker can compare documentation, readily determine a worker has been underpaid, and/or the employer has made unauthorized deductions, and require payment from the employer.

#2 The employer may have to pay back the unpaid wages of other H-1B employees as well.

If a DOL complaint were filed, it is likely that DOL would investigate not only the employer’s underpayment of your wages, but also the wages of other employees, to see if they were underpaid as well.

Say, for example, the employer underpaid you personally by $25,000, and underpaid nine (9) other workers in the same manner.

If the employer refused to reach settlement with you (say, a settlement which paid you the $25,000 you were underpaid), and you go on to file a DOL complaint, the employer could risk the DOL making the employer pay out $250,000 to ten workers.

You may not know exactly how many workers the employer has underpaid, and how much the employer has underpaid them. However, when an H-1B employer has underpaid you and treated you fraudulently, the odds are high that the employer has done the same thing to several other H-1B workers. A fraudulent employer has to worry about allits underpaid workers, not just you, if the employer understands you and your attorneys may file a DOL complaint.

Faced with the prospect of having to pay all of its underpaid H-1B employees, an employer should be more inclined to settle with you to avoid a DOL investigation and being found in violation of the regulations.

#3 The employer could have to pay triple your wages, and additional monies, if the employer lost a fraud claim in federal court.

In addition to a DOL complaint, an underpaid H-1B worker may be able to file a complaint in federal court under various fraud laws.

A federal complaint can also be filed by a worker who has been deported and is no longer in the U.S.

If you win a claim under one of these federal laws, the law requires that the fraudulent H-1B employer pay you triple the amount of your lost wages as well as additional monies.

Further, the employer and its representatives would have to defend the complaint and would probably have to retain an attorney and pay thousands of dollars in legal expenses. (Most employers’ attorneys charge out-of-pocket fees on an hourly basis, as opposed to a contingency, pay-only-if-you-win basis that workers’ attorneys often have).

If you and your attorneys can get the employer to understand these financial risks of a federal complaint, it is all the more likely the employer will want to reach settlement with you rather than face the possible consequences of federal litigation.

#4 The employer, if found in violation of DOL regulations, could be subject to heavy fines.

In addition to requiring payment of back-wages, depending on the nature of the violation, the DOL can impose fines ranging from a maximum of $1,000 to $35,000 per violation committed by an employer. These fines can add up quickly, especially if there are multiple violations pertaining to more than one H-1B worker.

Faced with the prospect of paying both back-wages and fines should serve as a further incentive for an employer to reach settlement rather than risk going to court and losing.

#5 The employer, if found in violation of DOL regulations, could lose its right to employ H-1B or other foreign workers.

Financial liabilities are not the only sanction an employer faces if found in violation of DOL regulations. The employer may also lose its right to petition approval for immigrant and non-immigrant workers for up to three years. For an employer who relies on foreign workers to keep its business running, such a restriction could be devastating. As such, the potential imposition of this sanction should be a factor in an employer’s decision as to whether to settle with you or fight your claim.

Conclusion

Given all these risks that a fraudulent H-1B employer faces, it would likely be a far better decision for the employer to reach a reasonable settlement with an underpaid H-1B worker as opposed to facing the possible severe consequences of legal actions.

Again, it bears mention this article is not advising you to rush to threaten an underpaying H-1B employer with legal action, demand settlement, etc.

How you take action is a delicate matter. You should strongly consider speaking with an H-1B rights attorney and immigration attorney before you take action.

The information above is intended to educate you on the risks the employer faces and the reasons that employers may be inclined to reach settlement if you and your attorneys do decide it is appropriate to communicate with the employer about your right to be paid the prevailing wage.

To learn more about H-1B rights and options, please see these posts:

• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”
• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C. Attorney Brown authors the blog Employee Rights WI. For more information about H-1B rights, please see our other blog H-1B Legal Rights at www.h1blegalrights.com

FAQs: I Was Underpaid As An H-1B, But Am Now Outside the U.S.; Can I Still Sue?

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

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 #1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes.  There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer).  As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim?  What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines.  For example, State wage laws often have two (2)- year or three (3)- year deadlines.  Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years.  Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:” 

* Your deadline hasn’t passed. 

That is, at least some of your underpaid wages occurred within the last four (4) years. 

* The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance.  (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below). 

* You have LCA and paystub documentation proving you were underpaid. 

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) paystubs or other documents that prove your H-1B employer paid you less than the prevailing wage. 

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue. 

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit? 

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint.  It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation.  Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses.  Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed. 

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation. 

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.? 

Chances are you would not have to travel to the U.S.  As mentioned above, there is a good chance you can reach a settlement with your employer before filing a legal complaint.  If a legal complaint is not filed, there is no requirement that you travel. 

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S.  As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial.  However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise.  In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States. 

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S. 

#6 If I have to travel to the United States for litigation, do I need a visa? 

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial?  Would you be legally-allowed to travel to the U.S.? 

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one. 

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options. 

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me? 

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win. 

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis. 

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket.  The attorney is only paid if you settle or win your case.  When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees. 

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees.  For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors).  This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.   

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement.  However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you.  In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees.  If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees. 

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process. 

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing). 

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation. 

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney. 

In addition, for more information about issues to consider if you are an H-1B worker and are not being paid your prevailing wage, please visit this article: Employee Tip: If You’re an H-1B Worker Beign Underpaid Wages, Consider These Things.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.  Attorney Brown authors the blog Employee Rights WI. For more information about H-1B rights, please see our other blog H-1B Legal Rights at www.h1blegalrights.com.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.