Why PG County Schools’ Wage Violations May Throw Its H-1B Teachers Out of the US

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair affect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements for each job based on the profession and location (known as the prevailing wage) and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefitting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent atttorney.

For more information about legal services we provide to H-1B employees with wage claims, please see our blog we co-author with Attorney Michael Brown here.

MD County’s Public Schools Barred from H-1B program and Fined for Wage Violations

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

For more information about H-1B wage violations, benching, underpayment, and the rights of H-1B employees, please visit our blog H-1B Legal Rights, which we co-author with Employee Rights Attorney Michael Brown of Peterson, Berk & Cross.

Feds Cracking Down with Criminal Convictions against Employers for H-1B and Work Visa Fraud

H-1B and other employers who run work visa scams have more to fear than just the Department of Labor for their violations. These employers increasingly are facing criminal convictions and imprisonment on charges typically used against organized crime and trafficking rings, such as the Mafia.

In the past several months, federal prosecutors have publicized several cases against employers who were convicted under trafficking and criminal RICO (Racketeer Influenced and Corrupt Organizations Act) laws for procuring and exploiting foreign workers through visa fraud.

Of note, in March 2011, federal prosecutors in New Jersey reported that the owner of a tech staffing company was sentenced to six months in prison, fined $50,000 and ordered to forfeit an additional $296,921.82 for money laundering in connection with trafficking in immigration documents used to obtain H-1B visas and green cards for Indian workers. Six immigrant employees who paid the employer for the fake visas pleaded guilty and were placed on supervised probation, according to the Department of Justice (DOJ) press release.

The owner, Nilesh Dasondi, pleaded guilty to submitting employment-based visa applications for unqualified and ineligible foreign workers for jobs that did not exist at his company, formerly  Cygate Software & Consulting, now Sterling System LLC. When the workers arrived in the United States, the employer told them to go find jobs elsewhere. The employer then ran fake payrolls for these employees to make it look like they were working for the company. As part of the scam, the employees had to reimburse the employee for this payroll and related expenses, DOJ said.

In April, two other staffing company owners  in Iowa were convicted of H-1B visa fraud and sentenced to more than three years in prison and ordered to forfeit more than $ 1 million in proceeds. Fazal Mehmood and Viheet Maheshwari, who ran Worldwide Software Services and Sana Systems, plead guilty to applying for H-1B visas for foreign workers that contained false statements about their jobs and work locations typical of body shop scams, according to DOJ. For example, they told the government that employees would be working as programmers and analysts, but those jobs did not exist.

In an unrelated case, eight co-workers of  several connected Missouri and Kansas staffing companies that provided labor to the service and construction industries nationwide were similarly convicted of human trafficking and RICO charges for securing visas for illegal workers, DOJ said. The employers exploited the workers by threatening deportation if they complained about the working conditions that amounted to indentured servitude. They were forced to live in crowded apartments for which they were charged exorbitant rents, they worked but were not paid for overtime, and numerous “fees” were deducted from their paychecks resulting in negative earnings ensuring their “debt” to the employer could never be paid.

The Department of State has launched a public education campaign to combat exploitation and trafficking of foreign workers. More information on this resource is available in our blog article Handy Government Guide to Employee Rights; Download and Keep It With You.

If you believe the visa application your employer submitted for your visa may have contained false statements, you should contact an attorney as soon as possible.

For more information about legal services for H-1B employees who suspect they have been victims of employer fraud, please visit our co-authored H-1B Legal Rights blog, blog page here.

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.”

“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.

How to Report Suspected Criminal Violations by USCIS Employees

Immigration officers are required to abide by standards of integrity and efficiency, and if they do not, the U.S. government wants to know about it.

You may report suspected criminal violations, misconduct, wasteful activities, and allegations of civil rights or civil liberties abuse to the DHS Office of Inspector General.

To make a report, call 1-800-323-8603 or email DHSOIGHOTLINE@DHS.GOV.

Calls can be made anonymously and confidentially.

For more information, see the Office of Inspector General web page.

Employers Face Stiffer Fines For Immigration Violations

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

Beware the “Notario”: Tips on Avoiding Immigration Fraud

Horror stories abound in the media about the disastrous consequences caused by “notarios,” “immigration consultants,” and other non-lawyers giving bad immigration advice that causes foreign nationals to permanently lose their rights to stay in the U.S.

Everyone is vulnerable to this exploitation of newcomers. The Colombian-born wife of Georgia State Sen. Curt B. Thompson was on the brink of deportation because she relied on an unscrupulous “notario” to handle her case.

Usually foreign nationals who are the most in need of competent legal advice – those living illegally in the U.S. or who have been arrested and face deportation – are the ones most likely to fall prey to the false promises of a green card from these scam artists.

Part of the reason so many are vulnerable to this type of fraud stems from differences in the structure and regulation of U.S. legal services providers compared to the structure in other countries. The immoral take advantage of these differences to lure their victims. In particular, there are two terms that can confuse foreign nationals seeking immigration help in the US: 1) “Notary” and 2) “Immigration Consultant” or similar title.

Notary, aka Notario, Notaire

In many countries a person who carries the title of notary, (notario in Spanish, or notaire in French), is authorized to provide legal services similar to those performed by a transactional lawyer in the United States. These notaries undergo extensive education and training in their field to earn the coveted title of notary in their country. 

While a licensed notario in Mexico may be competent to dispense legal advice and to provide legal services under Mexican law, a notary in the United States has no such competency or authorization.

In the US, a “notary” or “notary public” has a specific power and purpose: Notaries are appointed by the state government to witness and verify the identity of a person signing a document and to administer oaths. A notary is not qualified to give legal advice at all. Period. Qualifications to be a notary or notary public in the United States typically consist of completing a short training course and little more.

In fact, to avoid the confusion between the two titles many states in the U.S., such as Texas, prohibit the translation of the English title “notary public” into Spanish. 

The confusion between the two terms and the corresponding danger it poses to foreign nationals in the U.S. has prompted the Secretary of State in Texas to post an article detailing the differences between a notary public in the United States and the notario publico in Mexico. 

Legal Consultant v. Immigration Consultant

Another title frequently used by nonlawyers in the U.S. that can mislead foreign nationals is ”immigration consultant” or similar such term.

Many countries have different degrees of regulated legal service providers, one of which may be called a “legal consultant.” These “legal consultants” are legitimate, but have limited authority to provide only certain types of legal advice. They even exist in the U.S., for example, in New York and California.  These are lawyers licensed in other countries who are authorized by New York or California to provide legal advice only in connection with the lawyer’s home country. These consultants generally are restricted from providing legal advice regarding U.S. laws, including immigration laws.

The term “immigration consultant” is reminiscent of these legitimate legal consultants, but while legal consultants are regulated and held to certain professional, ethical standards, those using the title “immigration consultant” historically were not regulated, which enabled immigration fraud to proliferate.

A foreign national may be mislead by this professional and legal sounding title that resemble titles familiar to him from home and think he is dealing with an authorized legal advisor, when in fact, he is not.

In recent years, a few states have cracked down on this type of misrepresentation, either prohibiting use of the term “immigration consultant” or restricting its to only certain, qualified people. Nevertheless, in most states the term remains unregulated, meaning foreign nationals are still at risk of unwittingly relying on the wrong person for help.

Finding Competent Immigration Legal Advice in the United States

Foreign nationals familiar only with their legal system do not realize the unethical people who label themselves as notarios or immigration consultants may not be qualified or authorized to give legal advice in the U.S. The consequences can be tragic, with foreign nationals being deported or trapped outside the U.S. unable to return home to husbands, wives and children.

In the U.S., the only person trained and authorized to give legal advice is a lawyer, also referred to as an attorney-at-law. No other person is competent to give legal advice. If a non-lawyer gives legal advice he or she can be charged with the unauthorized practice of law in the state.

Organizations throughout the U.S. are stepping up efforts to educate the public about the unauthorized practice of law and the dangers of relying on legal advice by nonlawyers such as the American Bar Association (ABA)  and AILA (the American Immigration Lawyers Association).

In a public service information piece, the ABA identifies these titles as red flags for those seeking immigration assistance:

• Notario
• Notario Publico
• Visa Consultant
• Immigration Consultant

Other red flags the ABA cites include:

* The person told you that you could get a green card or other benefit for which you were never eligible. 

* The person said he or she could get you special treatment from a government agency such as Citizenship and Immigration Services (USCIS) or Immigration & Customs Enforcement (USICE).

* The person kept your original documents and/or your court notices and made you pay a fee in order to get them back.

* The person asked you to sign blank forms.

* The person took your money and did not provide you with any services.

* The person falsely told you he or she was a licensed attorney.

AILA has published a brochure on how to find competent immigration advice. AILA’s brochure provides the following tips:

1) Use common sense. Many people hear what they want to hear-be smart! If it sounds too good to be true, it probably is.

2) Don’t believe it if someone tells you about a secret law or claims to have connections or special influence with any agency.

3) Don’t pay money to someone to refer you to a lawyer.

4) Walk away if a lawyer doesn’t have a license.

5) Never sign an application that contains false information, and try to avoid signing blank forms. If you must sign a blank form, make sure you get a copy of the completed form and review it for accuracy before it is filed.

6) Always get proof of filing-a copy or government filing receipt-when anything is submitted in your case.

7) Insist on a written contract that details all fees and expenses and make sure you receive a receipt, especially if you pay cash. If terms change, get a written explanation.

8)  Don’t let anyone “find” you a sponsor or spouse to get you a green card-it’s illegal.

While some may view these warnings by lawyers about nonlawyers to be self-serving (and it is), the warnings are also equally necessary to educate the public so each person can make an informed choice before deciding to engage a lawyer or nonlawyer to assist with an immigration case.

Where to Find Help

If you think you have been a victim of an immigration scam artist, seek professional legal help immediately from an immigration attorney. To find a qualified immigration attorney in your area, you can contact AILA toll free at 1-800-954-0254 or online at http://www.ailalawyer.com/.

Another resource for immigration assistance is an “accredited representative.” An accredited representative has been recognized by the U.S. government as having the skill and training to assist people with their immigration matters. These representatives work with a nonprofit community or religious organization. A list of accredited representatives is available at www.usdoj.gov/eoir/statspub/raroster.htm.

For free or low-cost immigration legal services, the ABA also provides a state-by-state directory.

More information about fraudulent immigration scams in English and Spanish (Español), are available through the following resources:

English

* ABA: The Dangers Of “Notario” Fraud

* AILA: Protect Your Dreams!

* Catholic Legal Immigration Network, Inc.

Español

* ABA: El Peligro De Fraude De “Notario”

*AILA: ¡Proteja Sus Sueños!

* Catholic Legal Immigration Network, Inc.: Cuidado Con Los Notarios