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Iraqi SIV applicants can expect even longer delays in processing due to a more extensive background check process out of concerns for U.S. national security.

The end of the long road to a green card used to be the visa interview at the U.S. Embassy, the background checks having been done before this stage.

Now, under a new policy, background checks are done again at the time of the interview to ensure no new negative information about the applicant has surfaced.

These delays are also occurring with Iraqi SIV applicants who are already in the United States and applying to adjust their status there. [The SIV (Special Immigrant Visa) is available to eligible Iraqis who have worked for or on behalf of the U.S. government in Iraq for more than a year since March 20, 2003 and have experienced an ongoing serious threat because of that work.]

Our clients began experiencing these delays late last year. These delays can last weeks or months, or worse, years. There is no way of knowing when the person will be cleared and there is almost no way to rush the process.

For the Iraqis already in the United States, the delays are an inconvenience since most are in another valid status. For the Iraqis oversees, and in particular those still in Iraq, however, the delay puts their lives more at risk, thereby undermining the purpose of the SIV. Knowing a long wait exists may also be a deterrant for those seeking legal immigration, provoking  into attempting illegal migration to the United States or elsewhere.

We wish something could be done to speed up this clearance process, but there is little to do but wait at this point. Eventually, after an excessive wait –  normally excessive in the immigration context is years, not months – litigation may be an option.

The trigger for the revised and enhanced background check process was the arrest in the United States of an Iraqi who was admitted as an asylee despite being accused of planting roadside bombs in Iraq, according to an article in the Los Angeles Times.

As a result, more than 58,000 Iraqi asylees and refugees already in the United States will be re-screened, according to the Los Angeles Times article. In addition, those applying for asylee, refugee or SIV status will be subjected to a multi-step background check that due to the work overload on the agencies involved in this process inevitably will delay their application process

The following is an excerpt from an USCIS report on Iraqi refugee statistics that explains the revised background check posture.

Ensuring Security

We are committed to conducting the most rigorous screening in order to ensure that those being admitted through the refugee program are not seeking to harm the United States. In May 2007, DHS announced and implemented an Administration-coordinated, enhanced background and security check process for Iraqi refugees applying for resettlement in the United States. The security check regime, including both biographic and biometric checks, has been enhanced periodically over the last several years as new opportunities and interagency partnerships with the law enforcement and intelligence communities have been identified.

 These enhancements are a reflection of the commitment of DHS and other agencies to conduct the most thorough checks possible to prevent dangerous individuals from gaining access to the United States through the refugee program. The latest enhancement to the refugee security check regime involves a new “pre-departure” check shortly before refugees are scheduled to travel to the U.S. It is intended to identify whether any new derogatory information exists since the initial checks were conducted. These pre-departure checks went into effect in late 2010. No case is finally approved until results from all security checks have been received and analyzed.

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.

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.

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.

December 21, 2009 is the cut-off date, or “final receipt date,” for new H-1B petitions requesting employment for the fiscal year, which began Oct. 1, 2009.

USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. 

Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

For all petitions that are subject to the cap and were received on Dec. 21, 2009, USCIS will use a computer-generated random selection process. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

•           Extend the amount of time a current H-1B worker may remain in the United States. 

•           Change the terms of employment for current H-1B workers. 

•           Allow current H-1B workers to change employers. 

•           Allow current H-1B workers to work concurrently in a second H-1B position.

 The  FY10 Department of Homeland Security Appropriations bill (P.L.111-83) did not include the Senate’s proposed amendment to make the EB-5 Regional Center program permanent. This proposed amendment was rejected Oct. 13, 2009 in a conference report issued by the House and Senate Appropriations Committees.

The law also extends the non-minister religious worker (section 568), the “Conrad 30″ (section 568), and the E-Verify (section 547) programs through September 30, 2012.

It also grants USCIS the authority to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

The bill was previously approved by the House of Representatives on 10/15/09 by a 307-114 roll call vote, and by the Senate on 10/20/09 by a 79-19 vote.

 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 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.”

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.

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