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

July 17, 2011

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.

Advertisements

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

July 15, 2011

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

May 19, 2011

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.


H-1B Cap Hit for FY 2010

December 26, 2009

USCIS announced it has received sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year 2010. 

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.


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

April 25, 2009

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.


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

April 11, 2009

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

March 14, 2009

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.