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

April 12, 2009

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 http://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.

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

November 28, 2008

[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.

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

October 17, 2008

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

 —–

 #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.


EB-5 Regional Center Program To Be Extended to March 6, 2009

September 28, 2008

Congress has extended the EB-5 regional center pilot program through March 6, 2009, having included it in its continuing resolution for fiscal 2009 to fund government operations.

The resolution is now before the President for his signature.

The extension only lasts through March 6, 2009 as Congress continues to debate whether and how to proceed with the pilot program. The program was scheduled to sunset Sept. 30, 2008. The House had approved the extension in H.R. 5569, but the Senate is still reviewing its version of the bill S. 2751.

For investors in the EB-5 regional center pilot program, approval by the President of the continuing resolution means applications should continue processing as visas remain available. We will update our readers if USCIS issues a statement on EB-5 processing in light of the continuing resolution, assuming it is signed by the President.

A continuing resolution is a stopgap spending bill Congress approves when it has not finished its appropriations work by Sept. 30, the end of the government’s fiscal year. If the spending bills are not in place, the government cannot operate.

The continuing resolution is available here. The provision providing for the extension of the EB-5 program is Section 144.


Quels Types d’Affaires Pouvez-Vous Faire avec un Visa B de Touriste ou Sous Le Programme d’Exemption de Visa?

August 12, 2008

Bien que les ressortissants étrangers ne peuvent vivre et travailler aux Etats-Unis avec un visa de tourisme et d’affaires (B-1 ou B-2) ou sous le programme d’exemption de visa, certaines activités commerciales sont autorisées. D’une manière générale, le visa B-1 d’affaires ou le programme d’exemption de visa permet les activités suivantes :

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Iraqi Worker Immigrant Visa Open For Application Now

July 19, 2008

At long last, the new immigrant visa for certain Iraqis who have worked with the U.S. government is now available, USCIS has announced.

USCIS is accepting applications for the promised special immigrant visa for certain Iraqi nationals who worked for, or were contractors of, the United States government in Iraq for at least one year after March 20, 2003 and who have received serious threats because of that work.

The applicant’s spouse and children are eligible to immigrant as well.

The U.S. government announced the creation of the new Iraqi worker visa in January 2008, but delayed implementation until now while it formulated the regulations and procedures for applications.

To be eligible, the applicant must establish he or she:

1. is a national of Iraq;

2. has been employed by, or on behalf of, the U. S. Government in Iraq, on or after March 20, 2003, for a period of not less than one year;

3. provided faithful and valuable service to the U.S. Government, which is documented in a recommendation from the U.S. citizen or national who is the applicant’s senior supervisor, or the U.S. citizen or national currently occupying that position, or a more senior U.S. citizen or national, if the applicant’s senior supervisor has left the employer or left Iraq.

If it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national, then the applicant may request a recommendation from the applicant’s senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter.

The recommendation must be accompanied by the approval of the Chief of Mission (COM) or designee of the COM based upon an independent review of records maintained by the USG or hiring organization or entity to confirm employment and faithful and valuable service;

4. has experienced or is experiencing an ongoing serious threat as a consequence of the applicant’s employment by the U.S. Government, as documented by a risk assessment conducted by the COM or the designee of the COM;

5. has cleared a background check and appropriate screening; 

6. is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence. In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to “public charge” shall not apply.

Essentially, applying for this visa is a two-step process. First, the applicant must obtain the approval of the COM of the U.S. embassy. Then, the applicant must seek approval from USCIS. Applications for USCIS approval are made using Form I-360. There is no application or biometric fee for this application.

More information on the eligibility criteria is available here on the USCIS website.  

The State Department has posted additional eligibility and processing information about the visa here.

The regulations authorize 5,000 of these visas per year starting in fiscal year 2008 through 2012. If the numerical limitation is not reached during a given fiscal year, the unused numbers will roll-over into the 5,000 authorized for the following fiscal year. If the numerical limitation for FY 2012 is not reached, any unused numbers from that year may be used in FY 2013. Numbers will not carry forward into FY 2014, said USCIS.

This new program for Iraqi workers is different from the special immigrant visa program for Afghan and Iraqi translators. The new Iraqi worker program though, is available to the group of translators as well. In fact, eligible translators who file or who have filed under the translator program before Oct. 1, 2008 but who are unable to adjust status or receive an immigrant visa because  USCIS has reached the current year’s cap of 500, will have their applications automatically converted to the new program for Iraqi workers, USCIS said. 

The translators whose applications are converted to the new Iraqi worker program do not need to provide any additional documents or meet any other eligibility requirements under the new program as long as they meet the requirements under the translator program. However, individuals who file under the translator program after Sept. 30, 2008 will be subject to an annual cap of 50 for FY 2009, according to USCIS.


USCIS List of EB-5 Regional Centers; 2 New Centers in CA Approved

May 17, 2008

[NOTE: THE REGIONAL CENTER LIST HAS BEEN UPDATED. PLEASE SEE THE REVISED LIST HERE: EB-5 Regional Center List Grows; 2 New FL Projects]

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.

Read the rest of this entry »