DOL Investigations Yields Order for H-1B Backpay

A United States Department of Labor (DOL) investigation has resulted in a federal order for a Minnesota technology company to pay an engineer back wages to the amount of $43,336. A federal judge ruled against the company, citing violations to H-1B wage regulations.

The Case

The DOL Labor’s Wage and Hour Division (WHD) and its investigation unit provided evidence to Judge Theresa Timlin in Minnesota following findings of misconduct within the TLC Precision Wafer Technologies Incorporation, located in Minneapolis, Minnesota. The company, which employs H-1B highly skilled workers, failed to pay a microfabrication engineer, working under the H-1B program, the wages stated in the H-1B application. TLC Precision Wafer Technologies Inc. additionally failed to maintain adequate records of payment to the engineer. While the Tech company had payed the engineer over $14,000 in cash reimbursements, Judge Timlin denied credit for the payment due to the lack of records and reporting of the payment to payroll and the Internal Revenue Service (IRS), as required to credit these payments.

Originally, the engineer was set to receive an annual salary of $43,000, per the H-1B petition. However, the employee left the tech company after they received reduced hours and pay. H-1B workers must be paid “at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.” In denying the engineer payment as agreed in the H-1B program, the company unlawfully exploited the engineer. The company will now pay back wages of $43,366 in addition to payments for pre-judgement and post-judgement interest.

In a statement, the director of WHD in Minneapolis, David King said, “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and ensure no one is being paid less than they are legally owed.” While the DOL works primarily to protect the interest of US worker, the DOL additionally protects the wages guaranteed to foreign nationals, especially in the case of the H-1B minimum salary requirements.

Student Groups Speak Out: New Foreign Student Requirements

According to Forbes, students in graduate programs across the country are urging law makers to immigration policies affecting international students. In a letter to members of congress, the graduate student associations of five of Texas’ top university urged lawmakers to reconsider recent policy changes to student visas. The student group, which represents graduate students both native and foreign, cited a National Science Foundation study that noted federal changes had resulted in a nearly 6% decrease in international graduate enrollment.

Call for Action

The presidents of Graduate associations from Baylor, Rice, Texas A&M, University of Houston, and the University of Texas at Austin, some of the leading research institutions in the United States, were included in the joint letter to members of congress. The letter cited three major USCIS policies that were cited as contributing to the decline in international enrollment for graduate programming. The first policy, involves a May of 2018 change to USCIS procedures for determining “unlawful presence” for foreign students, which according to the letter imposed stricter interpretations of accrual of unlawful presence days following the expiration of a F, J or M visa. The second policy concern revolves around a series of memos posted this summer that shocked many seeking immigration benefits in the United States. Specifically, the student organization opposes guidelines for USCIS officers allowing adjudicators to deny a request for immigration benefits without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Without the opportunity to amend errors in applications, students are now left without an opportunity pursue research in areas of need, like Texas.

Thirdly, the graduate student group offered criticism for the Department of Homeland Security proposal to “set a uniform and fixed maximum period of stay for student visas.” Although the Trump administration states that the change would “reduce overstay rates for nonimmigrant students,” the letter warns of the immense cost. Given the unpredictable period of research cycles, students would be unable to determine a fixed period for a full duration of their research. Therefore, many graduate researchers could be forced to leave the country before the end of their program. The group claims that this change would deter many of the world’s top researchers from coming to the United States to study. The students want congress to act against these policies, both proposed and implemented, so that research operations in universities and colleges can continue to produce must needed breakthroughs.

The $5 Billion Behind H-1B: NFAP Report

Several media sources, and employers across the nation, were surprised when the National Foundation for American Policy (NFAP), a non-partisan research group, released aggregated data from the last two decades of H-1B filings. Since Fiscal Year 1999, H-1B fees payed by employers totaled nearly $5 billion. The report, released early April, highlights many of ways in which the H-1B financially supports government programming for the benefit of native workers. Although non-partisan in nature, the report does mention and critique the recent immigration changes made during the Trump Administration. In particular, the report assesses the potential consequences of the Trump Administration’s proposal to double H-1B fees.

Key Statistics

Employers seeking to hire high-skilled foreign nationals through the H-1B nonimmigrant visa program must pay a training and scholarship fee to the amount of $1,500. While the Trump administration has considered increasing these fees, the study claims that employers of H-1B holders have funded nearly 90,000 scholarships since its start in Fiscal Year 1999. With these funds over one million student and teacher recipients gained monetary funding for science, technology, engineering and math fields; these funds in the 20 year time span totaled $1.94 billion. H-1B fees paid by employers additionally granted around 2.5 billion dollars’ worth of technology training for US workers. Excluded from these estimates are the $1.6 billion worth of anti-fraud fees payed by employers.

The studynotes that, since Fiscal Year 2005, employers have paid nearly $1.6 billion to fund “audits and investigations against themselves.” While fees payed by employers have increased over the years, these increases have been matched with the expansion of the H-1B program. However, the report argues that the FY2020 increase in H-1B fees proposed by the Trump administration would unfairly burden employers. While there have been increases to fees in the past (outside of normal inflation adjustments), these increases have been met with increases to the H-1B cap. The proposal, which omits any expansion of the H-1B cap, could further deter employers and subsequently harm the scholarship program.

Trump Administration to Close All International Immigration Field Offices (USCIS)

The director of the United States Citizenship and Immigration Service (USCIS), L. Francis Cissna has reportedly announced the end to the International Division of USCIS. This change would bring about the end of two dozen international branches of USCIS. The end of the USCIS international field office program would occur by the end of 2019, ending 24 programs in 21 countries. The decision to close USCIS international offices around the world comes as an effort to save millions of dollars per year.

Initial Reports

Several reports indicate that USCIS is in the “preliminary” stages of disseminating all USCIS field office responsibility to officials in the US State Department. Therefore, the personnel of the State Department would be responsible for immigration matters previously held by the international USCIS field offices. However, some US embassies and consulates abroad could now hold USCIS type responsibilities. These responsibilities include refugee applications, family reunification visas, foreign adoptions, parole requests, and naturalization documents for military members with foreign national spouses.

A representative for USCIS, Jessica Collins, told NPR that “The goal of any such shift would be to maximize USCIS resources that could then be reallocated, in part, to backlog reduction.” Collins further commented in response to concerns about the sudden closers, stating that the Department of Homeland Security and the US State Department would “ensure no interruption in the provision of immigration services to affected applicants and petitioners.” While the reallocation of resources spent on operations abroad could have a small impact on the backlog domestically, the move likely comes as President Trump works towards slashing government spending to pay for other administrative priorities. These changes will cause longer wait times for those who seek US visa privileges from abroad, and the closures will be especially harmful for refugees.

Refugees

Along with retransferring basic USCIS responsibilities to already over-worked State Department and embassy staff, the new changes could spell greater delays for refugees seeking residence in the United States. Many are concerned that the added workload will exacerbate an already slow refugee process, in a time when there is the largest refugee population in recorded history.

False Naturalization Statements Leads to Jail Time

When completing a naturalization application, or any application for visa or citizenship privileges, applicants are held under the penalties of federal law. In Worcester, Massachusetts a man is in custody under charges of making a false statement on an application for naturalization. While many believe making false statements to conceal any past unpleasantries (e.g. former criminal charges, etc.) may increase their chances of receiving approval for benefits sought, willful omission of facts or direct false statements in an application, for naturalization or any immigration benefit can lead to federal prosecution.

Worcester Case

The individual in custody, who remains innocent until proven guilty, stands accused of making a false statement on his application for naturalization. Richard Cheremeh, although real identity unknown, was charged with one count of making a false statement relating to his naturalization and one count of aggravated identity theft. The indictment lists the man under the name John Doe due to suspicion that the individual listed as “Richard Cheremeh” has stolen the identity. During “Doe’s” naturalization process, the man falsely stated that he had never given any US government official any information or documentation that was false, fraudulent, or misleading, one of the common questions on the N-400 application for naturalization. This contradicts allegations the man’s naturalization was obtained through the use of a stolen identity. By allegedly lying on question 31 of the N-400 application, “Doe,” if found guilty, is now at risk of a federal prison sentence.

Federal Penalties

If someone is found guilty of making a false statement related to their naturalization, this individual will face prison time for no greater than five years including three years of supervised release. Additionally, guilty parties face up to a quarter of a million dollars’ worth of fines. “Doe,” who is additionally charged with identity theft could face a minimum of two years in prison and up to one year of supervised release with an additional penalty of up to quarter of a million dollars. The details of the idictment were made public to warn other of the consequences of false statements on applications for naturalization. The individual in custody is presumed innocent unless proven guilty beyond a reasonable doubt in the federal court responsible for this case.

Multiple Petitions for Same Beneficiaries: FY20 H-1B

Federal regulations prohibit the filing of more than one H-1B petition for the same beneficiary in the same Fiscal Year, regardless if the filing is adjudicated by a parent company and its subsidiary or related entity. However, some petitioners may be unsure if the company filed more than one petition, particularly if a petition for the previous fiscal year remains unadjudicated. While premium processing for most visa classes has been reinstated for Fiscal Year 2019 (FY19) and pending petitions are now be expedited, many petitions are still awaiting adjudication. As employers prepare for the Fiscal Year 2020 (FY20) H-1B cap-subject filing season, considerations must be made to ensure that pending FY19 petitions do not subject the company to the penalties of multiple filings.

Pending FY19 & New FY20 Petitions

Although many FY19 petitions have been resolved, some remain pending due to a Request for Evidence (RFE) or ineligibility for premium processing. Those employers who wish to file a petition for the same person for the same position for FY20 while another petition for FY19 remains pending must proceed carefully. Regulations dictate that employers may not file for the same petitioner in the same fiscal year, largely to prevent employers from unfairly filing multiple petitions to increase the likelihood of selection for the H-1B lottery. The regulation does not explicitly take issue with filings in differentfiscal years. However, given that adjudication of H-1B visas depends on the interpretation of USCIS officers, the duplicate filing could be flagged by government officials. To prevent this, employers may consider a different position for the beneficiary if one is available or present a memo outlining the circumstances of the pending FY19 petitions. If an employer submits a FY20 petition, and the FY19 petitions is approved before the FY20 petition, the petitioner should withdraw the unnecessary FY20 petition. If not, the beneficiary could be left with conflicting start and end dates for their H-1B visa. While this case would be an ideal scenario, it is unclear whether USCIS will adjudicate an FY20 petition while a FY19 petition remains pending. Please feel free to schedule a consultation to discuss the unique circumstances of any of your pending FY19 petitions.

USCIS Resumes H-1B Premium Processing: 2018 Filings

Recently the United States Citizenship and Immigration Service (USCIS) announced that the service would resume premium processing on February 19thfor those regular pool H-1B petitions filed on or before December 21stof 2018. This announcement follows an earlier resumption of premium processing for fiscal year 2019 masters-cap petitions.

Those petitioners who have received a transfer notice must request premium processing through the service center where the petition is pending along with a copy of the transfer notice, or Form I-797. If the premium processing and transfer notice are not filed concurrently, there could be potential delays to the beginning of the 15-day processing time. If a premium processing request is sent to the wrong center, USCIS will forward the request to the correct service center, however, the premium processing deadline will not begin until the request reaches the appropriate service center. USCIS will not refund the premium processing fee until 15 days after the request has reached the service center that possesses the appropriate petition. Additionally, those who have received a request for evidence for an application pending from submission on or before December 21stof 2018, should include the request for evidence response along with the premium processing request. As the fiscal year 2020 filing season begins, USCIS is making efforts to clear a backlog of pending application made in 2018. USCIS notes that it will announce when other classes of petitions regain access to premium processing.

Revised Form I-539 (H-4, L-2, F-2, B-1, B-2, etc.) Available March 11th

United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.

Change to Form

On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.

Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.

Evidence of “Good Faith” Marriage: Checklist of Required Documents for Form I-751

A U.S. conditional resident filing for the Petition to Remove Conditions on Residence, Form I-751, must provide information of a “good faith” marriage. The Form I-751 petition, made available to those conditional permanent residents who obtained status through marriage, requires evidence that the marriage was legitimate, and not a means to subvert immigration laws.

Types of Evidence

The documentary evidence portion of the Form I-751 may include several different categories of proof of a legitimate marriage. These include:

  • Residential Evidence:Documentary evidence of a shared home or residence can be helpful in establishing a bona fide marriage. Copies of official deed, lease, or mortgage with both of the spouse’s names can be used as evidence of a financial connection between the married couple. Copies of utility bills showing the same address, property insurance documents with the same address, and driver’s licenses listing the same address are all good examples of a residential connection between the spouses. If the couple does not live together, the petitioners should be prepared to explain the separate residencies.
  • Financial Evidence:Information proving shared monetary resources between spouses may be submitted to prove a marriage is legitimate. In particular, petitioners may file recent jointly filed tax returns, joint checking and savings account statements, and any loan and credit card statements that contain both petitioner’s names. Additionally, proof of a financial relationship may be established by documentation noting large purchases (e.g. houses, cars, etc.). Official legal estate documents, such as a will, can be submitted to provide evidence of path of inheritance for either spouse.
  • Evidence of Relationship: There are many ways that a couple can present evidence of a bona fide marriage. One such way is to provide documents and photographs overviewing the entire relationship. Photographs from the couple’s engagement, wedding, honeymoon, and holidays may be submitted. For photographs, it is important to include an approximate date for each photograph. Additionally, petitioners can include receipts from joint vacations or hotel bookings.
  • Family Evidence: Petitioners may submit any evidence proving shared children. Petitioners can also submit affidavits of family affirming their knowledge of the couple’s relationship. When submitting evidence of children, petitioners should provide copies of original birth certificates displaying both of the parent’s names. Adoption papers should list joint custody of the petitioning parents. Family members, like parents and siblings, may submit official statements, or affidavits of support, for the couple and their relationship.

The documentary evidence above is not an exhaustive list of documents accepted. Consider a variety of evidence of clear evidence when trying to establish a bona fide marriage. 

Birth Tourism Crackdown: Arrest of China-Linked Operators

In California, three people were arrested for allegedly operating a so called “birth tourism” scheme marketed towards Chinese clients. The charges included conspiracy to commit immigration fraud, international money laundering, and identity theft. According to the US Attorney General’s office, those in custody are accused of maintaining a business in Southern California that charged Chinese clients tens of thousands of dollars in fees in exchange for assistance for giving birth in the United States. The indictments unsealed late last month, are the first-ever federal criminal charges brought against a birth tourism scheme.

Birth Tourism

Birth tourism is a multi-million-dollar immigration fraud criminal industry that operates globally. These schemes are often housed in the US and help pregnant women with foreign nationality enter the US under a tourist visa, aiding in Consulate interviews, border entry, and visa payments. Once admitted into the US, these birth tourism operations typically arrange housing and other amenities while women wait to give birth on US soil. Essentially, these birth tourism schemes operate to provide children of wealthy foreigners with rights and privileges of US citizenship. Those alleged of operating a birth tourism scheme in California could be among hundreds of similar immigration fraud businesses operating across the United States.

Details of Indictment

According to the Department of Justice, those arrested stand accused of charging foreign mothers tens of thousands of dollars to provide their unborn children the “the most attractive nationality”; “better air” and less pollution; “priority for jobs in U.S. government”; superior educational resources, including “free education from junior high school to public high school”; a more stable political situation; and the potential to “receive your senior supplement benefits when you are living overseas.” One of the alleged in the indictment, Dongyuan Li, stands accused of operating a birth tourism business under the name You Win USA. Li allegedly used several apartments in Irvine California to house more than 500 Chinese birth tourism clients, charging between $40,000 and $80,000. Li is accused of receiving $3 million in wire transfers from China in two years. Also listed in the indictment is Wen Rui Deng, who stands accused of assisting over 8,000 women give birth in the US in the last two decades. Deng is among the 16 others listed in the indictment who are believed to have fled the US to avoid prosecution. The indictment alleges that many of the clients failed to pay medical bills associated with the birth of the child.

Joseph Macias, Special Agent in Charge of Homeland Security, promised aggressive targeting for those who make a “mockery of our laws and our values to benefit and enrich themselves.” This is yet another instance immigration fraud exposure fronted by DHS and other federal immigration agencies. The US Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations and IRS Criminal Investigation worked together with the FBI to secure the indictment. Those in custody await trial and are innocent until proven guilty.