With every H1B extension or initial petition filed, the employer is required to submit to USCIS a Labor Condition Application (LCA) that has been approved by the U.S. Department of Labor (DOL). The LCA is a very important document and contains your employer's promises regarding your pay and some job conditions.
Did you receive a copy of the LCA?
Your employer is absolutely required by law to give you a copy of the LCA that covers the time period of the H1B petition. The copy can be given when the extension is filed with USCIS, or, if it is your first petition, no later then the first day of employment. There are no exceptions to this major fraud prevention requirement - you must be given a copy of the LCA to ensure you are being paid at least the wage your employer promised the government they would pay you.
You may receive the LCA copy by itself, but often the LCA will be included in your copy of the I-129 filing packet. No law requires you be given a copy of the entire I-129 filing packet, but sending a copy to the worker (with some private information about the employer removed) is just part of good customer service provided by some law firms. Do not confuse the filing receipt or approval notice with the I-129 filing packet. Along with the I-129 and LCA, the filing packet contains all the supporting documents and often an attorney "true copy" certification. Just like with the LCA, protect yourselves by always review the filing packet for errors and misstatements.
Be Concerned Mainly with Wage Information
Do not be too concerned with the exact working hours, unless it effects the wages you should be receiving. The form does not apply well to all the different types of positions and shifts worked, so accuracy in this area is not usually an issue as long as you are making the same (or higher) wage and under the same working conditions as U.S. workers in the same or similar job position. Usually, the workplace address on the LCA is not a crucial fact as long as the correct address is in the same metropolitan statistical area. Also ignore any variations of the validity end date of the LCA when the date is later than the time requested in the H1B petition. There are times when a longer end date is requested then will be on the H1B petition.
Are you receiving the Correct Wage?
You can be paid more than the wage shown on the LCA, but not less. With very few exceptions, such as employee-requested unpaid leaves of absence, you cannot be paid less than the amount show on the LCA.
Filing Complaints with the Department of Labor
It is easy to file a complaint against an employer over LCA violations, but you may wish to consult with an attorney before taking such actions to be sure you are correct in your belief that you are being underpaid.
If you have not been receiving the LCA copies, you can file a complaint, although a simple reminder of the requirement may be sufficient for you to obtain past and future copies. If you are given "late" copies of LCAs, review them carefully. I can understand how some employers filing H1Bs on their own may have overlooked this requirement. However, it the H1B was filed by an attorney, I would be a little suspicious as to why this very basic and simple requirement was not met.
Complaints are filed with the Department of Labor using the easy to complete form WH-4. The form must be sent to the DOL Wage & Hour Division office that has jurisdiction over your work location. An interactive map giving the correct address for the complaint can be found on the DOL website.
With few exceptions, complaints must be made within one year of the violation.
See our US$60 Attorney Consultation Offer
Go to the Most Recent Philippines-US Immigration Topics
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Tuesday, May 27, 2014
Friday, May 16, 2014
EB-2 Errors - Do Not Jepordize Your Future
I am seeing an increasing number of Filipinos petitioned in the EB-2 category although their jobs do not qualify for EB-2. I will generously call these cases mistakes. USCIS will call it fraud. These cases are rare, but not as rare as they once were.
To understand the problem, you have to first understand the category.
Everyone with a Master's degree wants to be in the Employment-Based 2nd Preference (EB-2) immigrant category, and with good reason. The wait for Filipinos before finally becoming a Permanent Resident in the EB-3 category is many, many years. The wait in EB-2 is zero. In EB-2, an employer can file a Petition for Immigrant Worker, and at the same time the employee (and some family members) can file an applications for Permanent Residence.
There are two subcategories of EB-2, commonly known by the short phrases of "professionals holding advanced degrees" and workers of exceptional ability". Today I'm only talking about advanced degree "professionals.
There are two parts for qualifying as an EB-2 advanced degree professional.
The first, obviously, is that the worker must have an advanced degree. There are three ways to meet this requirement; (1) Possess a U.S. degree beyond a baccalaureate (usually a Master's); (2) Possess a foreign equivalent of a U.S. advanced degree; or (3) have a U.S. bachelor's degree (or foreign equivalent) PLUS five years of progressive experience. The degree requirement is easy to meet and is usually handled correctly, although sometimes USCIS' definition of "equivalent" is different from what we wish.
It is the second requirement for EB-2 where I am seeing a problem. For EB-2, the job position itself must require an advanced degree (or similar equivalents above). Absolutely required. Not just preferred or desired.
EB-2 petitions done legally are wonderful. A quick green card. But in those cases where EB-2 is granted improperly, it becomes a time bomb for the worker.
There is always a small amount of attempted fraud in any government program and immigration is no exception. When employers misrepresent the "advanced degree" requirement on labor certifications and immigrant petitions I become concerned, and I have seen some blatant examples lately of employers overstating the job requirements. While the Department of Labor and USCIS catch most of these cases as they move through the processing system, some still make it though to approval.
This causes me to worry, but not for the company. If I am seeing an increase in these cases, so is USCIS, and they have their own methods for detecting these patterns. If USCIS and the Department of Labor determine a particular company has submitted false information, the prior filings by that employer will be reviewed. Fines, criminal charges, and a bar on future petitions are possible if a pattern of falsifying petitions is discovered.
Who I worry for are the immigrant workers and the consequences they will suffer when even individual case ‘mistakes' are discovered. At best, if Permanent Residence has not yet been granted, they may be able to convert their petition back to EB-3. Any residence application filed with the petition would normally just be denied (without a refund of filing fees). If Permanent Residence was granted before the mistake was found, and it has been less than five years, USCIS can withdraw the grant of Permanent Residence through a process called "recission". If more than five years, the case would be handled by an Immigration Judge in removal proceedings.
Sometimes these problems can be fixed. Sometimes not.
Remember, the vast majority of EB-2s have nothing to worry about. The odds are very high that your case is perfectly correct and legal. But considering the harsh future penalties for falling victim to an overreaching employer, it never hurts to step back and take an objective look at your work position just to be sure.
Do ALL the workers in your same job classification meet the advanced degree requirement? How about similar positions with similar duties? Did the job advertisements clearly require an advanced degree, or were the requirements vague? Is the same requirement being applied to U.S. workers? Is it rare to require an advanced degree in your area or region for the job you are perfoming?
A "no" answer to some of these questions is cause for serious concern. For other questions, a "no" answer should lead to other questions until you are satisfied that no problem exists.
The purpose of this post is to raise awareness and remind everyone not to rely on questionable promises. In other words, look out for yourselves. The truth is, everyone I've seen in this situation had suspicions from the beginning, but they let their intense desire for permanent residence overcome good judgement.
See our US$60 Attorney Consultation Offer
Go to the Most Recent Philippines-US Immigration Topics
View Qualifications of Attorney James W. Austin
Go To Austin & Ferguson, LLC Home Page
To understand the problem, you have to first understand the category.
Everyone with a Master's degree wants to be in the Employment-Based 2nd Preference (EB-2) immigrant category, and with good reason. The wait for Filipinos before finally becoming a Permanent Resident in the EB-3 category is many, many years. The wait in EB-2 is zero. In EB-2, an employer can file a Petition for Immigrant Worker, and at the same time the employee (and some family members) can file an applications for Permanent Residence.
There are two subcategories of EB-2, commonly known by the short phrases of "professionals holding advanced degrees" and workers of exceptional ability". Today I'm only talking about advanced degree "professionals.
There are two parts for qualifying as an EB-2 advanced degree professional.
The first, obviously, is that the worker must have an advanced degree. There are three ways to meet this requirement; (1) Possess a U.S. degree beyond a baccalaureate (usually a Master's); (2) Possess a foreign equivalent of a U.S. advanced degree; or (3) have a U.S. bachelor's degree (or foreign equivalent) PLUS five years of progressive experience. The degree requirement is easy to meet and is usually handled correctly, although sometimes USCIS' definition of "equivalent" is different from what we wish.
It is the second requirement for EB-2 where I am seeing a problem. For EB-2, the job position itself must require an advanced degree (or similar equivalents above). Absolutely required. Not just preferred or desired.
EB-2 petitions done legally are wonderful. A quick green card. But in those cases where EB-2 is granted improperly, it becomes a time bomb for the worker.
There is always a small amount of attempted fraud in any government program and immigration is no exception. When employers misrepresent the "advanced degree" requirement on labor certifications and immigrant petitions I become concerned, and I have seen some blatant examples lately of employers overstating the job requirements. While the Department of Labor and USCIS catch most of these cases as they move through the processing system, some still make it though to approval.
This causes me to worry, but not for the company. If I am seeing an increase in these cases, so is USCIS, and they have their own methods for detecting these patterns. If USCIS and the Department of Labor determine a particular company has submitted false information, the prior filings by that employer will be reviewed. Fines, criminal charges, and a bar on future petitions are possible if a pattern of falsifying petitions is discovered.
Who I worry for are the immigrant workers and the consequences they will suffer when even individual case ‘mistakes' are discovered. At best, if Permanent Residence has not yet been granted, they may be able to convert their petition back to EB-3. Any residence application filed with the petition would normally just be denied (without a refund of filing fees). If Permanent Residence was granted before the mistake was found, and it has been less than five years, USCIS can withdraw the grant of Permanent Residence through a process called "recission". If more than five years, the case would be handled by an Immigration Judge in removal proceedings.
Sometimes these problems can be fixed. Sometimes not.
Remember, the vast majority of EB-2s have nothing to worry about. The odds are very high that your case is perfectly correct and legal. But considering the harsh future penalties for falling victim to an overreaching employer, it never hurts to step back and take an objective look at your work position just to be sure.
Do ALL the workers in your same job classification meet the advanced degree requirement? How about similar positions with similar duties? Did the job advertisements clearly require an advanced degree, or were the requirements vague? Is the same requirement being applied to U.S. workers? Is it rare to require an advanced degree in your area or region for the job you are perfoming?
A "no" answer to some of these questions is cause for serious concern. For other questions, a "no" answer should lead to other questions until you are satisfied that no problem exists.
The purpose of this post is to raise awareness and remind everyone not to rely on questionable promises. In other words, look out for yourselves. The truth is, everyone I've seen in this situation had suspicions from the beginning, but they let their intense desire for permanent residence overcome good judgement.
See our US$60 Attorney Consultation Offer
Go to the Most Recent Philippines-US Immigration Topics
View Qualifications of Attorney James W. Austin
Go To Austin & Ferguson, LLC Home Page
Friday, May 2, 2014
Basics and Tips for Understanding the Visa Bulletin
The revised and expanded version of Understanding the Visa Bulletin, including the "Dates for Filing" charts, canbe found by clicking here.
Thursday, May 1, 2014
Find and Help Victims of Illegal Labor Trafficking
I would like to call attention to a problem bigger than most people believe: Coerced Labor.
The problem can range from basic visa fraud (employer lying to the workers & USCIS about the true nature of the job) to involuntary detention and physical abuse. These crimes can plague any group of foreign workers, yet Filipino workers constitute a substantial part of the U.S. temporary worker population, and studies show how the economic conditions in a home country can create additional vulnerabilities to unscrupulous recruiters using false promises to lure people into oppressive working conditions.
All of this falls under the general term of "Human Trafficking", basically defined as the use force, fraud, extortion or coercion for the purpose of forced labor or sexual exploitation. Think about it. You have heard of this happening, quite possibly have seen this and may have been a victim of these practices yourself in the past.
Some of the most common tactics used by traffickers include:
Withholding passports and immigration papers;
‘Switching' contracts after they enter the US;
Threatening deportation;
Threatening or using violence;
Preventing contact with outside friends or family;
Forcing them to use ‘company' housing;
Restricting their movements away from work;
Withholding money from paychecks for ‘expenses';
Bear with me. This is a long post, but with information you can use at the end.
Thousands of immigration attorneys in the U.S. routinely assist victims of trafficking and other serious crimes because the events often relate directly to the person's U.S. immigration status. Of course, the rules of confidentiality, and basic common decency, prevent attorneys from publicly identifying these victims or discussing their case except in the most broadest of terms without the victim's full consent. And even then, no one wishes to be seen as using the suffering of victims for personal gain or prestige. Unfortunately, this respectful silence is one of the reasons labor trafficking is so poorly publicized by those who frequently deal with the victims.
Generally, for immigration attorneys, these are often simple cases, as long as the government cooperates. The U.S. Department of Labor and the Attorney General handle most of the litigation, while we work to save or convert their immigration status. Two of the most useful tools granted by Congress for this purpose are the "U" and "T" statuses.
A "U" provides protection to victims who "have suffered substantial mental or physical abuse" as a direct result of a serious criminal act and assist the government in their investigation or prosecution of the crime.
The "T" is similar to the "U", but is directed specifically to the victims of human trafficking.
Both the "U" and the "T" allow the victim to temporarily remain in the United States with work authorization and both may eventually lead to being granted Permanent Residence.
I must acknowledge the inspiration for this post, the Philippine Nurses Association of America (PNAA), one of my favorite professional organizations, well known for their especially generous community service, both in the US and abroad.
Last week, at the PNAA North Central Regional Conference, I learned of the Association's commendable efforts to publicize the dangers of illegal recruiting practices and labor trafficking. Unfortunately, the outreach ability of the PNAA by itself is limited, being just a single organization, but no doubt others among the hundreds of Philippine-American organizations in the United States are also working to raise awareness of illegal labor trafficking.
Help these victims by first calling (800) 373-7888.
This is the hotline number for the U.S. Department of Homeland Security's Blue Campaign.
The Blue Campaign resulted from the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), a coordinated multiagency effort to enforce the prohibitions against trafficking in persons. Participating agencies include the Departments of State, Justice, Labor, FBI, USAID and the Equal Employment Opportunity Commission. A powerful group that can provide immediate assistance to trafficking victims.
For more information and many downloadable handouts, from posters to shoe cards, visit the Blue Campaign Resource Page.
If you wish to pass this information to others, please feel free to make use of the social media links below.
Go to the Most Recent Philippines-US Immigration Topics
The problem can range from basic visa fraud (employer lying to the workers & USCIS about the true nature of the job) to involuntary detention and physical abuse. These crimes can plague any group of foreign workers, yet Filipino workers constitute a substantial part of the U.S. temporary worker population, and studies show how the economic conditions in a home country can create additional vulnerabilities to unscrupulous recruiters using false promises to lure people into oppressive working conditions.
All of this falls under the general term of "Human Trafficking", basically defined as the use force, fraud, extortion or coercion for the purpose of forced labor or sexual exploitation. Think about it. You have heard of this happening, quite possibly have seen this and may have been a victim of these practices yourself in the past.
Some of the most common tactics used by traffickers include:
Withholding passports and immigration papers;
‘Switching' contracts after they enter the US;
Threatening deportation;
Threatening or using violence;
Preventing contact with outside friends or family;
Forcing them to use ‘company' housing;
Restricting their movements away from work;
Withholding money from paychecks for ‘expenses';
Bear with me. This is a long post, but with information you can use at the end.
Thousands of immigration attorneys in the U.S. routinely assist victims of trafficking and other serious crimes because the events often relate directly to the person's U.S. immigration status. Of course, the rules of confidentiality, and basic common decency, prevent attorneys from publicly identifying these victims or discussing their case except in the most broadest of terms without the victim's full consent. And even then, no one wishes to be seen as using the suffering of victims for personal gain or prestige. Unfortunately, this respectful silence is one of the reasons labor trafficking is so poorly publicized by those who frequently deal with the victims.
Generally, for immigration attorneys, these are often simple cases, as long as the government cooperates. The U.S. Department of Labor and the Attorney General handle most of the litigation, while we work to save or convert their immigration status. Two of the most useful tools granted by Congress for this purpose are the "U" and "T" statuses.
A "U" provides protection to victims who "have suffered substantial mental or physical abuse" as a direct result of a serious criminal act and assist the government in their investigation or prosecution of the crime.
The "T" is similar to the "U", but is directed specifically to the victims of human trafficking.
Both the "U" and the "T" allow the victim to temporarily remain in the United States with work authorization and both may eventually lead to being granted Permanent Residence.
I must acknowledge the inspiration for this post, the Philippine Nurses Association of America (PNAA), one of my favorite professional organizations, well known for their especially generous community service, both in the US and abroad.
Last week, at the PNAA North Central Regional Conference, I learned of the Association's commendable efforts to publicize the dangers of illegal recruiting practices and labor trafficking. Unfortunately, the outreach ability of the PNAA by itself is limited, being just a single organization, but no doubt others among the hundreds of Philippine-American organizations in the United States are also working to raise awareness of illegal labor trafficking.
What You Can Do
All of us should aware of these abuses and know how to provide help. The victims are usually presented to an attorney by a shelter or community group, but most often the case comes to light through a single individual who has been entrusted with the victim's story. That is where you can help, by being observant and listening, but seeing an immigration lawyer should not be the first step.
Help these victims by first calling (800) 373-7888.
This is the hotline number for the U.S. Department of Homeland Security's Blue Campaign.
The Blue Campaign resulted from the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), a coordinated multiagency effort to enforce the prohibitions against trafficking in persons. Participating agencies include the Departments of State, Justice, Labor, FBI, USAID and the Equal Employment Opportunity Commission. A powerful group that can provide immediate assistance to trafficking victims.
For more information and many downloadable handouts, from posters to shoe cards, visit the Blue Campaign Resource Page.
If you wish to pass this information to others, please feel free to make use of the social media links below.
Go to the Most Recent Philippines-US Immigration Topics
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