H-1B Denials in Consulates

The Consulates in several posts just does not understand Immigration Law., especially the H-1B law. As it is, only 65,000 slots are opened every year, and over 100,000 applications are filed. So the lucky few who get in and get approved by the United States Citizenship and Immigration Services has to go to the Consulates.

The consulates, especially in Chennai, India tend to believe that small consultation firms cannot get H-1B applicants. So they ask for a laundry list of documents, including the employer's tax records, showing net profit, quarterly taxes, number of employees , etc. This is presumably to prove that the employer is actually doing business. Recently in an H-1B case, the Company was showing a net profit of over 200K. The consultants was to be paid $50k. At the time of filing the H-1B petition with the CIS, the employer had 45 employees. At the time of the consulate interview, the employer had 40 employee. The Chennai consulate denied the case and send it back to the CIS for "fraud investigation." This can take years!!!!

In another case in Sydney Australia, the Consulate officer asked whether the perspective employee knew the employer, and asked whether he knew if the employer is married. The employee knew the employer, but was not related. This case also got denied and sent to fraud investigation. Where does the H-1B regs say that the employee cannot know the employer? Would people like Michael Chertoff, Alberto Gonzales etc get a job if they did not know Pres Bush?

In this huge H-1B crisis, if the visas get denied, employers will simply outsource all work. If the H-1B workers were allowed to come in, the US would get the taxes, spending, etc. Now that will go to India or China. And yes, our debt to those countries will continue to increase.

In this labor day week end, if you know of a tiotally unfair consulate denial, please write. We can submit these stories to the Department of State.

Please leave this country, Please?

The Department of Homeland Security is really out of touch with reality. In a Program called Operations Scheduled Departure, they are asking illegal immigrants who already have their final order of deportation to surrender and depart the United States. It has been started as a pilot program in California, Chicago and Phoenix on August 5. Immigration and Customs Enforcement (ICE) is advertising in local media in those places. However, only 6 of thousands of immigrants have departed so far.

Of course ICE is calling this a success. Which means that it will continue to use your tax dollars for this program. Mr Hayes, the Acting Director of Detentions at ICE, said he is disappointed at the lack of support of community based organizations.

Mr Hayes, if illegal immigrants wanted to leave the US, why would they be here illegally in the first place? Like you and us, they have children to feed, many of those children are US Citizens. And unlike "welfare bums" they have to actually work to feed their children.

Terminating an H-1B Employee

With the declining US Economy, many employers are laying off employees, and some of them are H-1B employees. However, unlike ordinary employees, the Employer is supposed to take certain measures, while terminating an H-1B employee.

1. NOTIFY THE EMPLOYEE: The employer is supposed to pay the H-1B employee the amount promised under the LCA., when that employee is "benched", ie non performing employee due to lack of work. Rehiring a benched employee does NOT constitute a termination. The Employer is supposed to provide the Employee with a Notice that the Employment relationship is terminated. Oral termination may run into proof issues, so a written termination letter is advisable. Please note that if an employee takes time off voluntarily, (for instance to have a baby, or to care for a sick relative), the Employer is under no obligation to pay or to terminate during that period, if the employee joins him again.


2. NOTIFY USCIS and perhaps the DOL: The H-1B regulations state that the Employer shall notify the USCIS of terminations. The Employer should write to the Office that he filed the H-1B with and notify them of the termination. Although there is no regulations that the Employer should notify the DOL, it is advisable to do so. This is bacause under the LCA, the Employer's liability to the Employee continues for 1 year after the termination, if the LCA is not terminated as well. Although there are no Govermnment sanctions for failure to notify, the H-1B employee can file with the DOL, who has the authority to enforce the Employer to pay back wages to the Employee
Below are the addresses of the Government Organizations:

USCIS
California Service Center
P.O. Box 10129
Laguna Niguel, CA 92607-1012

USCIS
Vermont Service Center
ATTN: I-129
75 Lower Weldon Street
St. Albans, VT 05479-0001

Department of Labor
Look at your regional office:
http://www.doleta.gov/regions/regoffices/

3. Pay for Employee's transportation home: This only applies if the H-1B employee was to leave permanently for his home country. So if the H-1B employee decides to stay in the US and take up appointments any wharere else, the Employer does not need to pay for transportation home. The transportation has to be "reasonable." So first class plane fair is probably not reasonable. Also, the employer does not have to pay for the H-4 beneficiaries.

Whats wrong with US Immigration

If its not that we are probably the only country that do not have a workable immigration policy, that the nation is totally polarized about immigration topics, now we learn that the appointment of Immigration Judges were also polarized during the Bush Government.

Under Alberto Gonzales' reign, the Justice Dept hired Immigration Judges (IJ) whose only qualifications are being a "good republican" and a "longtime donor to the party." One of those judges, when asked what his weaknesses were, actually said "blondes."

The Constitutional debate as to what can be done to unseat federal judges, appointed for life is important. But so also are people denied cases simply because maybe these "right leaning" judges felt that the defendants would not make "good republican" US Citizens. Can every case during that period of time, adjudicated by those judges be reopened?