Immigration Attorney on the Indictment of Opas Sinprasong, an E Visa Holder

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong.

The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong’s flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong’s restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong’s foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

H1-B Immigration Attorney Discusses Needed Changes in Employer Policy In Light Of The Neufeld H-1B Memorandum

bigstock-Immigrant-Families-On-The-Marc-5038074On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a guidance memorandum written by Donald Neufeld on “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.” This Neufeld H-1B memorandum has left many employers, especially those whose employees work primarily outside of the main office, more confused than ever. They are rightfully asking if there is a sound legal ground that gives USCIS the basis to question whether its employees qualify for H-1B visas. Employer’s struggles to understand the need for policy changes if they are headquartered in Michigan, for example, and have employees working Columbus, Ohio. USCIS also appears to struggles defending its ill conceived and legally questionable policy memo it issued last month

Despite the USCIS’ February 18, 2010 collaborative session to hear feedback and gather input on the impact of this guidance, there is no guarantee the concerns expressed will be considered or that the guidance memorandum will be revised. Therefore, H-1B employers with “roving employees” should consider implementing, or confirm their business has the following policies in place to ensure their employer-employee relationship meets the “clarified” requirements.

One question, according to the memorandum, that the USCIS adjudicator must ask when assessing the existence of an employer-employee relationship is whether the petitioner evaluates the work-product of the beneficiary. For off-site employees, evaluations and progress reviews may be unconventional or infrequent, but employers should consider implementing a firm and consistent review policy. The H-1B employer should progressively review the foreign national employee’s work and conduct an annual evaluation of the employee to establish the requisite control or right to control, as is stressed in the recent guidance memorandum. These progress reviews and evaluations should be adequately documented and maintained in the employee’s personnel file.

Further, a USCIS adjudicator will also be looking for evidence of supervisory control over the employee. The USCIS will first look to see if the employee is supervised by the H-1B employer on-site. Supervision on-site by H-1B employers is atypical for roving employees. Accordingly, in the absence of on-site supervision, the USCIS will look for evidence of off-site supervision by the H-1B employer. To adequately establish supervision for off-site employees, employers should schedule and document regular meetings with such employees. These meetings can be accomplished through a combination of weekly calls, reporting back to the main office and site visits by the H-1B employer. Regardless of the method, the meetings should be regularly held and sufficiently recorded. Consult with an experienced immigration attorney to assure that any policy changes are well designed and implemented to help success in future H-1B petitions.

Next, H-1B employers with roving employees should examine whether they claim their H-1B employees for tax purposes and whether they provide H-1B employees with benefits. The USCIS finds these factors useful in determining whether an employer-employee relationship exists. If an H-1B employer does not currently claim their H-1B employees for tax purposes or provide their employees with benefits, they should consider changing their policies. These elements help establish the existence of control or the right to control the employee. By allowing a third-party to claim the H-1B employee for tax purposes or provide the H-1B employee with benefits, the H-1B employer risks being categorized as a “job shop” employment arrangement which is explicitly prohibited in the Neufeld Memorandum.

The creation of an employee handbook or manual is an effective means of establishing the rights and obligations of the H-1B employer, as well as those of their off-site employees. It can also be a credible technique for demonstrating the aforementioned policies are a part of the employer’s regular business model. It is not only important to incorporate such policies into one’s day-to-day business, but it is also essential that they be codified. In the event of a Request For Evidence (RFE) on an H-1B petition, the H-1B employer will have documentary evidence showing they maintain control or the right to control their employees and, thus, qualify as a legitimate H-1B employer.

The USCIS memorandum recognized that some third-party placement arrangements meet the employer-employee relationship criteria and, for that reason, employers should take all the necessary precautions to ensure their employer-employee relationship conforms to the requirements set forth in the guidance memorandum. This should include not only implementing the foregoing policies, but also sufficiently documenting that such policies are in place and regularly followed.

Columbus Immigration Attorney Discusses The Child Status Protection Act: The Class Action

bigstock-Citizenship-documents-43205116Not all issues related to the Child Status Protection Act are settled law. There remain several unanswered questions. An example is the Matter of Xiuyi WANG. Many families in Michigan and throughout the US await some positive news on a class action law suite related to CSPA. In the Matter of Xiuyi WANG, the Board of Immigration Appeals found that certain automatic conversion/retention of priority date provisions of the Child Status Protection Act (CSPA) do not apply under certain circumstances. In that case the court ruled that foreign national children who age out of eligibility for an immigrant visa as a derivative beneficiary in the fourth preference category will not retain their priority date under the CSPA when they are the beneficiary of a second preference petition later filed later by a different petitioner. Astonishingly, this decision — which punishes children for aging and only serves to divide families — has been upheld by the U.S. District Court.

Specifically, in the Matter of Wang, the foreign national’s child was only 10 years old when the original petition was filed naming her as a derivative beneficiary. However, an immigrant visa number did not become available until she was 22 years old and no longer eligible for derivative status. The father, upon receiving his green card, filed a second preference category petition on behalf of the daughter, who is now above 21 and is no longer a child, and requested the earlier priority date of the previous petition be assigned to her. The United States Citizenship and Immigration Services (USCIS) refused to apply the earlier priority date.

The decision in the Matter of Wang was appealed to the United States District Court in the Central District of California, Southern Division, but the Court granted the government’s motion for summary judgment. Encouragingly, the Court had certified a class on July 16, 2009 comprised of “[a]liens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3).” Nonetheless, on November 10, 2009, the Court held the decision in Matter of Wang was entitled to deference and, therefore, no issues of material fact existed for trial. The case has been appealed to the Ninth Circuit Court of Appeals.

Allowing decisions such as this to remain “good law” is only to enforce the separation of families and frustrate the entire purpose of the CSPA. Notably, the BIA’s decision in Matter of Wang discussed the legislative history of the CSPA and recognized that “[t]here was repeated discussion in the House, both before and after the Senate amendment, of the intention to allow for retention of child status ‘without displacing others who have been waiting patiently in other visa categories.'” The child beneficiary in Matter of Wang had done nothing but wait patiently for 12 years for an immigrant visa to become available, only to be sent to the “back of the line” due to no fault of her own. We can only hope that the Ninth Circuit Court of Appeals will uphold the underlying purpose of the CSPA, find in favor of keeping families together, and not punish innocent children for the USCIS’ processing delays and the unavoidable passage of time. Stay tuned.