Financial Ability Standard In The I-140 Petition

bigstock-Passports-31148Employers filing for permanent residency on behalf of their employees must meet the financial ability test set forth in the regulations. In addition to examining whether a foreign national beneficiary meets the qualifications for the position in the I-140 Immigrant Petition For Alien Worker, the United States Citizenship and Immigration Services (USCIS) also scrutinizes the sponsoring employer’s ability to pay the foreign national the proffered wage. Though the sponsoring employer does not have to pay the foreign national the proffered wage until the foreign national has received their green card, the employer has the on-going burden of proving their ability to pay. This obligation begins when the foreign national’s priority date is established and ends only when the foreign national receives their green card, at which point in time the employer is responsible for actually paying the proffered wage. While the process has been criticized by courts as illogical and not an honest or accurate test of the employer financial ability, it remains today as the method by which employers financial ability is determined.

Pursuant to 8 CFR § 204.5(g)(2), an employer can prove its ability to pay through different methods, depending upon the size of the employer. All employers can, but those with fewer than 100 employers must, prove their ability to pay through Annual Reports, Federal Tax Returns and/or Audited Financial Statements (“initial evidence”). Employers with greater than 100 employees have the option of submitting a statement from the company’s financial officer attesting to the employer’s financial stability and ability to pay. This can be done in lieu of or in addition to submitting Annual Reports, Federal Tax Returns and/or Audited Financial Statements with discretion exercised by USCIS in accepting the financial officer’s statement.

The burden of initial evidence can be heavy for smaller petitioning companies, especially during turbulent economic times when financial statements and tax returns might not portray an accurate picture of the employer’s long-term ability to pay. Absent an acceptable company financial officer’s statement, the employer must show financial ability using the net income approach, or the net current assets approach. Employers must show that their net income or net current assets exceed the total shortage in offered wage compared to actual pay for the cumulative of all pending permanent residency petitioned employees. The impact of this rule can be very difficult to meet for employers absent proper and advanced planning with a competent immigration attorney.

USCIS has acknowledged that employers may submit secondary sources of information to supplement the required initial evidence, but that the USCIS will review such evidence in their sole and absolute discretion. This means that even if an employer submits additional, relevant evidence of its ability to pay, the USCIS may not give it much, or even any, consideration. However, regardless of whether the USCIS is required to review and consider supplemental evidence, it is always advisable to include additional favorable evidence with the petition. If for no other purpose, the evidence will be part of the record in the event an appeal is necessary.

Further, USCIS released guidance on May 4, 2004 regarding when the adjudicating officer should make a positive ability to pay determination. The guidance indicated that positive ability to pay determinations should be made when initial evidence shows the petitioning employer’s income is equal to or greater than the offered wage, the petitioning employer’s net current assets are equal to or greater than the offered wage, or if the petitioning employer is currently employing the foreign national and paying the offered wage.

The burden of initial evidence can be heavy for smaller petitioning companies, especially during turbulent economic times when financial statements and tax returns might not portray an accurate picture of the employer’s long-term ability to pay. Absent an acceptable company financial officer’s statement, the employer must show financial ability using the net income approach, or the net current assets approach. Employers must show that their net income or net current assets exceed the total shortage in offered wage compared to actual pay for the cumulative of all pending permanent residency petitioned employees. The impact of this rule can be very difficult to meet for employers absent proper and advanced planning with a competent immigration attorney.

Fortunately, in the years since the USCIS issued its guidance on ability to pay determinations, the Administrative Appeals Office (AAO) has shown a tendency to consider evidence outside of the traditional initial sources of evidence. This type of flexibility is encouraging in today’s economy, but it is incumbent upon the petitioning employer to have provided additional evidence with the original petition. As the AAO is only able to consider evidence already in the record, petitioning employers should help the USCIS and AAO decide in their favor by providing as much favorable information as possible.


Labor Certification Attorney On Experience Acquired With The Same Employer

bigstock-Citizenship-documents-43205116The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ’s on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is “not substantially comparable to the position for which certification is being sought.” This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as “a job or position requiring performance of the same job duties more than 50 percent of the time.” Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Employers should also consider whether the experience was gained with the same employer. Experience gained with a foreign parent, affiliate or subsidiary entity is usually not the same employer. By definition, the same employer is one with the same Federal Employer Identification Number (FEIN). Any experience the foreign national employee has gained with a related entity, inside or outside of the U.S., can be used for PERM purposes so long as the sponsoring employer has a different FEIN.

If the labor certification does require experience the foreign national gained in a position with the sponsoring employer, it is important that differences in the positions be sufficiently documented. This can be accomplished through position descriptions, a record of the percentage of time spent on the various duties, organization charts, and payroll records. Requiring experience the foreign national gained with the sponsoring employer can be detrimental to a case if the experience was not gained in a position that was substantially different, and it is incumbent upon the employer to prove as much. Thus, it is in the employer’s best interest to have as much evidence to substantiate their position as possible.

Reforming the Immigration System’s Adjudication of Removal Cases

bigstock-Immigrant-Families-On-The-Marc-5038074The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It described the current system as “crisis.” The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals.

Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and “are not doing as good a job as they should” in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency.

The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method “since it is too complex and too costly relative to the other two options.”

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

  • Requesting additional immigration judges;
  • Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
  • Amending the definition of “aggravated felony” and eliminating retroactive application of such provisions;
  • Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
  • Amending the definition of “crime involving moral turpitude”;
  • Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
  • Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
  • Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
  • Extending the deadline for filing a petition for review of a BIA decision; and
  • Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

  • Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
  • Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
  • Reducing the use of detention and expanding alternatives to detention;
  • Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
  • Increasing training opportunities for immigration judges;
  • Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
  • Increasing three-member panel review at the BIA;
  • Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
  • Amending regulations to require BIA removal orders to contain notice of appeal rights; and
  • Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary’s objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases

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.