Investigators found that the employer failed to pay the H-1B workers the required wage rate for the period of time between arrival from their home country, the Philippines, and reporting to their temporary work sites. Under the H-1B program, workers must be paid for all non-productive time caused by their employers.

“The U.S. Department of Labor is responsible for enforcing some of our nation’s most comprehensive federal labor laws, including provisions in certain temporary worker programs such as H-1B,” said Michael Young, director of the Wage and Hour Division’s Jacksonville District Office. “The Wage and Hour Division vigorously enforces H-1B visa rules to protect both the rights of U.S. citizens and the temporary employees in this program. Employers should not unduly benefit from hiring H-1B workers to fill jobs as opposed to hiring U.S. workers.”

As established under the Immigration and Nationality Act, the H-1B program applies to employers that hire non-U.S. workers in specialty occupations. The program helps employers that cannot obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S. The H-1B regulations establish standards to protect the H-1B workers, as well as similarly employed U.S. workers from being adversely affected by the employment of non-immigrant workers. Employers must attest to the Labor Department that they will pay wages to the H-1B workers at least equal to the wages 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.

US Labor Department obtains more than $134,000 in back wages for 40 therapists employed by Orlando, Fla., company under H-1B visa program

The most recent rumor is the specter of amnesty for those illegally in the U.S.  The truth of the matter is there is no amnesty.  The policy announcements made by the Obama Administration in August only concern a slight change in the attitude of the government to the priorities and process to be considered by the immigration service in seeking the deportation of undocumented individuals from the United States who have been convicted of crimes.  The August announcement in no way confers a right upon any non-citizen to either remain in the United States, obtain permission to work, bring other relatives to the United States, or any other independent immigration benefit.  If you know of anyone who is either undocumented or simply a non-citizen, who is here legally and is seeking a change of their status, encourage them to either seek the advice of an experienced immigration lawyer or to contact a legitimate non-profit service organization that can properly evaluate that individual’s status and advise her or him as to the best path to follow for the particular immigration benefit sought. The detention facilities of the USCIS are filled with unwary individuals who have paid thousands of dollars to unscrupulous so-called “immigration advisors” who take advantage of the poor or uninformed and often leave them worse off than before they sought the advice of that so-called “immigration advisor.” Do not let someone you care about become a victim who looses more than just money; they can forever be barred from remaining in or returning to the U.S.

As a general rule, U.S. citizens and U.S. tax “residents” are subject to U.S. federal income tax on their respective worldwide income irrespective of source.  An individual who is neither a U.S. citizen nor resident is generally subject to U.S. income tax only with respect to certain types of U.S. source FDAP income (fixed determinable annual or periodical) and ECI income (effectively connected with a U.S. trade or business.)

The key determinant of U.S. federal income tax liability is, therefore, residence of the taxpayer.

An individual who is not a U.S. citizen (i.e. an alien) is treated as a U.S. resident during a tax year and is, therefore, subject to U.S. income tax on worldwide income (subject to treaty relief) if the individual holds a green card, satisfies a “substantial presence test” or makes an election to be treated as a U.S. tax resident. The green card test is straightforward. If the taxpayer holds one lawfully, they are a U.S. resident for tax purposes. The substantial presence test is more involved. Under this test, a taxpayer who is not a U.S. citizen and does not hold a green card will be treated as a U.S. resident for income tax purposes taxed on a worldwide basis if they are (i) physically present in the U.S. for 183 days or more during the year; or (ii) physically present in the U.S. for at least 31 days during that calendar year and satisfies a “physical presence test” under a three year look back rule. This look back test is satisfied if the sum of (a) the number of days of the taxpayer’s physical presence in the current year; (b) one third the number of days of his physical presence in the U.S. in the first preceding calendar year and (c) one sixth the number of days of his physical presence in the U.S. in the second preceding calendar year exceeds 183 days.

It is important to note that if a taxpayer is deemed a resident for tax purposes in the U.S., they may also be deemed residents of another country for tax purposes. In such a case, we look at the applicable treaty, if there is one, for relief from the double taxation.

It is an all too familiar fact pattern to any experienced immigration attorney.  Person enters the USA illegally (in Cane’s case using a false identity), marries a US citizen,  fathers children (here in true soap fashion Lilly luckily stored her eggs prior to the onset of ovarian cancer, Lilly’s friend McKenzie is the surrogate mom), citizen wife is seriously ill (the chemo didn’t work and Lilly’s cancer is back), he gets nabbed by ICE, put into removal (we do not deport people anymore; we “remove” them), and is ready to whisk him out of the country (Cane, being well connected to Genoa City’s richest family, is treated like royalty).  To make matters worse, the non-citizen escapes or fails to depart as ordered and is on the run from ICE (in a vain attempt to help his wife and unborn children Cane knocks out the ICE officer and bolts from the airport).

Every day across this country, immigration lawyers hear far worse stories, most of which do not have any happy conclusion (we are left hanging by the Y&R writers since March Madness has preempted the show until next week, so Cane is still on the lam).  If you enter the country illegally, the ability to adjust your status to lawful permanent residence is not available, even if you have some, or all, of the experiences Cane has gone through.  The law is harsh, unbending and, even with very good immigration counsel, devastating to the individual, who could face a life time bar to reentry into the USA for any reason, and those he leaves behind (will McKenzie go back to her true love Billy Abbot who was also married to Lilly, will Lilly die, who gets the kids?). 

Unfortunately, in reality, those who find themselves in Cane’s circumstances are not the well-heeled upper class of Genoa City.  In the real world, detainees do not have long unmonitored visits with their loved ones and they are not kept in relatively nice surroundings pending their removal hearing (Cane had a constant flow of friends and family at his disposal).  Often, the person may even be gone before those he loves can muster their scarce resources to help.  If you are reading this and ask, “what does this have to do with business immigration?”  The answer is, “plenty.” 

All too often business requires people to travel spontaneously; paperwork be dammed.   The consequences of such ill considered travel can be quite similar to Cane’s.  If one does any of  the following: (1) travel on expired documents; (2) travel while they have paperwork filed to change their visa status is pending; or (3) over stay “by just a few” days could find themselves barred from reentry into the USA.  When traveling in and out of the USA, even business people must be aware of the harsh nature of the USA’s immigration laws. There are no longer any simple paper errors; just a mistake, even an innocent one (or one, which in normal circumstances equity could forgive, like Cane running to help his family), can cause a lifetime of pain. 

So what is the moral of the Y&R tale?  Make sure you are able to properly travel in and out of the USA.  Check to see that you have all of the current documents necessary to present at the point of entry.  Be aware of your visa status and what that allows you to do.  Discuss any travel plans or document issues with a trained immigration lawyer.  Failure to take these steps could easily place you or someone you care about in a soap opera that would make Y&R seem tame.

The L-1 visa program offers multinational businesses a rather straightforward way to place executive, managerial, or “specialized knowledge” employees in the United States.  This program allows employers to bypass the traditional quota limits and labor certification requirements applicable to other visa categories, such as the H-1.  The L-1 visa is for intra-company transferees.  In order to qualify, the subject employee must have worked for a multinational company outside the United States in an executive, managerial, or “specialized  knowledge” capacity for at least one continuous year within the three years prior to coming to the United States and, further, must be coming to the United States to work for a related company (parent, subsidiary, sister company, etc) in a similar capacity. 

Sometimes stories do not have happy endings.  Unfortunately, the same holds true for employer-employee relationships.  What happens when your “super star” L-1 visa employee turns into a “problem child” (or worse, a problem child with a penchant for litigation) and you need to terminate the relationship?  

Is there a written employment agreement in place?  Was that agreement entered into with the U.S. or non-U.S. affiliate?  If the agreement was with the non-U.S. affiliate, did it contemplate employment in the U.S.?  Is there a governing law provision?  Is there a forum selection provision?   Is there provision for severance pay?  Does the agreement define just cause for termination?  While foreign employees working in the U.S., regardless of their immigration status, are generally afforded similar protections (under both State and Federal Law) to their U.S. resident counterparts, the terms of the underlying employment contract will play a large part in determining where the underlying dispute is heard (U.S. or foreign courts), as well as the ultimate outcome (and costs involved) in bringing the matter to resolution. 

From (very) recent (and not so fortunate) experience, L-1 visa employers would be well served to address such matters at the time of transferring or seconding the L-1 visa employee to the United States.

The frenzy began on April 1, the first day for filing a petition with the immigration service (six months prior to the beginning of the next fiscal year – October 1) for the coveted H-1B visa status.  In 2008, due to the sheer volume of applications, the USCIS ceased accepting further petitions after April 2 once the number of applications to exhaust the 65,000 visa cap was reached.  After which, all would go dark until the next fiscal year.

In 2009, due to the weakened economy, demand for this visa was reduced and the visa cap was not reached until the third week in December.  This year, recent rule changes have been instituted as to how the petitions will be scrutinized could see many petitions denied.  Problems with the new iCert program, designed to streamline processing for the Labor Conditions Application (required to be approved prior to submission with the H-1B petition), could cause extensive delays in petitioners ability to make timely filings.  What will happen this year?  Who knows?

Last year was different.  As the economy soured, so did the demand for H workers.  The requirement that the employer show that a US worker was unavailable became harder to meet as the unemployment rate rose.  It was not until December 2009, that the supply of H visas was exhausted.  It is believed that most likely the same will happen again this year.  So if you are an employer in need of skilled workers that would qualify for an H1b or similar H visa, it’s an easy lay up shot should you need to hire a skilled worker  any time after October 1,  right?  Wrong.

March madness may be gone, but the US Department of Labor is still around.   The DOL requires anyone seeking a skilled temporary worker visa to verify that the employer could not fill the position with a US worker.  With unemployment still hovering around 10% (depending upon what part of the country you are in),  that verification could be tough to come by, unless the job requires a unique skill set.

The employer also must pay at least the wage established by the DOL for the type of job being offered.  With jobs scarce, many that would not have taken a skilled job at a lower salary (the DOL numbers often were below market in good times) would have no problem taking such a job today.  Stay away from job requirements that the DOL or the USCIS believe are only there to avoid hiring a US worker.  No lay ups or free throws here, just more pounding of the bureaucratic boards to get a visa.

The good news is that if you truly have a need for a skilled worker and you truly cannot recruit for that position from the US labor pool, a visa should be available.

The key, like all successful business decisions, is to plan as far out as one can, taking the steps that are necessary now to place the employer in the right position to take that shot at a visa when the worker is needed.  Remember the visa numbers are for fiscal year 2011.  If your company has any reasonable expectation of hiring a key skilled work after October 1, 2010, now is the time to consult your immigration attorney to ensure that getting the visa for such a key person is a slam dunk and not a missed free throw.

While our streets are not paved with gold, there is a path into the USA that is. Since 1999, the law has allowed one to obtain permanent residence in the USA by making a significant investment in the USA. One has the option of starting a business, buying a distressed business, or investing in a project in an area designated by the government as in need of economic assistance. The amount of the investment varies from a minimum of $500,000 to $1 million depending upon the type of investment chosen.

The character of the investment is irrelevant as long as there is a sound business plan, it does in fact generate at lest ten new jobs and the money being invested is “clean,” not generated from any sources that are criminal or otherwise suspect. Initially, one gets conditional permanent residency status for two years. Prior to the two year expiration of the conditional permanent residency, the investment is again reviewed by the U.S. Citizenship and Immigration Services (USCIS) to ensure that all of the applicable requirements have been met. If the two-year review goes well, one gets unconditional permanent residence status. If it sounds too easy and too good to be true, just like fools gold, it is in a way.

Since its inception, the EB5 investor visa program has not been warmly received by the US immigration service. The latest available statistics show that the approval rate for such applications is about 50%, yet the internet has been flooded of late with ads promising an easy path to green card status through the EB5 program. The program does work; however, the devil is in the details. One must make sure first and foremost that the investment is sound, as with any other investment opportunity. To avoid ending up having invested the money with no green card for your effort, it is important that proper due diligence is performed on any investment. If the investment goes bad, so does your hope for a green card.

In order to hit gold, one must proceed with caution and methodically with the help of not only trained immigration legal counsel, but ideally a team of experienced experts in business evaluation who can ensure the investment is not “fool’s gold.” If the investment is one that you are actively managing, you have more money at risk ($1 million), but greater control of your destiny. If your investment is in one of the targeted regional centers, less money is involved ($500,000), but so is your level of control of the investment’s direction. Either way, you are at risk should the business fail or the investment is done in by the economy.

Despite the risk, pursuing permanent residence through the EB5 process may be the only option open for one to obtain permanent residency in the current immigration climate. With due caution and care, the road to the freedoms of the USA may be open to you; the true gold is this country.

Our firm provides a full service commercial and international legal practice with immigration as a key component, for if you cannot get here, you cannot take advantage of all of the business opportunities the USA has to offer.

Like any business venture, the key to success in making one’s way through the USA immigration system is having a clear objective that is achieved by careful and meticulous planning.  Most of the disastrous immigration cases we see are the result of a lack of foresight and, more significantly, failure to have in hand documents that could have been easily prepared in advance.  Business does not often allow great lead time, but even an hour’s thought to the issues one faces to enter, or remain in, the USA can prevent months of frustration.  Frustration that can turn into increased costs or, worse, cause one to miss a business opportunity that will not come again.

We will also address the constantly changing policies that affect USA employers of non-citizens at every level of the work place.  The rule for vetting and ensuring one is only employing those legally entitled to work in the USA is deceptively simple with harsh punishment for any violation.  The failure to balance the fundamental rights granted to all by the US Constitution with the obligations under the immigration law can result in monetary and criminal issues that are avoidable with proper guidance and preparation.

One thing this blog will not do is to set up the immigration bureaucracy as the fall guy for all of the woes one faces when venturing into the immigration maze.  It has been our experience that most of those within the immigration service (the USCIS) are just tying to do their job, often without clear guidance and very limited resources. The USCIS is further saddled, wrongly in my opinion, with the spectre of September 11^th that permeates the entire process.

 The NMM Immigration Blog will do its best to bring to you topics and tips that can help the business community.  Of course, no one is perfect so we will also be open to consider any changes that our readers suggest.