PERM - Labor Certification

Substantial transcription for video: 

Fraud Allegations in Immigration Law

 

Recorded on 12th July 2012.

 

I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation.  Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation.  You will think that this is a normal, ordinary thing, and you might ignore it.  I have seen people get into so much trouble with that fraud or misrepresentation finding.  Let me talk to you about what can happen with that.

 

First of all, a fraud or misrepresentation finding can lead to criminal prosecution.  You can be prosecuted criminally, if the government so chooses.  I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on  the  prosecution of these kind of cases.  We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases.  My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation.  Speak with counsel or speak with somebody who knows all sides of this picture.  Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.

 

Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail.  The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected.  I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.”  The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.

 

So, criminal prosecution is not easy but it can happen.  Be careful.  Deportation, removal, exclusion.  What does that mean?  If  you are in USA  on a visa, F-1 , B-1 , H-1 , L-1  any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and  you can then  be barred from coming back to USA for up to permanently .  And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.”  You do not have to have been successful.  Even in an attempt could lead to a permanent bar from entering USA.

 

 As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative.  I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future.  So think about this very carefully.  You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things.  For example, you just gave your transcripts.  You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case.  Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”

 

Next thing is, you get stuck when you apply for an H-1 again.  They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit.  So, in the future, this can come back and haunt you.  Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you.  Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this.  It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy.  Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.

 

So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application.  I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem.  What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple.  According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid.  However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married.  Next thing, they put a permanent bar on her.  Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in.  Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case.  And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer.  Is this is ethically okay?  I think it is. In my judgment, certain cases don’t need a lawyer.  Typically, spouse of a US citizen is such a plain and easy case.  But look at this example and how badly this got messed up.  So now, during a visa application, you’ve got a bar.

 

What other circumstances?  Remember the Tri Valley University?   A lot of you might remember that.  There were some misrepresentation implications for certain groups of people, not everybody.  They had a lot of problems getting visa stamping again from the consulate.  Second place where it can happen is at the airport.  When you land at the airport, the CBP (Custom and Border Protection) can haul you up there.  I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools.  Immediately, there is a fraud implication and the next thing is two things can happen.  If they want to be kind, they will let you withdraw your application  for admission and tell you to take the next flight back home without  coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility.  Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States.  Now you are barred for five years from coming back.  But to throw the book at you, they would deny your entry based upon misrepresentation.  Now you have a permanent bar.  So these are not simple matters, ladies and gentlemen.  They can be quite complex.  Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.

 

 Then the next thing is you can have a fraud or misrepresentation come up during benefits application.  In H-1, hiring without a project, the government now considers that to be a fraud.   I do not know how at what point of time hiring somebody without a project became a matter of a fraud.  I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed.  But who wants to take a chance for the   criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers.  That is now considered to be a fraud.  I have seen indictments that said that specifically.

 

Inaccurate Job duties.  An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration.  That can be a problem.  Why?  It can be a problem in depressing wages.  System Administrators are typically, though it could be other way around, paid differently that a Software Engineer.  Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously.  I have seen failure to post LCAs at client sites.  If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified.  There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA.  You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1.  There are many examples  I could sit here and talk about for hours.  But I just want to give you kind of a flavor of when these things happen and crop up.

 

Green cards.  I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through.  The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification.  When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do.  But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.”  It specifically says that.  So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct.  I have seen this issue come up a lot during Adjustment of Status.  Where do they come up the most?  Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.”  Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record.  Well, we deal with it, we make matters clear.  We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation.  Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.

 

When else during Adjustment of Status?  G-325-A.  When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally.  It was definitely an oversight, no question about that, because he disclosed other things.  And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs.  So that became a big problem.  They are trying to bar him permanently.  We have a MTR (Motion to Rehear) pending against that.  During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved.  A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent.  They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud.  But they did say that they were not able to verify, so there is doubt as to the veracity of the document.  Doubt as to the veracity.  Okay, that does not alert you.   You do not think, “Well, they are not saying they find fraud, but that is what they are saying.  Okay, six or seven years later, they have a lot of approvals for their H-1  after that green card with no problem.  Employees have been doing fine, and the issue never came up.  This gentleman applies for naturalization.  Guess what?  Barred from naturalization.  The government may go after his green card.  Why?  There is a fraud. So this issue comes up in naturalization.

 

It can come up in courts.  Sometimes you are there for unrelated proceedings, for example divorce.  Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck.  The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so.  Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled.  So the Visa stamp that you have on your passport is cancelled.  Very few people know this law.  Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that.  It is something that happens quietly, perniciously in the background.  So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent  because you used the VISA that was void by operation of law.”  I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation.  See, I do not mean to imply that the government is always unreasonable, but they can be.  Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law. 

 

What should you do?  Look at the left hand side of the screen.  Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record.  I do not care if you lose the case.  So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers.  So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story.  We explained what happened.  We went through the entire document trail.  We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record.  So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization.  Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit.  All of these things you can do.

 

And what else can you do? If nothing else, send out a letter.  Make it clear what the record was.  I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you.  I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved.  Highly unfair.  Let me get into that next time.  Good talking with you.

Updated PERM Statistics Released

The U.S. Department of Labor has released PERM statistics for the first eight months of the fiscal year that began last October. Of the 43,100 applications it processed, 27,600 (64%) were certified, 83% were for H-1B and H-1B1 visas, 44% were for IT-related fields, and 55% were for applicants from India. The minimum education requirement was an advanced degree for 51% of those certified, and a bachelor degree for 39%. The Department certified more applications in the last two months than in either of the prior three-month periods.

Substantial transcription for video: 

6 May 2015: We are noticing a VERY disturbing trend: USCIS seems to have reverted back to the position (or are in the process of reverting back) that priority date will be lost if the I-140 is revoked, even if revoked by the employer, not USCIS.

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

 

I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April  12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140.  USCIS has flip-flopped on this issue several times.

 

Let me first bring you to the news.  Right here it says.  If you look at the question number two.  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.  So the idea here is this:  even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.

 

The history of this interpretation is strange.  A few years ago, this was the position.  USCIS always said you can carry the Priority Date forward.  A couple of years ago, they started saying, “No, you cannot.”  We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider.  I advise you to think about this very carefully.  You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it.  There’s  a whole lot of people who went through this.  File a motion to reconsider.  Then USCIS started saying, “Well, you cannot do it.”  

 

Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long.  So Congress said, “We’ll put in AC-21.”  That will make it easier for employees to change jobs without losing their Green Card benefits.

 

This is excellent news, folks.  Once again, I am summarizing it for you.  You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation.

 

One more thing I wanted to add.  This is not good for H-1.  Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions.  You cannot.  If you want H-1 extensions beyond six years, you’ve got to have something else going.  You cannot rely on the revoked I-140.

 

That’s all I have to say on this issue.  I will speak with you folks soon.

 

Thank you for listening.

Substantial transcription for video: 

Transcript: Working Outside USA While in Green Card or H-1 Process

April 17, 2012

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I have in front of me a couple of questions from two different people.  They’re related so I thought I would club them together.  The basic idea is this:

Can I, as an H-1 holder or as Green Card pending status individual, work outside USA instead of being inside USA?

I am just going to do a quick talk on the implications of a person working outside USA while he or she is an H-1 or a Green Card applicant.

The first question relates to somebody who has an EB-3 Green Card pending.  As you know, that’s a decade-long wait.  So, people have to make some plans about their lives.

So this gentleman says, actually, he’s one of our clients, both myself and my wife are working on EAD and traveling on Advanced Parole.  So they have got an I-485 pending but they are EB-3.  He is the primary.  She is the dependent.  The wife wants to move to India for longer than one year and is planning to come back before her EAD gets expired. 

First of all, is this okay?   Yes, of course.  As long your Advanced Parole is alive, EAD doesn’t matter if you are working outside USA with I-485 pending.  Only thing we care about is your Advanced Parole or your H-1 visa.  Under the circumstances, I would recommend Advanced Parole.  Keep it active.  Keep it alive.  For a derivative, there is absolutely no problem if they are working outside USA.  If you are the primary applicant for an I-485, things could be a little different.  Now, what happens is that there’s a decision tree. 

You can have two situations.  One, you are still working for your Green Card sponsoring employer, but you’re working outside USA.  The second situation is you’re working outside USA for somebody other than your sponsoring employer.  What happens then?  There is nothing illegal about it.  Both of these situations are allowed.  But there is a common sense rule here.  The government could say, “Why is it if you have a permanent job in USA, your sponsoring employer can get the job done without you?”  Now, there could be many reasons for this.  One of the reasons could be the nature of the job is such that could be done anywhere for the time being.  So the employer is willing to accommodate you.  But, whatever the reasons are, be prepared to be sensitive to that question.  Is there really a job?  They can ask you that.  The idea is that you could be working from anywhere.  That is not the main issue here.  The most important thing here is that there should be a good explanation that you have a job in USA that is ready and open for you. 

One of the issues here is keep in mind that certain technologies don’t allow people from outside USA to work.  Most people don’t know that.  I think there is some restriction, for example, on encryption technology.  I think certain encryption technology is considered weapons grade.  Just look into that.

Otherwise, just ordinary commercial jobs, ordinary software development, ordinary financial consulting, can be done from anywhere.  That is not an issue.  Remember whether or not you have proper work authorization in USA.  This is very important to also keep in mind.  For example, if you are working from, for example, India, it is not required that you have proper work authorization in USA.  I don’t care if you have an EAD.  That’s perfectly legal.  You are working on Indian soil, not on American soil.  I don’t care if you have an EAD.  I don’t care if you have an H-1.  And that will bring me to my next question in a minute or two.

It also does not matter whether you come to USA periodically or not, as long as the job is alive and well and waiting for you, you should be okay.  For the primary and the derivative.  For the derivative, it is absolutely no problem.  Her job is not implicated at all.  She can work from anywhere.  But, for the primary applicant, this idea that job is still there and waiting has to be kept in mind.  And don’t make things up, guys.  We’ve to be truthful about this.

The same situation for H-1 people.  I’ve got people who go to India or go to their home countries and get stuck in long, long adversarial processes that go on to three months, four months, five months, six months.  What should they do?  If you can get your job outsourced and you can work from your home country while the H-1 process is going on, it’s absolutely no problem.  You can continue working.  Now there can be tax aspects that you’ve got to figure out with your CPA’s.  How you do you get paid?  Where do you pay taxes?  Things like that.  But those are tax issues and they can be figured out.  People do it all the time.  In fact, our own office has a couple of employees from other countries.   I don’t think that’s a problem.  That can be worked out.

The more important question--What is the impact on my H-1?

For example, I am outside USA for more than one year.  What happens to your H-1 is that, after one year outside USA, you can reset the clock and have six years of H-1 all over again, or you can go with something like a remainder option.  It’s called the remainder option.  I’ll explain the rule in a minute.  The idea here is this.  If you are outside USA for more than one year, you get six years of H-1 back, but then you are subject to the H-1 quota.  If you’re outside, good news is six years back.  Bad news is quota.  If you don’t want to be subject to the quota, you have to give up your right to six years of H-1 and take whatever is remaining in your H-1 six years initially.  That’s called the remainder option.  Those are the choices you have.  There is nothing wrong in working outside USA.

Bear in mind these principals.  If a primary applicant, make sure there’s a job available.  If a derivative on an I-485, work from anywhere.  No problem.  If on H-1, you can outsource the job.  You can work from anywhere in the world.  Doesn’t matter where you are.  The only thing is, at some point, if it’s more than one year outside USA, you have to make a choice of either a remainder or resetting the clock and being subject to the quota.

I hope that explains things adequately, guys.  As always, it’s good talking with you.  I will speak with you folks soon.

 

Substantial transcription for video: 

Topic:  Accreditation of Distance Education in USA

Date:  March 12, 2012

Total Time:  2 mintues 40 seconds

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.

A number of people have asked me this question in the last few days about how do they tell, if they finish a masters degree online through distance education in the U.S., how do they know if the degree is accredited?

I have looked into this issue because it became such a big issue for people, especially those who are born in countries where EB-3 is very backed up and EB-2 is a much better option.

So I did some review.  This is the best of my knowledge.  I am not an expert in accreditations, but what I see is this.  On the screen in front of you, you see this page where they talk about accrediting agencies recognized for distance education and correspondence education.

This is a page on the Department of Education website.   

http://www2.ed.gov/admins/finaid/accred/accreditation_pg10.html

Let me backtrack for a second.

First thing you do is ask the school where you want to go whether the particular program you want to do is accredited and, if so, who accredits it.  In other words, the accreditation agency that is accrediting it.  Get the name, and see if that name appears on this list right here.

Sometimes a particular program or a particular degree might be accredited, but not the whole school, and sometimes vice versa.  So be careful--make sure that particular program is covered by the accreditation.

Good luck to you folks and if you have further questions, log in to the community conference call or we can talk a little bit on the blog itself.

 

Debarment for not responding to PERM audit

At the October 28, 2010, stakeholder meeting with the U.S. Department of Labor, DOL discussed their increased staffing capability and a corresponding increased scrutiny of cases where the employer fails to respond to an Audit Notification letter or submits an incomplete response to such a letter. Where DOL identifies a substantial failure by the employer to provide required documentation in response to an Audit Notification letter, DOL indicated that we can expect to see more debarment and/or revocation proceedings.

Must we withdraw a PERM application if the employee is laid off?

Here is a set of questions posed to me recently by one of our clients:

I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes.

My question:
Q1. Do we need to withdraw PERM LC for him that was submitted 2009?
The status is still in process now. I would like to know if this PERM LC still has any goods for him. Let me know the pros & cons between withdraw it and not withdraw it.

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