Entries from Rajiv's Blog

Quite a few of our community members have asked me about te basic laws governing adoptions. One of my colleagues has prepared brief write up for you.

The procedure to adopt a child from a foreign country varies depending on whether the Prospective Adoptive Parent(s) are U.S. Citizens, Green Card Holders/Permanent Residents, or Non-Immigrant Visa holders. Two alternatives exist for United States Citizens only: adoption through the Hague Convention and orphan adoptions (from non Hague countries). Under these two processes, USCIS determines the eligibility and suitability of the Prospective Adoptive Parent(s) in addition to the eligibility of the foreign born child to immigrate to the United States.

Non-immigrants and Permanent Residents may not adopt foreign born children under the Hague Convention. In order for a Nonimmigrant or Permanent Resident to bring an adopted child into the United States, Prospective Adoptive Parent(s) must prove that they have been in legal and physical custody of the child for at least two years. The statutory provision pertaining to adopted children is found in INA Section 101(b)(1)(E), which provides immigrant classification for "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years..." This "two-year provision" is for Prospective Adoptive Parent(s) who are able to temporarily reside abroad and adopt a child in accordance with the laws of the foreign state in which they are residing. Note, the two year requirement is counted in the aggregate. Intermittent gaps in time are permitted. Legal custody begins when it is granted to the Prospective Adoptive Parent(s) by a legal process through the courts or other recognized government entity. This legal grant of custody must be evidenced by an official custody document or a final adoption decree.

The “two year provision” option is complicated and difficult to carry out because it is nearly impossible for Prospective Adoptive Parents (Permanent Residents and/or Non-immigrant visa holders) to return to their home countries/foreign countries and remain with the child abroad for two years before adopting. The two year absence from the United States raises other concerns with maintenance of one’s Permanent Resident status and/or Non-immigrant status. Prospective Adoptive Parents (Permanent Residents) who have completed the two year requirement would complete the immigration process by filing the I-130 and ancillary documentation. A Non-immigrant Prospective Adoptive Parent can attempt to obtain a dependent visa for his or her adoptive child so long as the child meets the definition of a child under INA, as per Section 101(b)(1)(E) noted above. Note, the primary applicant should have fulfilled the two year requirement, not only a/the dependent spouse.

**Please note this is a general summary of the inter-country adoption requirements for Green Card Holders/Non-immigrants. Adoption is a complicated matter and requirements may vary per country. Additional requirements may exist depending on the Prospective Adoptive Parent(s)’ circumstances. Please consult an attorney to discuss your inter-country adoption inquiries.

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.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

Q2. Question from the employee, Mr. Smith:
If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.
A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Here is a question from our clients-only extranet.

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder. Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

See attached memo. They will be writing separately to set aside the Jan 8 memo completely. Looks like we might see some good results without having to go to court. Attached Files

What kind of problems can employment-based nonimmigrants (H-1, L-1, E-1, E-2, E-3, TN) face during reentry?

I think this question is most relevant for H-1 holders, but other employment-based nonimmigrants may also note the general principles here.


For the last two weeks I had been hearing rumors of H-1B employees being “deported” from the airport when they tried to enter (or reenter) USA. I did not believe there was much to these rumors until, during the employers conference call a week ago I spoke with an employer with whose employee this had happened at an international airport in NY/NJ. I have gone over the details of what transpired.

The employee was asked who was his employer and where was he working. As soon as the CBP officer found out that the employee was working at a site other than the employer's he went into the entire employment history of the employee. The CBP officer then made a quick call to the employer as well. Finally, he gave the employee a choice: "either we formally decline you entry, then you cannot come back for 5 years, or you withdraw your application for admission and leave USA." So this poor guy took a 20-hour flight back.

I am incensed for two reasons. One, the issue of what an "employer" is under common law is so complicated that IRS has been struggling with it or several decades. A CBP employee with no legal training makes a snap judgment distributing misery without a thought given to the rule of law. Second, if there were any doubts about the veracity of the case, the proper recourse would have been deferred inspection where an employee is allowed to enter USA, but they have to come back with documents, and perhaps their lawyer to explain the case.

I have talked with three H-1B holders who were put in deferred inspection. I can live with that. The January 8th Memo of USCIS will end up in court whether through us or some other law firm. this memo has made a mockery of the legal process. I will explain more once I have decided on a detailed course of action. Until then, I want every employee entering USA to do the following things:

1. Remember, not everyone is being stopped and turned back. I have spoken with many, many recent entrants, who had no problem.
2. Make sure you have contact numbers of your employer and your end-client, if you are deployed at a third-party site.
3. Let your employer/end-client know when you will be entering USA.
4. Remember also, I do not believe you can carry any documentation over and above what you would normally carry.
5. Advance parole entries are relatively safer.
6. Dependents traveling alone are not likely to be bothered.


Feel free to post your questions here ONLY related to this topic please. I will try my best to answer. I had stopped answering while we were doing some changes on site. But this issue is important. I want to make sure we address all aspects as best as we can.

I am reproducing material from our employers-only (by invitation only) conference call for tomorrow. These matters need to be in place for H-1 new applications, transfers as well as extensions.

In view of the Memo of 8 January 2010 from USCIS, employers in the consulting business need to prepare for some changes in the way they work and their documentation. In our community call for employers on 14 January 2010, I had touched on some of the changes in the way you do business. This memo will provide further advice. Treat this both as a document providing guidelines for change as well as a starting point for several discussion, we as a community, will have. Feel free to let me have your comments.
For our purposes, an H-1B is based upon formation (and continuation) of a valid employer-employee relationship between the petitioner and the beneficiary. Note what USCIS says how they will define this relationship.
We need to establish we have the right to control when, where and how the job is performed.
1. We need to establish that you continue to supervise the employee even when the employee is working off site
2. Establish work flows and document them to show how many times a week/month the employee reports to you. Create documentation that provides dates and substance of discussions with the employee.
3. Do you have to right to control the day to day work of the employee? In other words, do you get to tell the employee: the times they arrive and leave; the amount of work they must do each day; the quality standards for the work; how to do the work, etc.
4. Do you provide the tools or instrumentalities needed to perform the job? In many industries, that would men providing items like laptops, desktops, printers and job-related software. If yes, document that you do.
5. Do you have the ability to hire, pay and fire the employee? This can be documented through employment contract with the beneficiary or through the offer letter. There is no legal requirement that you must enter into an employment agreement with you employees, H-1B or otherwise.
6. Do you evaluate the work product of the employee? In the IT industry, you can think of as the review before user acceptance. But even if you do not, you should be able to meet this requirement by establishing periodic performance review (at least annual) criteria. You can create spreadsheets of various elements that can be assessed: technical proficiency; ability to learn new material; client satisfaction; communication skills, etc.
7. Do you claim the employee on your corporate taxes (W-2)? The answer will of course be “yes” for all consulting companies, because you are required to place employees on your payroll as W-2 employees.
8. Do you provide any employee benefits? These can be medical insurance, paid vacations, bonuses, travel allowances (per diem), etc.
9. Does the employee use any of your proprietary information to perform the job? So, for companies that are selling products bundled with consultation would have an easier time proving this element. For most consulting companies the answer would be no. Nevertheless, document any training you provide the employees. That could be relevant.
10. Is the work product directly related to your business? The answer here would be “no” for most consulting companies. But an argument could be made that the work product for consultants is “consulting advice.” If that is true, then the work product is indeed directly related to the business.
11. Do you have the right to control how the work product is produced? This is similar to some of the points above and deals with the control of how work is performed.

Additional suggestions:
1. Create company-wide performance guidance for all consultants, no matter where they are deployed. For IT companies, it could be something akin to creating good practices for the SLDC.
2. Provide reimbursement for travel and similar job-related expenses. Avoid reimbursement from end-clients to your employees.
3. Where possible, add terms in your contracts with end-clients and vendors that specify that you have:
a. The right to control and manage how the employee performs the work;
b. The exclusive right to reassign the employee and that no one else has that right during their employment with you
4. Get the assignments from the end-client and take responsibility for delegating them to your employees.
5. Remind me to speak with you all about distressing “staffing” including specific positions in contracts.
6. Remind me to also speak with you all about extensions of H-1, which will be problematic under this memo.


You can place all of the above workflows, processes and other factors in your employee handbooks if you are already using them.

I have received emails from many employers wanting my comments on the attached memo that affects all employers but especially targets consulting companies. We will be holding a conference call today for employers. This call is by invitation only. A recoding will be made. You may request a copy of this recording by contacting us through:
http://www.immigration.com/contact

The recording will be sent to bona fide employers only. So, do not provide gmail/hotmail type emails. Write us from your corporate email accounts only. Attached Files

I have received e-mails from folks about my 2009 articles on immigration law compliance and end-client letter issues in H-1B cases published by American Law Institute - American Bar Association. Here is the link:
http://www.immigration.com/articles-rajiv-s-khanna