Wednesday, October 28, 2009

Enforcement of H-1B Labor Condition Application

Nonimmigrant Employment Visa - LCA Enforcement

We took on a case involving an Indonesian Native who was sponsored by an Accounting Firm on an H-1B Visa Petition. The company filed the I-129, LCA, and supporting documents, and obtained an approved H-1B Visa for our client from 2008 to 2011.

However, once the visa approval was obtained, then dismissed him and never paid him according to the LCA contracted rate. Under the parlance of the U.S. Department of Labor (DOL), they "parked him." An employer can lawfully "park" one of their H-1B alien employees, but they are required to continue paying that individual.

20 C.F.R. § 655.731(c)(4) states, "If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), . . . the employer is required to pay the salaried employee the full pro-rata amount due, . . . at the required wage for the occupation listed on the LCA."

The only way that an employer can remove their obligation is by complying with 20 C.F.R. § 655.731(c)(7)(ii) which states in pertinent part, "Payment need to be made if there has been a bona fide termination of the employment relationship.INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is cancelled. See 8 C.F.R. § 214.2(h)(11)."

Pursuant to 20 C.F.R. § 655.806, our office filed with the DOL Employment Standards Administration (ESA), Wage and Hour Division (WHD) a Form WH-4 Complaint for all the backpay our client is entitled to.

Thursday, October 1, 2009

Ninth Circuit Holds that a Probation Violation Terminates Eligibility for the Lujan Exception

Sad to report that a recent Ninth Circuit Court decision limits an immigrant's eligibility for the Lujan Exception to a First-time, simple possession narcotics conviction. The original holding in Lujan found that under the Equal Protection Clause of the Constitution, anyone, even an alien should be treated equally under the law.

Estrada v. Holder -

Now that this exception has been caved out of Lujan, it is essential that anyone eligible for relief under Lujan must not violate the terms of their probation or they will still face deportation.