From time to time clients who are working in the U.S. on an H-1B visa tell me that their employer has begun to issue them a 1099 at the end of the year instead of a W-2 to reflect their wages. Usually, the employer stops taking the usual deductions from the worker’s pay checks as well. In effect, the employer has begun to treat the employee as an independent contractor. My clients want to know if that is OK. The answer is very straightforward – treating an H-1B employee as an independent contractor is not allowed. By definition, an employer/employee relationship much be maintained at all times when the worker is in the U.S. in H-1B status. Treating the H-1B as an independent contractor runs contrary to the law. It will likely result in serious problems for the H-1B worker at the time she or he applies for a visa at a U.S. Consular post. It may also result in denial of the H-1B extension when it is filed with USCIS.
Archive for April, 2011
Today, the Department of Homeland Security (DHS) announced the elimination of the list of countries whose nationals have been subject to registration under the National Security Entry-Exit Registration System (NSEERS)—effectively ending the NSEERS registration process through the publication of a notice in the Federal Register: http://www.ofr.gov/OFRUpload/OFRData/2011-10305_PI.pdf.
DHS and the U.S. government have conducted roundtables, meetings, and town halls with our community partners around the nation, regarding the (NSEERS) process.
As many of you know, NSEERS was first implemented in 2002 as a temporary measure in the aftermath of the September 11, 2001 terrorist attacks and was designed to record the arrival, stay, and departure of certain individuals from countries chosen based on an analysis of possible national security threats. The NSEERS registration required approximately 30 minutes in secondary inspection, per person, per arrival; and NSEERS registrants were also required to register upon departure at one of the 118 designated ports of departure, limiting travel flexibility.
Yesterday, President Obama hosted a White House meeting with 70 national leaders—including Mayor Bloomberg, former Gov. Arnold Schwarzenegger, Al Sharpton, evangelical leader Leith Anderson and Facebook COO Sheryl Sandberg, among others—to discuss the challenge of fixing our broken immigration system. While some advocates praised President Obama’s renewed commitment to immigration reform—and the fact that the meeting brought together a different group of national leaders allowing for new alliances—others questioned the timing of the meeting, the invite list, and the President’s sole reliance on Congress to fix our immigration system.
According to the readout, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also asserted that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims. For a full article go to: http://immigrationimpact.com/2011/04/20/president-obama-leads-meeting-on-immigration-but-what-happens-next/
Have you or someone you know recently received an e-mail claiming you’ve won the Green Card lottery and asking you to send or wire money?
Don’t fall for it – the sender is trying to steal your money!
Fraudsters will frequently e-mail potential victims posing as State Department or other government officials with requests to wire or transfer money online as part of a “processing fee.” You should never transfer money to anyone who e-mails you claiming that you have won the Diversity Visa (DV) lottery or been selected for a Green Card.
These e-mails are designed to steal money from unsuspecting victims. The senders often use phony e-mail addresses and logos designed to make them look more like official government correspondence. One easy way to tell they are a fraud is that the e-mail address does not end with a “.gov”. #FB
Each month, USCIS publishes a report on traffic to their website, which includes statistics on popular search terms people use to find their site. And every month, tens of thousands of visitors search “INS”. In January 2011, their report registered nearly 30,000 searches for the term “INS.”
This leaves them wondering. After all, the Immigration and Naturalization Service (INS) has not existed since March 1, 2003. On that date, most INS functions were transferred from the Department of Justice to three new components within the newly formed Department of Homeland Security. USCIS is one of those three components. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) are the other two.
So if INS was abolished eight years ago, why do so many people think it still exists? Why are so many people still searching for it online? Why has the word not gotten out to everyone? Do movie and television portrayals of “INS agents” keep the legend going? What do you think?
The U.S. Court of Appeals for the 9th Circuit in U.S. vs. Arizona today affirmed in its entirety the lower court’s decision preventing implementation of that state’s immigration law. The theory of the challenge to the law, as the appellate court found, is that federal law preempts the state’s effort to regulate immigration. To read an article in the Washington Post in it’s entirety, please go to:
Clients often ask me why they can’t pay the attorney’s fees when their employer sponsors them for a green card. They sometimes find it hard to understand that it is strictly prohibited by law for the employee to pay for what is commonly known as the PERM process. PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment.
To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.
The law prohibits the employee from paying for their own PERM or Labor Certification in part because the idea behind the case is that a legitimate job offer exists that theoretically could be filled by any US worker. If the employee is paying there no longer seems to be a real job opening for other qualified US workers.
U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept
H-1B non-immigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.
USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption.
USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
Wonder how the immigration system will be affected by the possible government shut down? Using the 1995-1996 shut-down as precedent, here are the predictions:
USCIS and SEVIS are fee-funded programs, so will most likely continue operating as normal, with the possible exception of the USCIS asylum program.
Visa processing would likely be suspended, as the Department of State would stop all non-emergency services, including visa processing at Embassies and Consulates. The Department of State has urged people to make “prudent” plans regarding visa appointments that are currently scheduled, and contact the individual Embassy and Consulate websites to determine whether the appointments will continue.
The Department of Labor would likely stop services as well, a move that could slow PERM processing and prevailing wage determinations. Customs and Border Patrol should continue to operate, as the agency is deemed essential to national security, which means that border crossings should be unaffected. It is difficult to know with certainty the full effects of a government shut-down, but these are our best predictions today. Stay tuned!
The State Department is about to start allocating more than 12,000 extra visa numbers
to EB-2 applicants. Most will go to applicants from India. The EB-2 India date in the
May Visa Bulletin will advance for the first time since September 2010. EB-2 India and
China may continue to advance for the rest of the fiscal year, though they are unlikely
to pass December 2006.