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By Bruce E. Buchanan @ Sebelist Buchanan Law
A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).
Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.
Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.
Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.
The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.
The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.
Update: March 16, 11:00 am:
Donald Trump is now threatening more violence if he does not win the Republican presidential nomination. See Huffington Post: Donald Trump Warns There Could Be Riots If He Isn't GOP Nominee.
Canadian asylum law could be looking more and more relevant for many Americans as the November election draws closer. And what happens if Trump is the Republican candidate and loses that election? Will he refrain from threatening or resorting to violence in that event? That might stoke interest in Canadian immigration law ever further on the American side of the border.
My original post follows:
Fears about perceived anti-democratic behavior by the leading, if not certain, presidential candidate of one of America's two major parties are continuing to grow, fueled by the two latest incidents reported in the wake of the March 15 primary results.
One of these incidents involved the effusive praise given by this candidate to his campaign manager at the podium of a "press conference" (at which no questions were allowed) in Miami on the evening of March 15, after the campaign manager had been accused of manhandling a female reporter. See
The other involved denying a POLITICO reporter who had written an article critical of this same campaign manager any further access to his campaign. See
Since these are hardly isolated incidents of reported intimidation and violence directed against news reporters and other critics by this particular candidate and campaign, many Americans are starting, at least in jest, to raise the possibility of seeking asylum in Canada, if this candidate is actually elected president.
As the history of life in countries that have actually had to endure totalitarian systems shows, such jokes often have a potential to become serious later on. No one could reasonably say that America has reached this point, or is even close to it
But even if the possibility of seeking asylum elsewhere is only a joke among Americans today, it is instructive to take a look at Canada's asylum system, just to see what might be in store if America were to continue moving in the above direction and the laughter were, one day, to stop.
A comprehensive explanation of the Canadian asylum system is provided by an organization called Uniya Jesuit Social Justice Centre, entitled Overview of Canada's Asylum System. See:
Unfortunately for any American who might wish to seek political asylum in Canada under the present system, the prospects are less than encouraging. Uniya's report indicates that under a "Safe Third Country" agreement between Canada and the US, American citizens may be ineligible for asylum in Canada.
"The only people who arrive in Canada who are turned away immediately are those who come over from the United States pursuant to the Safe Third Country Agreement between the two countries. All other asylum seekers go through Canada's comprehensive refugee determination system..."
Part 2 of this series will take a closer look at the US-Canada Safe Third Country asylum agreement in order to assess its potential impact on US citizen asylum seekers in our neighbor to the north (assuming that this neighbor is not forced by any future US president to build or pay for a wall along the entire Canada-US border to stop American citizens from leaving their country).
To be continued in Part 2
Attorney at Law
Updated 03-16-2016 at 11:20 AM by ImmigrationLawBlogs
Ali Anisi Tehrani is an asylee from Iran. He raised some of these issue in a conversation we had one day over lunch, and I asked whether he might put his thoughts into a blog post. He was kind enough to do so--
“I think we should look to countries like Denmark, like Sweden and Norway, and learn from what they have accomplished for their working people,” Senator Sanders says. He’s not alone. Many Americans envy the Nordic countries, with their affordable education, health care for all, and subsidized child care.
Feeling the Spurn? Ali Tehrani worries about social democracy and immigrants.
While these countries are wonderful places to visit, as a political refugee who has spent time in Sweden, I fear that maybe this Nordic Valhalla would not be so heavenly for immigrants after all. Whatever it means for politicians like Bernie Sanders and his supporters, my experience tells me that in the long run, the Scandinavian model would be a disaster for immigrants and for people who plan to immigrate to the United States.
I have spent almost equal time in Sweden and the U.S. I enjoyed Swedish collective generosity and I studied there for free. The Swedes were even kind enough to send me to the U.S. as an exchange student with full medical insurance! An immigrant friend of mine had three surgeries there and spent weeks in hospitals. He paid very little. In fact, everyone in Sweden has health care and the deductible for medical expenses and medicine was only about $100. In a way, everything was perfect!
So what the heck am I doing in Washington, DC? Why did I leave the Nordic utopia and move to a country with no social benefits (even after receiving asylum, I was not eligible for short-term medical insurance in Virginia because I earned more than $150 per month)? Perhaps things in Sweden are not as they seem.
I lived in a small town in Sweden, not super immigrant-friendly. Everyone was nice and polite, and I never had any encounter that could be called explicitly racist or hateful. But I always had the sense that I was unwelcome. That I was a sort-of black sheep (or perhaps a brown one). I can’t say I would feel any different if I were in their shoes: Why should I work in order to pay for some foreigner’s education and benefits? Maybe as a result of this sentiment, the law in Sweden changed in 2011, and free education for foreign students was abolished.
The current situation in Sweden (and across Europe) is now quite disturbing. We are in the midst of the worst human catastrophe since World War II, and Sweden plans to reject up to 80,000 people who applied for asylum in the country last year; as many as half will be forced to leave against their will. Denmark, Sweden’s neighbor to the south, recently passed laws allowing the authorities to seize any assets exceeding $1,450 from asylum-seekers in order to help pay for the migrants’ subsistence (items of “sentimental value,” such as wedding rings, are exempt).
Many Swedes, even people who knew me personally and knew that I could not return to my native Iran, had a naive and sincere question: “So… when do you go back?” I never took it personally because I knew they did not ask me to be mean; they asked because they were really interested in the answer. During my three years in the U.S., no one has asked me this question. Literally, not one person! I have been welcomed here by many people; I don’t recall being welcomed in Sweden in this way. Maybe it’s just a lucky coincidence. Maybe.
If we take a look at some numbers, we might see one reason why immigrants are (or are not) wanted.
In 2014, the unemployment rate for native-born Swedes was about 5.1%; the foreign-born unemployment rate was 15.5%. It was about the same in Denmark: 5.4% for native-born Danes and almost 12% for immigrants. In Finland, the unemployment rates were 7.5% and 16.3% for native and non-native born people. That makes sense: Foreign-born workers may not know the language or culture, they have limited networks, and they may not have the education or skills required to succeed.
There's a different story in the U.S. In 2014, there were 25.7 million foreign-born people in the labor force, comprising 16.5% of all workers. The unemployment rate for foreign-born persons in the United States was 5.6%, while the jobless rate for native-born Americans was 6.3%. What!? The unemployment rate for foreigners is lower than for native-born citizens? How can this be?
To me, the difference is that no one in the United States sees me as an extra person taking their social welfare benefits. Instead, they see me as another taxpayer pulling my own weight. There is opportunity here that does not exist in other countries. Of course, social and cultural norms are different in homogeneous societies like Sweden and Denmark, but I still believe that the most influential factor explaining how immigrants in different societies are treated is economic. Because of this, I worry that a Bernie Sander-style social democracy might make life in the United States more difficult, and less welcoming, for foreign-born residents like me.
Originally posted on the Asylumist: www.Asylumist.com.
The H-1B visa is not the only foreign worker visa that Donald Trump has been using and now wants to abolish. The AP reported on March 14 that Trump has admitted, if not actually boasted about, using the J-1 visa to bring in foreign students (mainly from Ireland - no Latin American, Asian or African students need apply, evidently - and apparently no one from any Muslim countries either) to work as waiters at his Chicago hotel and also, in the past, to work at his casinos in Atlantic City.
According to the AP, Trump defended his use of the visa program, which is meant to enable foreign students and trainees to learn about American culture, not to fill job vacancies, as follows:
"We can't expect individual companies to drive up their own costs. To do so would put that company at a competitive disadvantage against other businesses that would not follow suit."
Unlike the H-1B visa, which has strict, if not highly onerous, requirements concerning payment of prevailing wages by the employer (which are actively enforced by the government but which we never hear about from immigration opponents who call H-1B "cheap foreign labor") there is no minimum salary requirement for interns or trainees in the J-1 program.
Donald therefore clearly knows whereof he speaks when he talks about using J-1 to cut costs, even though some of his J-1 interns or trainees in Chicago have been getting very nice tips in his hotel's super-expensive restaurant, according to the AP. Well, tips are part of American culture too, are they not? For the AP report, See:
Needless to say, if Trump's above explanation for using the J-1 visa program had been included in any of the students' J-1 applications, or mentioned at their visa interviews, it is not very likely that a single one of these applications to register with a US Department of State J-1 sponsoring organization, or to receive a J-1 visa from an American consular post, would have been approved.
Is it possible that Trump's cynical boast about using this visa in order to cut costs, save taxes, and gain an advantage over his competitors might also be a ripe subject for investigation by one or more appropriate government agencies, if any of them ever becomes interested in pursuing this issue?
Trump's double-sided approach in using H-1B, J-1 and also, according to the same AP report, even EB-5 visas, all of which he now says he wants to eliminate, has also aroused more than a little suspicion on the part of hard right wing organizations such as Numbers USA and Center for Immigration Studies that Trump might not be entirely trustworthy with regard to carrying out their goals of reducing legal immigration. See:
Presumably, any disagreements that might exist between Trump and these hard line anti-immigrant organizations over the question of how far to go in abolishing legal work visas will not lead to any violent clashes between them.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different parts of the world obtain work visas and green cards.
Roger's email address is email@example.com
Updated 03-15-2016 at 02:39 PM by ImmigrationLawBlogs
H-1B Visa seekers or foreign professionals interested in entering the United States on a work visa, may sometimes have difficulties identifying H-1B visa jobs or sponsors. With such a limited number of H1B visas available, it’s imperative to have you visa job and sponsor identified as early as possible in order to commence the application process. As an H-1B seeker, you’re goal should be to identify, select and prepare the documentation for your desired position as soon as possible.
In this post we’ll explore some highly effective ways to find H1B Visa jobs and sponsorship. Note, however, that the information presented in this article is not intended to serve as legal advice and it’s strongly recommended to seek legal consult before moving ahead.
H1B Visa Background
The H-1B process includes two significant factors—the sponsorship on behalf of the U.S. employer and physically petitioning with the United States Citizenship and Immigration Services (USCIS). In order to begin the actual process, you as the applicant must have a U.S. employer. Once that’s completed, and you’ve identified that you’re eligible then you must receive a labor certification application and submit the petition to USCIS. The current H1B quota is:
Masters’ Quota: 20,000
Citizens of Singapore and Chile: 6,800
USCIS will begin accepting petitions on April 1st 2016. Read this complete H-1B 2016-2017 Guide to explore more H-1B visa options.
Utilizing LinkedIn to find H-1B Sponsors
Many H1B seekers may not know it but professional networking sites like LinkedIn are great places to identify H1B jobs and sponsorship. Why is this platform so successful? U.S. employers are using these digital channels as the foremost way to hire foreign talent because the interface is user-friendly, it offers recommendations directly on the candidate’s profile and information tends to be accurate. Currently, there are roughly three million companies that utilize their LinkedIn pages to hire foreign talent. What this all implies is that your LinkedIn profile and resume should always be up-to-date and highlight your employable skills.
Connect With H1B Visa Holders
Another way to potentially identify H1B visa jobs is to connect with fellow H1B holders. Often an opportunity may open up within their organization which allows you to apply for a position. These types of refers could significantly increase your chances of acquiring an H1B job.
Keep in Touch With H1B Sponsors
Are you familiar with companies who frequently sponsor H1B jobs? Keep in touch with these organizations so you can be alerted as soon as a position becomes available.
An unofficial list of H1B sponsors from recent years can be found here and here [Disclaimer: We take no responsibility for inaccuracies of unofficial data sources.]
Adopting a proactive approach when seeking an H1B visa can make all the difference. With so many individuals vying for the Regular and Masters quota, you need to search job boards, online listings and make your profile prominent on social networks.
About Shilpa Malik
Shilpa Malik, a leading West Palm Beach Immigration Attorney, has extensive experience in H1B Visa, L-1 Visa, and Employment Green Card cases. She has earned a great reputation for offering top-notch representation in family and employment immigration cases over the years.