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  1. H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

    by , 05-24-2016 at 04:27 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

    The H-1B regulations prohibit an employer from receiving, or the employee from paying, the filing fee for the visa. 20 C.F.R. ß655.731(c)(10)(ii). H-1B employers must also pay certain other ďbusiness expensesĒ that are connected to the H-1B program.

    In Dedios, the court found that the H-1B employeeís payment of legal fees, USCIS filing fees, and educational evaluation fees were all ďbusiness expensesĒ connected to the H-1B program. Therefore when the H-1B employer required the H-1B employee to make these payments, the H-1B employer violated law.

    In limited circumstances H-1B employees can pay for some costs that may be related to an H-1B employeeís employment. These circumstances are found at 20 CFR 655.731(c)(9)(iii).


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  2. DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY

    by , 05-23-2016 at 04:35 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    A recent Department of Labor decision, DeDios v. Medical Dynamic Systems, Inc., is a great primer on how employers and attorneys should treat H-1B employee salary obligations. The case highlights several key issues: when does an H-1B employerís salary obligation begin, when does it end, whether an employee may pay the H-1B filing and professional fees, and how to treat ďbenchingĒ.


    MU Law is using the DeDios case for a series on H-1B employer wage obligations. We have also updated our ďTop 10 things employers should keep in mind in order to stay compliant with the H‐1B visa processĒ. If you would like a copy of the Top 10, please let us know.

    The series will run over the next few blog posts.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  3. Letters of the Week: May 23 - May 27

    Please email your letters to editor@ilw.com or post them directly as a comment below.
  4. Do High Tech Workers Travel or Relocate?

    by , 05-23-2016 at 01:26 PM (Joel Stewart on PERM Labor Certification)
    Everyone agrees that high tech workers are usually on the go, but how often, how long, and how far are open-ended questions that depend on the job.

    The PERM Rule requires that travel requirements be included in newspaper ads, but DOL has never provided guidance about advertising for different kinds of travel. Much has been left to speculation and conjecture, especially the difference between travel and relocation.For decades, the usual language used to designate travel requirements for roaming IT workers has been the phrase ďtravel to various unanticipated locations,Ē but starting a few years ago, DOL began to argue that travel and relocation should be written separately in newspaper ads -- because ďrelocation implies a physical move to a new area or location to conduct the work or assignment and is a one-time, expensive event that is more permanent and excessive than travel for short and long term projects.Ē

    Employers reacted by complaining that this definition of relocation was vague and that a sudden distinction between travel and relocation breaks with the long-standing tradition to lump all kinds of assignments together under the aegis of travel.

    In a recent case involving a large IT company (Infosys, Ltd., 2016-PER-0074 (May 12, 2016), the Board of Alien Labor Certification Appeals was asked to determine whether the employer should have stated the word ďrelocationĒ in its ads. After much controversy, the Board issued its decision, refusing to uphold DOLís denial of PERM applications for positions involving relocation, when the word ďtravelĒ alone had been used in its ads, even though the travel might require residing in unspecified locations for extended periods of time. Having discussed and analyzed the conflicting points of view, BALCA agreed with the employer that, lacking any clear guidance from DOL to the contrary, travel and relocation must be considered to be essentially the same thing.

    Although employers may consider this to be a victory, the ruling is limited to this specific case because it was decided by only three judges and not by the entire court en banc. DOL is at liberty to continue to elaborate distinctions between travel and relocation and to challenge employers in future cases.

    This is good enough reason why employers should still consider providing as much detail as possible about travel requirements in their ads, including assignments to travel or relocate, geographic destinations if known, and compensation for long term relocation expenses.
  5. Hillary's Send Them Back to Send a Message Deterrence Strategy Has High Human Cost

    by , 05-23-2016 at 10:42 AM (Matthew Kolken on Deportation And Removal)

    Remember when Hillary Clinton said you have to send refugee children back to send a message? Turns out that deterrence strategy comes at a high human cost. Who woulda thunkit?

    Via The American Immigration Counsel:

    Yet, a report released today by the American Immigration Council reveals that such a strategy has an extremely high human cost.
    Between February and May, 2016, the American Immigration Council interviewed eight individuals who were deported (or whose partners were deported) from the United States after being detained in family detention facilities. These women (or in two of the cases, their partners) shared their experiences—both describing what has happened to them and their children since returning to their country and recounting the detention and deportation process from the United States.

    First-hand accounts from Central American women and their family members interviewed for this project reveal the dangerous and bleak circumstances of life these women and their children faced upon return to their home countries, as well as serious problems in the deportation process. The testimonies describe how women are living in hiding, fear for their own and their children’s lives, have minimal protection options, and suffer the consequences of state weakness and inability to ensure their safety in the Northern Triangle. The stories presented in the report are those of a fraction of the women and children who navigate a formidable emigration-detention-deportation process in their pursuit of safety. The process and systems through which they passed only contribute to the trauma, violence, and desolation that many Central American families already endured in their home country.

    Day after day, women and children seeking protection in the United States are sent back to the Northern Triangle of Central America (Honduras, Guatemala, and El Salvador), and, consequently, forced to face the same dire conditions that they fled—or worse. The Northern Triangle is one of the most dangerous regions in the world and in recent years the influence of complex organized criminal groups has grown in the region, driving up murder rates, gender-based violence, and other forms of serious harm. It is also a region devastated by poverty and food insecurity. This precarious socioeconomic context, in turn, contributes to a vicious circle of socio-economic exclusion and violence. As has been previously documented, poverty and inequality are likely to increase this region’s vulnerability to certain types of crime (e.g., gang activity).

    Click here to read the report.

    Updated 05-23-2016 at 10:47 AM by MKolken

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