Category Archives: Uncategorized

When I prepare with an individual before a legal proceeding in which he or she will testify– say, for example, when I meet with a worker before a deposition or unemployment hearing– I discuss with that person what it means to be a good witness.

Being a good witness does not simply mean telling the truth, although that is certainly a necessary and important part of it.

Being a good witness also means work.

Continue reading →

Perhaps you found this legal site’s webpage because you have a legal issue that you want free information about, and a Google search led you here.

As a consumer, I have often used a Google or other website searches to find free information.

Sometimes, that has been successful for me.  For example, my dryer once stopped running, so I did a web search, found a repair video for my particular dryer symptoms, and the video showed a fix (showed me how a dryer fuse was the likely culprit and how to install a new dryer fuse). So I followed the instructions to install a new fuse in my dryer and… it worked (!!).

For one cycle. Then my dryer went kaput again. So I was back at square one, and about $30 lighter for the new fuse that I’d purchased and ruined.

The fact my web-inspired dryer fix did not work does not itself mean the how-to- video was ineffective. In fact, my botched repair was almost certainly caused by my terrible repair skills more so than the video’s content. The video was in fact competent in diagnosing a problem like mine, and in advising a reasonable potential fix for my dryer’s symptoms. (When I later talked to a repairperson, he told me the video’s diagnosis and fix I saw were reasonable but just one of several potential matches for my dryer’s symptoms, and as it turned out, the wrong match).

I learned a lesson about internet searches and web-based fixes: sometimes, the nature of the problem– in my case, a $50-$500 problem of either repairing a dryer correctly and/or botching the fix and/or replacing the dryer– requires the actual presence and communication from someone who knows what they are doing.

The same is true of legal advice.

Doing a web search for legal information may be helpful to a certain extent.  A web search, for example, may tell you some laws and some important issues that you had not previously taken into account when considering your problem. It may make you a better-informed consumer.

However, if you take action based on that web information alone– without talking to an attorney about your legal situation– you may wind up with the legal equivalent of a botched dryer repair.  If the stakes involved are greater than a new dryer’s pricetag (which IS often the case with many legal situations, whether people realize it or not), then that’s all the more reason to get legal advice from an attorney as compared to a website.

Please note that does not mean I’m saying you must get MY legal advice, or that of any paid attorney, just that legal advice you’d get from a competent attorney (whether private, nonprofit etc.) beats website information however competent that information appears on its face.

[cross-posted from blog www.h1blegalrights.com]

In the wake of Maryland’s Prince George’s County Public Schools (PGCPS) settlement agreement involving H-1B wage violations, questions have been raised about the unfair effect this is having on the victims, the teachers who will be forced to leave their jobs and the United States once their H-1B time runs out.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that (per the theory of legislators) would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements (known as the prevailing wage) for each job based on job type/skills and location, and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefiting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is for the most part not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent attorney.

For more information about legal services we provide to H-1B employees, please see our page here.

[cross-posted from blog www.h1blegalrights.com]

In a settlement agreement signed this month in connection with H-1B wage violations, Maryland’s Prince George’s County Public Schools (PGCPS) system must reimburse more than 1000 teachers $4.2 million in H-1B application fees and pay a $100,000 fine. The Department of Labor and USCIS have also barred the school system from filing applications for work visas for two years.

In April, the Department of Labor investigated PGCPS’ practice of requiring foreign teachers to pay their H-1B applications fees and found it to be a willful violation of the H-1B regulations prompting the fine and debarment. The investigation covered applications filed between May 2005 and January 2011, which amounts to 1044 teachers who must be reimbursed a total of $4,224,146.

Initially PGCPS was assessed $1,740,000 in civil penalties due to the violations, but in the settlement agreement this month that amount was reduced to $100,000 on the condition it not file any H-1B or green card applications for the next two years. If it fails to adhere to the condition, PGCPS will be required to pay the higher penalty.

The debarment does not affect active H-1B visas, but when these H-1B periods expire, the school system will not be able to file for extensions, putting these teachers out of work.

DOL and USCIS must be encouraged to continue holding H-1B program violators accountable. If you know of any DOL or USCIS actions against H-1B violators, let us know.

On July 1, 2011, John Kroner, a Wisconsin resident represented by blog author/ attorney Michael Brown, filed a petition for review with the Wisconsin Supreme Court.

Mr. Kroner is appealing a Wisconsin Circuit Court’s decision, upheld by the Wisconsin Court of Appeals, to transfer Mr. Kroner’s case from the Wisconsin forum to a tribal court.

The Court of Appeals’ decision upholding the tribal court transfer was subject of an article in the Green Bay Press Gazette.

Mr. Kroner and his counsel state the following about the case and petition:

The Wisconsin Court of Appeals’ decision could limit court access for Wisconsin-based residents and businesses who have contractual relationships with tribal-affiliated corporations, and who want Wisconsin courts to handle contract disputes.

In this case, the tribal-affiliate outright conceded the Wisconsin Circuit Court had jurisdiction for the dispute, but had moved to transfer to tribal court anyway. The Court of Appeals’ decision, which allowed the transfer, strengthens a tribal-affiliate’s ability to pull the plug on Wisconsin litigation, and move a case to tribal court.

Wisconsin law has a discretionary transfer statute that allows a transfer from a Wisconsin court to a tribal forum, if specific factors of fairness are carefully considered, and transfer is found legally appropriate. But in the circumstances of this case, the Plaintiff-Petitioner argues a transfer to tribal court would be inefficient, inequitable and contrary to Wisconsin law.

If you’re an employee in an employment dispute or legal dispute, you will be tempted– very tempted– to describe events in terms of adjectives or conclusions, i.e. labels.

For example, a worker may want to tell a boss or a legal authority “I was treated unfairly” (the operative label being “unfair”), as compared to saying “On June 5th, Supervisor Jones told me to complete work on 1,000 widgets in 1 minute, and I could not physically perform that work in that time frame.”

It is much better to speak in the latter terms, i.e. to speak the language of facts, than it is to speak in label-ese.

Know this: to the ears of the person(s) you want to influence, the language of labels (e.g. “unfair,” “lied,” “disorganized,” “harassed,” etc. etc.) is like the sound of nails scratching across a chalkboard.  The horrible sound of labels will muffle out the factual content of what you say.

But if you speak in the language of facts– and describe things strictly in terms of what was said and done, i.e. the terms of who, what, when, where and how– then you give yourself the best chance of having your audience actually consider what you have to say.  The audience could thereafter apply whatever adjectives or conclusions come to their own mind.

Please note the audience is in control of their own decisions.  And they will resent you if you try to make decisions for them, which in effect is what you’d be doing if you speak in terms of labels. 

So, whatever your employment dispute and whoever your audience, if you’re going to speak up, it’s best you give your audience the raw facts, politely stated.  Then stand back as the audience considers the facts and makes decisions.

H-1B employees who have been benched without pay or underpaid often are reluctant to complain against their employers because they fear they will be fired and lose their immigration status.

This fear is understandable, but exaggerated. This article will explain why complaining can actually help preserve your status in the United States.

The Relationship Between Maintaining Status and Changing or Extending Status

As H-1B employees know, to extend their H-1B status or to change to another status such as a student visa while remaining in the United States, they must prove they have been maintaining their H-1B status. For H-1B employees, the proof they have maintained status is normally pay stubs. If an H-1B employee has been fired or benched, he has no pay stubs to submit to prove he has been maintaining his status. In addition, the employer may have notified USCIS it wants to revoke the H-1B approved petition.

If the H-1B employee cannot prove he has been maintaining his status, he must leave the United States and await USCIS approval of the new H-1B employer, student visa status or other visa status, then apply to re-enter the United States. Because leaving the United States can create complications for visa holders and comes with the risk of being denied re-entry, many H-1B employees prefer to change or extend their status while remaining in the United States.

Can You Save Your Status If Fired For Complaining?

H-1B employees who are afraid they will jeopardize their status if they complain, will be relieved to know that even if fired, they may not have to leave the United States to change employers or to another visa status. The laws provide protections from retaliation by employers when H-1B employees complain about their legal rights. In particular, Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.

USCIS provides this protection against retaliatory termination because it wants to encourage H-1B employees to report their employers’ violations and to cooperate in investigations against employer violators. (This  type of protection is know as “whistleblower” protection. In many cases, the law protects people who inform the government about others who violate the law.)

Depending on the situation, USCIS may approve a change or extension of status so that the H-1B employee may remain in the United States even if terminated for complaining about employer violations. Specifically, the USCIS policy memo to its staff reads:

USCIS adjudicators are instructed that, if credible documentary evidence is provided in support of an H-1B petition that the alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This process may allow the alien additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.

The USCIS policy memo instructs its staff to consider whether an H-1B employee was terminated in retaliation for complaining about his employer’s violations of H-1B regulations or for cooperating in an investigation against an H-1B employer accused of violating the law. In determining whether an H-1B employee would be protected under this provision and be permitted to change or extend his status while remaining in the United States, USCIS looks at several issues, including whether the H-1B made a complaint against the employer.

So, contrary to many H-1B employee’s concerns, complaining about an employer who violates the law may actually help you maintain your immigration status, rather than cause you to lose it. Please note that this protection is not guaranteed, however. USCIS’ decision to accept or reject this argument is in its sole discretion. Even if you think you qualify for this protection, USCIS could disagree and deny  your change or extension of status.

While this protection is not guaranteed, the attorney-authors have successfully obtained extensions and changes of status for our clients who have complained against employer violations and whose jobs were terminated. Whether you are a good candidate for referencing this regulation against retaliatory termination depends on the circumstances of your case. A key factor in being able to take advantage of this protection under the law is the complaint. The complaint against your employer must be done in the proper manner. If not, you increase the chance USCIS will deny you protection.

Before Acting, Talk to an Attorney

Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.

For more information about legal services we provide to H-1B employees, please see our page here.

 Other articles on changing or extending your status:

FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?

Will I Be Deported If I Complain Against My H-1B Employer?

Complaining About H-1B Employer Benching May Give You the Tool to Salvage Your Status

[re-posted from H-1B Legal Rights blog, authored by attorneys Vonda Vandaveer and Michael Brown]

The H-1B employees who were originally indicted as co-conspirators in connection with Vision Systems work visa fraud scheme have either plead guilty to reduced charges or had charges dismissed last year.  Apparently, these results were in exchange for the H-1B workers cooperating with the investigation and prosecution of their employer.

Most of those who plead guilty did so to a single misdemeanor charge of failing to file a change of address when they moved to a new work location, a USCIS requirement. They were fined $200, according to public records filed in the U.S. District Court, Southern District of Iowa. One employee plead guilty to three counts of failing to change his address and was fined $600, but had no condition he cooperate with prosecutors.  Another had his charges dismissed entirely, apparently because he agreed to serve as a witness at trial, according to court records.

The eight employees were arrested in 2009 along with their employers on felony charges related to the submission of H-1B and immigrant visa petitions for jobs in Iowa that did not exist. Vision Systems, headquartered in New Jersey, was accused of setting up a shell company called Venturisoft in Iowa, where prevailing wages for tech jobs are lower than in other parts of the country, such as California. Instead of working in Iowa, the H-1B employees allegedly were farmed out to companies throughout the United States without notifying USCIS.

Such practices violate Department of Labor and USCIS regulations and are common among unscrupulous H-1B employers commonly referred to as “body shops.” These body shops lure H-1B employees with the promise of well-paying tech jobs in the United States. When an employee arrives, however, he finds no job exists and he won’t be paid. Instead, he is told to go out and get himself placed with a third-party company and only then would he be paid. If he is not working, he is benched without pay, in violation of the law. The employee often is afraid to confront the employer about the unlawful activity, fearing for his immigration status.

When the government filed criminal charges last year against Vision Systems and its owners, the fact that the H-1B employees were also indicted sent a chill through much of the H-1B worker community. That prosecutors did not pursue the felony conspiracy charges and instead used them as leverage to gain the employees’ cooperation, should serve as some relief to other H-1B workers who are now or have been victims of such unlawful employer practices that jeopardizes immigration status.

(In the authors’ experience, most H-1B workers we’ve encountered do not join or conspire with their employers to participate in unlawful activities: if you are concerned about your own H-1B employer and actions it wants you to do, you should consider a confidential assessment of your situation by an attorney).

The Vision Systems indictments were one of the early cases testing whether criminal charges would stick against employers who violate H-1B regulations. Although federal prosecutors settled last year for guilty pleas from the two Vision Systems owners to reduced charges with no imprisonment, the case still resulted in a criminal conviction. With a successful test run under their belt, prosecutors have since pursued additional employers and obtained convictions with imprisonment. See our blog article on several recent convictions here. If you have been benched, underpaid, or promised a job that didn’t exist, you should consider contacting an attorney to examine potential relief (e.g. payment of wages owed, help with a lawful H-1B transfer) for that situation, and to ensure you are compliant with the law when you take action to improve your situation.

For more information about the legal services we provide to H-1B workers, please see our blog page here.

The H-1B Legal Rights Blog posted an article in February 2009 about the two owners of the now defunct IT services firm Vision Systems. The owners pleaded guilty to mail fraud in connection with submitting a fraudulent H-1B petition, and they were sentenced to three years of probation and ordered to pay $236,250 in restitution to USCIS.

Vision Systems and its owners Viswa Mohan Mandalapu Chandra Mohan Rao Mandalapu, who are brothers, originally were indicted on multiple counts related to H-1B and green card fraud and the government had sought $7.4 million in assets to be forfeited.

The men are accused of filing H-1B petitions for workers through a shell company called Venturisoft in Iowa, although no jobs existed there. Rather, the H-1B employees were sent to other states to work. Iowa has a lower prevailing wage than such states as California, Texas and Boston.

In October 2010, the men negotiated a plea agreement with federal prosecutors, avoiding the maximum penalties, which includes imprisonment.

A copy of the plea agreement is available here.

Check the H-1B Legal Rights blog regularly to track the latest on criminal prosecutions against employers for H-1B and work visa fraud.