Tag Archives: h1b visa

E3 Visa Biggest Challenges

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The E3 Visa as you know is an extensive topic covered on this site and along with the Green Card, Green Card Lottery and H1B visa, are the most commonly asked questions on this site from our readers.
However lately we have noticed hat as the economy seems to be slowly waking up from its slumber in the US, many more Australians are asking questions as to how they can get to the US and find a job with an employer who will sponsor their E3 visa.

As we have covered that top extensively from the above links, we won’t rewrite the same information here but will try and an address some of the more common questions we are seeing lately and relate it as much as possible to the current economic climate for foreigners in the US.

So one of the more positive signs is that many foreigners who come to the US on an F1 Visa for Students for undergraduate, masters and PhD level degrees as their stepping stone to finding employment in the US have found their job prospects in recent months greatly improved. The greatest evidence of this comes from the H1B visa quota numbers which in our recent US Immigration December update which at the end of the US Immigration year on September 30, 2009 still had approximately 20,000 H1B visas unfilled. In recent years this quota has filled up in a matter of few days after the April 1 opening with even an H1B visa lottery, so this shows how much has changed in the 2009 climate of fear.

Well as of the latest update as we noted there is now only 2,500 left as the USCIS extended the time so the quota would be filled for FY2010. Most of these no doubt would have been taken up by students on F1 visas on their OPT who were already residing in the US. Job opening particularly in the skilled professional areas of Health, Education, Alternative Energy and Internet are high and even areas like Finance are picking up evermore.

However despite all this positive news, the challenge remains for Australians wanting to work in the US is that most of you are not in the US as a student or a J1 Visa Internship program, that yes while their are more opening and the market prospects are not as bleak that still doesn’t overcome the geographical and other hurdles of convincing a US employer to hire and sponsor you.

We have had recent questions from people asking about whether they could look for jobs that are completely different to their qualifications and/or experience. In general, this is possible, but you do not want to deviate to far as when you go for your US Consulate Interview, this may be a reason they could deny your visa if they deem their is little link between what you can offer and the job you will do.

Essentially the goal of hiring a foreigner as per the US Immigration language is to fill a role that they can’t find a suitable local to do. While this not necessarily what happens in practice, it is cited as a reason for denial when the candidate and job are seen as too far apart by the US Consulate.

People have also asked whether they could get 2 part time jobs on the E3 visa. This is certainly possible and an avenue that many people explore successfully. The additional requirement here is that each employer must file for ETA-9035(e) with the US Department of Labor to get an approved LCA. Then at your US Consulate interview you may have to answer questions as to how you will successfully navigate working for 2 companies simultaneously.

A couple of recent questions have also asked about the E3 Visa quota of 10,500 and whether it had been reached. Well there is no official tally anywhere and the only way to know for sure is to possibly try and ring the USCIS and see if they have a number. However in any particular year, we have not even got close that quota being fulled and not even sure if we have even got to the 60% full either. Additionally, extensions and renewals of the E3 Visa don’t count towards the quota and nor do the spouse or children dependent E3-D visas. Finally the quota resets each year on October 1. So this US Immigration year known as FY2011 has only just started.

Back to the challenge of finding employers from so far away. We created the E3 Visa Employer Database to try and help you for this as these are companies who are familiar with the E3 visa specifically and sponsoring foreigners as they have hired before so if contacting them or applying to open positions their it wont be as big a shock. However you may notice on many application forms that they ask whether you have work authorization as a question. The true answer to that question is NO as unless you have a working visa that allows you to work at a moments notice, then for that company to hire you they will have to do more than just hire you. Often it can pay to avoid those company as they usually reject outright if they are asking this question or if you are applying for a fairly standard (non highly specialized role) position, then it will be hard to stand out so much that they would hire a foreigner over an equally qualified US candidate given the simpler and quicker process.

Because of all this it can often pay to apply to smaller and medium size companies or contact people within companies directly and make use of recruiters which are a big part of US hiring culture at all levels. Use LinkedIn as a great resource to make contact with both recruiters and hiring people at companies you identify.

Finally as I have mentioned in other posts addressing this topic, be prepared to come to the US for interviews and pay some costs like travel to achieve your goal. It is rare you are going to be hired sight unseen and also that the first company that sees you will hire you, or that it will even be a one step interview process if you are going to be hired. I would say there would be a minimum of 3 contacts for a successful hire with one phone interview and 2 face to faces.

Again I wish you all the best and look forward to you posting your experiences here to help the community.

CJ

Transferring H1B visa without Pay Stubs

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An all too common question that immigration law attorneys dealing with H1B cases encounter is whether it is possible for an H1B worker to port his or her employment to a new company if this worker does not have recent pay stubs.

Consider the example of R.S. Singh. After Singh graduated with distinction from a reputable Indian university, he was offered a job by a US consulting firm, YKK Infosys, promising to pay him $60,000 a year as a systems analyst. YKK filed his H1B petition with the US Citizenship and Immigration Service, and the petition got approved. Shortly thereafter, Singh obtain his visa and gained admission to the US.

As soon as Singh arrived, willing and able to work, the employer put Singh on “bench” without pay. He was told that he would only be paid if he was placed on a project. The employer took some initiative to market him to potential client companies with no success. A few months later, through Singh’s own job-hunting efforts, he found a project and was finally put to work… for 4 months. During those 4 months of work, Singh worked 50-60 hours a week, produced excellent quality work, but was paid a paltry $2000 a month – well below the prevailing wage of a systems analyst. Of course, YKK was skimming their share of several thousands of dollars from the client. Once again, Singh would have to look for work while his employer paid him nothing.

As bad as the above scenario seems, in some cases, it has been observed that companies run an audacious scheme in which they charge a thousand dollars or more to the foreign worker just to file the H1B, and if approved, they charge several thousand more dollars to file for the visa to bring them in. Returning to our example, months later, Singh finally found a legitimate employer who offered to port his H1B employment. The new employer’s immigration attorney requested that Singh provide his pay stubs for the past three months to show proof that he was maintaining his H1B status.

Singh replied that he had none, and was worried that he was out of status as a result. Unfortunately, many H1B workers do not realize they have a lot of power with the law being on their side, and quietly endure months of hardship. They fear that if they complain too much, their employer will just notify USCIS that the position is terminated, and force the worker to return to their home country. In reality, as an H1B worker, Singh has the opportunity to file a complaint to the Department of Labor to obtain unpaid wages, and can use this complaint in lieu of pay stubs. This gives any illegally benched employee a lot of leverage against his unscrupulous employer. Consider the following liabilities that YKK would be potentially subjected to:

General Penalties: Failure to comply with all LCA requirements may result in fines from $1,000 to $35,000 per violation, and debarment from all future approvals of visas or Labor Certifications for at least one year.

Back Pay: In cases where the employer does not pay prevailing wage, it can be ordered to pay backpay to make up for the deficiency. The obligation to pay the employee may not be properly terminated unless the employer tells USCIS that the relationship has been terminated so that USCIS may cancel the I-129 petition, and the employer must provided the employee payment to fly back home. Case law precedents dictate that even in cases where the employer notified the employee, but not USCIS of the termination, the H1B remained valid until the end of the LCA period, and the former employee is able to collect back pay with interest. In one case, where the employer was found to have violated H1B/LCA regulations on numerous occasions, the DOL Wage and Hour division successfully pursued a backpay award of over $980,000.

Employers may claim the employee acted in bad faith as well, but still, the employer was held responsible. Even in a case where the employee misrepresented his credentials, given the employer a reason to terminated him, because the employer did not notify USCIS, the clock requiring the employer to cover backpay continued to run. Note that damages accrue from the time the employee makes him or herself available for work. Even if there is no work available, the employer may not use that as an excuse not to pay the employee.

Other Legal Damages: In addition to the DOL requiring the employer to pay fines and back pay for its violations, an aggrieved H1B worker can, for example, seek a claim in federal court based on RICO violations. Potentially, the employer could be required to pay triple the value of unpaid wages (“treble damages”) in addition to attorney fees.

In reality, the majority of consulting companies are legitimate business operations. The above liabilities should be considered a warning to companies who think they are being fair to employees who they are no longer able to support. Because for every situation like Singh’s, there is a situation where an employer pays their H1B employee well, but unfortunately has to terminate the employment prematurely because of a sudden downturn. Following the book, the employer informs the employee that it will be terminating the job and paying for the employee’s airfare to return home.

But then the employee might plead with the employer to “park” their H1B, and offer to pay the employer to run pay roll because that employee would rather not return home. In such a case, the employer is obviously running a risk in trusting that the employee will not later report them for illegal benching. The message is that H1B employees should recognize the fact that they have rights, and honest and dishonest H1B employers alike should realize that they have to be very careful not to violate these rights.


Guest Author

Shah Peerally