The Immigration Blog

About an Ever-Confusing American System

Category: Visa

Temporary Pause? Court Temporarily Halts Certain Trump Immigration Orders

Last week, Baurkot & Baurkot reported of the White House Executive Orders that restricted the ability of individuals across the globe to enter the United States. On Tuesday, February 3, 2017, the United States District Court for the Western District of Washington entered an order temporarily halting the implementation of several provisions of the Executive Order. The order takes an approach that extends its reach across the United States. The Order is, however, only temporary.

The Court order provides that the United States Government:

  • must not stop the entry of ALL immigrants and ALL non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen (note that Customs & Border Protection still has broad, discretionary authority to deny entry at any point of entry);
  • must stop prioritizing refugee claims made by individuals on the basis of religion for those who are of the minority religion of their home country; and
  • must resume the United States Refugee Admissions Program.

This Order is temporary—a pause, at most. Further, it does little to quell the great and growing uncertainty with respect to the American Immigration system. The White House responded in assuring an aggressive, quick, and proactive response and has already vowed to seek review of the District Court Order before the Ninth Circuit Court of Appeals. Given this, what is to occur next may very well occur shortly.

With the continued uncertainty of the American Immigration system, rest assured that the Attorneys at Baurkot & Baurkot are prepared and stand at the forefront of the debate, discussion, representation, and litigation. The Baurkot Immigration Team is continually monitoring developments and making necessary adjustments to ensure all clients—present and future—are protected.

Stay Tuned. This is only a short, short pause.

To read the Federal District Court temporary restraining order, please click here. To discuss your options, contact Baurkot & Baurkot.

Establishing an Employer-Employee Relationship Is Essential for H-1B Visa Purposes

More companies are using the H-1B visa to hire and retain foreign workers. It allows workers to maintain their permanent residence outside the United States while continuing employment here. However, H-1B visas are capped at 65,000 per fiscal year, which makes them very competitive and difficult to secure. One area where an H-1B visa application might fail is in establishing an employer-employee relationship between the worker and the company offering the job. Here is how to prove this connection and increase the chances of visa approval.

Right to control

A presence on the payroll is not enough to show your foreign worker is an employee. The standard most important to U.S. Citizenship and Immigration Services (USCIS) is the “right to control.” This refers to the employer’s influence in the means and manner of the work performed by the employee.

While there is no single decisive element, some factors USCIS will consider include:

  • Employee benefits provided
  • The right to hire, fire and pay the worker
  • Tools and instruments provided to help the worker perform employment duties
  • The existence and frequency of performance evaluations
  • Whether the end product is linked to the worker or the company
  • A company’s control on the schedule and hours of the worker
  • Whether the worker reports to a manager or supervisor

These standards eliminate independent contractors and workers hired through third-party placement agencies from H-1B visa consideration. If a worker invoices for work separately, uses his or her own computer or other tools and sets work hours independent from a company’s preferences, that worker is unlikely to receive H-1B worker status because there is not enough “control” by the employer.

However, a worker who performs duties off-site is not automatically disqualified. If there is a system where the worker checks in and reports progress, there is still the possibility of an employer-employee relationship.

Needed documentation

For this determination to work in your favor, you need good documentation. Examples that work well in the application process include:

  • Job descriptions that describe duties, hours, and expectations in detail
  • Signed employment agreements that outline the details in the job description
  • Letter with an offer of employment, including salary and benefits
  • Any agreements that control off-site work or an authorized third-party workplace
  • Written performance review processes
  • Organizational charts showing the identity of the worker’s supervisor

If you are initially granted a H-1B visa for an employee, you will need to maintain these records if you plan on extending it. Also, keep payroll summaries and time sheets that show that you continue to influence pay and hours.

Securing H-1B visas can be challenging, and you will likely benefit from legal assistance. Contact the experienced and highly skilled Pennsylvania immigration attorneys at Baurkot & Baurkot, who have knowledge of non-immigrant visa processes, to set up a consultation regarding your application and any questions you may have.

ETA Form 9089 and Its Role in the Hiring of Foreign Workers

If you wish to live and work in the United States, one of the easiest ways to make that happen is through employer sponsorship. This starts with ETA Form 9089. Your employer will need to fill this out and submit it before you can secure your work visa. Here is a general overview of how these matters are handled. 

What is Form 9089?

ETA Form 9089 is the Application for Permanent Employment Certification, which is available through the U.S. Department of Labor. It is always completed and filed by the employer seeking to employ the foreign worker.

Once completed, the form contains basic information like the name of the worker, his or her address, the employer’s contact information and other details. It also includes details that could derail the visa approval. Sections F, G, H and I discuss wages and recruitment. There is also Section J, which shows how the foreign worker is qualified for the position. 

Thoroughness and caution required

If there is a place where an employer can make a big mistake, it is in the wage and recruitment section. Basically, employers cannot bring in a foreign worker if U.S. workers are left unconsidered or as a means to forgo market wages. The information in Sections F, G, H and I in Form 9089 help assess that situation.

That is why accuracy on the form is of the utmost importance. Employers need to keep records of recruitments and double check dates and facts on the form. If you are an employee waiting for authorization, make sure you keep any documentation in your control, as well, in case it comes in handy if your employer must appeal.

Also, employers are advised to research prevailing wages in their field very thoroughly, since misrepresenting it can result in a denial. If there is a dispute over the wage information, that research will be instrumental in settling it and allowing the visa process to move forward.

It can take several months before an employer hears back on the application, and if it is denied, there is an appeal process. This can take several more months before the visa is approved and the foreign worker can start in his or her new position.

If you are an employer looking to hire a foreign professional or an employee awaiting a resolution, a knowledgeable Pennsylvania corporate immigration attorney at Baurkot & Baurkot can assist you with matters related to Form 9089. Contact us today for a consultation.

What Types of Protection Can a U.S. Embassy or Consulate Provide?

Though safety is a primary concern for most individuals, it is not always possible during moments of political, social or religious unrest. Fortunately, the U.S. government provides protections to certain individuals who are considered in danger or threatened while living in a foreign country. To be qualified for these safeguards, you must meet a set of criteria related to the different types of protections offered by a U.S. embassy or consulate.

Temporary refuge

Individuals who are seeking protection for a specific, limited period of time may apply for temporary refuge. This type of U.S. protection is for those at risk of extreme physical danger. Such danger could include circumstances that could lead to death, critical injury or persecution. Temporary refuge is typically only afforded to those in the most life-threatening circumstances.

Those granted this type of protection may seek shelter inside a U.S. embassy or consulate during any point of the day. It is important to know that temporary refuge does not mean leaving a foreign country or coming to the United States.

Referrals to other agencies

Another type of protection that may be provided by a U.S. embassy or consulate is a referral to the U.S. Refugees Admissions Program. This program calls on other government agencies to review the individual’s files and to determine whether he or she may qualify as a refugee. Such decisions are typically referred to the U.S. Department of Homeland Security (DHS), though the embassy or consulate may be the first point of contact.

Once a referral is complete, you may be considered as an applicant for refugee status. If you qualify as a refugee and wish to claim refugee status, you will be required to relocate to the United States for your protection. In some cases, financial support may be available in helping you leave your current country.

Parole to the U.S.

For individuals who are not eligible for the previous protections and cannot come to the United States in other ways, parole may be an option. Parole is commonly utilized in situations where a person’s health, family or security are at extreme risk. It may also be used in cases where national security is an issue. When parole is granted, an individual is allowed to enter into the United States and live within the country’s borders for a limited period of time.

Distinguishing the parameters of these protections and determining eligibility can be complex. If you would like to seek protection at a U.S. embassy or consulate, the first step is to work with an experienced attorney. Speak with a trusted Pennsylvania immigration lawyer today by contacting Baurkot & Baurkot.

Alert: Changes to the Visa Waiver Program

WASHINGTON — The United States will begin screening passengers entering the United States under a visa waiver based on any past travel to a country known as a terrorist safe haven, the Obama administration announced Monday.

The new policy was one of several changes announced to the visa waiver program in the wake of the terrorist attacks in Paris Nov. 13.  While President Obama has resisted efforts by Congress to impose new restrictions on refugees from Syria, he has indicated a willingness to work with Congress to reform the visa waiver program that allows 20 million visitors into the United States each year.

The visa waiver program allows passengers from 38 countries — mostly European countries but also Australia, Brunei, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan — to visit the United States without advance approval for 90 days or less. But the White House also announced Monday that it had asked for a review of whether those 38 counties were cooperating with security reviews, raising the possibility that some countries could be suspended from the program.

The United States will also expand the use of fingerprints and photographs to identify passengers, and update its databases to include any past travel to a country considered a terrorist safe haven. Such countries include Somalia, Mali, Egypt, Iraq, Lebanon, Libya, Yemen, Afghanistan, Pakistan, Colombia and Venezuela, according to the State Department.

See below for some steps the administration is taking unilaterally, per a White House release. The White House has also indicated it is working with Congress on further changes:

  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. The Director of National Intelligence, in coordination with the Secretary of Homeland Security, will identify and regularly review these countries so that traveler risk assessments can be made on the most up-to-date information.
  • The Department of Homeland Security, in consultation with the Secretary of State and other appropriate agencies will accelerate its review process for VWP partner countries and within 60 days, will provide a full report to the President:
    • Identifying possible pilot programs designed to assess the collection and use of biometrics (fingerprints and/or photographs) in the VWP to effectively increase security; and
    • Identifying any countries that are deficient in key areas of cooperation, along with recommended options to engender compliance using a range of penalties and incentives available under his current authority including the more frequent submission of ESTAs and/or the suspension of ESTA issuances (new and/or renewals) for citizens of countries that fail to meet key metrics.
  • The Director of the Federal Bureau of Investigation will evaluate the terrorism information sharing that occurs between the United States and VWP countries, in consultation with the Director of National Intelligence and the Secretaries of State and Homeland Security, and provide a report to the President of the United States within 60 days identifying options to mitigate any deficiencies.
  • DHS will offer assistance to countries to better facilitate terrorism information sharing, specifically to include biometric pilots. For example, DHS and the Terrorist Screening Center will assist all interested VWP countries in screening refugees or asylum seekers, including through the application of extensive terrorism information already provided to VWP members and through piloting capability for conducting near real time biometric checks.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes biometrics.
  • The Secretary of Homeland Security will work with Congress to seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data.
  • The Departments of Homeland Security and State, the Federal Bureau of Investigation, and U.S. intelligence community elements will deploy Foreign Fighter Surge Teams to work with countries to counter terrorist travel.
  • The Departments of Homeland Security and State will encourage and provide assistance as needed to enhance border security and legislation related to FTFs of our partner countries, and encourage more robust information sharing, better use of shared information, and more effective and efficient coordination between our partners.