Law Offices of Elise Schwarz

An H-1B visa holder who is terminated is no longer in lawful status. There is no “grace period” for a terminated employee – the date of termination is the date the visa-holder becomes out of status.

 If a terminated employee gets a new job offer and files a new H-1B petition, s/he can arguably port and accept a new position upon the filing of the new petition. The USCIS has authority to use its discretion to excuse the “late” filing of the petition. However, in the event that it does not, the employee may have to leave the US and obtain a new visa when the H-1B petition is approved.

 If an H-1B visa-holder is dismissed before the end of the period of authorized stay, even if for cause, the employer is required to withdraw the H-1B petition to ensure that it is no longer required to pay the wage of the terminated employee. In addition, the employer is liable for the reasonable costs of return transportation of the beneficiary to the beneficiary’s last place of foreign residence. However, the employer is not liable for these costs where the employee has voluntarily terminated the employment. Failure to pay the employee’s costs of transportation will likely only affect the employer’s future H-1B petitions, since no other penalty is specified.

 This does not constitute legal advice. If you need legal advice you should contact an attorney.

H-1B Portability, Issues In the Transferring of the H-1B Visa When the Petitioning Employee Changes When the H-1B Holder Switches Jobs
The transfer of an H-1B visa from one employment to another is referred to as “portability.”

If an H-1B visa holder wishes to change companies s/he must file an amended H-1b petition.

An H-1B holder can accept new employment from the moment the new petition is physically received by the USCIS, so long as :

• He/she was lawfully admitted;
• The new petition is non-frivolous;
• The new petition was filed before the date of expiration of the period of stay authorized by the Attorney General; and subsequent to such lawful admission, the H-1B beneficiary has not been employed without authorization before the filing of such petition.

The portability of the employment authorization continues until the new petition is adjudicated.

When the Petitioner’s identity changes, but the H-1B visa holder’s job remains the same.
When the petitioning employer undergoes a corporate restructuring, such as a merger, acquisition, consolidation, etc, or when a new corporate entity succeeds to its interests and obligations, so long as the terms and conditions of employment remain the same, an amended H-1B petition is not necessary. (this applies even where the corporate EIN has changed).
Where there is a successor employer and the H-1B holder is returning to the US, s/he should present a letter stating that the corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same.

This does not constitute legal advice. If you need legal advice you should contact an attorney.

It’s H-1B Season: Start Preparing the LCA!

On April 1, 2008, USCIS will begin accepting filings for H-1B employment for fiscal year 2009, which begins on October 1, 2008. However, that start date is a de facto deadline: undoubtedly, USCIS will also cease to accept filings on that date too.

Since 2004, the H-1B program has been subject to an annual cap of 65,000 visas awarded to holders of bachelors degrees, or their equivalent, with a further 20,000 visas being made available to those with advanced degrees received from U.S. Universities.

For fiscal year 2008, the first day to file an H-1b application was April 2, 2007. On that day, the USCIS received more than 130,000 – at least double the number of visas it is allowed to allocate – and all on the first date of filing. These applications became subject to a lottery – an unprecedented measure – and half were thereby rejected, without regard to their merit. The advance degree visas were exhausted by the end of the month.

There is no doubt that the same manic filing will happen again this year, and no doubt either that a huge number of meticulously prepared applications will be tossed aside for another fiscal year.

That said, the U.S. still has plenty of need for those in specialty professions, and clearly, the demand of professionals wishing to come to the U.S. to work is still just as high.

It is therefore more important than ever to ensure that an H-1B application is as perfect as can be: even if the applicant wins this newly enforced lottery, he or she still needs to have his or her application approved, and only the very best applications will survive.

The Labor Condition Application (LCA)

The LCA is a pre-requisite to H-1B approval. The employer must file form ETA-9035 with the Department of Labor (DOL). Once the DOL certifies the LCA, the employer must file it with the H-1B petition.

The LCA should be submitted online in early March 2008 in order to be approved and to be available in time for the April 1, 2008 filing deadline.

The LCA form asks for information regarding the proposed employment, such as, rate of pay, period of employment, and work location.

In it, the employer makes the following attestations:

1. Prevailing and Actual Wage: it is paying, and will continue to pay, the H-1b employee wages that are at least:
   1. the actual wages paid to others with similar experience and qualifications for the specific job at the proposed place of employment; or
   2. the prevailing wage for the occupational classification in the area.

(whichever is greater. )

2. No Adverse Affect on Similarly Employed Workers: it will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area;
3. No Strike: there is no strike or labor dispute at the place of employment;
4. Posting: it has
   1. provided notice of this filing to the bargaining representative (if any);
   2. if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations at the place of employment for a period of ten days.

Employers who are H-1B dependent or willful violators must make two additional attestations on the LCA:

1. attestation of no displacement of protected US workers
2. attestation of prior recruitment.

An H-1B Dependent Employer is defined as an employer who has:

1. 25 or less full time equivalent employees and more than seven H-1B employees, or
2. 26-50 full time equivalent employees and more than 12 H-1B employees; or
3. at least 51 full time equivalent employees and at least 15% H-1B employees.

A Willful Violator Employee is one who has:

1. been found to commit a willful failure or misrepresentation in LCA compliance in the previous five years

When an Employer Fails to Live Up To Its Attestations?

Sanctions for Employer’s LCA violations include back pay, civil fines, and disqualification from USCIS approval of future immigrant petitions.

Public Disclosure/ Access File

The employer must create and maintain a public access file to document compliance in each H-1B case. This file must include:

1. Copy of the LCA (with employer’s original signature and cover pages);
2. Documentation of the wage to be paid to the H-1B employee;
3. Explanation of the system used to set the actual wage;
4. Copy of prevailing wage determination from SWA or description of survey of other source used;
5. Copy of notice to union, if applicable, or postings;
6. Summary of benefits plan to the H-1B employee showing that it is the same as that offered to similarly employed US workers.

Documents which must be added to the file on or before the H-1B employee’s first day of work:

1. copy of certified LCA with signature of H-1b employee as proof that s/he received a copy;

Documents to be added as and when appropriate:

1. documentation regarding any adjustment to the wage (raise, etc);
2. where the employee undergoes a structural change and does not choose to file amended petitions for each H-1B employee, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs;
3. where the employer uses the definition of a single employer to determine H-1B dependency, a list of entities included;
4. where an employer is H-1B dependent or a willful violator, evidence of recruitment of US workers
5. Where an employer is H-1B dependent or a willfull violator, but indicates that the LCA is for “exempt” non-immigrants, a list of the “exempt” employees.

This does not constitute legal advice. If you need legal advice you should contact an attorney.

Secret Diplomatic Relations Not Enough to Beat Convention Against Torture’s Protections

On January 10, 2008, a Federal judge in Pennsylvania  ruled that the Bush administration cannot rely on secret diplomatic assurances that a foreign national will not be tortured if removed to his or her home country. Holding that, without an independent review of these assurances, torture cannot be adequately insured against, the court stated that, to find in the favor of the Department of State “would be a farce.”

The Convention Against Torture (“CAT”), ratified by the US in 1994 prohibits the US from transferring a person to another state where there are substantial grounds for believing that that person would be in danger of being subjected to torture. However, Article 3 of the treaty states that, if the government receives assurances from that country that the individual will not be tortured, and if it determines that these assurances are reliable, the State Department can have the individual removed to that country and this decision is not subject to review  by an Immigration Judge, the Board of Immigration Appeals, or by an asylum officer.

Sameh Khouzan, an Egyptian national, fled to the United States ten years ago, and sought to stay here on the grounds that he had been imprisoned and tortured by the Egyptian police when he refused to convert from Coptic Christianity to Islam. He was granted relief from removal under the Convention Against Torture in 2004, after a finding that it was “more likely than not” that he would be tortured if returned to Egypt.

On a routine visit to immigration authorities in May 2007 he was abruptly detained by officers from Immigration Customs and Enforcement. He was informed that the State Department had secured a promise from Egypt that he would not be tortured, and that his deportation was therefore imminent. Neither Mr. Khouzan nor his attorneys were allowed to see a copy of these assurances or to probe them in any way.

The American Civil Liberties Union called Egypt’s assurances an “empty promise”, and labeled them “inherently unreliable and unenforceable”, noting that the Egyptian authorities are notorious for their use of torture.

The court’s decision is seen to be an embarrassing body blow to the Bush administration’s policy of seeking the return of those otherwise eligible to remain in the United States under the Convention Against Torture.

The founding partners of Schwarz Law Firrm have successfully represented real people, with real problems. The law firm focuses on:

• Personal injury: we represent injured victims of negligence and medical malpractice, seeking compensation from their wrongdoers. The firm has developed a focus on nursing home abuse litigation and nursing home neglect.
• Family, matrimonial and divorce law: we advocate in divorce and custody matters.
• Business litigation: we represent small and medium sized businesses in commercial disputes.
• Immigration law: we provide strong guidance and support to foreign nationals and prospective immigrants seeking to live and work in the USA.

The United States of America offers three principal grounds of relief to those who have been persecuted, or have a reasonable fear of persecution, in their home countries. These are, asylum, withholding of removal, and relief under the Convention Against Torture.

Asylum

Within one year of an applicant’s last entry into the United States of America, he or she must file an application for asylum, demonstrating an unwillingness or an inability to return to his or her own country because of past persecution or a “well-founded fear” of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Therefore, the burden is on the applicant to prove

1. A reasonable possibility s/he will be persecuted
   1. Prove the applicant has a well-founded fear by showing that a reasonable person in his or her circumstances would fear persecution in that situation.
   2. Note that “fear” may be well founded “even if there is only a slight, though discernible, chance of persecution”.
2. The persecution must arise on account of the applicant’s race, religion, nationality, membership in a particular social group or political opinion

A grant of asylum is discretionary: adverse factors that have resulted in a denial of asylum include criminal convictions, and failure to attend an asylum hearing in another country. However, positive factors can be introduced to persuade a favorable grant of discretion.

A grant of asylum brings comprehensive benefits. The asylee can remain in the United States legally and obtain employment authorization. These same benefits can be passed along to the asylee’s spouse and children. After one year, the asylee can apply to become a legal permanent resident, and five years thereafter may apply for citizenship.

Withholding of Removal

This relief prohibits the removal of an individual to a country where his or her life or freedom would be threatened because of the person’s race, religion, nationality, membership in a particular social group, or political opinion.

The individual must demonstrate that it is “probable” that he or she will face persecution on account of a protected ground if returned to his or her home country.

The standard is therefore higher than that for asylum: an applicant for withholding relief must show a clear probability or persecution or that it is more likely than not that s/he would be persecuted if returned to his home country. However, if the elements are satisfied, relief here is mandatory, rather than discretionary (as with asylum). Caveat: if there is a third country which is willing to accept this individual and in which s/he will not be persecuted, the United States can remove the individual to that country (e.g. the individual has dual citizenship)

Convention Against Torture Relief (also known as nonrefoulement)

Must demonstrate that it is “more likely than not” that the alien will be subjected to torture, meaning infliction of extreme physical or mental pain by a government official.

The six basic elements of torture are:

1. an intentional act;
2. infliction of severe pain or suffering;
3. under the custody or control of the offender;
4. for a broad array of wrongful purposes;
5. by or sanctioned by a public official;
6. not arising out of lawful sanctions.

This relief is only available to those individuals who are subject to removal procedures: unlike asylum, an individual cannot apply affirmatively for this relief and it cannot be granted at the administrative level: only an immigration judge, the Board of Immigration Appeals, or a Federal court can grant relief under the Convention Against Torture.

The standard is higher than for asylum or withholding: the individual must fear actual torture, rather than persecution.

If the individual can establish “substantial grounds for believing he or she would be in danger of being subjected to torture”, there are two distinct forms of relief available under CAT:

1. Withholding of Removal under CAT:

2. 1. This grants benefits similar to regular withholding of removal of relief, however, it also imposes the same mandatory bars to relief.

2. Deferral of removal under CAT:

There are no mandatory bars to relief here, however a grant of deferral can be more easily terminated than any other form of relief. In addition, a person granted deferral may be held in detention and is not entitled to employment authorization. However, the U.S. Immigration and Customs Enforcement (ICE) can release the individual, and the U.S. Citizenship and Immigration Services (USCIS) can issue employment authorization.

Relief under the Convention Against Torture does not allow the individual to ever apply for adjustment of status to permanent residency, and it does not confer status on his or her spouse or children. However, it is available where there are bars to withholding and asylum, e.g. where the individual has a criminal conviction or other bar. It is also available where the individual is unable to establish that the persecution is on account of one of the five protected grounds.

Bars to Relief

Bars to Asylum

1. Prior asylum denial;
2. Application beyond the one year filing deadline;
3. Firm resettlement;
4. Existence of a safe third country

Bars to Withholding of Removal Relief

1. Participation in Nazi persecution;
2. Participation in Genocide.

Mandatory Bars to both Asylum and Withholding of Removal Relief

1. Particularly serious crimes;
2. Aggravated felonies;
3. Certain non-aggravated felonies;
4. Serious non-political crimes;
5. Participation in persecution of others;
6. Danger to security of the United States;
7. Terrorism

NY Personal injury lawyers Schreffler Schwarz (www.schrefflerschwarz.com) react: “Seems Like a Nice Place” isn’t a good reason to choose a nursing home for your loved one. The recent New York Times article regarding the current state of affairs reports how private investor-owned homes are not just ruining the industry, they are literally putting people into their graves.

New York, NY (PRWEB) October 4, 2007 — Neil Schreffler, partner at Personal Injury Law Firm Schreffler Schwarz comments on the recent New York Times article by Charles Duhigg entitled “At Many Homes, More Profit and Less Nursing.”

At Many Homes, More Profit and Less Nursing.

For more than 25 years Neil has represented the victims of the nursing home negligence of individuals and of the medical malpractice of doctors and hospitals. A longtime member of the New York State Trial Lawyers Association, the New York Academy of Trial Lawyers, and the American Association for Justice, Neil has handled every type of negligence case from inception to appeal.

“The conditions at too many nursing homes are appalling,” states partner Neil Schreffler. ” He continues, “even more appalling is that corporate owners are allowed to reap huge profits by cutting staffing at the expense of the extremely vulnerable aged population they are supposed to be in the business of caring for. And they are allowed to do this while insulating themselves from accountability and responsibility through shell corporations without sufficient assets.”

The article, dated September 23, 2007, basically digs up the dirt on the industry as a whole. It describes the absolute disregard for elders in our country and how the industry has more than fallen by the waist side. As the corporations cut staffing for profit and there are fewer nurses and care givers in the actual home to do the necessary work, more people get injured.

Nursing home injury can include any one of the following:

• Bedsores
• Infections
• Dehydration and Malnutrition
• Abuse and Assault
• Restraint Injuries and Strangulation
• Falls and Fractures
• Failure to Medicate
• Prescription Errors
• Misdiagnosis/ Failure to Diagnose
• Medical Mistakes
• Failure to Monitor
• Financial Abuse
• Physical Restraint
• Wrongful death

Schreffler exclaims, “If our state and federal governments want to protect our elderly, they need to impose mandatory insurance coverage for nursing home operators. Owners of motor vehicles are required to have insurance; certainly our fathers, mothers and other loved ones are entitled to the same protection.”

This article is intended for general nursing home neglect and abuse information purposes only. It does not constitute legal advice, nor is it intended to serve in place of legal advice. You should consult with an attorney for individual advice regarding your own situation.

Neil Schreffler is a partner at the New York, NY Law Firm of Schreffler Schwarz. His practice areas include personal injury, nursing home abuse, neglect cases and matrimonial matters. Elise Schwarz is also a partner at the Manhattan based law firm. Her practice areas include immigration law and business litigation. Their website is http://www.SchrefflerSchwarz.com

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Elise Schwarz is a partner at the Law Firm of Schreffler Schwarz. Her practice areas include immigration and business law.

Elise, a proud citizen of both the USA and the United Kingdom (Scotland), and a member of the Bar of New York, and the Solicitor’s Roll of England and Wales, has, throughout her career, focused on serving the legal needs of the business community in New York, with an emphasis on assisting foreign corporations and foreign nationals. Prior to obtaining her law degree from George Washington University, she earned a Masters degree in International Relations from Golden Gate University and a Business degree from the University of Strathclyde. In her previous employment she represented businesses in a wide range of matters including formation and incorporation, business immigration, real estate transactions, dispute resolution and commercial litigation.

Elise has represented a wide range of foreign nationals in immigration matters, and, in addition to securing family and work-related visas for many, has also successfully represented many applicants for asylum. Elise draws on her personal experience with the immigration process in the United States, as well as her understanding of the needs of foreign nationals in New York City.

A recipient of the Safe Haven Award from Immigration Equality, and an awardee of The Housing Conservation Coordinators, Elise has also been awarded the honorary designation “Empire State Counsel” by the New York State Bar Association. An experienced litigator, she is a member of the New York State Trial Lawyers Association and the New York State Academy of Trial Lawyers. She is also a member of the American Immigration Lawyers Association.